Abuzeide v. Openroad Auto Group, Inc.

Filing 28

STIPULATION AND ORDER PARTIALLY DISSOLVING PRELIMINARY INJUNCTION by Judge Ricardo S Martinez. (PM) cc: financial deputy

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 ANTHONY ABUZEIDE, Special Administrator for the Estate of Jack Berry Dane, Plaintiff, 11 12 13 14 No. C17-583 RSM STIPULATION AND ORDER PARTIALLY DISSOLVING PRELIMINARY INJUNCTION v. OPENROAD AUTO GROUP, INC., a Washington corporation d/b/a BELLEVUE LAMBORGHINI ROLLS-ROYCE BENTLEY, 15 Defendant. 16 17 Plaintiff Anthony Abuzeide, Special Administrator for the Estate of Jack Berry 18 Dane (the “Estate”) (collectively, “Abuzeide”), and Defendant OpenRoad Auto Group, 19 Inc. (“OpenRoad”), having conferred through counsel, hereby stipulate and respectfully 20 request that the Court order as follows: 21 1. This action involves a dispute regarding the ownership and the right to 22 possession of a Porsche 918 Spyder, VIN WP0CA2A13FS800236 (the “Vehicle”). On 23 24 April 27, 2017, prior to OpenRoad’s appearance and in response to a motion brought by 25 Abuzeide, the Court entered an Order Granting Preliminary Injunction and Setting Second 26 Preliminary Injunction Hearing (“Preliminary Injunction”). Dkt. 19. The Court scheduled LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 1 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 3 a second preliminary injunction hearing for May 11, 2017. However, on May 5, 2017, in response to a stipulation and proposed order submitted on behalf of both parties, the Court agreed to delay and reschedule the second preliminary injunction hearing “to provide time 4 5 6 [for the parties] to negotiate a resolution to the preliminary injunction issues before the Court.” Dkt. 24. The parties have since completed that negotiation. They now submit the 7 instant stipulation and proposed order to provide for partial dissolution of the Preliminary 8 Injunction, which in turn will allow for the possibility of liquidating and securing the 9 monetary value of the Vehicle. 10 2. Subject to the Court’s approval of the proposed order below, the parties 11 have agreed that OpenRoad may sell, transfer, and/or assign ownership, title, and 12 13 possession of the Vehicle. The parties agree to such a transaction with a third party (a 14 “Sale”), so long as it does not compromise the parties’ respective rights, will simplify this 15 dispute and mitigate certain risks in a manner that mutually benefits them both. 16 17 18 3. The parties jointly request that the Court partially dissolve the Preliminary Injunction, Dkt. 19, for the sole purpose of permitting OpenRoad to sell, transfer, and/or assign ownership of the Vehicle to a third party for an amount not less than $1.45 million 19 (“Sale Proceeds”). Any Sale of the Vehicle for an amount less than $1.45 million shall 20 21 require Abuzeide’s prior written consent. OpenRoad shall be authorized to market and 22 dispose of the Vehicle pursuant to the foregoing provisions until December 31, 2017 23 (“Expiration Date”), except that such time may be extended by Abuzeide’s written 24 authorization. If the Vehicle has not sold by the Expiration Date (or any extension 25 thereof), the Preliminary Injunction may be reinstated upon the request of either party. 26 LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 2 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 3 4. Within two business days of receiving the Sale Proceeds, OpenRoad agrees to deposit all Sale Proceeds into an escrow account or the registry of the Court, pending resolution of this action. Said funds may not be disbursed without prior order of this 4 5 6 7 Court. Submitted contemporaneously with this stipulation and proposed order is a Proposed Order Re the Deposit of Funds into Court Registry. 5. Subject to the following conditions, and within seven days of the issuance 8 of the Order below, Abuzeide agrees to assign to OpenRoad any and all rights or interests 9 Abuzeide has in the Vehicle, if any, for the limited purpose of facilitating a Sale of the 10 Vehicle: (a) the parties agree that neither said assignment nor the stipulation herein 11 operates to waive, release, alter, or otherwise compromise the claims asserted in 12 13 Abuzeide’s complaint; (b) the parties agree that neither OpenRoad’s acceptance of such 14 assignment, nor the stipulation herein, constitutes an admission by OpenRoad that 15 Abuzeide has any right to or interest in the Vehicle; and (c) the parties agree that if the 16 Vehicle has not been sold by the Expiration Date (or any extension thereof), the 17 assignment will automatically become null and void, and any rights or interests in the 18 Vehicle that have been assigned to OpenRoad will revert back to Abuzeide. 19 6. Subject to the foregoing provisions, Abuzeide agrees not to challenge or 20 21 interfere with a Sale of the Vehicle. Abuzeide further agrees to cooperate as warranted 22 with OpenRoad in facilitating such a Sale, which shall include but not be limited to 23 executing relevant documents upon request. Abuzeide warrants and represents, subject to 24 the provisions above, that (a) OpenRoad will have the ability under this Stipulation and 25 26 Order, to transfer unencumbered title to any buyer of the Vehicle (“Buyer”); and (b) upon the occurrence of a Sale, Buyer will become the rightful owner of the Vehicle. Abuzeide LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 3 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 3 and OpenRoad each agree to provide sworn statements upon the request of the other party and/or Buyer acknowledging Buyer’s uncontested ownership of the Vehicle. 7. Unless otherwise mutually agreed to in writing by Abuzeide and 4 5 6 OpenRoad, if the Vehicle is sold prior to the Court’s adjudication of Abuzeide’s claim for replevin, Abuzeide and OpenRoad agree to stipulate to an amendment of Abuzeide’s 7 complaint so as to allow Abuzeide to seek a determination of the rightful ownership of the 8 Sale Proceeds. 9 10 8. Subject to the provisions above, Abuzeide and OpenRoad otherwise reserve all rights, claims, and defenses, whether or not asserted as of the date of this 11 Stipulation and Order, with respect to this action. 12 13 14 15 16 17 18 9. The Decedent’s insurer for the Vehicle, Chubb Insurance, was provided with notice of this stipulation, via its appointed adjuster, and has not objected to the same. 10. OpenRoad shall maintain, present, and secure the Vehicle in a commercially reasonable manner considering the value and rarity of the Vehicle. 11. OpenRoad shall carry and maintain sufficient fully comprehensive insurance, including liability, to cover a complete loss of the Vehicle for the minimum 19 price referenced herein. Any payment or distribution of insurance proceeds from 20 21 OpenRoad’s insurance for any loss associated with the Vehicle occurring during the 22 pendency of this Court’s preliminary injunction, shall be subject to the terms of this 23 Stipulation and Order, and shall be deposited into escrow or the registry of the Court as if 24 such funds were Sale Proceeds. Abuzeide shall make best efforts to secure similar fully 25 26 comprehensive insurance, including liability, to cover a complete loss of the Vehicle for the minimum price referenced herein. LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 4 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 DATED this 22nd day of May, 2017. McNAUL EBEL NAWROT & HELGREN PLLC 3 4 5 6 7 8 9 10 11 12 By s/ Avi J. Lipman Robert M. Sulkin, WSBA No. 15425 Avi J. Lipman, WSBA No. 37661 Jehiel I. Baer, WSBA No. 46951 600 University Street, Suite 2700 Seattle, Washington 98101 Phone: (206) 467-1816 Fax: (206) 624-5128 Email: rsulkin@mcnaul.com alipman@mcnaul.com jbaer@mcnaul.com Attorneys for Defendant DATED this 22nd day of May, 2017. SMITH ALLING P.S. 13 18 By s/ Michael E. McAleenan Jr. Michael E. McAleenan Jr., WSBA No. 29426 Matthew C. Niemela, WSBA No. 49610 1501 Dock Street Tacoma, WA 98402 Phone: (253) 627-1091 Fax: (253) 627-0123 Email: mmc@smithalling.com mattn@smithalling.com 19 Attorneys for Plaintiff 14 15 16 17 20 21 22 23 24 25 26 LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 5 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 3 ORDER The Court, having reviewed the above stipulation and the records and files herein, hereby finds and ORDERS that: 4 5 6 1. The Preliminary Injunction issued April 27, 2017, Dkt. 19, is partially DISSOLVED to permit OpenRoad to sell, transfer, and/or assign ownership of the 7 Porsche 918 Spyder, VIN WP0CA2A13FS800236 (“Vehicle”), that is the subject of this 8 action to a third party for an amount not less than $1.45 million (“Sale Proceeds”). Any 9 Sale of the Vehicle for an amount less than $1.45 million shall require Abuzeide’s prior 10 written consent. OpenRoad is authorized to market and dispose of the Vehicle pursuant to 11 the foregoing provisions until December 31, 2017 (“Expiration Date”), except that such 12 13 time may be extended by Abuzeide’s written authorization. If the Vehicle has not been 14 sold by the Expiration Date (or any extension thereof), the Preliminary Injunction may be 15 reinstated upon the request of either party. 16 17 18 2. OpenRoad shall, within two business days of receiving the Sale Proceeds, deposit all Sale Proceeds into an escrow account or the registry of the Court, pending resolution of this action. Said funds may not be disbursed without prior order of this 19 Court. Contemporaneously with the issuance of this Order, the Court is issuing an Order 20 21 22 Re the Deposit of Funds into Court Registry. 3. Subject to the following conditions, and within seven days of this Order, 23 Abuzeide shall assign to OpenRoad any and all rights or interests Abuzeide has in the 24 Vehicle, if any, for the limited purpose of facilitating a Sale of the Vehicle: (a) neither 25 26 said assignment nor the stipulation herein operates to waive, release, alter, or otherwise compromise the claims asserted in Abuzeide’s complaint; (b) neither OpenRoad’s LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 6 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 3 acceptance of such assignment, nor the stipulation herein, constitutes an admission by OpenRoad that Abuzeide has any right to or interest in the Vehicle; and (c) if the Vehicle has not been sold by the Expiration Date (or any extension thereof), the assignment will 4 5 6 7 automatically become null and void, and any rights or interests in the Vehicle that have been assigned to OpenRoad will revert back to Abuzeide. 4. Subject to the foregoing provisions, Abuzeide shall not challenge or 8 interfere with a Sale of the Vehicle. Abuzeide shall cooperate as warranted with 9 OpenRoad in facilitating such a Sale, which shall include but not be limited to executing 10 relevant documents upon request. Subject to the provisions above, (a) OpenRoad will 11 have the ability under this Stipulation and Order, to transfer unencumbered title to any 12 13 buyer of the Vehicle (“Buyer”); and (b) upon the occurrence of a Sale, Buyer will become 14 the rightful owner of the Vehicle. Abuzeide and/or OpenRoad shall provide sworn 15 statements upon the request of the other party and/or Buyer, acknowledging Buyer’s 16 uncontested ownership of the Vehicle. 17 18 5. Unless otherwise mutually agreed to in writing by Abuzeide and OpenRoad, if the Vehicle is sold prior to the Court’s adjudication of Abuzeide’s claim for 19 replevin, Abuzeide and OpenRoad shall stipulate to an amendment of Abuzeide’s 20 21 22 23 24 25 complaint so as to allow Abuzeide to seek a determination of the rightful ownership of the Sale Proceeds. 6. Subject to the provisions above, nothing herein shall prejudice Abuzeude’s or OpenRoad’s rights, claims, and/or defenses, whether or not asserted as of the date of this Order, with respect to this action. 26 LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 7 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 3 7. OpenRoad shall maintain, present, and secure the Vehicle in a commercially reasonable manner considering the value and rarity of the Vehicle. 12. OpenRoad shall carry and maintain sufficient fully comprehensive 4 5 6 insurance, including liability, to cover a complete loss of the Vehicle for the minimum price referenced herein. Any payment or distribution of insurance proceeds from 7 OpenRoad’s insurance for any loss associated with the Vehicle occurring during the 8 pendency of this Court’s preliminary injunction, shall be subject to this Stipulation and 9 Order, and shall be deposited into escrow or the registry of the Court as if they were Sale 10 Proceeds. Abuzeide shall make best efforts to secure similar fully comprehensive 11 insurance, including liability, to cover a complete loss of the Vehicle for the minimum 12 13 14 price referenced herein. DATED this 24th day of May 2017. 15 A 16 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 Presented by: 20 21 McNAUL EBEL NAWROT & HELGREN PLLC 23 By s/ Avi J. Lipman Robert M. Sulkin, WSBA No. 15425 Avi J. Lipman, WSBA No. 37661 Jehiel I. Baer, WSBA No. 46951 24 Attorneys for Defendant 22 25 26 LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 8 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816 1 2 3 4 5 SMITH ALLING P.S. By s/ Michael E. McAleenan Jr. Michael E. McAleenan Jr., WSBA No. 29426 Matthew C. Niemela, WSBA No. 49610 Attorneys for Plaintiff 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF STIPULATION AND ORDER DISSOLVING PRELIMINARY INJUNCTION (Cause No. 2:17-cv-00583-RSM) – Page 9 MCNAUL EBEL NAWROT & HELGREN PLLC 600 University Street, Suite 2700 Seattle, Washington 98101-3143 (206) 467-1816

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?