Abuzeide v. Openroad Auto Group, Inc.

Filing 28

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

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANTHONY ABUZEIDE, Special
Administrator for the Estate of Jack Berry
Dane,
Plaintiff,

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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,

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Defendant.

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Plaintiff Anthony Abuzeide, Special Administrator for the Estate of Jack Berry

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Dane (the “Estate”) (collectively, “Abuzeide”), and Defendant OpenRoad Auto Group,

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Inc. (“OpenRoad”), having conferred through counsel, hereby stipulate and respectfully

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request that the Court order as follows:

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1.

This action involves a dispute regarding the ownership and the right to

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possession of a Porsche 918 Spyder, VIN WP0CA2A13FS800236 (the “Vehicle”). On
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April 27, 2017, prior to OpenRoad’s appearance and in response to a motion brought by

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Abuzeide, the Court entered an Order Granting Preliminary Injunction and Setting Second

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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
[phone]

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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

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[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

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instant stipulation and proposed order to provide for partial dissolution of the Preliminary

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Injunction, which in turn will allow for the possibility of liquidating and securing the

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monetary value of the Vehicle.

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2.

Subject to the Court’s approval of the proposed order below, the parties

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have agreed that OpenRoad may sell, transfer, and/or assign ownership, title, and
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possession of the Vehicle. The parties agree to such a transaction with a third party (a

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“Sale”), so long as it does not compromise the parties’ respective rights, will simplify this

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dispute and mitigate certain risks in a manner that mutually benefits them both.

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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

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(“Sale Proceeds”). Any Sale of the Vehicle for an amount less than $1.45 million shall
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require Abuzeide’s prior written consent. OpenRoad shall be authorized to market and

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dispose of the Vehicle pursuant to the foregoing provisions until December 31, 2017

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(“Expiration Date”), except that such time may be extended by Abuzeide’s written

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authorization. If the Vehicle has not sold by the Expiration Date (or any extension

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thereof), the Preliminary Injunction may be reinstated upon the request of either party.

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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
[phone]

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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

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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

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of the Order below, Abuzeide agrees to assign to OpenRoad any and all rights or interests

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Abuzeide has in the Vehicle, if any, for the limited purpose of facilitating a Sale of the

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Vehicle: (a) the parties agree that neither said assignment nor the stipulation herein

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operates to waive, release, alter, or otherwise compromise the claims asserted in
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Abuzeide’s complaint; (b) the parties agree that neither OpenRoad’s acceptance of such

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assignment, nor the stipulation herein, constitutes an admission by OpenRoad that

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Abuzeide has any right to or interest in the Vehicle; and (c) the parties agree that if the

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Vehicle has not been sold by the Expiration Date (or any extension thereof), the

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assignment will automatically become null and void, and any rights or interests in the

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Vehicle that have been assigned to OpenRoad will revert back to Abuzeide.

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6.

Subject to the foregoing provisions, Abuzeide agrees not to challenge or

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interfere with a Sale of the Vehicle. Abuzeide further agrees to cooperate as warranted

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with OpenRoad in facilitating such a Sale, which shall include but not be limited to

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executing relevant documents upon request. Abuzeide warrants and represents, subject to

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the provisions above, that (a) OpenRoad will have the ability under this Stipulation and

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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
[phone]

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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

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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

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complaint so as to allow Abuzeide to seek a determination of the rightful ownership of the

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Sale Proceeds.

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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

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Stipulation and Order, with respect to this action.
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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.
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OpenRoad shall carry and maintain sufficient fully comprehensive

insurance, including liability, to cover a complete loss of the Vehicle for the minimum

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price referenced herein. Any payment or distribution of insurance proceeds from
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OpenRoad’s insurance for any loss associated with the Vehicle occurring during the

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pendency of this Court’s preliminary injunction, shall be subject to the terms of this

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Stipulation and Order, and shall be deposited into escrow or the registry of the Court as if

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such funds were Sale Proceeds. Abuzeide shall make best efforts to secure similar fully

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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
[phone]

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DATED this 22nd day of May, 2017.
McNAUL EBEL NAWROT & HELGREN PLLC

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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: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant
DATED this 22nd day of May, 2017.
SMITH ALLING P.S.

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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: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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Attorneys for Plaintiff

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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
[phone]

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ORDER
The Court, having reviewed the above stipulation and the records and files herein,
hereby finds and ORDERS that:

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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

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Porsche 918 Spyder, VIN WP0CA2A13FS800236 (“Vehicle”), that is the subject of this

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action to a third party for an amount not less than $1.45 million (“Sale Proceeds”). Any

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Sale of the Vehicle for an amount less than $1.45 million shall require Abuzeide’s prior

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written consent. OpenRoad is authorized to market and dispose of the Vehicle pursuant to

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the foregoing provisions until December 31, 2017 (“Expiration Date”), except that such
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time may be extended by Abuzeide’s written authorization. If the Vehicle has not been

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sold by the Expiration Date (or any extension thereof), the Preliminary Injunction may be

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reinstated upon the request of either party.

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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

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Court. Contemporaneously with the issuance of this Order, the Court is issuing an Order
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Re the Deposit of Funds into Court Registry.
3.

Subject to the following conditions, and within seven days of this Order,

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Abuzeide shall assign to OpenRoad any and all rights or interests Abuzeide has in the

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Vehicle, if any, for the limited purpose of facilitating a Sale of the Vehicle: (a) neither

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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
[phone]

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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

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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

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interfere with a Sale of the Vehicle. Abuzeide shall cooperate as warranted with

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OpenRoad in facilitating such a Sale, which shall include but not be limited to executing

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relevant documents upon request. Subject to the provisions above, (a) OpenRoad will

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have the ability under this Stipulation and Order, to transfer unencumbered title to any
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buyer of the Vehicle (“Buyer”); and (b) upon the occurrence of a Sale, Buyer will become

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the rightful owner of the Vehicle. Abuzeide and/or OpenRoad shall provide sworn

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statements upon the request of the other party and/or Buyer, acknowledging Buyer’s

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uncontested ownership of the Vehicle.

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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

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replevin, Abuzeide and OpenRoad shall stipulate to an amendment of Abuzeide’s
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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.

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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
[phone]

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3

7.

OpenRoad shall maintain, present, and secure the Vehicle in a

commercially reasonable manner considering the value and rarity of the Vehicle.
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OpenRoad shall carry and maintain sufficient fully comprehensive

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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

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OpenRoad’s insurance for any loss associated with the Vehicle occurring during the

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pendency of this Court’s preliminary injunction, shall be subject to this Stipulation and

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Order, and shall be deposited into escrow or the registry of the Court as if they were Sale

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Proceeds. Abuzeide shall make best efforts to secure similar fully comprehensive

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insurance, including liability, to cover a complete loss of the Vehicle for the minimum
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price referenced herein.
DATED this 24th day of May 2017.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT
JUDGE

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Presented by:
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McNAUL EBEL NAWROT & HELGREN PLLC

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By s/ Avi J. Lipman
Robert M. Sulkin, WSBA No. 15425
Avi J. Lipman, WSBA No. 37661
Jehiel I. Baer, WSBA No. 46951

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Attorneys for Defendant

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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
[phone]

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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

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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
[phone]