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AMN TELEVISION MARKETING v. PARAMOUNT TRADING

United States District Court, S.D. California


November 7, 2005.

AMN TELEVISION MARKETING, a California business trust, Plaintiff,
v.
PARAMOUNT TRADING, INC., a Costa Rican corporation,; NORTH COUNTY PHARMACEUTICALS, LLC, a Minnesota limited liability company; JOSEPH WHITNEY, and individual; and JEFFREY PINK, an individual, Defendants.

The opinion of the court was delivered by: DANA SABRAW, District Judge

STIPULATION TO DISMISS ACTION WITH PREJUDICE

Plaintiff AMN TELEVISION MARKETING ("Plaintiff") and Defendants, PARAMOUNT TRADING, INC., NORTH COUNTRY PHARMACEUTICALS, LLC, JOSEPH WHITNEY and JEFFREY PINK, ("Defendants") hereby stipulate as follows:

  1. On September 29, 2005, the parties participated in a mandatory settlement conference, and reached a settlement of this matter. A copy of the written settlement agreement is attached hereto as Exhibit "1". The settlement agreement is being executed by defendants, and has been executed by Plaintiff. 2. The parties therefore stipulate that this action may be dismissed with prejudice, with the Court retaining jurisdiction to enforce the settlement agreement, if necessary.

  IT IS SO STIPULATED.

  IT IS SO ORDERED. SETTLEMENT AGREEMENT AND MUTUAL RELEASE

  This Settlement Agreement and Mutual Release ("Agreement") is entered into and made effective as of September 29, 2005, between AMN Television Marketing, a California business trust ("AMN"), on the one hand; and Paramount Trading, Inc. ("Paramount"), North Country Pharmaceuticals, LLC (sued as North County Pharmaceuticals, LLC ("North Country"), Joseph Whitney ("Whitney") and Jeffrey Pink ("Pink"), collectively referred to herein as "Paramount Parties", on the other hand. The parties entering into the Agreement sometimes are referred to individually as "Party" or together as the "Parties."

  RECITALS

  A. AMN was retained by Paramount to provide services relating to television marketing. AMN provided those services, but was not paid for all of the services provided. AMN filed a lawsuit in United States District Court for the Southern District of California, entitled AMN v. Paramount Trading, Inc., et al., USDC Case No. 04 CV 1619 DMS (the "Action").

  B. It is the intention of the Parties to resolve fully, completely and finally, all disputes, litigation, matters, claims and causes of action among and between them, including, without limitation, those arising from or relating to the services provided by AMN to Paramount and any and all claims which were raised, or which could have been raised in the Action, so that a final, complete settlement is reached between the Parties on the terms and conditions, and in exchange for the consideration described below.

  AGREEMENT

  NOW THEREFORE, the parties hereto acknowledge the foregoing recitals, and each of them, as true and in consideration of the mutual promises, covenants and terms contained herein and for other valuable consideration, the Parties agree as follows:

  1. Settlement Payment to AMN. The Paramount Parties shall pay to AMN the sum of $15,000 (Fifteen Thousand Hundred dollars, the "Settlement Amount"). Payment shall be made within two weeks of the execution by all parties of this Agreement. The Paramount Parties also agree to waive any claim for monetary sanctions arising out of the Action.

  2. Dismissal of the Action. Upon confirmation of receipt of good funds in the Settlement Amount, and receipt of a copy of this Agreement executed by all Parties, AMN shall cause its attorneys to dismiss the Action with prejudice, and to provide counsel for the Paramount Parties with a conformed copy of the entered dismissal forthwith. 3. Full Mutual Release Provisions.

  3.1 Release by AMN. In consideration of the releases given in paragraph 3.2 and the other consideration provided under this Agreement, and excluding the rights, duties, and obligations created by or arising under this Agreement, AMN, for itself and for all of its shareholders, owners, officers, directors, employees, predecessors and assigns, does hereby forever release and discharge the Paramount Parties, and each of them, together with each and all of their officers, directors, shareholders, members, partners, agents, servants, employees, attorneys, insurers, predecessors, successors, assigns and assignors, heirs, legalities, devisees, executors, administrators, subsidiaries, affiliates, and affiliated entities of any kind, jointly and severally, from any and all claims, demands, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorney fees and damages of whatsoever character, nature and kind, in law or in equity, past or present, known and unknown, suspected or unsuspected, existing at any time prior to the date of this Agreement, or arising out of or related to any transactions, conditions, occurrences, acts, omissions or events occurring (or omitted) at any time prior to the date of this Agreement, including without limitation, any and all claims based upon, related to or arising from the work performed for Paramount by AMN, as well as any and all claims which were or could have been raised in the Action.

  3.2 Release by the Paramount Parties. In consideration of the releases given in paragraph 3.1 and the other consideration provided under this Agreement, and excluding the rights, duties, and obligations created by or arising under this Agreement, the Paramount Parties, for themselves and all of their shareholders, members, officers, directors, employees, successors and assigns, do hereby forever release and discharge AMN, together with each and all of its officers, directors, shareholders, members, partners, agents, servants, employees, attorneys, insurers, predecessors, successors, assigns and assignors, heirs, legalities, devisees, executors, administrators, subsidiaries, affiliates, and affiliated entities of any kind, jointly and severally, from any and all claims, demands, controversies, actions, causes of action, obligations, liabilities, costs, expenses, attorney fees and damages of whatsoever character, nature and kind, in law or in equity, past or present, known and unknown, suspected or unsuspected, existing at any time prior to the date of this Agreement, or arising out of or related to any transactions, occurrences, conditions, acts, omissions or events occurring (or omitted) at any time prior to the date of this Agreement, including without limitation, any and all claims based upon, related to or arising our of the services provided by AMN to Paramount, as well as any and all claims which were or could have been raised in the Action.

  3.3 Waiver of Civil Code Section 1542. The parties hereto expressly waive any and all rights and benefits conferred upon them by the provisions of Section 1542 of the California Civil Code, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR;
together with the provisions of all comparable, equivalent, or similar statutes and principles of common law of California, of the other states of the United States, and of the United States, to the extent that they are or may be applicable.

  The Parties acknowledge that this waiver of the provisions of Section 1542 of the California Civil Code and other comparable provisions of law was separately bargained for, and is a material portion of the consideration given in this Agreement. All of the Parties hereto represent that they have been fully advised by independent counsel as to the meaning and consequences of their specific waiver of Section 1542.

  4. General Provisions.

  4.1 Non-Assignment and Warranty. The Parties and each of them acting separately represent and warrant that they are the sole owners of all rights and interest in the claims and other matters which they release, and that they have not assigned or transferred or purported to assign or transfer any claims, demands, action, causes of action, damages or losses disposed of by this Agreement and release.

  4.2 Covenant Not to Sue. The Parties covenant and agree that they have not, and that they will not bring any other claim, action, suit or proceeding against the others regarding the matters settled, released and dismissed herein, and that this Agreement is a bar to any such claim, action, suit or proceeding except those that would pertain to the performance of the terms of this Agreement or the failure of a condition subsequent.

  4.3 Successors In Interest. The terms, conditions and provisions of this Agreement are binding upon and shall inure to the benefit of all assigns, successors in interest, personal representatives, estates and administrators of each of the Parties hereto.

  4.4 Future Acts. Each Party to this Agreement shall be generally obligated hereunder to do such other and further acts, including, without limitation, the execution of any documents or instruments, which are, or reasonably may be, necessary or convenient in carrying out the purposes and intent of this Agreement.

  4.5 Authority. The Parties warrant that each of the persons executing this Agreement on behalf of an entity has been duly authorized to do so by or on behalf of the entity on whose behalf it is being signed.

  4.6 California Law and Venue. This Agreement shall be construed in accordance with and be governed by the laws of the State of California. In any action to enforce, interpret, or otherwise adjudicate the rights of the Parties, exclusive jurisdiction and venue shall lie in the California and Federal Courts, including the Bankruptcy Court, that are located within the County of San Diego.

  4.7 Entire Agreement. Except as otherwise provided herein, this Agreement constitutes the entire agreement between the Parties with reference to the subject matter hereof, and supersedes all prior and contemporaneous oral or written agreements and discussions. In entering into this Agreement, no Party is relying upon any representation, agreement or covenant not set forth herein.

  4.8 Fair Construction. This Agreement has been negotiated and proposed with input from all Parties. Accordingly, this Agreement shall be fairly interpreted to carry out the purposes and intentions of the Parties, and shall be construed without regard to any presumption or other rule requiring construction against the Party causing this Agreement to be drafted.

  4.9 Number and Gender. All terms and words used in this Agreement, regardless of the number or gender in which they are used, shall be deemed to include any other number or gender as the context may require.

  4.10 Modification. This Agreement may be modified or rescinded only by a writing signed by each of the Parties. The failure of a party to exercise any right or remedy provided by this Agreement or by law shall not be a waiver of any obligation or right of the Parties, nor shall it constitute a modification of this Agreement.

  4.11 Attorney Fees. Should any party hereto reasonably retain counsel for the purpose of exercising any right hereunder, enforcing or preventing the breach of any rights hereunder, including, but not limited to, instituting any action or proceeding to interpret this Agreement, the prevailing party shall be entitled, in addition to such other relief as may be granted, to be reimbursed by the losing party for all costs and expenses incurred thereby, including, but not limited to, all attorney fees and litigation costs actually incurred for the services rendered to such prevailing party. Further, the prevailing party shall be entitled to additional awards of attorney fees and actual litigation costs for services reasonably rendered in aid of enforcing such judgment or award or in collecting any monies awarded therein.

  4.12 Severability. In the event that any covenant, condition or other provision herein contained is held to be invalid, void, voidable, or illegal by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair or invalidate any other covenant, condition or other provision herein contained. If such condition, covenant or other provision shall be deemed invalid due to its scope or breadth, such covenant, condition or other provision shall be deemed invalid due to its scope or breadth, breadth permitted by law. In the event that this Agreement is held to be voidable as to one or more, but less than all, of the Parties, then the Agreement shall be deemed valid as to the remaining parties to the fullest extent permitted by law. 4.13 Counterparts. This Agreement may be executed in one or more counterparts, and via facsimile. When each Party has signed and delivered at least one such facsimile counterpart to the other Parties, each facsimile counterpart shall be deemed an original, and when taken together with the other facsimile counterparts, shall constitute one agreement.

  The undersigned have executed this Agreement on the respective dates below written:

20051107

© 1992-2005 VersusLaw Inc.



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