November 4, 2013
AXALTA COATING SYSTEMS, LLC, Plaintiff,
EXCLUSIVE M CRAFT, INC., Defendant.
Michael J. Stortz, Sanjeet S. Ganjam, DRINKER BIDDLE & REATH LLP, San Francisco, CA, Attorneys for Plaintiff, AXALTA COATING SYSTEMS, LLC.
Gerald Murphy, McKENNA LONG & ALDRIDGE LLP, Attorney for Defendant, EXCLUSIVE M CRAFT, INC.
JOINT STIPULATION OF DISMISSAL WITHOUT PREJUDICE; ORDER
ELIZABETH D. LAPORTE, Magistrate Judge.
WHEREAS, disputes have arisen between and among Plaintiff, AXALTA COATING SYSTEMS, LLC, on the one hand and Defendants, EXCLUSIVE M CRAFT, INC. ("EMC") and MAZI GHORBANI, on the other hand (collectively, the "Parties"), concerning an agreement dated December 10, 2009 for the exclusive purchase and use of DuPont and Spies Hecker brand automotive paint products (the "Agreement");
WHEREAS, on July 1, 2013, Plaintiff, AXALTA COATING SYSTEMS, LLC filed the Complaint initiating this action that included a cause of action for breach of contract against Defendants, which Complaint was amended on August 13, 2013 to, among other things, dismiss MAZI GHORBANI as a Defendant ("First Amended Complaint");
WHEREAS, Plaintiff alleges Defendant, EMC, breached the Agreement by failing to purchase the volume of paint required thereunder and that EMC owes Plaintiff damages in the amount of $111, 000.00 plus interest, costs, expenses, and attorneys' fees, and EMC disputes that contention and has stated that it will assert several affirmative defenses if required to respond to the First Amended Complaint;
WHEREAS, the Parties desire to avoid the distraction and expense of continuing to pursue or defend this Action;
WHEREAS, the Parties have agreed to resolve and settle this action and, on September 24, 2013, have entered into a confidential settlement agreement, titled SETTLEMENT AGREEMENT AND MUTUAL RELEASE, which the Parties intend to file with this Court under seal; and
WHEREAS, the Parties agree this Court should expressly retain jurisdiction to enforce the Parties' confidential settlement.
NOW THEREFORE, the Parties respectfully request that all claims in the Complaint and First Amended Complaint between the Parties be DISMISSED WITHOUT PREJUDICE and that this Court expressly retain jurisdiction to enforce the Parties' confidential settlement with appropriate language in its dismissal order.
IT IS SO STIPULATED AND AGREED.
[PROPOSED] ORDER OF DISMISSAL WITHOUT PREJUDICE
Pursuant to foregoing stipulation by the Parties and having reviewed all of the papers and admissible evidence filed in support of the Parties' JOINT ADMINISTRATIVE MOTION TO SEAL SETTLEMENT AGREEMENT AND FOR THE COURT TO RETAIN JURISDICTION TO ENFORCE SAME, filed contemporaneously with the foregoing stipulation, and for good cause appearing, therefore, IT IS HEREBY ORDERED THAT:
1. This action is DISMISSED WITHOUT PREJUDICE;
2. The Clerk of the Court shall file under seal the Parties' SETTLEMENT AGREEMENT AND MUTUAL RELEASE, entered into on September 24, 2013 and lodged with the court as Exhibit A to the Declaration of Sanjeet S. Ganjam (under seal pursuant to Civil Local Rule 79-5(c)) in support of the Parties' Joint Administrative Motion;
3. The Court will retain jurisdiction with respect to all matters relating to the enforcement of the terms of this Order and the Parties' Settlement Agreement; and
4. This action is ADMINISTRATIVELY CLOSED for statistical purposes.