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Some news by the lawyers...
http://www.myfoxal.com/story/23783072/jns-power-control-systems-to-receive-title-to-350-green-llcs-chicago-project-assets
Same here...
http://www.marketwatch.com/story/jns-power-control-systems-to-receive-title-to-350-green-llcs-chicago-project-assets-2013-10-24
Tomorrow is the last day to deliver.
Don't know how they can appeal with no reason and with the sep. 24 decision...I think the judge throws the appeal out and this ends next week with damages.
Don't know how anyone can disagree with you...5 months without news.
I'll check again later...ya, I thought something would be filed.
Looks like we have to wait til Oct. 31 and Nov. 1
MINUTE entry before Honorable Elaine E. Bucklo: Motion hearing on plaintiff's
motion for rule to show cause [51] held on 10/18/2013 and continued to 10/31/2013 at
9:30 AM. Status hearing held on 10/18/2013 and continued to 10/31/2013 at 9:30 AM.
Defendant to file an amended counterclaim by 11/1/2013. Mailed notice (jdh)
Anyone with $3-5k a day can control the value of JNSH. Not many interested...been like this for over 3 years.
Deleted...
Any chance this CC will be available online?
The main reason this might not ever run...not liquid. Hard to convince people to buy when the next day volume may be zero.
Their lawyer states....we object your unilateral self-imposed deadlines...can't wait to see how the judge destroys them on that statement.
Ditka is right, CCGI lawyers don't have a clue...or maybe they do...milking them. Just increasing the damages-$$ to JNSH.
With the recent downward pressure on CCGI, shareholders are finding out what company they're invested in. Seen 150k trade today in CCGI on the day of this filing. Hopefully some of that coin comes this way.
Right...Judge may take their passports away.
JNS is saying they should be...."held in contempt of court for failing to perform as directed by this Court’s order..."
Somehow I knew 350 would be totally unprepared to hand things over...basically screwing JNS since Apr. 17 and still are. What a joke. Hope the judge sticks it to them hard...hope JNSH gets more in damages than the network is worth.
Their law firm Bernstein says they'll have to review said items and make sure they are even in possession... What?! Total morons.
What a bunch of clowns...Knew they would be dick's about it. I also don't believe their lawyer for one second. At what point does it become criminal?
Looks like 350green isn't playing ball...
I'll see if SB can post these...
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAR CHARGING GROUP, INC. a Nevada )
Corporation and 350 HOLDINGS, LLC, )
a Florida limited liability company, and )
350 GREEN, LLC, a Virginia limited liability )
Company, )
)
Plaintiffs/Counter-Defendants, ) Case No. 13 CV 03124
)
v. ) Judge Elaine E. Bucklo
)
JNS HOLDING CORPORATION, a Delaware )
Corporation, and JNS POWER & CONTROL )
SYSTEMS, INC., an Illinois Corporation, )
)
Defendants/Counter-Plaintiffs. )
)
)
JNS POWER & CONTROL SYSTEMS, INC., )
an Illinois Corporation, ) Case No. 13 CV 04020
)
Plaintiff, ) Reassigned for relatedness to
)
v. ) Judge Elaine E. Bucklo
)
350 GREEN, LLC, a Virginia limited )
liability company, )
)
Defendant. )
JNS POWER & CONTROL SYSTEMS, INC.’S MOTION FOR RULE TO SHOW
CAUSE
JNS Power & Control Systems, Inc. (“JNS”), by and through its undersigned attorneys,
requests this Court enter an order directing 350 Green, LLC (“350 Green”) to show cause, if any,
why it should not be held in contempt of court for failing to perform as directed by this Court’s
order entered on September 24, 2013 (13cv4020, Dkt. 50). In support of its Motion, JNS states
as follows:
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 1 of 10 PageID #:665
2
1. On June 28, 2013, this Court entered an order granting JNS’s Motion for
Expedited Proceedings and Discovery (Dkt. 23). The parties agreed that expedited proceedings
were appropriate in this case, and since that date both the parties and the Court have endeavored
to reach an expeditious resolution to the parties’ claims.
2. Following briefing on cross-motions for partial summary judgment, the Court
issued its ruling on September 24, 2013 (Dkt. 50), in which the Court denied 350 Green, Car
Charging Group, Inc., and 350 Holdings, LLC’s (collectively, the “CCGI Parties”) motion for
partial summary judgment and granted JNS’s motion for partial summary judgment against 350
Green.
3. The September 24, 2013 order stated, “JNS’s motion for summary judgment
ordering specific performance of the APA [Asset Purchase Agreement] is granted.” (Dkt. 50, p.
22).
4. In moving for partial summary judgment, JNS sought the following relief:
“Requiring 350 Green to immediately transfer the Chargers to JNS, deliver assignments of 350
Green’s rights in the grants, licenses, rental agreements or leases identified in the APA, and
providing full releases and indemnifications as identified in the APA.” (Dkt. 34, p. 15).
5. On September 25, 2013, counsel for JNS sent a letter outlining the specific
performance required of 350 Green, based on the Court’s September 24, 2013 order, which
included a demand for a Bill of Sale. A copy of JNS’s counsel’s September 25, 2013 letter is
attached hereto as Exhibit A.
6. In response to JNS’s September 25, 2013 letter, 350 Green requested additional
time to respond or deliver the required documents. A copy of 350 Green’s counsel’s September
30, 2013 letter in response is attached hereto as Exhibit B.
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 2 of 10 PageID #:666
3
7. On October 3, 2013, counsel for 350 Green sent a draft Bill of Sale to counsel for
JNS and requested a conference call between counsel on October 4, 2013.
8. The draft Bill of Sale sent by counsel for 350 Green on October 3, 2013, failed to
accurately include all of the chargers listed in the APA and relevant exhibits.
9. Following a morning conference call on October 4, 2013, during which counsel
for the parties discussed the issues of the incorrect draft Bill of Sale proposed by 350 Green,
counsel for JNS sent correspondence to counsel for 350 Green specifically enumerating the
errors in the draft Bill of Sale and providing an accurate list of the chargers to be included as
contemplated under the APA.
10. As of filing of this motion, 350 Green has yet to provide an accurate Bill of Sale.
11. Moreover, 350 Green has failed to comply with the Court’s September 24, 2013
order or to perform in accordance with the terms of the APA in any manner whatsoever.
12. No factors or circumstances have been presented to JNS that would justify 350
Green’s apparent inability or unwillingness to perform under the APA even to the limited end of
only providing JNS with a Bill of Sale for the chargers. Accordingly, 350 Green has provided no
justifiable basis for delaying its performance under the APA, especially in light of this Court’s
September 24, 2013 Order.
13. In order for JNS to perform under the Grant with the City of Chicago, as
contemplated under the APA, at a minimum a Bill of Sale for the Chargers is necessary.
14. 350 Green’s failure to transfer or deliver a Bill of Sale for the chargers
enumerated in the APA has wholly frustrated JNS’s efforts to resume the work under the Grant
abandoned by 350 Green.
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 3 of 10 PageID #:667
4
WHEREFORE, JNS Power & Control Systems, Inc. requests the entry of an order
directing 350 Green, LLC to show cause why it should not be held in contempt of court for
failing to comply with the order entered by the Court (Dkt. 50), on September 24, 2013.
Respectfully submitted,
JNS POWER & CONTROL SYSTEMS, INC.
By: s/ Evan J. Haim
One of Their Attorneys
Patrick E. Deady
Kelly McCloskey Cherf
Evan J. Haim
Hogan Marren, Ltd.
321 N. Clark Street, Suite 1301
Chicago, IL 60654
312-946-1800
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 4 of 10 PageID #:668
EXHIBIT A
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 5 of 10 PageID #:669
September 25, 2013
VIA CERTIFIED MAIL AND EMAIL
Michael I. Bernstein
The Bernstein Law Firm
1688 Meridian Avenue, Suite 418
Miami Beach, FL 33139
Michael@Bernstein-Lawfirm.com
Re: JNS Power & Control Systems, Inc. v. 350 Green, LLC (13cv4020)
Dear Mr. Bernstein:
As you are aware, Judge Elaine Bucklo entered an order yesterday (13cv4020, Dkt. no.
50), granting JNS Power & Control Systems, Inc.’s ( “JNS”) motion for partial summary
judgment against 350 Green, LLC (“350 Green”) and ordering 350 Green to specifically perform
as required under the April 17, 2013 Asset Purchase Agreement (the “APA”) between JNS and
350 Green. Accordingly, JNS hereby demands that 350 Green deliver to JNS, care of the
undersigned, the following, no later than close of business Monday, September 30, 2013:
a. A Bill of Sale and an Assignment of all existing warranties or guarantees including
any other necessary documentation necessary to transfer the ownership of all assets
including the one hundred sixty eight (168) completed and installed electric car
chargers and fifty one (51) Coulomb or equivalent Level II Chargers to JNS, as
provided for in the APA;
b. A full release and Indemnification from 350Green for all claims, agreements, debts,
expenses and related charges between 350Green and Actium Power;
c. Assignments of or a consent to the Assignments of all licenses for the locations listed
in the APA, as well as any licenses, easements, rentals, leases or permit agreements
currently in existence or previously negotiated with property owners for the sites
currently installed or to be installed;
d. Transfer of all unsigned license agreements;
e. Any necessary introductions to potential and existing hosts, charging station
manufacturers, and network operators; and
f. All other deliverables, which are to be tendered under the APA.
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 6 of 10 PageID #:670
Michael Bernstein
September 25, 2013
Page 2
All of the above-referenced assets are to be transferred or delivered to JNS free and clear
of any and all encumbrances or liens, including, but not limited to, any UCC liens. If any of the
above-referenced assets are currently subject to any such liens, JNS hereby demands that 350
Green, CCGI, and/or 350 Holdings immediately release, relinquish, or satisfy all liens as
appropriate.
In addition, based on Judge Bucklo’s September 24, 2013 Order, 350 Green’s assets in
the Chicago region were validly and legally sold by 350 Green to JNS on April 17, 2013, under
the APA. Accordingly, neither CCGI nor 350 Holdings have any ownership rights or interests in
these assets. Any statements to the contrary are false and JNS will take all necessary steps
should CCGI, 350 Green, or 350 Holdings continue to make any statements or assertions of
ownership to the contrary. JNS expects that 350 Green, CCGI, and 350 Holdings will
immediately revise or amend all of its public statements, SEC filings, and any websites regarding
ownership of these assets.
JNS requests that you confirm, in writing, by the close of business tomorrow, September
26, 2013, whether 350 Green will comply with the Court’s order by September 30, 2013.
Otherwise, JNS will proceed to take all necessary steps to enforce the Court’s September 24,
2013 ruling, including seeking all available damages and remedies.
Very truly yours,
Kelly McCloskey Cherf
cc: Brian Howe (via email)
Amber Achilles Ritter(via email)
Colleen M. Loftus (via email)
Patrick Deady (via email)
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 7 of 10 PageID #:671
EXHIBIT B
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 8 of 10 PageID #:672
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 9 of 10 PageID #:673
CERTIFICATE OF SERVICE
I, Evan J. Haim, hereby certify that on this 9th day of October, 2013, and in accordance
with the General Order on Electronic Case Filing (ECF), I served the foregoing JNS Power &
Control Systems, Inc.’s Motion for Rule to Show Cause, upon the below-named individuals by
electronic transmittal through the CM-ECF electronic filing system.
Steven L. Baron Michael I. Bernstein
Natalie A. Harris The Bernstein Law Firm
Mandell Menkes LLC 1688 Meridian Avenue, Suite 418
One North Franklin Street, Suite #3600 Miami Beach, Florida 33139
Chicago, Illinois 60606 Telephone: (305) 672-9544
Telephone: (312) 251-1000 Facsimile: (305) 672-4572
Facsimile: (312) 251-1010 e-mail: michael@bernstein-lawfirm.com
e-mail: sbaron@madellmenkes.com
e-mail: nharris@mandellmenkes.com
/s/ Evan J. Haim
Case: 1:13-cv-04020 Document #: 51 Filed: 10/09/13 Page 10 of 10 PageID #:674
Been here a long time with many others on the board. Even having the multi million Chicago contract and still no volume. Crazy.
Just no volume...need 10x todays for a decent move and to show interest.
Awesome find...what do you think is going on?
Waiting for a big group to come in...like to see $100k a day trading.
Awesome...thorough article.
Starting to get attention and volume. 5M in volume the first hour...after hours PR...seeing bigger volume days ahead. Did I mention huge volume?
Totally agree...no way these shares are available here.
It uploaded to pink sheets!
I bet these first 500k are short.
JNS also tweeted filings to ihub.
Just a total beat down of CCGI claims.
That's what I thought too! Now lets go for damages.
one more...
CCGI insists that JNS was not a “good faith
purchaser” of the Chicago Assets, and that “for the APA to be
valid, JNS Power must have been without actual knowledge of any
defect in title or any pending claim.” CCGI’s SJ Mem. at 12
[3124 DN 41-2]. Among the numerous flaws in this argument, the
most prominent is that CCGI relies exclusively on cases governed
by statutes and legal principles not applicable here, and offers
neither authority nor reasoned analysis for construing them to
invalidate the APA.
Part of the judge's words...
In short, the undisputed evidence is that 350 Green and the
350 Members considered the Exchange Agreement to have “expired”
as of the close of business on March 22, 2013, and CCGI offers no
reason—legal or factual—why 350 Green could not enter into a
valid agreement to sell the Chicago Assets thereafter.
Equally misguided—even farther afield, in fact—is CCGI’s
argument that JNS could not validly agree to purchase the Chicago
Assets because it knew about the Exchange Agreement...
The judge actually makes fun CCGI...too funny.
I hope stockbarber and june makes this available in doc soon!
It's looking good for JNSH boys and girls! I think the judge has the same thoughts as us!
With 15M shares of jnsh...what price are you looking for?
Seems to me it ccgi is arguing who's liable for court costs more than anything.
With twitter blowing up...I'd like to see him tweet what projects are being worked on...why the a/s doubled...why the 2nd quarter revs were the lowest in company history...just naming a few...instead of copying and pasting websites.
Hoping sb or june can re post this...
1
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CAR CHARGING GROUP, INC., a
Nevada corporation, 350 HOLDINGS,
LLC, a Florida limited liability company
and 350 GREEN, LLC, a Virginia
limited liability company,
v. Plaintiffs,
JNS HOLDING CORPORATION,
a Delaware corporation, and
JNS POWER & CONTROL
SYSTEMS, INC., an Illinois
Corporation,
Defendants.
(Consolidated With)
JNS POWER & CONTROL SYSTEMS,
INC., an Illinois Corporation,
Plaintiffs,
v.
350 Green, LLC, a Virginia limited
liability company
Defendant.
)
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)
)
)
)
)
)
)
)
)
)
)
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Case No.: 13-cv-03124
(Consolidated with)
Case No.: 13-cv-04020
Hon. Elaine Bucklo
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION TO DISMISS
DEFENDANTS’ COUNTERCLAIM
Plaintiffs Car Charging Group, Inc. (“CCGI”), 350 Holdings, LLC (“350 Holdings”) and
350 Green, LLC (“350 Green”) hereby submit this Memorandum in support of their Motion to
Dismiss Defendants JNS Holdings Corp. (“JNS Holdings”) and JNS Power & Control Systems,
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 1 of 10 PageID #:972
2
Inc.’s (“JNS Power”) (collectively, “Defendants”)’s Counterclaim to Plaintiffs’ Amended
Complaint and Jury Demand.
I. Introduction
As this Court is well aware, JNS Power previously filed a complaint against 350 Green in
case number 13-cv-04020 which sought Specific Performance of the Asset Purchase Agreement
and Indemnification from 350 Green for legal expenses incurred in the lawsuit filed by CCGI
and 350 Holdings against 350 Green, the 350 Members, and JNS Holdings in the United States
District Court for the Southern District of New York in the case entitled Car Charging Group,
Inc., et al. v. 350 Green, LLC and JNS Holdings Corporation, under Case No.: 13-cv-2389 (the
“New York Action”) and legal fees incurred in the defense and prosecution of the consolidated
actions before this Court. The basis of JNS Power’s lawsuit is an indemnity provision in the
Asset Purchase Agreement that 350 Green and JNS Power entered into on April 17, 2013 (the
“APA”) wherein JNS Power agreed to purchase the one hundred sixty-eight (168) installed
electric car chargers an fifty-one (51) chargers that were to be installed under a grant received by
the City of Chicago (the “Chicago Assets”).
Defendants have filed a counterclaim in the instant action seeking (i) specific
performance by Plaintiffs to turn over the Chicago Assets to JNS Power as contemplated under
the APA and (ii) indemnification by of Defendants’ legal fees from Plaintiffs, pursuant to the
terms of the APA. These are the exact same claims that JNS Power filed in its complaint against
350 Green, only now damages are erroneously sought against CCGI and 350 Holdings as well.
As set forth herein, Defendants’ counterclaim should be dismissed as a matter of law as: (i) the
contract upon which Defendants have based their claim was between JNS Power and 350 Green
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 2 of 10 PageID #:973
3
only; and (ii) Defendants have failed to provide any factual basis that would permit this Court to
pierce any corporate veil to find either CCGI or 350 Holdings liable under the APA.
II. Legal Standard
The purpose of a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case.
Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) In order to withstand a motion to
dismiss under 12(b)(6), a plaintiff’s complaint “must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). For a claim to have
facial plausibility, a plaintiff must plead “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. As
demonstrated herein, Defendants have failed to state any viable cause of action against either
CCGI or 350 Green, and, as a result, this Court should dismiss Defendants’ Counterclaim.
III. Argument
a. Count I of Defendants’ Counterclaim must be dismissed as CCGI and 350
Holdings are not parties to the APA
It is undisputed that pursuant to its unambiguous terms, the only parties to the APA were
350 Green and JNS Power. Notwithstanding same, in Count I of its Counterclaim, Defendants
have requested this Court grant them “specific performance of the APA, requiring CCGI, 350
Holdings and 350 Green to perform fully as required under the APA.” However, neither CCGI
nor 350 Holdings are parties to the APA. In fact, the APA specifically references CCGI, and
states, in pertinent part:
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 3 of 10 PageID #:974
4
1.2 Seller represents and warrants that they have terminated
all other prospective terms sheets or proposals with any other entity,
specifically CAR CHARGING GROUP, INC. (“CCGI”), for the purchase
of the assets that are defined herein and that are being sold herein; and
1.3 Buyer represents that it has not contributed in any way
to the termination of that relationship or interfered with the CCGI
relationship;
****
3.3 Seller hereby agrees to indemnify and hold Buyer harmless
from any and all liability, action, lawsuit, expenses or damages directly
associated with CCGI’s failure to close the Equity Exchange Agreement
dated March 8, 2013 with Seller…
It is well settled that where the allegations of a pleading are inconsistent with the terms of a
written contract attached as an exhibit, the terms of the latter, fairly construed, must prevail over
the averments. See, Citicorp Vendor Finance, Inv. v. Isa Pharmacy, Inc. 2004 U.S. Dist. LEXIS
3275 (N. D. Ill., 2004), Graue Mill Dev. Corp. v. Colonial Bank & Trust Co., 927 F.2d 988, 991
(7th Cir. 1991).1 Here, Defendants fail to plead any factual allegations that would make CCGI or
350 Holdings liable for any performance under the terms of the APA as sought by Defendants in
their Counterclaim. It is clear from the copy of the APA that is attached as Exhibit B to
Defendants’ Counterclaim that the only parties to the APA are 350 Green and JNS Power.
Consequently, as a matter of law, Count I of Defendants’ Counterclaim must be dismissed as a
matter of law.
1 See also, Lindora Medical Clinic, Inc. v. v. Care Charge, Inc., 1993 U.S. Dist. LEXIS 11946,
*2 (N.D. Ill. 1993): “The court notes that Lindora alleges that it entered into an agreement with
both Care Charge and Household on November 23, 1990. However, the contract that Lindora
refers to and attaches as an exhibit does not indicate that Household is a party to this agreement.
Nor does the contract indicate that Household has any relationship to any of the entities signing
the agreement. In fact, the word "Household" does not appear anywhere in the document. In such
situations, the terms of the contract must prevail over the allegations in the pleading.”
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 4 of 10 PageID #:975
5
In Count I of the Counterclaim, Defendants seek to hold 350 Holdings, 350 Green’s
parent company, and CCGI, liable for 350 Green’s responsibilities under the APA prior to any
finding by this Court that 350 Green is liable for the damages sought by Defendants, and prior to
even pleading that CCGI or 350 Holdings should liable through any veil piercing theory.
Defendants initially moved to dismiss the original complaint filed by CCGI and 350 Holdings
based in part on a theory that these entities did not have standing to declare the APA invalid
because they were not parties to same, now seek to disregard corporate formalities and request
this Court find that CCGI and 350 Holdings be liable under a contract to which they are neither
parties nor third party beneficiaries. Defendants’ request in this regard should be denied, as
Defendants have not plead any factual basis to hold CCGI and 350 Holdings liable for the terms
set forth in the APA.
Under Illinois law, a corporation is a legal entity separate and distinct from its
shareholders, officers and directors and, generally, from other corporations with which it may be
affiliated. Total Communication Services, Inc. v. Seiscor Technologies, Inc., 1990 U.S. Dist.
13337, *4-5 (N.D. Ill. 1990), citing Van Dorn Co. v. Future Chem. and Oil Corp., 753 F.2d 565,
569 (7th Cir. 1985). However, a corporate entity will be disregarded and the veil of limited
liability pierced when (i) there must be such unity of interest and ownership that the separate
personalities of the corporation and the individual [or other corporation] no longer exist; and (ii)
circumstances must be such that adherence to the fiction of separate corporate existence would
sanction a fraud or promote injustice. Id.
Here, the only allegations made by Defendants are:
35. Upon information and belief, 350 Holdings is a wholly-owned
subsidiary of Car Charging, Inc., which is a wholly-owned subsidiary of
CCGI.
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 5 of 10 PageID #:976
6
36. Upon information and belief, 350 Green currently has no employees
that could otherwise specifically perform under the APA.
***
38. To the extent 350 Green is controlled, operated or managed by CCGI
and/or 350 Holdings, those parties should be directed to specifically
perform under the APA, on behalf of 350 Green.
Defendants fail to allege any facts which suggest that the Plaintiffs operate as a single corporate
entity, which is required under Illinois law pursuant to Van Dorn and its progeny. In fact, the
terms “alter ego” or “veil piercing” are not even mentioned in the Counterclaim. Consequently,
Defendants have failed to plead any relevant factors that would permit this Court to find that
CCGI or 350 Holdings were liable for 350 Green’s obligations under a corporate veil piercing
theory. Therefore, as a matter of law, this Court should dismiss Count I of Defendants’
Counterclaim for specific performance of the APA against CCGI and 350 Holdings.
b. Count II of Defendants’ Counterclaim must be dismissed as a matter of law
In Count II of the Counterclaim, Defendants request this Court require that CCGI and
350 Holdings fully indemnify Defendants for any legal fees and costs associated with either the
instant action or the New York Action. Similar to Count I, Count II of the Counterclaim must
also be dismissed for failure to state a claim upon which relief could be granted.
As noted above, the only parties to the APA are 350 Green and JNS Power. Pursuant to
the plain, unambiguous terms of the APA as well as the Seventh Circuit Court of Appeals
holding in Graue Mill, supra, and its progeny, there is no basis for JNS Holdings to seek any
legal fees and costs that were expended in either this case or the New York Action. Paragraph
3.3 of the APA states, in pertinent part:
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 6 of 10 PageID #:977
7
Seller [350 Green] hereby agrees to indemnify and hold Buyer [JNS
Power] harmless from any and all liability, action, lawsuit, expenses or
damages directly associated with CCGI’s failure to close the Equity
Exchange Agreement, dated March 8, 2013, with Seller…
There is no reference in the APA that JNS Holdings was a party to same. The plain language of
the APA that is attached to the Counterclaim precludes JNS Holdings from seeking
indemnification for any legal fees and costs. Defendants allege in Paragraph 47 their
Counterclaim that “JNS Holding is an intended third party beneficiary of the indemnification
provisions of the APA.” However, Defendants self serving and factually unsupported allegation
in this regard does not give JNS Holdings status as an intended third party beneficiary under the
APA.
Further, under Illinois law, a third party may be an intentional or incidental beneficiary of
a contract entered into between others. See Cont'l Cas. Co. v. Am. Nat'l Ins. Co., 417 F.3d 727,
734 (7th Cir. 2005). An intended beneficiary is intended by the parties to the contract to receive
a benefit for the performance of the agreement and has rights and may sue under the contract; an
incidental beneficiary has no rights and may not sue to enforce them. Estate of Willis II v.
Kiferbaum Constr. Corp., 357 Ill. App. 3d 1002, 830 N.E.2d 636, 643, 294 Ill. Dec. 224 (Ill.
App. Ct. 2005). Any intent to benefit a third party must be discernible in the language and
circumstances of the contract. Rawoof v. Texor Petroleum Co., 521 F.3d 750, 759 (7th Cir 2008).
In Safety Solutions, Inc. v. the City of Chicago, 2011 U.S. Dist. LEXIS 92347 (N.D. Ill.
2011), plaintiffs brought suit alleging the City failed to fulfill its contractual obligations to the
plaintiffs. The Court held that one of the plaintiffs did not have standing to bring the action
because she was not a party to the contract at issue, nor was she an intended third party
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 7 of 10 PageID #:978
8
beneficiary under the contract. The Court summed up the well settled Illinois law regarding the
criteria for determining if a party could be considered a third party beneficiaries of a contract:
"An intended beneficiary is intended by the parties to the contract to
receive a benefit for the performance of the agreement and has rights and
may sue under the contract[.]" Cont'l Cas. Co. v. Am. Nat'l Ins. Co., 417
F.3d 727, 734 (7th Cir. 2005) (quoting Estate of Willis v. Kiferbaum
Constr. Corp., 357 Ill. App. 3d 1002, 294 Ill.Dec. 224, 830 N.E.2d 636
(Ill. 2005)). See also Golden v. Barenborg, 53 F.3d 866, 870 (7th Cir.
1995) ("a person is considered a third party beneficiary only when the
benefit to him is intended"). "For an intended third-party beneficiary to
enforce contract terms," however, "the liability of a promisor to the
beneficiary 'must affirmatively appear from the language of the
instrument' . . . and the contract must be made for the direct benefit of the
third party[.]" Cont'l Cas. Co., 417 F.3d at 734 (emphasis in original)
(internal quotations and citations omitted). Otherwise stated, "[t]he intent
to benefit the third party must affirmatively appear from the language of
the contract." Aurora Blacktop Inc., 2011 U.S. App. LEXIS 16632, 2011
WL 3529155, at *3. "If the intent to benefit others is not explicitly
provided for in the contract, 'its implication at least must be so strong as to
be practically an express declaration.'" Id. (internal quotation and citations
omitted). Having reviewed the Complaint and Safety Solutions's contract
with the City, which the Court may properly consider in its analysis of
Defendants' motions to dismiss, see Fed. R. Civ. P. 10(c), Plaintiffs cannot
satisfy either of those requirements. Id at *18.
Similar to Safety Solutions, Defendants have made no factual allegations supporting their self
serving blanket statement that JNS Holdings was an intended third party beneficiary under the
APA, nor is there a reference or description to any class that may have been a third party
beneficiary set forth in the terms of the APA.
Consequently, as a matter of law, JNS Holdings cannot seek indemnification from any of
the Plaintiffs under the terms of the APA, and Count II of Defendants’ Counterclaim should be
dismissed as a matter of law.
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 8 of 10 PageID #:979
9
WHEREFORE, Plaintiffs CCGI, 350 Holdings and 350 Green respectfully request this
Honorable Court grant their motion to dismiss and enter an order dismissing Defendants’
Counterclaim, and grant any such other relief this Court deems just.
Dated: September 16, 2013 Respectfully submitted,
Plaintiffs Car Charging Group, Inc.,
350 Holdings, LLC and 350 Green, LLC
By: s/Michael Bernstein___________
One of their attorneys
Michael I. Berstein, admitted pro hac vice
The Bernstein Law Firm
1688 Meridian Avenue, Suite 418
Miami Beach, Florida 33139
Telephone: (305) 672-9544
Facsimile: (305) 672-4572
e-mail: michael@bernstein-lawfirm.com
Steven L. Baron (ARDC No. 6200868)
Natalie A. Harris (ARDC No. 6272361)
Mandell Menkes LLC – Firm No. 38081
One North Franklin Street, Suite #3600
Chicago, Illinois 60606
Telephone: (312) 251-1000
Facsimile: (312) 251-1010
e-mail: sbaron@mandellmenkes.com
e-mail: nharris@mandellmenkes.com
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 9 of 10 PageID #:980
10
CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that Plaintiffs’ Memorandum in Support of
their Motion to Dismiss Defendants’ Counterclaim served upon counsel herein named by via
ECF on September 16, 2013:
Patrick E. Deady
Kelly McCloskey Cherf
Evan J. Haim
Hogan Marren, Ltd.
321 N. Clark Street, Suite 1301
Chicago, IL 60654
312-946-1800
s/ Michael I. Bernstein
Case: 1:13-cv-03124 Document #: 56 Filed: 09/16/13 Page 10 of 10 PageID #:981
http://twiends.com/jnsholdings
New twitter page I guess.
How about some news about work.
I am sick of the spread....it's getting old.
UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois - CM/ECF LIVE, Ver 5.1.1
Eastern Division
Car Charging Group, Inc , et al.
Plaintiff,
v. Case No.: 1:13-cv-03124
Honorable Elaine E. Bucklo
JNS Holding Corporation, et al.
Defendant.
NOTIFICATION OF DOCKET ENTRY
This docket entry was made by the Clerk on Wednesday, September 11,2013:
MINUTE entry before Honorable Elaine E. Bucklo: Ruling on plaintiffs' motion to
strike certain affirmative defenses before Honorable Elaine E. Bucklo is reset to 9/24/2013
at 9:30 AM. Mailed notice (jdh)
ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of
Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was
generated by CM/ECF, the automated docketing system used to maintain the civil and
criminal dockets of this District. If an order or other document is enclosed, please refer to
it for additional information.
For scheduled events, motion practices, recent opinions and other information, visit our
web site at www.ilnd.uscourts.gov.
Case: 1:13-cv-03124 Document #: 54 Filed: 09/11/13 Page 1 of 1 PageID #:968