Filed: Jul. 22, 2019
Latest Update: Jul. 22, 2019
Summary: STIPULATION AND ORDER GRANTING HARLEY-DAVIDSON CREDIT CORP.'S MOTION FOR TEMPORARY RESTRAINING ORDER, SETTING A PRELIMINARY INJUNCTION HEARING, AND GRANTING EXPEDITED DISCOVERY FOR A PERMANENT INJUNCTION HEARING SUSAN J. DLOTT , District Judge . THIS MATTER was brought before the Court by Daniel C. Fleming of Wong Fleming, P.C., Attorney for Plaintiff, Harley-Davidson Credit Corp. ("HDCC"), upon notice to Defendants, NSJ Motorsports, Ltd., Robert T. Nolan, and Barbara Nolan Jones, by perso
Summary: STIPULATION AND ORDER GRANTING HARLEY-DAVIDSON CREDIT CORP.'S MOTION FOR TEMPORARY RESTRAINING ORDER, SETTING A PRELIMINARY INJUNCTION HEARING, AND GRANTING EXPEDITED DISCOVERY FOR A PERMANENT INJUNCTION HEARING SUSAN J. DLOTT , District Judge . THIS MATTER was brought before the Court by Daniel C. Fleming of Wong Fleming, P.C., Attorney for Plaintiff, Harley-Davidson Credit Corp. ("HDCC"), upon notice to Defendants, NSJ Motorsports, Ltd., Robert T. Nolan, and Barbara Nolan Jones, by person..
More
STIPULATION AND ORDER GRANTING HARLEY-DAVIDSON CREDIT CORP.'S MOTION FOR TEMPORARY RESTRAINING ORDER, SETTING A PRELIMINARY INJUNCTION HEARING, AND GRANTING EXPEDITED DISCOVERY FOR A PERMANENT INJUNCTION HEARING
SUSAN J. DLOTT, District Judge.
THIS MATTER was brought before the Court by Daniel C. Fleming of Wong Fleming, P.C., Attorney for Plaintiff, Harley-Davidson Credit Corp. ("HDCC"), upon notice to Defendants, NSJ Motorsports, Ltd., Robert T. Nolan, and Barbara Nolan Jones, by personal service, seeking relief by way of temporary restraints pursuant to Fed. R. Civ. P. 65. The Defendants having accepted and had an opportunity to review with counsel, Terrence M. Donnellon, HDCC's Motion For Temporary Restraining Order, Setting A Preliminary Injunction Hearing, And Granting Expedited Discovery For A Permanent Injunction Hearing (the "Motion") (Dkt. No. 4), the Complaint with Exhibits (Dkt. No. 1 to Dkt. No. 1-6), the Declaration of Mark Lamendola with Exhibits (Dkt. No. 4-2) and the Memorandum of Law (Dkt. No. 4-1), join Plaintiff, to enter into this Stipulation regarding Plaintiff's Motion ("Stipulation") and enter the Stipulation as a Court order.
Plaintiff and Defendants hereby stipulate as follows:
1. For purposes of this Stipulation and these proceedings, HDCC has been irreparably injured and has no adequate remedy at law.
2. Defendant NSJ Motorsports, and all of its respective officers, directors, stockholders, owners, registrants, operators, agents, servants, employees, representatives and attorneys, and all those in active concert or participation with the Defendants, each of them, and all others who receive notice of this Order, are hereby ENJOINED from leasing, selling, transferring, consigning, auctioning, dissipating, concealing, pledging, granting a security interest in, or otherwise disposing of, any of the collateral in which HDCC holds a security interest pursuant to the Customer Financing Agreement entered between the parties (the "Collateral") unless:
a. Defendants promptly, and no later than 24 hours after the transaction, report all sales of Collateral to Plaintiff; and
b. Defendants promptly, and not later than 24 hours after they receive sale proceeds, remit to Plaintiff the invoice proceeds from sales of the Collateral.
3. Defendants will not create any further additional sales out of trust of the Collateral.
4. Defendants will allow HDCC to conduct floorplan audits without prior notice.
5. Defendants must produce a signed Asset Purchase Agreement and Management Agreement by Thursday July 25, 2019.
6. This Stipulation shall have the effect of a Preliminary Injunction as if the Court has so ordered this Stipulation. Defendants shall waive and shall not have the right to dissolve or modify this Stipulation, except by court order or as set forth herein. Plaintiff shall not be required to give security for this Order.
7. Failure to comply with paragraphs 2-5 of this Stipulation will result in a conversion of the Stipulation from a Preliminary Injunction to a permanent injunction, with no right to lease, sell, transfer, consign, auction, dissipate, conceal, pledge, grant a security interest in, or otherwise dispose of the Collateral (the "Permanent Injunction") except by Court Order.
8. Upon Harley-Davidson Motor Company's rejection of the Asset Purchase Agreement and Management Agreement, and written notice to Defendants, this Stipulation will convert from a Preliminary Injunction to a Permanent Injunction the third business day after such notice, unless Defendants obtain a temporary restraining order from a court to stay enforcement.
9. If the Asset Purchase Agreement and Management Agreement is dissolved or terminated for any reason after Harley-Davidson Motor Company's approval but prior to completion of the sale of all or substantially all of the Defendants' assets, this Stipulation will be immediately reinstated as a Permanent Injunction.
10. A violation of any of the terms of this Stipulation shall automatically result in the conversion of the Stipulation from a Preliminary Injunction to a Permanent Injunction.
11. The Stipulation, and any Preliminary Injunction, will dissolve upon approval of a Management Agreement by Harley-Davidson Motor Company. The parties shall properly notify the Court if such approval shall be granted.
12. The entering into this Stipulation is not and shall not be deemed to be an admission by Defendants of any of the allegations in Plaintiff's complaint or a waiver of any defenses that Defendants may have to Plaintiff's complaint, except as set forth herein.
THE FOREGOING STIPULATION IS SO STIPULATED THIS 19th DAY OF JULY 2019 BY THE FOLLOWING PARTIES:
NSJ Motorsports LTD Harley-Davidson Credit Corp.
By: /s/ Robert T. Nolan By: /s/ Lawrence Cope
Name: Robert T. Nolan Name: Lawrence Cope
Title: Managing Member Title: Director, Commercial Credit
/s/ Robert T. Nolan /s/ Barbara Nolan Jones
Robert T. Nolan Barbara Nolan Jones
/s/ Terrence M. Donnellon /s/ Daniel C. Fleming
Terrence M. Donnellon, Esq. Daniel C. Fleming, Esq.
Donnellon Donnellon & Miller Wong Fleming, P.C.
9079 Montgomery Road 821 Alexander Road, Suite 200
Cincinnati, Ohio 45242 Princeton, New Jersey 08540
Phone: (513) 891-7087 Phone: (609) 951-9520
Fax: (513) 891-7125 Fax: (609) 951-0270
Attorney for Defendant NSJ Attorneys for Plaintiff Harley-Davidson
Motorsports LTD, Robert T. Nolan Credit Corp.
And Barbara Nolan Jones
FOR GOOD CAUSE HAVING BEEN FOUND, THE FOREGOING STIPULATION IS SO ORDERED THIS 22nd DAY OF JULY, 2019. THE COURT RESERVES CONTINUING JURISDICTION OVER THIS MATTER AND SETS A SCHEDULING CONFERENCE FOR_Monday October 28, 2019 at 3:00 p.m before Magistrate Judge Karen L. Litkovitz.
