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Abuzeide v. Openroad Auto Group, Inc.

United States District Court, W.D. Washington

May 24, 2017

ANTHONY ABUZEIDE, Special Administrator for the Estate of Jack Berry Dane, Plaintiff,
v.
OPENROAD AUTO GROUP, INC., a Washington corporation d/b/a BELLEVUE LAMBORGHINI ROLLS-ROYCE BENTLEY, Defendant.

          McNAUL EBEL NAWROT & HELGREN PLLC Robert M. Sulkin, Avi J. Lipman, Jehiel I. Baer Attorneys for Defendant

          SMITH ALLING P.S. Michael E. McAleenan Jr., Matthew C. Niemela Attorneys for Plaintiff

          STIPULATION AND ORDER PARTIALLY DISSOLVING PRELIMINARY INJUNCTION

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Anthony Abuzeide, Special Administrator for the Estate of Jack Berry Dane (the “Estate”) (collectively, “Abuzeide”), and Defendant OpenRoad Auto Group, Inc. (“OpenRoad”), having conferred through counsel, hereby stipulate and respectfully request that the Court order as follows:

1. This action involves a dispute regarding the ownership and the right to possession of a Porsche 918 Spyder, VIN WP0CA2A13FS800236 (the “Vehicle”). On April 27, 2017, prior to OpenRoad's appearance and in response to a motion brought by Abuzeide, the Court entered an Order Granting Preliminary Injunction and Setting Second Preliminary Injunction Hearing (“Preliminary Injunction”). Dkt. 19. The Court scheduled 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 [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 instant stipulation and proposed order to provide for partial dissolution of the Preliminary Injunction, which in turn will allow for the possibility of liquidating and securing the monetary value of the Vehicle.
2. Subject to the Court's approval of the proposed order below, the parties have agreed that OpenRoad may sell, transfer, and/or assign ownership, title, and possession of the Vehicle. The parties agree to such a transaction with a third party (a “Sale”), so long as it does not compromise the parties' respective rights, will simplify this dispute and mitigate certain risks in a manner that mutually benefits them both.
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 (“Sale Proceeds”). Any Sale of the Vehicle for an amount less than $1.45 million shall require Abuzeide's prior written consent. OpenRoad shall be authorized to market and dispose of the Vehicle pursuant to the foregoing provisions until December 31, 2017 (“Expiration Date”), except that such time may be extended by Abuzeide's written authorization. If the Vehicle has not sold by the Expiration Date (or any extension thereof), the Preliminary Injunction may be reinstated upon the request of either party.
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 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 of the Order below, Abuzeide agrees to assign to OpenRoad any and all rights or interests Abuzeide has in the Vehicle, if any, for the limited purpose of facilitating a Sale of the Vehicle: (a) the parties agree that neither said assignment nor the stipulation herein operates to waive, release, alter, or otherwise compromise the claims asserted in Abuzeide's complaint; (b) the parties agree that neither OpenRoad's 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) the parties agree that if the Vehicle has not been sold by the Expiration Date (or any extension thereof), the assignment will automatically become null and void, and any rights or interests in the Vehicle that have been assigned to OpenRoad will revert back to Abuzeide.
6. Subject to the foregoing provisions, Abuzeide agrees not to challenge or interfere with a Sale of the Vehicle. Abuzeide further agrees to cooperate as warranted with OpenRoad in facilitating such a Sale, which shall include but not be limited to executing relevant documents upon request. Abuzeide warrants and represents, subject to the provisions above, that (a) OpenRoad will have the ability under this Stipulation and 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 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 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 complaint so as to allow Abuzeide to seek a determination of the rightful ownership of the Sale Proceeds.
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 Stipulation and Order, with respect to this action.
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 ...

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