JMC RESTAURANT HOLDINGS, LLC v. PEVIDA

Civil Action No. 14-06157-WFK-VMS.

JMC RESTAURANT HOLDINGS, LLC; and JMC RESTAURANT HOLDINGS INTERNATIONAL, LLC, Plaintiffs, v. MARCELO PEVIDA; JIA JU TAG; JOSEPH SILVESTRI; FRONT STREET RESTAURANT CORP.; TAG INVESTMENT GROUP; and JIA CAI LEWIN, Defendants.

United States District Court, E.D. New York.

October 6, 2017.

Editors Note
Applicable Law: 15 U.S.C. § 1125
Cause: 15 U.S.C. § 1125 Trademark Infringement (Lanham Act)
Nature of Suit: 840 Trademark
Source: PACER


Attorney(s) appearing for the Case

JMC Restaurant Holdings, LLC, Plaintiff, represented by Barry M. Benjamin , Kilpatrick Townsend & Stockton LLP.

JMC Restaurant Holdings, LLC, Plaintiff, represented by Jeremy Adam Schachter , Kilpatrick Townsend & Stockton LLP & Olivier A. Beabeau , Galbut & Galbut PC, pro hac vice.

JMC Restaurant Holdings International, LLC, Plaintiff, represented by Barry M. Benjamin , Kilpatrick Townsend & Stockton LLP, Jeremy Adam Schachter , Kilpatrick Townsend & Stockton LLP, Olivier A. Beabeau , Galbut & Galbut PC, pro hac vice & Barry M. Benjamin , Kilpatrick Townsend & Stockton LLP.

Jia Ju Tao, Defendant, represented by Henry Joseph Cittone , Cittone & Chinta LLP & Martin Alan Shell , The Shell Law Firm.

Tom Tao, Defendant, represented by Martin Alan Shell , The Shell Law Firm.

Marcelo Pevida, Defendant, represented by Martin Alan Shell , The Shell Law Firm.

Front Street Restaurant Corp., Defendant, represented by Martin Alan Shell , The Shell Law Firm.

Knights Investment Group, LLC, Respondent, represented by Douglas Mark Schneider , Summers & Schneider, P.C..

Front Street Restaurant Corp., ThirdParty Plaintiff, represented by Martin Alan Shell , The Shell Law Firm.

Marcelo Pevida, ThirdParty Plaintiff, represented by Martin Alan Shell , The Shell Law Firm.

Tom Tao, ThirdParty Plaintiff, represented by Martin Alan Shell , The Shell Law Firm.

Frank Ciolli, ThirdParty Defendant, represented by Kenneth Sussmane , McCue Sussmane Zapfel, Cohen & Youbi, P.C..

JMC Restaurant Holdings International, LLC, Cross Defendant, represented by Barry M. Benjamin , Kilpatrick Townsend & Stockton LLP.


ORDER

WHEREAS, on June 23, 2017, JMC Restaurant Holdings, LLC and JMC Restaurant Holdings International, LLC (together, "Plaintiffs") filed a fully briefed motion to enforce a settlement by and between Plaintiffs; defendants Marcela Pevida, Jia Jun Tao, and Front Street Restaurant Corp. (collectively, "Defendants"), and third-party defendant Frank Ciolli, Dkt. Nos. 152-59, as expressed in a written settlement stipulation (the "Settlement Stipulation") signed by the parties on October 4, 2016, see Dkt. No. 154-1; and

WHEREAS, on September 28, 2017, the Honorable Magistrate Judge Vera M. Scanlon issued a Report and Recommendation recommending that this Court grant Plaintiffs' motion to enforce the parties' settlement agreement as expressed in the Settlement Stipulation, see Dkt. No. 169; and

WHEREAS, on October 3, 2017, this Court ordered the parties to show cause why an order should not be entered granting Plaintiffs' motion to enforce the settlement agreement, ordering Defendants to comply with the settlement agreement terms and conditions, as expressed in the Settlement Stipulation; vacate the premises at 1 Front Street (a/k/a Cadman Plaza West), Brooklyn, New York 11201; and pay all reasonable attorneys' fees in connection with the order to show cause; and

WHEREAS, the parties appeared before this Court on October 6, 2017 and presented argument regarding the motion to enforce the settlement agreement;

IT IS HEREBY ORDERED that this Court accepts in whole the findings and recommendation of the Report and Recommendation issued by Judge Vera M. Scanlon and dated September 28, 2017;

IT IS FURTHER ORDERED that Plaintiffs' motion to enforce settlement is GRANTED;

IT IS FURTHER ORDERED that the settlement of Plaintiffs, Defendants, and third-party defendant Frank Ciolli is binding and effective as expressed in the Settlement Stipulation, which is appended to this Order;

IT IS FURTHER ORDERED that the representations, warranties, obligations, and releases under the Settlement Stipulation are binding and effective as of December 9, 2016.

IT IS FURTHER ORDERED that all rights, title, interest, and claims of Defendant Front Street Restaurant Corp. under its lease with 27 Old Fulton Street, LLC for the premises at 1 Front Street (a/k/a Cadman Plaza West), Brooklyn, New York 11201 are waived, released, null and void.

IT IS FURTHER ORDERED that Defendant Front Street Restaurant Corp. immediately vacate the premises at 1 Front Street (a/k/a Cadman Plaza West), Brooklyn, New York 11201 and deliver possession to 27 Old Fulton Street, LLC.

IT IS FURTHER ORDERED that final judgment of possession of 1 Front Street (a/k/a Cadman Plaza West)is awarded to 27 Old Fulton Street, LLC.

IT IS FURTHER ORDERED that a warrant of eviction issue forthwith and the marshal/sheriff is directed to execute the warrant upon receipt.

IT IS FURTHER ORDERED that Defendant Front Street Restaurant Corp. cause the Petition for Cancellation it filed in Trademark Trial and Appeal Board Cancellation No. 92066606 to be dismissed with prejudice.

IT IS FURTHER ORDERED that Defendants and third-party Frank Ciolli cause all claims and actions filed in any other court or arbitration against each other, or any company which Frank Ciolli is an owner, to be discontinued and/or dismissed with prejudice.

IT IS FURTHER ORDERED that Defendants submit by ECF a certification of its compliance with the directions of this Order by no later than October 9, 2017.

IT IS FURTHER ORDERED that in accordance with the bundling rule. Plaintiffs shall serve upon Defendants, within five days of the entry of this order, such declarations and evidence supporting their request for payment by Defendants of Plaintiffs' reasonable attorneys fees and costs incurred in connection with the Order to Show Cause; Defendants shall have five days to serve upon Plaintiffs any opposing papers; and Plaintiffs shall have three days to serve reply papers; Plaintiffs shall thereafter file all papers by ECF commensurate with serving its reply papers.

SO ORDERED.

UNITED STATES DISTRICT COURT ESTERN DISTRICT OF NEW YORK

JMC RESTAURANT HOLDINGS, LLC; and JMC RESTAURANT HOLDINGS INTERNATIONAL, LLC, Plaintiffs, Civil Action No. 14-06157-WFK-VMS. -against- SETTLEMENT STIPULATION MARCELO PEVIDA; JIA JU TAG; JOSEPH SILVESTRI; DOES 1-10; and ABC BUSINESS (mediator Kenneth A. Plevan) ENTITIES 1-10, Defendants. FRONT STREET RESTAURANT CORP.; MARCELO PEVIDA; and JIA JU TAO, Third-Party-Plaintiffs, -against- FRAIN, CIOLLI, Third-Party Defendants.

Plaintiffs JMC Restaurant Holdings, LLC and JMC Restaurant Holdings International, LLC ("JMCI") and Defendants Marcelo Pevida, Jia Ju Tao, Front Street Restaurant Corporation ("Defendants") and Third-Party Defendant Frank Ciolli, stipulate and agree as follows:

1. This stipulation is executed as a tentative settlement of all claims in the abovecaptioned action, and is expressly subject to a further long-form settlement agreement ("Settlement Agreement") to be executed by the parties, including, without limitation, customary confidentiality, waiver, entirety, and severability provisions, and required cooperation to execute documents and complete filings necessary to effectuate their settlement.

2. The terms of this settlement stipulation are confidential and cannot be disclosed to any person other than the mediator, the undersigned and their counsel, and 27 Old Fulton Street, LLC (the "Landlord") (as contemplated by this stipulation), or as required by law to enforce the parties' settlement or Court order in this case.

3. For a period 60 days commencing on the date of execution of this stipulation ("Negotiation Period"), Defendants consent to Plaintiffs/Frank Ciolli and/or their assignee(s) ("JMC Parties") negotiating and entering a lease ("New Lease") with the Landlord for the real property at 1 Front Street, Brooklyn, New York ("the Property").

4. The New Lease, subject to paragraph 11a, will supersede and replace the existing lease ("Existing Lease") between Front Street Restaurant Corp. ("Front Street") and the Landlord for the Property and extinguish Front Street's rights and obligations to Landlord under the Existing Lease or assign Front Street's rights and obligations to Landlord under the Existing Lease to JMC Parties.

5. JMC Parties may negotiate and enter a New Lease with the Landlord in their sole discretion during the Negotiation Period.

6. Defendants warrant they will not encumber the Property with any debt or lien, and will not alter or impair the Property in any way or remove any equipment, fixtures, furnishings, or personal property from the Property during the Negotiation Period. Defendants' warranty is personal and does not extend to the independent actions of the Landlord or Frank Ciolli (e.g., third party services procured by Frank Ciolli in furtherance of his business at the Property.).

7. Defendants warrant they will pay September and October rent due under the Existing Lease during the Negotiation Period, provided Frank Ciolli pays rent to Front Street as required by Court order during the Negotiation Period.

8. The parties must cooperate to prepare the Settlement Agreement for final execution within the Negotiation Period.

9. If JMC Parties do not enter a New Lease with the Landlord that resolves the monetary claims by Landlord against Front Street for rent under the Existing Lease (represented by Front Street as approx. $180,000), then there will be no settlement of any claims. The parties reserve all rights to their claims and defenses if a New Lease is not entered between JMC Parties and the Landlord within the Negotiation Period.

10. The parties acknowledge the execution of this stipulation does not in and of itself alter any obligation of Frank Ciolli under any Court order to pay rent to Front Street during the Negotiation Period. Any such obligation will only be released by order of the Court or stipulation of the parties as set forth below.

11. If JMC Parties enter a New Lease with the Landlord that resolves the monetary claims by Landlord against Front Street for rent under the Existing Lease, then Plaintiffs, Defendants, and Frank Ciolli will settle all their disputes as follows:

a. The parties must execute the Settlement Agreement prior to or commensurate with the execution of the New Lease; b. Defendants agree to the representations and warranties identified in the letter from Olivier Beabeau to Martin Shell and Henry Cittone dated March 30, 2016, specifically those at enumerated paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10; c. Plaintiffs release all claims, known or unknown, past, present, or future, against Defendants, Jia Cai Lewin (see condition below), Joseph Silvestri, and Knights Investment Group, LLC, and any of their principals or agents, including Hongfei Zhang, regarding this suit and arising from conduct prior to the date of this stipulation regarding the Grimaldi Marks, Front Street Restaurant Corp., the Brooklyn Restaurant, and the Shanghai Restaurant;1 d. Unless otherwise explicitly reserved herein, Plaintiffs release all persons they could have, but did not, name as a party to the suit under the facts and claims of the suit and arising prior to the date of this stipulation. e. Plaintiffs reserve all claims asserted or which can be asserted by them in China regarding the Shanghai Restaurant, including the pending claims filed by JMCI against Shanghai Jinghui Catering Management Co. in Shanghai, China, except for claims against Defendants, Jia Cai Lewin (see condition below), Joseph Silvestri, and Knights Investment Group, LLC, and any of their principals or agents, including Hongfei Zhang, regarding this suit and arising from conduct prior to the date of this stipulation regarding the Shanghai Restaurant; f. Defendants release all claims, known or unknown, past, present, or future, against Plaintiffs, Joseph Ciolli, Frank Ciolli, any company in which Joseph Ciolli or Frank Ciolli is an owner, and any past, present, and future employees of any such company(ies) regarding this suit, the Grimaldi Marks, Front Street Restaurant Corp., the Brooklyn Restaurant, and the Shanghai Restaurant; g. Defendants must dismiss with prejudice all claims and actions filed by one or more Defendants against Frank Ciolli, and/or any company in which Frank Ciolli is an owner, in any court, and file all necessary paperwork in all related litigation actions to effectuate the same; h. Frank Ciolli must dismiss with prejudice all claims and actions filed by him, and/or any company in which Frank Ciolli is an owner, in any court, against Defendants and file all necessary paperwork in all related litigation actions to effectuate the same; i. Defendants must cause all the security (approx. $162,000) posted by or for Frank Ciolli in the New York landlord/tenant suit between Defendants/Front Street and Frank Ciolli to be released to Frank Ciolli, and waive all claims to the same; j. Defendants must convey and deliver all equipment, fixtures, furnishings, and their personal property at the Property to JMC Parties; k. Defendants shall convey and deliver, or cause to be conveyed and delivered, the liquor license for the Property to JMC Parties and other documents to allow JMC Parties to obtain a liquor license; l. Defendants must cooperate with JMC Parties to effectuate the New Lease and convey and deliver the liquor license and other property at the Property, including executing/filing all assigtunents, consents, or other documents necessary in JMC Parties' sole discretion to effectuate the New Lease and conveyances; and m. Defendants waive all right, title, interest, and claims under the Existing Lease. n. The parties agree not to disparage each other.

12. During the Negotiation Period, Plaintiffs may separately settle their claims against Jia Cai Lewin in their sole discretion. If Plaintiffs cannot reach a separate settlement with Jia Cai Lewin within the Negotiation Period, then they will release their claims against Jia Cai Lewin as set forth above.

13. During the Negotiation Period, the undersigned parties agree to temporarily stay all deadlines in this action. Upon execution of this stipulation, the parties will jointly request the Court postpone all deadlines by 60 days.

PLAINTIFFS: JMC Restaurant Holdings, LLC MC Restaurant Hidings International, LLC By: ___________________________________ Joseph Ciolli, Manager By: ____________________________________ Oliver A. Beabeau, Attorney for Plaintiffs DFENDANTS: Front Street Restaurant Corp. By: ____________________________________ Marcelo Pevida, President Marcelo Pevida By: _____________________________________ Marcelo Pevida, Individually Jia Ju Tao a/k/a Tom Tao By: _____________________________________ Jia Ju Tao a/k/a Tom Tao, Individually By: _____________________________________ Olivier A. Beabeau, Attorney for Plaintiffs DEFENDANTS: Front Street Restaurant Corp. By: _____________________________________ Marcelo Pevida, President Marcelo Pevida By: _____________________________________ Marcelo Pevida, Individually Jia Ju Tao a/k/a Tom Tao By: _____________________________________ Jia Ju Tao a/k/a Tom Tao, Individually By: _____________________________________ Martin Shell, Attorney for Front Street Restaurant Corp., Marcelo Pevida, Jia Ju Tao a/k/a Tom Tao THIRD-PARTY DEFENDANT: Frank Ciolli THIRD-PARTY DEFENDANT: Frank Ciolli By: _____________________________________ Frank Ciolli, Individually By: ______________________________________ Ken Sussmane, Attorney for Frank Ciolli GALBUT & GALBUT, P.C. Lawyers and Counselors Office: 602 955 1455 Camelback Esplanade Fax: 602 955 1585 2425 East Camelback Road, Suite 1020 Web: www.galbutlaw.com Phoenix, Arizona 85016 March 30, 2016 Via E-Mail Only Martin Shell, Esq. Henry Cittone, Esq. The Shell Law Firm, PLLC Cittone & Chinta, LLP 11 Broadway, Suite 615 11 Broadway, Suite 615 New York, New York 10004 New York, New York 10004 mshellr@shelllawfirm.com hcittone@cittonechinta.com Re: JMC Restaurant Holdings, LLC, et at v. Pevida, et at (Case No. 14-cv-6157); Rule 408 Settlement Communication

Dear Martin and Henry:

JMC Restaurant Holdings, LLC and JMC Restaurant Holdings International, LLC (collectively "JMC") have authorized me to offer settlement of the above-captioned litigation (the "Action") against your clients Tom Tao, Marcelo Pevida, and Front Street Restaurant Corp. (collectively "Defendants") under the following terms:

1. Defendants, individually and as owners, representatives, agents of any other person or entity, cease and desist from any use of marks identical or similar to Grimaldi's, Grimaldi's Pizzeria, Grimaldi's Coal brick-oven Pizzeria, patsy Grimaldi's, patsy Grimaldi's pizzeria, patsy Grimaldi's coal Brick-Pizzeria, and lawirnai (the "Grimaldi Marks") anywhere in the world; 2. Defendants, individually and as owners, representatives, or agents of any other person or entity, warrant they own no right or interest in the Grimaldi Marks anywhere in the world; 3. Defendants, individually and as owners, representatives, or agents of any other person or entity, will not apply for or enable or assist any person or entity to apply for registration of any marks identical or similar to the Grimaldi Marks; 4. Defendants, individually and as owners, representatives, or agents of any other person or entity, cease and desist from making any claim or representation of ownership or affiliation with any restaurant — past, present, or future — operating under any of the Grimaldi Marks; 5. Defendants, individually and as owners, representatives, or agents of any other person or entity, are prohibited from making any statement or inference impugning the reputation of JMC, Joseph Ciolli, Frank Ciolli, any company in which Joseph Ciolli or Frank Ciolli is an owner or any past, present, and future employees of such company, and are further prohibited from discouraging, directly or indirectly, any person from patronizing a restaurant owned or operated by JMC, Joseph Ciolli, Frank Ciolli, or any company in which Joseph Ciolli or Frank Ciolli is an owner; 6. Defendants, individually and as owners, representatives, or agents of any other person or entity, will not use or enable any person or entity to use for any purpose the history and goodwill of any restaurant affiliated with JMC or that is operating or has operated in the United States under the Grimaldi Marks; 7. Defendants, individually and as owners, representatives, or agents of any other person or entity, will not use or enable any person or entity to use the likeness, name, or image of the individual Patsy Grimaldi for restaurant services, food products, or advertising and business anywhere in the world; 8. Defendants, individually and as owners, representatives, or agents of any other person or entity, are prohibited from owning any interest in, participating in, or otherwise collaborating with and/or contributing to, the pizzeria restaurant currently operating under the marks PATSY and/or PATSY'S PIZZERIA in Shanghai, China (the "Shanghai Restaurant"), and any business affiliated with the Shanghai Restaurant anywhere in the world; 9. Within 10 days of offer acceptance, Defendants will execute a document acceptable to JMC warranting their termination of all ownership of, participation in, collaboration with, and contribution to any person or entity operating under the Grimaldi's Marks, PATSY's, PATSY'S PIZZERIA or any derivative of any of the foregoing marks, anywhere in the world, including but not limited to, the Shanghai Restaurant; 10. Defendants' covenants and representations are secured by liquidated damages of $1,000,000 for each event of breach, and an additional $50,000 per day for continued breaches, and Defendants waive all future claims, known or unknown, challenging the measure of liquidated damages;

FootNotes


1. Defined terms set forth in letter from Olivier Beabeau to Martin Shell and Henry Cittone dated March 30, 2016.

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