Opinion
Case No. 39902649, Jointly Administered, Adv. Proc. No. 301-0959A
January 13, 2004
Wally W. Dietz, Esq., Bass, Berry Sims PLC, Nashville, TN, for Plaintiffs
Paul G. Jennings, Esq., Bass, Berry Sims PLC, Nashville, TN, for Plaintiffs
AGREED ORDER OF SETTLEMENT AND DISMISSAL
Upon the agreement of the parties that this adversary proceeding has been resolved and should be dismissed, the Court FINDS, ADJUDGES AND DECREES:
A. Prior to March 14, 2001, the Plaintiffs, Service Merchandise Company, Inc. ("Service Merchandise") and 31 of its affiliates (collectively, with Service Merchandise, the "Plaintiffs"), initiated the above-captioned adversary proceeding by filing their Complaint to Avoid Preferential Transfers and to Recover Amount of Such Transfers (the "Complaint") against the defendant, Emery Air Freight Corporation d/b/a Emery Worldwide (the "Defendant").
B. The Plaintiffs and the Defendant have reached a settlement and agreed resolution (the "Settlement") of the subject matter of the Complaint and any and all factual and legal issues raised therein.
C. Pursuant to the Settlement, the Defendant has paid the Plaintiffs the principal amount of $2,500.00.
D. Pursuant to the Settlement and in partial consideration therefor, the Defendant has agreed, as evidenced by the signature of the Defendant below, and is hereby deemed to voluntarily waive any and all claims against the Plaintiffs in these bankruptcy cases for the amount paid by the Defendant pursuant to this agreed order of dismissal (the "Agreed Order of Dismissal").
E. The Defendant has acknowledged, as evidenced by the signatures below, and is hereby found to have waived any such claim having adequate opportunity to consult with counsel concerning the Defendant's legal rights and the effect of this waiver.
F. In consideration of the Defendant's payment of the principal amount of $2,500.00, and of the Defendant's knowing and voluntary waiver of any and all claims against the Plaintiffs in these bankruptcy cases for the amount paid by the Defendant in partial consideration for the Agreed Order of Dismissal, the Plaintiffs have agreed to dismiss the Complaint with prejudice, each party to bear its own costs.
G. Plaintiffs represent that they are the sole owners of the claims alleged in the Complaint and Plaintiffs and Defendant have the authority to sign this Agreed Order Of Settlement And Dismissal.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The Defendant shall not have and is forever barred from asserting any claim against the Plaintiffs for the amount paid by the Defendant hereunder.
2. The Complaint shall be and hereby is dismissed, with prejudice, each party bearing its own costs.
3. The Court shall retain jurisdiction to hear any matters or disputes arising from or relating to the Agreed Order of Dismissal.