Although the case was dismissed, this Court retained jurisdiction to enforce the settlement agreement. Subsequent disputes between the parties as to the substance and meaning of the settlement agreement, however, led to a plethora of motions and ultimately to three published opinions, two in the District Court and one in the United States Court of Appeals for the Seventh Circuit: Kapco Manufacturing Co., Inc. v. C O Enterprises, Inc., et al., 605 F. Supp. 253 (N.D.Ill. 1985) (Bua, J.);Kapco Manufacturing Co., Inc. v. C O Enterprises, Inc., et al., 773 F.2d 151 (7th Cir. 1985); Kapco Manufacturing Co. v. C O Enterprises, Inc., et al., 108 F.R.D. 55 (N.D.Ill. 1985) (Rovner, J.). Judge Nicholas J. Bua was hearing Judge Rovner's cases in her absence due to illness.

-5799 (JSM), 1990 WL 209366, *3-4 (S.D.N.Y. Dec. 4, 1990). See, e.g., Kapco Mfg. Co. v. C O Enterp., Inc., 605 F. Supp. 253, 256 (N.D. Ill. 1985) (applying Illinois law, holding that a "material breach" is necessary to reinstate plaintiff's claims under the First Circuit's reasoning in Warner); Caldwell v. Armstrong, 642 P.2d 47, 49 (Colo. App. 1981) (holding that "[o]nce it is established that there is a valid accord and satisfaction, it is governed by the same rules as applied to other contracts," including the doctrine of substantial performance); Browning v. Holloway, 620 S.W.2d 611, 617 n. 6 (Tex. Ct. App. 1981) ("the inquiry should be whether there was a breach, and, if so, whether the breach was material so as to give plaintiffs the election to rescind"); Tuskegee Alumni Housing Fed., Inc. v. National Homes Constr. Corp., 450 F. Supp. 714, 720 (S.D. Ohio 1978) ("This Court has decided that the better reasoning is that substantial performance of an [executory] accord is sufficient to satisfy it.") (Ohio law), aff'd mem., 624 F.2d 1101 (6th Cir. 1980). Our conclusion is also consistent with the view taken in the Restatemen

Kapco was also instructed that with leave of court it could engage in appropriate discovery to ensure compliance with the settlement agreement. Kapco Mfg. Co. v. C O Enters., Inc., 605 F. Supp. 253, 257 (N.D.Ill. 1985). Despite these instructions by the district court, Kapco failed to cooperate with the defendants in submitting a consent judgment, failed to seek enforcement of the settlement agreement, and failed to bring a motion for summary judgment on the issue of damages caused by the purported breach.

Kapco requested the court to put the settlement aside and restore the case to the docket as a pending matter. On March 29, 1985, 605 F. Supp. 253, Judge Bua, handling the case in Judge Rovner's absence, entered an order refusing to reinstate the case fully but directing the parties to reduce the settlement to writing and submit a consent judgment. The order stated that if the parties do not do this, the court "will enter an appropriate order."

(Defendants' Motion to Transfer at 3, ¶ 10.) SeeKapco Manufacturing Co. v. C & O Enterprises, Inc., 605 F.Supp. 253, 256-57 (N.D.Ill.1985).          Kapco's only argument that Kapco II should not be transferred as related to Kapco I is that Kapco I is no longer " pending" as required by Local Rule 2.31B(1) of the United States District Court for the Northern District of Illinois.

In further support of an interpretation of section 2-1401 permitting vacatur of a dismissal based upon the breach of the settlement agreement is the rule that such a breach permits the nondefaulting party to elect either to sue to enforce the settlement agreement or to treat the agreement as rescinded and to sue upon the original debt. (See, e.g., Zager v. Gubernick (1965), 205 Pa. Super. 168, 173-74, 208 A.2d 45, 49; Shield Co. v. Williamson (Texas 1962), 355 S.W.2d 811, 813; Wilson v. Bogert (1959), 81 Idaho 535, 543, 347 P.2d 341, 346; Whitfield v. Whittington (1953), 34 Del. Ch. 34, 99 A.2d 196, 197; and other cases cited in 15A C.J.S. Compromise Settlement § 46, at 275 n. 89 (1967).) The action that was dismissed because of the settlement agreement may be reinstated ( Pacheco v. Delgardo (1935), 46 Ariz. 401, 407, 52 P.2d 479, 481) if the breach of the settlement agreement was material ( Kapco Manufacturing Co. v. C O Enterprises, Inc. (N.D. Ill. 1985), 605 F. Supp. 253, 256). See also Mederacke v. Becker (1970), 129 Ill. App.2d 434, 438-39; 263 N.E.2d 257 (although party deviated from time schedule for payment, there was virtually full compliance with settlement agreement providing for partial payment of judgment in full satisfaction of liability so that reinstatement of original judgment was not warranted).