Opinion
No. 04 C 2412.
June 16, 2006
ORDER
This matter came before the court on the following pending, fully briefed motions: plaintiff's motion for partial reconsideration (Docket No. 167); plaintiff's motion to strike defendant's response to plaintiff's Rule 56.1 statement (Docket #163); defendant's motion for sanctions (Docket No. 142), and defendant's additional motion for summary judgment (Docket No. 130).
After reviewing the overly extensive briefing on these motions, as well as previous motions filed by the parties, and having heard argument on this and a number of other occasions, for the reasons stated on the record this date the court rules as follows:
(1) Plaintiff's motion for partial reconsideration is granted in part and denied in part. The court corrects its January 3, 2006, opinion by omitting the statement that CenCo did not purchase Newco shares from AAM Convertibles. In fact, CenCo did purchase a certain amount of Newco shares from AAM Convertibles in the later round of purchases of Newco stock. The court has determined, however, that this factual error is irrelevant to the holdings of the court. The court therefore denies plaintiff's motion to reconsider and alter the conclusions reached in its January 3, 2006, opinion.
(2) Plaintiff's motion to strike defendant's responses to plaintiff's Rule 56.1 statement of additional facts concerning defendant's additional motion for summary judgment is denied. The court struck plaintiff's original Rule 56.1 statement, which contained 220 individual statements, resulting in a replacement statement of additional facts by plaintiff that were compound and argumentative. Defendant's response to those statements understandably varies from the ordinary type of responses that the court expects in this type of proceeding. In any event, in light of the court's ruling on defendant's additional motion for summary judgment, the matter is moot.
(3) Defendant's motion for sanctions is denied as moot in light of the court having struck plaintiff's original Rule 56.1 statement of additional facts.
(4) Defendant's additional motion for summary judgment is granted. The court made numerous findings on the record this date, which are incorporated herein. For purposes of summary only, the court finds that the "side deal" between plaintiff and defendant, as alleged in the first amended complaint and the summary judgment pleadings was, if it existed at all, so vague and indefinite that its terms are indecipherable and unenforceable. In various parts of his pleadings, plaintiff alleges that he refrained from selling Newco stock to CenCo in favor of selling it to Ogdon, that he refrained from selling Convertibles stock to CenCo, which was to be purchased by Ogdon, and that he refrained from selling Newco stock that he did not own (but which was owned by Convertibles), in favor of selling Convertibles stock to defendant. Because it is undisputed that plaintiff sold all of the Newco stock he owned directly to CenCo, that CenCo did not purchase any Convertibles stock, and that CenCo purchased NewCo stock from the individual shareholders (including plaintiff) and Convertibles, any of these iterations of this so-called "side deal" lack consideration, were impossible to perform, and lack the definiteness required to form a meeting of the minds. Although, as demonstrated by the record this date, plaintiff's attorney attempts to yet again recharacterize the nature and terms of the "side deal," plaintiff's latest description of the alleged agreement contradicts the allegations in the complaint and the summary judgment papers. In addition, although not outcome determinative, as the court has stated on several occasions, the court is troubled by plaintiff's description of a transaction that would ignore the corporate identity of Convertibles and perhaps violate the tax laws concerning S corporations like Convertibles as well as general corporate law. Accordingly, the court finds that there is no genuine issue of material fact, and that defendant is entitled to summary judgment as a matter of law on the remaining breach of contract count in the first amended complaint.
For these reasons, this action is terminated and judgment is entered in favor of defendant.