throbber
Case 1:13-cv-00937-GMS Document 1 Filed 05/24/13 Page 1 of 13 PageID #: 1
`Case 1:13—cv—OO937—GMS Document 1 Filed 05/24/13 Page 1 of 13 Page|D #: 1
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`________________________________________________________________ __X
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`ECLIPSE BERRY FARMS, LLC,
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`Plaintiff,
`
`- against —
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`Case No.
`
`PROGRESO PRODUCE LIMITED 1, L.P.
`d/b/a PROGRESO PRODUCE COMPANY
`
`and CURTIS HAROLD DEBERRY,
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`________________________________________________________________ __X
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`Defendants.
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`COMPLAINT OF PLAINTIFF ECLIPSE BERRY FARMS LLC
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`Plaintiff, Eclipse Berry Farms, LLC (“Plaintiff’ or “Eclipse”), by its attorneys, I\/IcCarron &
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`Diess and Sullivan Hazeltine Allinson LLC, as and for its complaint against defendants Progresso
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`Produce Limited 1, LP. d/b/a Progreso Produce Company (“Progreso”) and Curtis Harold DeBerry
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`(“DeBerry”) (collectively, “Defendants”), alleges as follows:
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`JURISDICTION AND VENUE
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`1.
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`Jurisdiction is based on the diversity of the parties pursuant to 28 U.S.C. §
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`l332(a)(l). The matter in controversy exceeds, exclusive of interest and costs, the sum specified by
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`28 U.S.C. § l332(a).
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`2.
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`This Court also has subject matter jurisdiction pursuant to Section 5(1)) of the
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`Perishable Agricultural Commodities Act, 7 U.S.C. § 499e(b) (hereafter, “PACA”) and 28 U.S.C. §
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`1331.
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`3.
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`This Court has personal jurisdiction over‘ the Defendants pursuant to written
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`agreement between the patties.
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`4.
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`Venue in this district is based on 28 U.S.C. § 1391(b)(2) because a substantial part
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`

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`of the events or omissions giving rise to the claim occurred in this district and pursuant to written
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`agreement between the parties.
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`PARTIES
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`5.
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`Plaintiff is a California limited liability company with its principal place of business
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`in Los Angeies, California and was at all relevant times engaged in the business of buying and
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`selling wholesale quantities of produce in interstate commerce and subject to and licensed under
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`PACA.
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`6.
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`Defendant Progreso is a Texas limited partnership with its principal place of
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`business in Boerne, Texas and was at all relevant times engaged in the business of buying and
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`selling wholesale quantities of produce in interstate commerce and subj ect to and licensed under
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`PACA.
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`7.
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`Defendant DeBe1ry is and was at all relevant times an officer, owner and manager of
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`Progreso and was in a position to controi the operations of Progreso.
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`GENERAL ALLEGATIONS
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`8.
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`On or about August 31, 2011, Eclipse and Progreso entered into an operating
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`agreement for the purpose of growing and selling strawberries. A copy of the operating agreement
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`(the “Agreement”) entered into between Eclipse and Progreso is annexed hereto as Exhibit A.
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`9.
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`Eclipse and Progreso formed E—P Strawberry Farms LLC (“E~P”), a Delaware
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`limited liability company, for the purpose of carrying out the terms of the Agreement. Eclipse and
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`Progreso were the sole members of E—P.
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`10.
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`Under the Agreement, Eclipse was to act as the Marketing Member of E—P, and as
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`such was responsible for acting as the agent for the sale of the strawberries, conducting the
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`marketing activities necessary for the sale of the strawberries, cooling and shipping the strawberries,
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`

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`as necessary, and providing quality control and other expertise to assist the Farming Member in its
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`growing and harvesting responsibilities.
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`11.
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`Under the Agreement, Progreso was to act as the Farming Member of EP, and as
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`such was responsible for the growing, harvesting and packing of the strawberries, and, as necessary,
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`the cooling and shipping of the strawberries.
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`12.
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`As a material inducement for Eclipse to enter into the Agreement, Progreso
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`warranted and represented that it had leased 500 hectares (approximately 1,235 acres) under 42
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`separate leases from 42 strawberry growers in Zamora, Mexico (the “Leases”) who would grow the
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`strawberries under the supervision of Progreso.
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`13.
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`Each of the Leases ran from May 1, 2011, four months prior to the execution of the
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`Agreement. Following execution of the Agreement, Progreso assigned the Leases to E—P. A copy
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`of the assignment is made a part of the Agreement.
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`14.
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`During negotiations leading up to the execution of the Agreement, DeBerry gave
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`Eclipse copies of the Leases, all of which bear DeBerry’s signature. I)eBe1ry offered the Leases to
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`Progresso as proof that he had secured sufficient land on which to grow approximately 1,800,000
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`trays of strawberries.
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`15.
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`During negotiations, DeBe1ry also gave Eclipse invoices for strawberry plants (the
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`“Plants”) which DeBer1y indicated would be supplied to the 42 growers who were to grow the
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`strawberries on the land demised in the Leases. Each of the invoices bears a date prior to August
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`31, 2011.
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`16.
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`As a material inducement for Eclipse to enter into the Agreement, Progreso, through
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`DeBerry, warranted and represented that it had advanced $966,000.00 for the land represented by
`
`the Leases and an additional $1,764,520.00 for the Plants represented by the invoices. The
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`

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`representations were incorporated into the Agreement as part of the Operating Budget.
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`17.
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`Based on Progreso’s warranties and representations concerning the Leases, the
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`Plants and Progres0’s advances therefor, Eclipse entered into the Agreement.
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`18.
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`Pursuant to its obligations as Marketing Member under the Agreement, Eclipse
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`delivered to Progreso, as Farming Member, the sum of $8,l 12,1 55.00 for growing, production,
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`packing and freight costs as well as for Preferred Distributions under the Agreement.
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`19.
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`In November, 201 1, at the start of the strawberry harvesting season in Zamora,
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`Mexico, Eclipse sent its Quality Control personnel to Zamora to oversee the quality and condition
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`of the strawberries to be shipped to Eclipse by Progreso.
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`20.
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`While in Zamora, Eclipse’s Quality Control personnel learned that Progreso had no
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`leases with strawberry growers and no contractual right to purchase strawberries firorn any growers.
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`Instead, Eclipse learned that Progreso’s agents were purchasing strawberries for E-P from any
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`growers that would accept as little as 55 pesos (approximately $4.42) per tray, a very low price
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`compared to what other dealers were paying.
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`21.
`
`Based on the reports returned by Eclipse’s Quality Control personnel, Eclipse hired
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`an independent auditor to investigate the legitimacy of the Leases, the invoices for the Plants and
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`Progreso’s purported advances therefor. The auditor discovered that the Leases and the invoices for
`
`the Plants were fraudulent.
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`22.
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`Rather than procure the Leases or the Plants, Progreso used the $8,112,155.00
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`advanced by Eclipse to purchase only 457,459 trays of strawberries at approximately $5.00 per tray.
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`Upon information and belief, Progreso kept the balance of $5,824,860.00 for itself.
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`

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`23.
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`During the term of the Agreement, Progreso delivered only 457,459 trays of
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`strawberries to El’, approximately 25% of the 1,800,000 trays which Progreso and DeBe1ry
`
`represented would be delivered to Eclipse.
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`AS AND FOR A FIRST CAUSE OF ACTION AGAINST PROGRESO
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`(Breach of Contract)
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`24.
`
`Plaintiff incorporates each and every allegation set forth in paragraphs 1 through 23
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`above as if fully set forth herein.
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`25.
`
`The Agreement constitutes a valid and enforceable agreement between Eclipse and
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`Progresso.
`
`26.
`
`Progreso breached the Agreement by failing to grow, harvest, pack, cool and ship
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`strawberiies as contemplated by the Agreement.
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`27.
`
`Progreso breached the Agreement by failing to secure the Leases as contemplated by
`
`the Agreement.
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`28.
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`Progreso breached the Agreement by failing to use all coinmereially reasonable
`
`efforts consistent with the goal of growing marketable strawberries and otherwise conducting itself
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`in the best interest of EP.
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`29.
`
`Progreso breached the Agreement by failing to carry out the duties of the Farming
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`Member as specified in the Agreement.
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`30.
`
`Eclipse has performed all of the duties, obligations and conditions precedent on its
`
`part to be performed under the Agreement.
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`31.
`
`As a direct and proximate result of Progreso’s breach of contract, Eclipse received
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`only 457,459 trays of strawberries out of the 1,800,000 trays which Progreso and DeBerry
`
`represented would be delivered to Eclipse.
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`

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`32.
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`Under the terms of the Agreement, Progreso and Eclipse were equal partners in the
`
`transaction. Accordingly, each of the members was required to contribute equally to the business.
`
`33.
`
`Eclipse advanced $8,112,155.00 for the 457,459 trays of strawberries delivered by
`
`Progreso and DeBe1ry under the Agreement. Had Progreso complied with its obligations under the
`
`Agreement, it should have advanced an additional $5,955,319.00, for a total capital expenditure by
`
`both parties of $l4,067,474.00.
`
`34.
`
`Eclipse sold the 457,459 trays sold for an average price of $13.59 per tray, for total
`
`revenue of $6,197,506.00. Thus, the transaction resulted in a net loss of $7,869,968.00 which is
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`home equally by Progresso and Eclipse.
`
`35.
`
`Plaintiff has suffered actual damages as a result of Progreso’s breach of contract in
`
`the amount of $3,934,984.00.
`
`36.
`
`Progreso failed to supply 1,342,541 trays of strawberries to Eclipse. The
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`strawberries Progreso did deliver sold for an average price of $13.59 per tray. But for Progrese’s
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`breach of contract, Eclipse could have sold the additional 1,342,541 trays of strawberries for an
`
`additional $18,245,132.00, for total revenue of $24,4-42,1 88.00.
`
`37.
`
`The total anticipated costs of the transaction were $11,910,637.00. This would have
`
`resulted in a profit to E-P of $12,531,551.00, to be shared equally by the parties. Thus, Eclipse
`
`suffered lost profits of $6,265,775.00.
`
`38.
`
`Because growing the strawberries required major capital expenditures for land and
`
`equipment, E-P had high fixed costs in growing the strawberries. The more strawberries I-3—P could
`
`grow using that same land and equipment, the higher the return to Eclipse on its investment. Had
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`Pregreso delivered the anticipated volume of strawberries, the profit returned on each tray of
`
`strawberries sold by Eclipse would have been far greater than the returns actually recovered.
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`

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`Progreso has suffered additional lost profits in an amount to be determined at trial, but which in no
`
`event is less than $2,000,000.00.
`
`39.
`
`Eclipse was entitled to recover brokerage fees on the strawbenies it sold at the rate
`
`of 8%. Had Progreso delivered the anticipated volume of strawberries, Eclipse would have
`
`recovered additional brokerage fees in an amount to be determined at trial, but which in no event is
`
`less than $160,000.00.
`
`40.
`
`Plaintiff has suffered consequential damages in an amount to be determined at trial,
`
`but which in no event is less than $8,425,775.00.
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`41.
`
`As a direct and proximate result of Progreso’s breach of contract, Eclipse was forced
`
`to hire an auditor to investigate Progreso’s conduct in Zamora, Mexico. The cost to Eclipse for
`
`these services totaled $15,000.00.
`
`42.
`
`Plaintiff has suffered incidental damages of $15,000.00.
`
`AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEBERRY
`
`(Breach of Contract)
`
`43.
`
`Plaintiff incorporates each and every allegation set forth in paragraphs 1 through 42
`
`above as if fully set forth herein.
`
`44.
`
`I)eI3erry is identified in the Agreement as Progreso’s Key Person.
`
`45.
`
`The Agreement requires that Progreso’s Key Person be actively involved in
`
`implementing the corporate purpose of E-P, and that he devote the time necessary to carry out these
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`duties.
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`46.
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`DeBerry failed to perform his duties as Progreso’s Key Person. On the contrary,
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`DeBerry engaged in negligence, dishonesty and/or bad faith in connection with his duties under the
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`Agreement.
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`

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`47.
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`But for DeBerry’s failure to perform his duties as Progreso’s Key Person, Progreso
`
`would not have breached the Agreement.
`
`48.
`
`Plaintiff has suffered actual, consequential and incidental damages in the amount of
`
`$12,375,759.00 as a direct and proximate result of DeBe1ry’s breach of contract.
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`AS AND FOR A THIRD CAUSE OF ACTION AGAINST PROGRESO AND DEBERRY
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`(Fraud)
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`49.
`
`Plaintiff incorporates each and every allegation set forth in paragraphs 1 through 48
`
`above as if fiilly set forth herein.
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`50.
`
`Progreso and DeBerry represented to Eclipse that the transactions identified in the
`
`Leases and the invoices for the Plants were true and accurate.
`
`51.
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`Progreso and DeBerry knew or should have known that the Leases and the invoices
`
`for the Plants were false.
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`52.
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`Progreso and DeBeny intended to induce Eclipse to enter into the Agreement and
`
`advance certain funds pursuant to the Agreement.
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`53.
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`The Agreement specifically includes multiple representations by Progreso that it has
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`actual knowledge concerning the validity and enforceability of the Leases.
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`54.
`
`The Agreement specifically recites that those representations are intended to induce
`
`Eclipse to enter into the Agreement and accept the responsibilities and obligations set forth therein.
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`55.
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`Eclipse, in reliance on the representations from Progreso and DeBerry that the
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`Leases a11d the invoices for the Plants were true and accurate, actually entered into the Agreement
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`and advanced certain funds to Progreso.
`
`56.
`
`57.
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`Eclipse’s reliance on the representations of Progreso and DeBe1ry was reasonable.
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`Eclipse advanced $8,112,155.00 to Progresso in compliance with the Agreement.
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`Progreso used $2,287,295.00 to purchase the 457,459 trays of strawberries at a cost of $5.00 per
`
`

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`tray. Upon information and belief, Progreso kept the balance of the advances for itself.
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`58.
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`As a direct and proximate result of the ‘fraudulent conduct of Progreso and DeI3erry,
`
`Eclipse suffered damages in the amount of $5,824,860.00.
`
`AS AND FOR A FOURTH CAUSE OF ACTION AGAINST PROGRESO
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`(Unjust Enrichment)
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`59.
`
`Plaintiff incorporates each and every allegation set forth in paragraphs 1 through 58
`
`above as if fully set forth herein.
`
`60.
`
`Eclipse delivered advances to Progreso totaling $8,l 12,155.00 to be used by
`
`Progreso in connection with the planting, growing and harvesting of strawberries.
`
`61.
`
`Eclipse had a reasonable expectation that the advanced funds would be used for
`
`those purposes.
`
`62.
`
`Progreso accepted the advanced funds and benefitted from their use.
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`63.
`
`Specifically, Progreso used those funds to purchase 457,459 trays of strawbenies for
`
`delivery to Eclipse at a total cost to Progreso of $2,287,295.00. Upon information and belief,
`
`Progreso kept the balance of the funds in the amount of $5,824,860.00.
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`64.
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`It would be inequitable or uiiconscionable for Progreso to be permitted to retain the
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`funds it received from Eclipse for which it did not deliver strawbenies in return.
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`65.
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`Progreso has been unjustly enriched in the amount of $5,824,860.00.
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`AS AND FOR A FTFTH CAUSE OF ACTION AGAINST PROGRESO
`
`(Violation of 7 USC. § 49% Against Progr)
`
`66.
`
`Plaintiff incorporates each and every allegation set folth in paragraphs l through 65
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`above as if fully set forth herein.
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`67.
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`Upon information and belief, Progreso is a dealer subject to, and licensed under,
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`PACA.
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`

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`68.
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`Pursuant to the Agreement, Progreso and DeBer1y represented that Eclipse would
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`receive 1,800,000 trays of strawberries from Progreso in interstate or foreign commerce.
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`69.
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`Progrcso failed without reasonable cause to deliver the 1,800,000 trays of
`
`strawberries to Eclipse in accordance with the terms of the Agreement.
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`70.
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`Progreso made false or misleading statements in connection with the sale of
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`strawberries to Eclipse pursuant to the Agreement.
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`71.
`
`Progreso made false or misleading statements to Eclipse in order to perpetrate a
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`fiaud upon Eclipse.
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`72.
`
`Progreso failed and refused to truly and correctly account to Eclipse for the funds it
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`received from Eclipse to grow, harvest and pack the 1,800,000 trays of strawberries it was
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`contracted to deliver under the Agreement.
`
`73.
`
`Progreso failed without reasonable cause to perform its duties under the Agreement.
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`74.
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`Progreso is in violation of Section 2 of the PACA and is liable to Eclipse for the full
`
`amount of damages sustained by Eclipse as a result of such violation.
`
`75.
`
`Plaintiff has suffered damages in an amount to be determined at trial, but in no event
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`less than $18,200,619.00.
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`AS AND FOR A SIXTH CAUSE OF ACTION AGAINST PROGRESO AND DEBERRY
`
`(Tortious Interference with Prospective Business Advantage)
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`76.
`
`Plaintiff incorporates each and every allegation set forth in paragraphs 1 through 75
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`above as if fully set foxth herein.
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`77.
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`Progreso and DeBerIy knew or should have known that Eclipse intended to sell the
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`strawberries grown by Progreso to Ec1ipse’s customers.
`
`78.
`
`Progreso and DeBeny knew or should have known that by entering into the
`
`Agreement, Eclipse intended to procure 1,800,000 trays of strawberries for less than it would have
`
`10
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`

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`been able to purchase the strawberries on the ope111na1'l<et.
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`79.
`
`By failing to secure the Leases and grow the Plants, Progreso and DeBerry
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`intentionally interfered with Bclipse’s plan to purchase 1,800,000 trays of strawberries at below-
`
`market prices.
`
`80.
`
`By failing to deliver the 1,800,000 trays of strawberries to Eclipse, Progresso
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`intentionally interfered with Eclipse’s prospective business advantage.
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`81.
`
`By tendering documents to Eclipse that DeBerry knew or should have known to be
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`false, and otherwise engaging in fraudulent conduct, DeBen'y intentionally interfered with Eclipse’s
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`prospective business advantage.
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`82.
`
`As a direct and proximate result of the tortious interference by Progreso and
`
`DeBen'y, Eclipse was deprived of the profits it would have earned had Progresso delivered the
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`strawberries.
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`83.
`
`As a direct and proximate result of the toitious interference by Progreso and
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`DeBerry, Eclipse lost the good will of its customers with whom it does business.
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`84.
`
`Plaintiff has been damaged in an amount to be determined at trial, but which in no
`
`event is less than $6,265,775.00.
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`AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST PROGRESO AND DE]-BERRY
`
`(Attorneys’ Fees)
`
`85.
`
`Plaintiff incorporates each and every allegation set forth in paragraphs 1 through 84
`
`above as if fully set forth herein.
`
`86.
`
`Pursuant to the Agreement, in the event that any action is brought by either member
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`against the other under the Agreement, the prevailing party shall be entitled to recover all costs and
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`expenses, including actually incurred reasonable attorneys’ fees.
`
`ll
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`

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`87.
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`Plaintiff commenced the instant action as a direct and proximate result of the breach
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`of contract and other tortious conduct performed by Progreso and DeBer1y while bound to carry out
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`their duties and obligations under the Agreement.
`
`88.
`
`Plaintiff is entitled to an award of attorneys’ fees in an amount to be determined after
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`trial in this action.
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`AS AND FOR AN EIGHTH CAUSE OF ACTION AGAINST PROGRESO AND DEBERRY
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`(Punitive Damages)
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`89.
`
`Plaintiff incorporates each and every allegation set forth in paragraphs 1 through 88
`
`above as if fully set forth herein.
`
`90.
`
`Progreso and DeBerry willfully and maliciously induced Eclipse to enter into the
`
`Agreement and advance certain funds based on documents they knew or should have known to be
`
`false.
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`91.
`
`Progreso and DeBen'y defrauded Eclipse out of millions of dollars, demonstrating a
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`reckless indifference or malice toward Eclipse.
`
`92.
`
`Plaintiff is entitled to recover punitive damages in an amount to be determined at
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`trial.
`
`WHEREFORE, plaintiff seeks the entry ofjudgment against defendant as follows:
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`1.
`
`On the first cause of action, judgment against Progreso in an amount to be
`
`determined at trial, but in no event less than $l2,37S,759.00;
`
`2.
`
`On the second cause of action, judgment against DeBerry in an amount to be
`
`determined at trial, but in no event less than $12,3"/5,759.00;
`
`3.
`
`On the third cause of action, judgment against Progreso and DeBe1ry, jointly and
`
`severally, in the amount of $5,824,860.00;
`
`12
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`

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`4.
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`On the fourth cause of action, judgment against Progreso in the amount of
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`$5,824,860.00;
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`5.
`
`On the fifth cause of action, judgment against Progreso under PACA in an amount to
`
`be determined at trial, but in no event less than $ 1 8,200,619.00;
`
`6.
`
`On the sixth cause of action, judgment against Progreso and DeBerry, jointly and
`
`severally, in an amount to be determined after trial in this action but which in no event is less than
`
`$6,265,775.00;
`
`7.
`
`On the seventh cause of action, judgment against Progreso and DeBerry, jointly and
`
`severally, in an amount to be determined after trial in this action;
`
`8.
`
`On the eighth cause of action, judgment against Progreso and DeBerry, jointly and
`
`severally, in an amount to be determined at trial; and
`
`9.
`
`Judgment against defendants, jointly and severally, for prejudgrnent interest, costs,
`
`disbursements and such other and further relief as the Court deems just and proper.
`
`Dated: May 24, 2013
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`SULLIVAN - HAZELTINE ALLINSON - LLC
`
`
`
`
`
`William A. Hazelt' e (DE Bar No. 3294)
`901 North Market
`treet, Suite 1300
`
`Wilmington, Delaware 19801
`Tel: (302) 428-8191
`whazeltine@sha-llc.com
`
`- and-
`
`McCarron & Diess
`
`Stephen P. McCarron
`Gregory Brown
`707 Walt Whitman Road, Second Floor
`
`Melville, New York 11747
`
`Tel: (631) 425-8110
`smccarron@mccarronlaw.corn
`gbrown@mccarronlaw.com
`
`Attorneysfor Plaintifl"
`
`13

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