Case 1:15-cv-06563-PAE-KNF Document 273 Filed 08/12/21 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`Plaintiffs,
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`v.
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`CCR INTERNATIONAL, INC.,
`CCR Development Group, Inc., and
`José Fuertes, and Banco Cooperativo de Puerto Rico
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`THE ELIAS GROUP, LLC,
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`Defendant.
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`No.: 15-6563(PAE-NFK)
`Civil Action
`No.: 16-6280(PAE-NFK)
`Civil Action
`No.: 17-6697 (PAE-NFK)
`Civil Action
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`MOTION FOR RECONSIDERATION
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`TO THE HONORABLE COURT:
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`Plaintiff CCR International, Inc. ("CCR International"), by and through its respective
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`attorneys, very respectfully states and prays as follows:
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`1.
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`2.
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`The appearing party requested that this Court amend its judgment on August 2, 2021.
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`Docket 268.
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`On August 3, 2021, this Court ordered Defendant to reply to the motion to amend by
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`August 5, 2021. Docket 269. Defendant complied. Docket 271. On August 6, 2021, this
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`Court denied the motion. Docket 272.
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`3.
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`The local rules of the Southern District of New York provide that if a party is going to file
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`a reply, it should be done within seven days of the opposition to the initial motion. This
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`Judge’s rules do not provide anything to the contrary.
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`4.
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`If CCR International, Inc. had been afforded the opportunity to file a reply, it would have
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`corrected the statement by Elias Group, LLC that “At no point in the pleadings or other
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`CCR INTERNATIONAL, INC.,
`CCR Development Group, Inc., and
`José Fuertes, and Banco Cooperativo de Puerto Rico
`
`
`
`
`
`
`THE ELIAS GROUP, LLC,
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`No.: 15-6563(PAE-NFK)
`Civil Action
`No.: 16-6280(PAE-NFK)
`Civil Action
`No.: 17-6697 (PAE-NFK)
`Civil Action
`
`
`
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`
`
`MOTION FOR RECONSIDERATION
`
`TO THE HONORABLE COURT:
`
`
`
`Plaintiff CCR International, Inc. ("CCR International"), by and through its respective
`
`attorneys, very respectfully states and prays as follows:
`
`1.
`
`2.
`
`The appearing party requested that this Court amend its judgment on August 2, 2021.
`
`Docket 268.
`
`On August 3, 2021, this Court ordered Defendant to reply to the motion to amend by
`
`August 5, 2021. Docket 269. Defendant complied. Docket 271. On August 6, 2021, this
`
`Court denied the motion. Docket 272.
`
`3.
`
`The local rules of the Southern District of New York provide that if a party is going to file
`
`a reply, it should be done within seven days of the opposition to the initial motion. This
`
`Judge’s rules do not provide anything to the contrary.
`
`4.
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`If CCR International, Inc. had been afforded the opportunity to file a reply, it would have
`
`corrected the statement by Elias Group, LLC that “At no point in the pleadings or other
`
`
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`1
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`Case 1:15-cv-06563-PAE-KNF Document 273 Filed 08/12/21 Page 2 of 5
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`filings did plaintiff allege that defendant owed it any portion of the initial payment of
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`$300,000.00.”
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`5.
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`In Docket 188, the Consolidated Complaint filed by the Coco Rico parties and Banco
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`Cooperativo de Puerto Rico in compliance with this Court’s order at Docket 114, the Coco
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`Rico parties alleged:
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`26.
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`On January 30, 2013, CCR International entered into an Assignment
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`Agreement with Elias Group assigning its rights under the 2008 Agreement
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`to Elias Group. Exhibit 2, "2013 Assignment Agreement."
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`27.
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`In exchange, CCR International was to receive a payment of up to
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`$300,000.00 for assigning the Seller's Note, $5,000,000 plus payment of the
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`remaining debt owed by CCR Development Group, then believed to total
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`$9 million. Id. at p. 2, §1.02(a); p.4, §1.02 (c) (iii); p.4, §1.02 (c) (iii)(2).
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`Docket 188 at page 5. Plaintiffs expressly asked the Court to incorporate the terms of the
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`exhibits to the Consolidated Complaint pursuant to Federal Rule of Civil Procedure 10(c). Id.
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`at ¶ 115.
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`6.
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`At ¶112 of the Consolidated Complaint, Plaintiffs alleged that:
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`112. Elias Group was and continues to be in default since it is in breach of the
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`agreements and the terms and conditions of the 2008 Asset Purchase Agreement, the 2013
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`Option Agreement, 2013 Assignment Agreement, the 2015 Asset Purchase Agreement,
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`2015 Independent Contractor’s Agreement, and the Note, the latter of which was issued by
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`the Elias Group and duly assigned to BanCoop.
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`Id. at 19.
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`2
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`Case 1:15-cv-06563-PAE-KNF Document 273 Filed 08/12/21 Page 3 of 5
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`7.
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`“Summary judgment is only appropriate if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law."
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`Fed.R.Civ.P. 56(a). Elias has not shown that it is entitled to judgment as a matter of law
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`that it paid the $300,000 it agreed to pay under the Assignment Agreement. In fact, Elias
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`stipulated that it paid only $150,000.
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`8.
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`In its order denying the Rule 60a motion, this Court faulted CCR International for not
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`pointing to “anywhere that it sought relief on the claim that Elias owed it $150,000, or any
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`order in which the Court awarded it relief on that claim.” Docket 272 at 2.
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`9.
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`CCR International indeed sought relief on the claim that Elias breached the Assignment
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`Agreement, citing to that agreement as an exhibit to the Consolidated Complaint at ¶¶ 26
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`and 27.
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`10. Moreover, the Joint Stipulation of Undisputed Material Facts as to the Motion for Summary
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`Judgment states that Elias paid $150,000 of the monies owed under the Assignment
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`Agreement. Docket 242-1, ¶46. In its Memorandum of Law in Support of Summary
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`Judgment, Elias never argues that it paid the $300,000 that the Assignment Agreement
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`requires be paid. Docket 242-2, at pages 8-14. (Where Elias makes its argument that it
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`obtained the $9,000,000 debt pursuant to the Assignment Agreement.)
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`11.
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`Plaintiffs’ Rule 60a Motion did not make a new substantive pleading. The operative
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`pleading before the Court, the Consolidated Complaint, states the Assignment Agreement
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`provided for a $300,000 payment. Docket 188 at ¶¶ 26, 27, 112. This Court repeated that
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`allegation in its Order granting Elias Summary Judgment. Docket 251 at 6. The Court
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`found that the Assignment Agreement required a payment of $150,000 after Elias
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`completed due diligence. Id.
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`3
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`Case 1:15-cv-06563-PAE-KNF Document 273 Filed 08/12/21 Page 4 of 5
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`12.
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`The parties executed the Asset Purchase Agreement. Docket 251 at 9. The inference,
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`therefore, is that the parties completed due diligence. Cf. Sullivan-Mestecky v. Verizon
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`Communications, Inc. 961 F.3d 91 (2nd Cir. 2021)(all inference are to be decided in favor
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`of the non-movant).
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`13.
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`“A party may move for summary judgment, identifying each claim or defense – or the part
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`of each claim and defense – on which summary judgment is sought…” Rule 56 of the
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`Federal Rules of Summary Judgment. Elias concludes its motion stating that “[t]here is no
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`basis to find that Elias Group owes CCR money on a debt that is owed to Elias Group,…”
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`But Elias did not ask the Court to grant it summary judgment on the claims that Elias agreed
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`to pay $300,000 for the assignment and breached that agreement.
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`14.
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`Elias piously states in its conclusion that the CCR parties are not entitled to a better or
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`different agreement than that which they negotiated. Neither is Elias. Elias never disputed
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`that it agreed to pay $300,000 for the assignment of the $900,000 debt.1 Indeed, Elias
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`stipulated that it had only paid $150,000 of the $300,000 agreed. Docket 242-1 at ¶46.
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`15.
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`This Court so ruled. It should amend its judgment to find that Elias Group, LLC owes CCR
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`International, Inc. $150,000. We have to understand that the Court’s intent was to enforce
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`the agreements before the Court, the violation of which Plaintiffs alleged from day one.
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`We ask this Court to implement that intent. Rezzonico v. H.&R. Block, 182 F.3d 144, 151
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`(2nd Cir. 1999)
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`WHEREFORE, CCR International, Inc. respectfully requests this Honorable Court to reconsider
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`its decision not amend its judgment pursuant to Federal Rule of Civil Procedure 60(a) to order
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`1 As this litigation shows, the CCR parties never understood it that way, but that was the Court’s ruling, and Plaintiffs
`have decided not to appeal.
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`4
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`Case 1:15-cv-06563-PAE-KNF Document 273 Filed 08/12/21 Page 5 of 5
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`Elias Group, LLC to pay CCR International, Inc. $150,000 and enter any other appropriate relief
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`under law and equity.
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`Dated: August 12, 2021
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`Respectfully Submitted,
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`/s/Jane A. Becker
`jb-6155
`JANE A. BECKER
`P.O. Box 9023914
`San Juan, Puerto Rico 00902-3914
`Tel: (787) 585-3824
` janebeckerwhitaker@gmail.com
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`Counsel for CCR International, Inc.
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`5
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