Alc Mfg., Inc. v. J. Streicher & Co.

ALC Mfg., Inc. v. J. Streicher & Co., 2020 NCBC 40.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
MECKLENBURG COUNTY 19 CVS 1317

ALC MANUFACTURING, INC. d/b/a
Rocky Ridge Custom Trucks,

Plaintiff,
ORDER AND OPINION ON
v. DEFENDANT BBP BANDENIA, PLC’S
MOTION TO SET ASIDE DEFAULT,
J. STREICHER & CO., LLC; and FOR RELIEF FROM JUDGMENT,
BBP BANDENIA, PLC,
AND TO STAY ENFORCEMENT
Defendants.

1. THIS MATTER is before the Court on Defendant BBP Bandenia, PLC’S

(“Bandenia”) Motion to Set Aside Default, for Relief from Judgment, and to Stay

Enforcement (the “Motion”) filed January 17, 2020 in the above-captioned case. (ECF

No. 41.)

2. After withdrawal of certain arguments, Bandenia’s Motion now presents a

single issue for the Court’s consideration: whether the default judgment entered

against Bandenia on June 4, 2019 should be vacated based on Bandenia’s contention

that the agreement supporting the breach of contract claim on which the default

judgment is based is unenforceable for lack of consideration. (Def. Bandenia’s Notice

Withdrawal Certain Args. & Bases Mot. Set Aside Default, Relief from J., & Stay

Enforcement 1 [hereafter “Withdrawal”], ECF No. 58.)

3. Having considered the Motion, the materials submitted in support of and

opposition to the Motion, the arguments of counsel at the May 6, 2020

videoconference hearing on the Motion, and other appropriate matters of record, the

Court hereby DENIES Bandenia’s Motion for the reasons set forth below.
James, McElroy & Diehl, P.A., by Adam L. Ross, Jennifer M. Houti, and
Christopher T. Hood, for Plaintiff ALC Manufacturing Inc. d/b/a Rocky
Ridge Custom Trucks.

Carnes Warwick, PLLC, by Jonathan A. Carnes, for Defendant BBP
Bandenia, PLC.

Everett Gaskins Hancock LLP, by James M. Hash, for Defendant J.
Streicher & Co., LLC.

Bledsoe, Chief Judge.

I.

PROCEDURAL BACKGROUND

4. Plaintiff filed its Complaint initiating this action on January 22, 2019,

(Compl., ECF No. 3), asserting various claims against Defendant J. Streicher & Co.,

LLC (“Streicher”), (Compl. ¶¶ 66–93), and a single claim for breach of contract against

Bandenia, (Compl. ¶¶ 94–99), a company organized and based in the United

Kingdom, (Compl. ¶ 3). To support its claim against Bandenia, Plaintiff alleged that

Plaintiff, Bandenia, and Streicher entered into a valid and enforceable settlement

agreement (the “Settlement Agreement”), “supported by valid and adequate

consideration,” (Compl. ¶ 95), on July 18, 2017 that requires, among other things,

Bandenia and other parties to pay Plaintiff $850,000, (Compl. ¶¶ 58–59, Ex. 1).

Plaintiff averred that Bandenia paid only $200,000 under the Settlement Agreement

and failed to pay the remaining $650,000 due under the Agreement. (Compl. ¶¶ 61,

64–65.)

5. Plaintiff served a copy of the Summons and Complaint on Bandenia on

January 24, 2019 and again on February 15, 2019. (See Aff. Service Def. Bandenia,
ECF No. 24.) Bandenia never filed a notice of appearance, any type of responsive

pleading, or any other document with the Court or the Mecklenburg County, North

Carolina Clerk of Superior Court.

6. On February 5, 2019, Streicher filed a Notice of Designation. (ECF No. 4.)

The action was designated as a mandatory complex business case by Order of the

Chief Justice on February 6, 2019, (ECF No. 1), and assigned to the undersigned on

the same day, (ECF No. 2).

7. On April 11, 2019, Plaintiff filed a verified motion for entry of default and

default judgment. (Verified Mot. Entry Default & Default J. Against Def. BBP

Bandenia, PLC [hereafter “Mot. Entry Default”], ECF No. 26.) Counsel for Plaintiff

served a copy of the motion on Bandenia by placing the filing in the United States

Mail addressed to Bandenia in London, United Kingdom. (Mot. Entry Default 5.)

8. The Court entered default against Bandenia under Rule 55(a) of the North

Carolina Rules of Civil Procedure (“Rule(s)”) on April 30, 2019. (Order Entering

Default, ECF No. 32.)

9. The Court subsequently entered default judgment against Bandenia on

June 4, 2019 in the total amount of $658,951.80 (the “Default Judgment”). (Order

Pl.’s Verified Mot. Default J., ECF No. 33.) Plaintiff served the Default Judgment on

Bandenia in London on June 11, 2019. (Certificate Service, ECF No. 34.) In the

Default Judgment, the Court found that “the 2017 Agreement represented a valid

contract between Plaintiff and Bandenia[,]” “Bandenia materially breached the 2017

Agreement by failing to pay the remaining principal of $650,000 and interest owed
pursuant to that agreement[,]” and “Plaintiff’s Complaint thus states a claim for

breach of contract against Bandenia.” (Order Pl.’s Verified Mot. Default J. ¶ 17.)

10. On June 25, 2019, the Court received by mail a notarized “Request for a Stay

of Proceedings” (“Request”) dated June 13, 2019 from Fabio Pastore (“Pastore”) in

London, who represented that he was a Director and the Chief Executive Officer of

Bandenia. In the Request, Pastore, who is not a lawyer admitted to practice law in

North Carolina, contested the adequacy of Plaintiff’s service on Bandenia in the

United Kingdom, attacked the merits of Plaintiff’s claim against Bandenia, and

requested that the Court stay this proceeding for at least six weeks to allow Bandenia

“to receive the necessary documents from the Plaintiff to mount a defense.” (Order

Request Stay Proceedings Ex. A, ECF No. 37.)

11. On June 26, 2019, the Court denied the Request based on Bandenia’s failure

to comply with applicable procedural rules and because Bandenia, as a corporation,

may only appear in the courts of this State through North Carolina-admitted counsel.

(Order Request Stay Proceedings 2–3); see also LexisNexis, Div. of Reed Elsevier, Inc.

v. Travishan Corp., 155 N.C. App. 205, 209, 573 S.E.2d 547, 549 (2002) (holding a

North Carolina “corporation must be represented by a duly admitted and licensed

attorney-at-law and cannot proceed pro se”).

12. On July 8, 2019, Plaintiff dismissed all claims against Streicher with

prejudice. (Voluntary Dismissal Prejudice, ECF No. 38.)

13. On September 9, 2019, Plaintiff began efforts against Bandenia to collect on

the Default Judgment in the United Kingdom, (Aff. Adam L. Ross ¶ 11, ECF No. 46;
Aff. Adam L. Ross Ex. D, ECF No. 46.5). In response, Bandenia filed an Insolvency

Act Application Notice (“Application”) on October 2, 2019 with the High Court of

Justice in London in an effort to keep Plaintiff from winding up Bandenia’s affairs

based on its debt to Plaintiff. (Aff. Adam L. Ross ¶ 11; Aff. Adam L. Ross Ex. E, ECF

No. 46.6.)

14. In support of that Application, Pastore submitted a Witness Statement on

the same day stating, “While I accept that default judgment was granted against

BBP, I do not accept that it should have been and, in any event, I believe that that

judgment ought to be set aside.” (Aff. Adam L. Ross Ex. F, at ¶ 6 [hereafter “Pastore

Statement”], ECF No. 46.7.) Pastore claimed that he never received the Summons

issued in this action and that he only became aware of this litigation after the Default

Judgment had been entered against Bandenia. (Pastore Statement ¶ 7.) Pastore

further averred that Bandenia was “now instructing lawyers in North Carolina to

make an application to have the Default Judgment set aside[,]” as Bandenia’s

attempt to have the judgment stayed in North Carolina was not successful. (Pastore

Statement ¶¶ 8–9.)

15. On October 16, 2019, Arkady Bukh (“Bukh”), an attorney at Bukh Law Firm

PLLC in Brooklyn, New York, submitted to the High Court of Justice a signed

Witness Statement on behalf of Bandenia stating that his firm had been retained “to

assist in vacating [the] default judgment through local counsel admitted in North

Carolina.” (Aff. Adam L. Ross Ex. G, at ¶ 6, ECF No. 46.8.) Bukh has not sought to

appear before this Court at any point in this case.
16. On January 17, 2020—seven months and thirteen days after the Default

Judgment was entered against Bandenia and three months and fifteen days after

Bandenia filed the Application—North Carolina-licensed counsel filed the Motion on

behalf of Bandenia.

17. Although the Motion originally contained several purported grounds for

relief under Rule 60(b), on March 20, 2020, Bandenia filed a Notice of Withdrawal of

Certain Arguments and Bases for Motion for Relief, (Withdrawal), and a revised

supporting brief, (Def. Bandenia’s Mem. Supp. Mot. Set Aside Default, Relief from J.,

& Stay Enforcement [hereafter “Def. Mem. Supp.”], ECF No. 59), withdrawing all but

its argument concerning lack of consideration as its basis for the Motion. In

particular, Bandenia withdrew any defense it might have that ALC failed to properly

serve the Complaint on Bandenia. (Compare Withdrawal with Def. Bandenia’s Mem.

Supp. Mot. Set Aside Default, Relief J., & Stay Enforcement 7, ECF No. 42 (“[T]he

default judgment should be vacated because it is void under Rule 60(b)(4), due to

improper service on Bandenia and the fact that the North Carolina court never

acquired proper jurisdiction over Bandenia[.]”)

18. With the consent of all parties, the Court held a hearing on the Motion on

May 6, 2020 via videoconference, 1 at which all parties were represented by counsel.

The Motion is now ripe for resolution.

1 On May 1, 2020, the Chief Justice of the Supreme Court of North Carolina continued eight

emergency directives through May 30, 2020, including a directive authorizing judicial
officials to conduct proceedings that include remote audio and video transmissions. Order of
the Chief Justice of the Supreme Court of North Carolina 3 (May 1, 2020),
https://www.nccourts.gov/assets/news-uploads/1%20May%202020%20-%207A-39%28b%29
%282%29%20Order%20%28Final%29.pdf?KqoWHCkIrPSUUCkaC48woEQ_6kNMBaif.
II.

LEGAL STANDARD

19. Under Rule 60(b), a court “may relieve a party . . . from a final judgment,

order, or proceeding” where the moving party shows:

(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) Fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application; or
(6) Any other reason justifying relief from the operation of the
judgment.

N.C. R. Civ. P. 60(b).

20. “A motion under Rule 60(b) is addressed to the sound discretion of the trial

court[.]” Deutsche Bank Tr. Co. Ams. v. Tradewinds Airlines, Inc., 2009 NCBC LEXIS

6, at *13 (N.C. Super. Ct. Apr. 29, 2009) (quoting Harris v. Harris, 307 N.C. 684, 687,

300 S.E.2d 369, 372 (1983)). A Rule 60(b) “motion shall be made within a reasonable

time, and for reasons (1), (2) and (3) not more than one year after the judgment, order,

or proceeding was entered or taken.” N.C. R. Civ. P. 60(b) (emphasis added). “The

burden of proving grounds for relief is on the moving party.” In re Se. Eye Ctr. -

Pending Matters, 2017 NCBC LEXIS 80, at *2 (N.C. Super. Ct. Aug. 31, 2017)

(quoting Deutsche Bank, 2009 NCBC LEXIS 6, at *13)). Rule 60(b) “gives the court

ample power to vacate judgments whenever such action is appropriate to accomplish

justice.” Brady v. Town of Chapel Hill, 277 N.C. 720, 723, 178 S.E.2d 446, 448 (1971)
(quoting 3 William W. Barron & Alexander Holtzoff, Federal Practice and Procedure

§ 1329 (Charles A. Wright ed. 1958)).

III.

ANALYSIS

21. Plaintiff contends that Bandenia’s Motion must fail for three separate and

independent reasons: first, that the Motion frames the Default Judgment as an

erroneous judgment, which may only be attacked through appeal, the period for

which has now expired; second, that Bandenia has failed to bring the Motion within

a reasonable time as required under Rule 60(b); and third, that contrary to

Bandenia’s dilatory contention, the Settlement Agreement was in fact supported by

consideration. (Pl.’s Mem. Law Opp’n Def. BBP Bandenia, PLC’s Mot. Set Aside

Default, Relief from J., & Stay Enforcement 7–8, 11–13, ECF No. 45.) The Court

finds Plaintiff’s contentions meritorious and addresses each in turn.

A. The Default Judgment Is an Erroneous Judgment Not Subject to Attack
under Rule 60(b)

22. To begin, the Supreme Court of North Carolina has described a judgment

“where the undenied allegations of the complaint are not sufficient to warrant a

recovery” as “[a]n erroneous judgment[.]” Wynne v. Conrad, 220 N.C. 355, 360, 17

S.E.2d 514, 518 (1941). Importantly, “[i]f the judgment was erroneous it was

necessary for plaintiff to appeal.” Id. (emphasis added); see also, e.g., McKyer v.

McKyer, 182 N.C. App. 456, 460, 642 S.E.2d 527, 530 (2007) (“It is settled law that

erroneous judgments may be corrected only by appeal and that a motion under . . .

Rule 60(b) . . . cannot be used as a substitute for appellate review.” (citation omitted)
(quoting Town of Sylva v. Gibson, 51 N.C. App. 545, 548, 277 S.E.2d 115, 117, disc.

rev. denied, 303 N.C. 319, 281 S.E.2d 659 (1981))). In short, “[m]otions pursuant to

Rule 60(b) may not be used as a substitute for appeal.” Davis v. Davis, 360 N.C. 518,

523, 631 S.E.2d 114, 118 (2006).

23. Here, Bandenia contends under Rule 60(b) “that the [D]efault [J]udgment

should be vacated or that relief should otherwise be granted[ ] because Plaintiff failed

to state an actionable cause of action against Bandenia.” (Withdrawal 1; see also Def.

Mem. Supp. 2–5.) As such, Bandenia’s Motion is based on a claim that “the undenied

allegations of [Plaintiff’s] complaint are not sufficient to warrant a recovery[,]”

Wynne, 220 N.C. at 360, 17 S.E.2d at 518, which, if true, would render the Default

Judgment an “erroneous judgment[,]” id. Under controlling North Carolina law,

therefore, Bandenia’s challenge to the Default Judgment for lack of consideration was

required to have been made through a properly-noticed appeal, not under Rule 60(b).

See id. Bandenia filed no such appeal here, requiring denial of the Motion. 2

B. The Motion Was Not Brought Within a Reasonable Time

24. Even if Bandenia could mount its challenge to the Default Judgment under

Rule 60(b), Bandenia has failed to bring the Motion within a reasonable time, a

further ground for denial.

2 Bandenia relies on two decisions of the North Carolina Court of Appeals—Brown v. Cavit

Scis., Inc., 230 N.C. App. 460, 466–68, 749 S.E.2d 904, 909–10 (2013), and Lowe’s of Raleigh,
Inc. v. Worlds, 4 N.C. App. 293, 295, 166 S.E.2d 517, 518 (1969)—to argue that a default
judgment entered on a defective complaint may be corrected through Rule 60(b). Neither
case, however, referenced or cited the Supreme Court’s decision in Wynne, which the Court
finds controlling.
25. As an initial matter, Bandenia brings its Motion under Rule 60(b) without

identification of the particular subparagraph(s) of the Rule on which it moves.

Bandenia’s sole argument on the Motion, however—that the Default Judgment

should be set aside because the underlying contract on which the Judgment is based

was not supported by consideration—cannot reasonably be seen as advanced under

the subparagraphs requiring the motion to be brought within one year: (b)(1)

(mistake, inadvertence, surprise, or excusable neglect), (b)(2) (newly discovered

evidence), and (b)(3) (fraud). Nor can the Motion be seen as advanced under (b)(4)

(voidness) or (b)(5) (satisfaction, release, or discharge).

26. The only subparagraph, therefore, that could apply is (b)(6)—“any other

reason justifying relief from the operation of the judgment”—and a motion under that

subparagraph must be brought within a reasonable time. See Brown, 230 N.C. App.

at 464, 749 S.E.2d at 907 (addressing defective underlying contract argument under

Rule 60(b)(6) “so long as the motion to set aside the judgment [wa]s ‘made within a

reasonable time’ ” (quoting N.C. R. Civ. P. 60(b)(6))).

27. “What constitutes a ‘reasonable time’ depends upon the circumstances of the

individual case.” Sea Ranch II Owners Ass’n v. Sea Ranch II, Inc., 180 N.C. App. 226,

229, 636 S.E.2d 332, 334 (2006) (quoting Nickels v. Nickels, 51 N.C. App. 690, 692,

277 S.E.2d 577, 578, disc. rev. denied, 303 N.C. 545, 281 S.E.2d 392 (1981)). In

making that determination, the Court of Appeals has found that a plaintiff’s six-

month delay in filing its Rule 60(b) motion after entry of judgment was not a

“reasonable time” under the Rule. Id. at 230, 636 S.E.2d at 335.
28. The Default Judgment was entered on June 4, 2019 and service of the order

was made on Bandenia on June 11. Just two days later, Bandenia sent the Court a

letter requesting that the Default Judgment be set aside, which the Court received

on June 25. The next day, on June 26, the Court entered an order advising Bandenia

that to advance its arguments in this action, it must be represented by counsel

admitted in North Carolina. Nearly seven months later, in early 2020, Bandenia’s

North Carolina counsel filed the current Motion. Bandenia offers no justification or

excuse for delaying its response for over seven months after the entry of the Default

Judgment before filing the Motion.

29. Indeed, in seeking to resist Plaintiff’s collection efforts in the United

Kingdom, Bandenia acknowledged to the High Court of Justice Chancery Division

that it “was caught sleeping,” that it was “trying to play catch up[,]” that it had kept

its “head in the sand a little bit[,]” and that there was “no excuse for” its delay in

challenging the Default Judgment. (Second Aff. Adam L. Ross Ex. K, at 3, ECF No.

53.1.)

30. In short, Bandenia was aware of the Default Judgment after June 13, 2019,

attempted to defend against Plaintiff’s efforts to collect on the judgment in the United

Kingdom during the fall and winter of 2019, and yet made no effort to assert the

Motion before this Court until January 17, 2020. In these circumstances, particularly

considering that Bandenia has offered no excuse or justification for its dilatory

conduct, the Court concludes, in the exercise of its discretion, that Bandenia’s Motion
under Rule 60(b) has not been brought within a reasonable time and must therefore

be denied.

C. Plaintiff Sufficiently Alleged that the Settlement Agreement Was Supported
by Consideration

31. “In determining whether the allegations are sufficient to state a claim for

relief, we must ‘give to the allegations a liberal construction, and . . . if . . . any portion

of the complaint . . . presents facts sufficient to constitute a cause of action, or if facts

sufficient for that purpose fairly can be gathered from it, the pleading will stand[.]’ ”

Brown, 230 N.C. App. at 467, 749 S.E.2d at 909 (quoting Presnell v. Beshears, 227

N.C. 279, 281–82, 41 S.E.2d 835, 837 (1947)) (reviewing a Rule 60(b)(6) motion).

32. “The elements of a claim for breach of contract are (1) existence of a valid

contract and (2) breach of the terms of that contract.” Montessori Children’s House

of Durham v. Blizzard, 244 N.C. App. 633, 636, 781 S.E.2d 511, 514 (2016) (quoting

Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000)); see also Krawiec v.

Manly, 2016 NCBC LEXIS 7, at *16 (N.C. Super. Ct. Jan. 22, 2016) (“[C]laims for

breach of contract . . . necessarily hinge on the threshold issue of whether a valid

contract actually existed between [the parties].” (quoting Charlotte Motor Speedway,

LLC v. Cnty. of Cabarrus, 230 N.C. App. 1, 6, 748 S.E.2d 171, 175 (2013))).

33. It is axiomatic that “for a contract to be enforceable it must be supported by

consideration.” Inv. Props. of Ashville, Inc. v. Norburn, 281 N.C. 191, 195, 188 S.E.2d

342, 345 (1972). “[A]ny benefit, right, or interest bestowed upon the promisor, or any

forbearance, detriment, or loss undertaken by the promisee, is sufficient

consideration to support a contract.” Brenner v. The Little Red School House, Ltd.,
302 N.C. 207, 215, 274 S.E.2d 206, 212 (1981). Furthermore, “[i]t is the accepted

principle of the common law that instruments under seal require no consideration to

support them. . . . [S]uch instruments are held to be binding agreements, enforceable

in all actions before the common-law courts.” McGowan v. Beach, 242 N.C. 73, 77, 86

S.E.2d 763, 766 (1955); see also Burton v. Williams, 202 N.C. App. 81, 88, 689 S.E.2d

174, 180 (2010) (“In North Carolina, an instrument under seal ‘imports consideration’

to support that instrument[.]” (quoting Justus v. Deutsch, 62 N.C. App. 711, 715, 303

S.E.2d 571, 573, disc. rev. denied, 309 N.C. 821, 310 S.E.2d 349 (1983))).

34. In its Complaint, Plaintiff explicitly alleged both that “[t]he Settlement

Agreement is a valid and enforceable contract, supported by valid and adequate

consideration[,]” and that “Bandenia materially breached the Settlement Agreement

by failing and refusing to pay to [Plaintiff] $650,000, plus interest at 3% from July

18, 2017 through January 18, 2019.” (Compl. ¶¶ 95, 97.) Moreover, the Settlement

Agreement attached to the Complaint was signed by Bandenia and is accompanied

not only by an indication that it was signed under “(SEAL),” but also by Bandenia’s

formal corporate seal, (Compl. Ex. 1, at 9), thereby “import[ing]” consideration,

Justus, 62 N.C. App. at 715, 303 S.E.2d at 573. On its face, therefore, the Complaint

sufficiently alleges a claim for breach of contract against Bandenia to avoid dismissal.

See McLamb v. T.P. Inc., 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005) (“[W]here

the complaint alleges [both the existence of a valid contract and breach of said

contract], it is error to dismiss [the] breach of contract claim[.]”).
35. The premise of Bandenia’s Motion is that Plaintiff was required 3 to, yet

failed to, allege consideration because Bandenia’s “promise to pay Plaintiff did not

bring any benefits to Bandenia.” (Def. Mem. Supp. 4.) Whether Plaintiff alleged that

Bandenia received a benefit, however, is not determinative of consideration because

North Carolina law is clear that a “promise is enforceable if a benefit to the principal

debtor is shown or if detriment or inconvenience to the promisee is disclosed.” First

Peoples Sav. & Loan Ass’n v. Cogdell, 44 N.C. App. 511, 512, 261 S.E.2d 259, 260

(1980) (emphasis added) (quoting Inv. Props., 281 N.C. at 196, 188 S.E.2d at 345).

36. Plaintiff’s Complaint makes plain that Plaintiff agreed to take various

actions to its detriment in entering the Settlement Agreement, including releasing

and dismissing claims against various persons and entities with and without

prejudice. (Compl. Ex. 1, at 2 (“Upon the last to occur of the payment of the Initial

Payment, delivering the original Confession of Judgment to counsel for Rocky Ridge,

and perfecting the Share Pledge, Rocky Ridge shall file a voluntary dismissal, with

prejudice, of all of its claims in the Litigation against all defendants except

[Streicher], and the claims asserted against [Streicher] shall be dismissed without

prejudice.”); see also, Inv. Props., 281 N.C. at 196, 188 S.E.2d at 345 (“Forbearance to

exercise legal rights is sufficient consideration for a promise given to secure such

3 Plaintiff did not contest Bandenia’s contention that consideration must be specifically
pleaded to sustain a claim for breach of contract, so the Court does not address that
contention. But see Beam v. Sunset Fin. Servs., Inc., 2019 NCBC LEXIS 56, at *28 (N.C.
Super. Ct. Sept. 3, 2019) (concluding under Rule 12(b)(6) that “Plaintiffs’ failure to specifically
plead mutual assent between the parties or consideration thereto is not fatal to their breach
of contract claim”).
forbearance even though the forbearance is for a third person rather than that of the

promisor.”).

37. Accordingly, the Court concludes that Bandenia’s argument fails because

Plaintiff has sufficiently alleged in the Complaint consideration to support the

Settlement Agreement. For this additional reason, therefore, Bandenia’s Motion

must be denied.

IV.

CONCLUSION

38. WHEREFORE, for each of the reasons set forth above, the Court, in the

exercise of its discretion, hereby DENIES the Motion.

SO ORDERED, this the 20th day of May, 2020.

/s/ Louis A. Bledsoe, III
Louis A. Bledsoe, III
Chief Business Court Judge