Free Remark - District Court of Delaware - Delaware

Case 1:07-cv-00235-JJF

Document 52

Filed 05/01/2007

Page 1 of 7

CLOSED, TEB

U.S. District Court Southern District of Florida (Miami) CIVIL DOCKET FOR CASE #: 1:07-cv-20389-JEM

Coffee Bean Trading-Roasting, LLC v. Coffee Holding, Inc. Date Filed: 02/13/2007 Assigned to: Judge Jose E. Martinez Jury Demand: None Cause: 28:1332 Diversity-Other Contract Nature of Suit: 190 Contract: Other Jurisdiction: Diversity Plaintiff Coffee Bean Trading-Roasting, LLC a Delaware limited liability company represented by Jose Manuel Ferrer Baker & McKenzie 1111 Brickell Avenue Suite 1700 Miami, FL 33131-3214 305-789-8980 Fax: 789-8953 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Coffee Holding, Inc. a Nevada corporation represented by Christopher F. Graham Thacher Proffitt & Wood LLP 50 Main Street White Plains, NY 10606 US Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED John Roger Squitero Katz Barron Squitero Faust & Berman 2699 S Bayshore Drive 7th Floor Miami, FL 33133-5408 305-856-2444 Fax: 285-9227 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Mark Shiels Auerbacher Katz Barron Squitero Faust

Case 1:07-cv-00235-JJF

Document 52

Filed 05/01/2007

Page 2 of 7

2699 S Bayshore Drive 7th Floor Miami, FL 33133-5408 305-856-2444 Fax: 285-9227 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Counter Claimant Coffee Holding, Inc. a Nevada corporation represented by Mark Shiels Auerbacher (See above for address) ATTORNEY TO BE NOTICED

V. Counter Defendant Coffee Bean Trading-Roasting, LLC a Delaware limited liability company

Date Filed 02/13/2007

#

Docket Text 1 VERIFIED COMPLAINT against Coffee Holding, Inc. Filing fee $ 350. Receipt#: 954710, filed by Coffee Bean Trading-Roasting, LLC.(el) (Entered: 02/13/2007) 2 MOTION for Temporary Restraining Order and Supporting Memorandum of law by Coffee Bean Trading-Roasting, LLC. Responses due by 2/28/2007 (el) (Entered: 02/13/2007) 3 NOTICE OF FILING AFFIDAVIT signed by : Ernesto Aguila in support of 2 MOTION for Temporary Restraining Order by Coffee Bean Trading-Roasting, LLC. (el) (Entered: 02/13/2007) 4 Summons Issued as to Coffee Holding, Inc. by serving registered agent: CSC Services of Nevada,Inc. (el) (Entered: 02/13/2007) 5 ORDER Setting Hearing on Motion 2 MOTION for Temporary Restraining Order: Motion Hearing set for 2/16/2007 03:00 PM in Miami Division before Judge Jose E. Martinez. Signed by Judge Jose E. Martinez on 2/14/2007 (lc1) (Entered: 02/14/2007) 6 Order Requiring Parties to Meet and File Joint Scheduling Report. Signed by Judge Jose E. Martinez on 02/14/2007 (dq) (Entered: 02/14/2007) 7 NOTICE of Compliance WITH COURT ORDER by Coffee Bean Trading-Roasting, LLC re 5 Order Setting Hearing on Motion (Ferrer, Jose) (Entered: 02/14/2007) 8 MOTION attend hearing telephonically by Coffee Holding, Inc..

02/13/2007

02/13/2007

02/13/2007 02/14/2007

02/14/2007

02/14/2007

02/15/2007

Case 1:07-cv-00235-JJF

Document 52

Filed 05/01/2007

Page 3 of 7

(Attachments: # 1 Text of Proposed Order Order Approving Telephonic Appearance)(Auerbacher, Mark) (Entered: 02/15/2007) 02/15/2007 9 Endorsed ORDER granting 8 Unopposed Motion to Allow Defendant's Attorney, Christopher F. Graham to Attend Hearing on Plaintiff's Motion for Temporary Restraining Order Telephonically Signed by Judge Jose E. Martinez on 2/15/2007 (lc1) (Entered: 02/15/2007) 10 MOTION Transfer Venue re 1 Complaint, 2 MOTION for Temporary Restraining Order by Coffee Holding, Inc.. (Attachments: # 1 Text of Proposed Order Order Granting Motion to Transfer Venue)(Auerbacher, Mark) (Entered: 02/15/2007) 16 MOTION for Admission Pro Hac Vice of Christopher F. Graham, Filing Fee $75, Receipt #954943. (cw) (Entered: 02/19/2007) 11 MOTION Dismiss Motion for Temporary Restraining Order re 2 MOTION for Temporary Restraining Order, 3 Affidavit by Coffee Holding, Inc.. (Auerbacher, Mark) (Entered: 02/16/2007) 12 AFFIDAVIT in Opposition re 2 MOTION for Temporary Restraining Order, 10 MOTION Transfer Venue re 1 Complaint, 2 MOTION for Temporary Restraining Order, 11 MOTION Dismiss Motion for Temporary Restraining Order re 2 MOTION for Temporary Restraining Order, 3 Affidavit filed by Coffee Holding, Inc.. (Attachments: # 1 Affidavit Andrew Gordon# 2 Exhibit Exhibits A & B# 3 Affidavit Salvatore Reda)(Auerbacher, Mark) (Entered: 02/16/2007) 13 ORDER denying 2 Motion for Temporary Restraining Order Signed by Judge Jose E. Martinez on 2/16/2007 (lc1) (Entered: 02/16/2007) 14 Order Denying Plaintiff's Motion for Temporary Restraining Order (D.E. No. 2) and Directing Expedited Response to Defendant's Motion to Enforce a Forum Selection Clause and To Transfer Venue. Signed by Judge Jose E. Martinez on 2/16/2007 (lc1) (Entered: 02/16/2007) 15 Notice of Docket Correction: The wrong document was attached to docket number 13. The correct document is located at docket number 14. re 13 Order on Motion for Temporary Restraining Order (lc1) (Entered: 02/16/2007) 17 Minute Entry: for proceedings held before Judge Jose E. Martinez: Motion Hearing held on 2/16/2007 re 2 MOTION for Temporary Restraining Order filed by Coffee Bean Trading-Roasting, LLC, (Court Reporter Larry Herr.) (wh) (Entered: 02/23/2007) 18 ORDER granting 16 Motion to Appear Pro Hac Vice Name of Attorney Christopher F. Graham for Coffee Holding, Inc. Signed by Judge Jose E. Martinez on 2/23/2007 (ls) (Entered: 02/26/2007) 19 RESPONSE in Opposition re 10 MOTION Transfer Venue re 1 Complaint, 2 MOTION for Temporary Restraining Order IN OPPOSITION TO DEFENDANT'S MOTION TO ENFORCE A FORUM SELECTION CLAUSE AND TRANSFER VENUE filed by Coffee Bean

02/15/2007

02/15/2007 02/16/2007

02/16/2007

02/16/2007 02/16/2007

02/16/2007

02/23/2007

02/23/2007

02/26/2007

Case 1:07-cv-00235-JJF

Document 52

Filed 05/01/2007

Page 4 of 7

Trading-Roasting, LLC. (Ferrer, Jose) (Entered: 02/26/2007) 02/26/2007 20 Plaintiff's MOTION TO CONSIDER THE FILING OF ITS RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO TRANSFER VENUE TIMELY re 19 Response in Opposition to Motion, by Coffee Bean Trading-Roasting, LLC. (Attachments: # 1 Exhibit A# 2 Text of Proposed Order)(Ferrer, Jose) (Entered: 02/26/2007) 21 RESPONSE in Opposition re 20 Plaintiff's MOTION TO CONSIDER THE FILING OF ITS RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO TRANSFER VENUE TIMELY re 19 Response in Opposition to Motion, filed by Coffee Holding, Inc.. (Attachments: # 1)(Auerbacher, Mark) (Entered: 02/27/2007) 22 RESPONSE Plaintiff's Reply to Defendant's Objection to Motion to Consider the Filing of its Response in Opposition to Defendant's Motion to Transfer Venue Timely filed by Coffee Bean Trading-Roasting, LLC. (Ferrer, Jose) (Entered: 03/02/2007) 23 REPLY to Response to Motion re 20 Plaintiff's MOTION TO CONSIDER THE FILING OF ITS RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO TRANSFER VENUE TIMELY re 19 Response in Opposition to Motion, filed by Coffee Holding, Inc.. (Auerbacher, Mark) (Entered: 03/02/2007) 24 SUMMONS Returned Executed Coffee Holding, Inc. served on 2/21/2007, answer due 3/13/2007. (bs) (Entered: 03/05/2007) 25 NOTICE by Coffee Holding, Inc. re 23 Reply to Response to Motion, to Transfer Venue (Auerbacher, Mark) (Entered: 03/05/2007) 26 Plaintiff's MOTION to Strike 23 Reply to Response to Motion, CERTAIN PORTIONS OF DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO ENFORCE A FORUM SELECTION CLAUSE AND TO TRANSFER VENUE OR, ALTERNATIVELY, FOR LEAVE TO FILE SURREPLY by Coffee Bean Trading-Roasting, LLC. Responses due by 3/20/2007 (Ferrer, Jose) (Entered: 03/06/2007) 27 RESPONSE in Opposition re 26 Plaintiff's MOTION to Strike 23 Reply to Response to Motion, CERTAIN PORTIONS OF DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO ENFORCE A FORUM SELECTION CLAUSE AND TO TRANSFER VENUE OR, ALTERNATIVELY, FOR LEAVE TO FILE SURREPLY filed by Coffee Holding, Inc.. (Auerbacher, Mark) (Entered: 03/07/2007) 28 RESPONSE to 27 Response in Opposition to Motion, PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE OR, ALTERNATIVELY, FOR LEAVE TO FILE A SURREPLY filed by Coffee Bean Trading-Roasting, LLC. (Ferrer, Jose) (Entered: 03/12/2007) 29 Coffee Holding, Co. Inc.'s ANSWER to Complaint Coffee Bean TradingRoasting LLC, First COUNTERCLAIM against Coffee Bean Trading-

02/27/2007

03/02/2007

03/02/2007

03/05/2007 03/05/2007 03/06/2007

03/07/2007

03/12/2007

03/13/2007

Case 1:07-cv-00235-JJF

Document 52

Filed 05/01/2007

Page 5 of 7

Roasting, LLC by Coffee Holding, Inc..(Auerbacher, Mark) (Entered: 03/13/2007) 03/21/2007 03/21/2007 30 Corporate Disclosure Statement by Coffee Bean Trading-Roasting, LLC. (Ferrer, Jose) (Entered: 03/21/2007) 31 NOTICE by Coffee Bean Trading-Roasting, LLC re 30 Corporate Disclosure Statement OF CORRECTING CERTIFICATE OF SERVICE (Ferrer, Jose) (Entered: 03/21/2007) 32 Emergency MOTION for Temporary Restraining Order by Coffee Holding, Inc.. Responses due by 4/4/2007 (Attachments: # 1) (Auerbacher, Mark) (Entered: 03/21/2007) 33 ORDER REQUIRING RESPONSE TO DEFENDANT'S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER. Signed by Judge Jose E. Martinez on 3/23/2007.(lc1) (Entered: 03/23/2007) 34 Corporate Disclosure Statement by Coffee Holding, Inc., Coffee Holding, Inc.. (Auerbacher, Mark) (Entered: 03/23/2007) Reset Deadlines as to 32 Emergency MOTION for Temporary Restraining Order. Response due by 4/2/2007 (dm) (Entered: 03/26/2007) 35 RESPONSE in Opposition re 32 Emergency MOTION for Temporary Restraining Order and Cross-Motion to Appoint a Receiver to Orderly Dissolve Company filed by Coffee Bean Trading-Roasting, LLC. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D) (Ferrer, Jose) (Entered: 03/27/2007) 36 NOTICE by Coffee Bean Trading-Roasting, LLC re 32 Emergency MOTION for Temporary Restraining Order, 35 Response in Opposition to Motion, of Filing Affidavit of Ernesto Aguila in Opposition to Coffee Holding's Motion for Temporary Restraining Order and in Support of Cross-Motion to Appoint a Receiver (Attachments: # 1 Affidavit of Ernesto Aguila)(Ferrer, Jose) (Entered: 03/27/2007) 37 Defendant's MOTION to Strike 36 Notice (Other), Notice (Other), 35 Response in Opposition to Motion, by Coffee Holding, Inc., Coffee Holding, Inc.. Responses due by 4/12/2007 (Auerbacher, Mark) (Entered: 03/29/2007) 38 PLAINTIFF'S ANSWER AND AFFIRMATIVE DEFENSES TO COUNTS V AND VI - ANSWER to Counterclaim by Coffee Bean TradingRoasting, LLC.(Ferrer, Jose) (Entered: 04/02/2007) 39 Plaintiff's MOTION to Dismiss 29 Answer to Complaint, Counterclaim CERTAIN COUNTS OF DEFENDANT'S COUNTERCLAIM by Coffee Bean Trading-Roasting, LLC. Responses due by 4/16/2007 (Ferrer, Jose) (Entered: 04/02/2007) 40 NOTICE by Coffee Bean Trading-Roasting, LLC re 3 Affidavit PLAINTIFF'S NOTICE OF FILING EXCLUDED EXHIBIT TO

03/21/2007

03/23/2007

03/23/2007 03/23/2007

03/27/2007

03/27/2007

03/29/2007

04/02/2007

04/02/2007

04/02/2007

Case 1:07-cv-00235-JJF

Document 52

Filed 05/01/2007

Page 6 of 7

AFFIDAVIT OF ERNESTO AGUILA (Attachments: # 1 Exhibit A) (Ferrer, Jose) (Entered: 04/02/2007) 04/03/2007 41 REPLY to Response to Motion re 32 Emergency MOTION for Temporary Restraining Order filed by Coffee Holding, Inc.. (Auerbacher, Mark) (Entered: 04/03/2007) 42 RESPONSE in Opposition re 37 Defendant's MOTION to Strike 36 Notice (Other), Notice (Other), 35 Response in Opposition to Motion, for a Temporary Restraining Order filed by Coffee Bean Trading-Roasting, LLC. (Ferrer, Jose) (Entered: 04/06/2007) 43 RESPONSE in Opposition re 32 Emergency MOTION for Temporary Restraining Order, 37 Defendant's MOTION to Strike 36 Notice (Other), Notice (Other), 35 Response in Opposition to Motion, to Plaintiff's Cross-Motion to Appoint a Receiver filed by Coffee Holding, Inc., Coffee Holding, Inc.. (Auerbacher, Mark) (Entered: 04/10/2007) 44 REPLY to Response to Motion re 37 Defendant's MOTION to Strike 36 Notice (Other), Notice (Other), 35 Response in Opposition to Motion, Reply in Further Support filed by Coffee Holding, Inc., Coffee Holding, Inc.. (Auerbacher, Mark) (Entered: 04/13/2007) 45 RESPONSE to 43 Response in Opposition to Motion, PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFF'S CROSS-MOTION TO APPOINT RECEIVER filed by Coffee Bean Trading-Roasting, LLC. (Ferrer, Jose) (Entered: 04/13/2007) 46 MEMORANDUM in Opposition re 39 Plaintiff's MOTION to Dismiss 29 Answer to Complaint, Counterclaim -CERTAIN COUNTS OF DEFENDANT'S COUNTERCLAIM filed by Coffee Holding, Inc.. (Attachments: # 1 Exhibit A thru C)(Auerbacher, Mark) (Entered: 04/16/2007) 47 REPORT REGARDING Joint Scheduling by Coffee Bean TradingRoasting, LLC. (Attachments: # 1 Exhibit PreTrial Deadlines and Trial Date# 2 Exhibit Election to Jurisdiction)(Ferrer, Jose) (Entered: 04/19/2007) 48 ORDER denying 32 Emergency Motion for Temporary Restraining Order. Signed by Judge Jose E. Martinez on 4/19/2007. (ls) (Entered: 04/20/2007) 49 ORDER granting 37 Motion to Strike Certain Portions of 35 Response in Opposition to Motion. Signed by Judge Jose E. Martinez on 4/19/2007. (ls) (Entered: 04/20/2007) 50 ORDER denying as moot 39 Motion to Dismiss, granting 10 Motion to Enforce a Forum Selection Clause and to Transfer Venue, granting 20 Motion to consider the filing of its Response in opposition to defendant's Motion to Transfer Venue timely, denying 26 Motion to Strike certain portions of defendant's Reply in support of its Motion to Enforce a Forum

04/06/2007

04/10/2007

04/13/2007

04/13/2007

04/16/2007

04/19/2007

04/19/2007

04/19/2007

04/20/2007

Case 1:07-cv-00235-JJF

Document 52

Filed 05/01/2007

Page 7 of 7

Selection Clause and to Transfer Venue or, alternatively, for Leave to File Surreply; Directing Clerk to Transfer case to the USDC, District of Delaware; Closing Case. Signed by Judge Jose E. Martinez on 4/20/2007. (ls) (Entered: 04/20/2007) 04/25/2007 51 Transmittal Letter Sent With Certified Copies of Transfer Order and Docket Sheet, To: USDC, District of Delaware (ls) (Entered: 04/25/2007)

PACER Service Center
Transaction Receipt
05/02/2007 10:54:34 PACER Login: ud0037 Description: Billable Pages: 4 Client Code: Cost: 0.32 Docket Report Search Criteria: 1:07-cv-20389-JEM

Case 1:07-cv-00235-JJF Document 52-2 Case 1:07-cv-20389-JEM Document 26 Entered onFiled 05/01/2007 Page 1 of 5 FLSD Docket 03/06/2007 Page 1 of 5

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division CASE NO.: 07-20389-CIV-MARTINEZ/BANDSTRA COFFEE BEAN TRADING-ROASTING, LLC, a Delaware limited liability company, Plaintiff, vs. COFFEE HOLDING, INC., a Nevada corporation, Defendant. ________________________________________/ PLAINTIFF'S MOTION TO STRIKE CERTAIN PORTIONS OF DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION TO ENFORCE A FORUM SELECTION CLAUSE AND TO TRANSFER VENUE OR, ALTERNATIVELY, FOR LEAVE TO FILE SURREPLY Plaintiff, Coffee Bean Trading-Roasting, LLC ("Coffee Bean"), pursuant to S.D. Fla. L.R. 7.1(C), moves the Court for an order striking Section III of Defendant's Reply in Support of its Motion to Enforce a Forum Selection Clause and to Transfer Venue or, alternatively, for leave to file a surreply for the reasons stated in the following memorandum of law: PRELIMINARY STATEMENT On February 15, 2007, Defendant, Coffee Holding, Inc. ("Coffee Holding"), filed its Motion to Enforce a Forum Selection Clause and to Transfer Venue. Coffee Holding's only argument in favor of the relief requested was that a forum selection clause in the parties' operating agreement required Coffee Bean to have brought this action in the United States District Court for the District of Delaware, and not the Southern District of Florida. On February 26, 2007, Coffee Bean filed its response in opposition to Coffee Holding's motion. Coffee Bean's arguments were limited to rebuttal of the arguments raised by Coffee Holding in its

Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-2 Case 1:07-cv-20389-JEM Document 26 Entered onFiled 05/01/2007 Page 2 of 5 FLSD Docket 03/06/2007 Page 2 of 5

motion ­ mainly, that the forum selection clause upon which Coffee Holding relies is permissive, rather than mandatory, and, thus, does not require that this action have been brought in, or be transferred to, any other District. On March 2, 2007, Coffee Holding filed its reply (the "Reply") to Coffee Bean's response. The Reply includes new arguments that were not raised in Coffee Holding's initial motion or Coffee Bean's response in opposition to same. Specifically, in section III of its Reply, Coffee Holding raises a forum non conveniens challenge by arguing that "[n]otwithstanding the exclusive forum selection clause, on balance, convenience and the interests of justice also require this action be tried in Delaware." See Coffee Holding's Reply at p. 5. Coffee Holding also makes certain factually unsupported statements regarding the purported location of the witnesses and documents relevant to this case which it argues weigh in favor of transferring venue to the District of Delaware. MEMORANDUM OF LAW I. The Applicable Standard.

Rule 83 of the Federal Rules of Civil Procedure provides the framework for the local district rules. Pursuant to that Rule, judges may, and do, vary their interpretation and application of the federal rules so long as there is no inconsistency with the federal and local rules. See Fed. R. Civ. P. 83. "Rules of Practice adopted by United States District Courts ... have the force and effect of law, and are binding upon the parties and the court which promulgated them until they are changed in the appropriate manner.... A litigant has the right to rely upon the local rules, as the parties and court are bound by them." Woods Constr. Co. v. Atlas Chemical Industries, Inc., 337 F.2d 888, 890-91 (10th Cir. 1964) (citing Weil v. Neary, 278 U.S. 160, 49 S. Ct. 144, 73 L. Ed. 243 (1929)). "Local rules, no less than federal rules or Acts of Congress, are part of the

2
Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-2 Case 1:07-cv-20389-JEM Document 26 Entered onFiled 05/01/2007 Page 3 of 5 FLSD Docket 03/06/2007 Page 3 of 5

supreme law of the land." Baylson v. Disciplinary Board of Supreme Court of Pennsylvania, 764 F.Supp. 328, 348 (E.D. Penn. 1991). In this District, S.D. Fla. L.R. 7.1 governs the motion practice and permits the parties to file a motion, a memorandum in opposition to the motion, and a reply by the movant. S.D. Fla. L.R. 7.1(c) strictly limits replies to rebuttal of matters raised in the memorandum in opposition to which the reply is addressed. Based on the plain language of this Rule, litigants may not raise new arguments in their reply brief. See Martinez, v. Weyerhaeuser Mortgage Co., 959 F.Supp. 1511, 1515 (S.D. Fla. 1996) (striking reply memorandum that raised new arguments not made in either the initial motion or the memorandum in opposition). II. Section III of Coffee Holding's Reply Must Be Stricken Because It Raises Arguments Not Previously Raised.

Coffee Holding's initial motion was based entirely on the forum selection clause at issue which it argued mandated that this action be brought in the District of Delaware. Coffee Bean's response in opposition to that motion focused solely on the permissive, rather than mandatory, nature of the forum selection clause for the proposition that this action was properly brought in the Southern District of Florida. Section III of Coffee Holding's Reply, however, raises a forum non conveniens challenge in which Coffee Holding argues for the first time that, "[n]otwithstanding the ... forum selection clause," the relevant factors weigh in favor of transferring this case to the District of Delaware. It is well settled that arguments raised for the first time in a reply brief may not be considered. See Weyerhaeuser Mortgage Co., 959 F.Supp. at 1515 ("the Court finds that the movant may not raise new arguments in a reply brief"); Hardy v. Jim Walter Homes, Inc., 2007 U.S. Dist. LEXIS 5253 *8 (S.D. Ala. 2007) ("arguments raised for the first time in a reply brief are ordinarily not considered); Fisher v. Ciba Specialty Chemicals Corp., 238 F.R.D. 273, 316 3
Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-2 Case 1:07-cv-20389-JEM Document 26 Entered onFiled 05/01/2007 Page 4 of 5 FLSD Docket 03/06/2007 Page 4 of 5

n.89 (S.D. Ala. 2006) ("As a procedural matter, this argument is not properly raised because plaintiffs submitted it for the first time in their reply brief."). Section III of Coffee Holding's Reply raises arguments not made in either Coffee Holding's initial motion to transfer venue or Coffee Bean's response in opposition to same. Thus, it violates S.D. Fla. L.R. 7.1(c) and must be stricken. Coffee Bean will be prejudiced if the Court considers arguments that it did not have an opportunity to brief and oppose. CONCLUSION For all of the foregoing reasons, Coffee Bean respectfully requests the entry of an order striking from the Court's consideration Section III of Coffee Holding's Reply. Alternatively, Coffee Bean respectfully requests leave to file a surreply to the new arguments raised by Coffee Holding in its Reply and to provide affidavits contradicting the conclusory and factually unsupported statements made by Coffee Holding regarding the location of the relevant witnesses and documents, which it argues weigh in favor of transferring venue to the District of Delaware. Respectfully submitted, BAKER & McKENZIE LLP Mellon Financial Center 1111 Brickell Avenue, Suite 1700 Miami, Florida 33131 Telephone: (305) 789-8900 Facsimile: (305) 789-8953

By:

/s/ Jose M. Ferrer Jose M. Ferrer Florida Bar No. 173746

4
Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-2 Case 1:07-cv-20389-JEM Document 26 Entered onFiled 05/01/2007 Page 5 of 5 FLSD Docket 03/06/2007 Page 5 of 5

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 6th day of March, 2007 by facsimile and U.S. Mail upon Mark S. Auerbacher, Esq. and John R. Squitero, Esq., Katz Barron Squitero Faust, 2699 S. Bayshore Drive, Seventh Floor, Miami, Florida 33133; and Christopher F. Graham, Esq. and John P. Doherty, Esq., Thacher Proffitt & Wood LLP, Two World Financial Center, New York, New York 10281.

By:

/s/ Jose M. Ferrer Jose M. Ferrer

MIADMS/307316.1

5
Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-3 Case 1:07-cv-20389-JEM Document 27 Entered onFiled 05/01/2007 Page 1 of 4 FLSD Docket 03/07/2007 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division Case Number: 07-20389-CIV-MARTINEZ-BANDSTRA COFFEE BEAN TRADING-ROASTING, LLC, a Delaware limited liability company, Plaintiff, vs.

COFFEE HOLDING, CO. INC., a Nevada corporation Defendant.

DEFENDANT COFFEE HOLDING, CO. INC'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE CERTAIN PORTIONS OF COFFEE HOLDING'S REPLY TO OPPOSITION TO TRANSFER VENUE Defendant Coffee Holding Co., Inc ("Coffee Holding"), by and through undersigned counsel, hereby replies to Plaintiff Coffee Bean Trading-Roasting, LLC's ("Coffee Bean") Motion to Strike Certain Portions of Defendant's Reply in Support of its Motion to Enforce a Forum Selection Clause and To Transfer Venue or, Alternatively, for Leave to File a Surreply ("Motion to Strike"), and in support thereof states the following: ARGUMENT The Court should deny Coffee Bean's Motion to Strike because Coffee Holding's analysis of the parties' convenience and the interests of justice is not a new argument at all. Rather, it is a clearly allowed rebuttal to Coffee Bean's single argument that this Court's analysis must end at deciding whether a forum selection clause is permissive or mandatory.

[TPW: NYLEGAL:648988.2] 19499-00009 03/07/2007 01:35 PM

Case 1:07-cv-00235-JJF Document 52-3 Case 1:07-cv-20389-JEM Document 27 Entered onFiled 05/01/2007 Page 2 of 4 FLSD Docket 03/07/2007 Page 2 of 4

Coffee Bean, both in its initial Opposition, as well as this baseless Motion to Strike, misapplies the basic law of 28 U.S.C. § 1404(a). Under Section 1404(a), federal courts are required to balance various factors, including 4 that are relevant to this case: (1) convenience of the parties and witnesses; (2) governing law; (3) the interests of justice; and (4) the presence of a valid forum selection clause. See Coffee Holding's Motion to Enforce a Forum Selection Clause and to Transfer Motion ("Transfer Motion") at 4. As the Supreme Court and the Eleventh Circuit have held, forum selection clauses -- however, are key, and -- regardless of whether the clause is permissive or mandatory, weigh heavily in a court's transfer of venue decision. That said, a forum selection clause does not, as Coffee Bean would have it, end a court's analysis. Rather, it shifts the burden from the defendant to the plaintiff to demonstrate why the action should remain in a venue that is in contravention to the parties' forum selection clause. See In re Ricoh Corp., 870 F. 2d 570 (11th Cir. 1989). Thus, it is Coffee Bean's burden to demonstrate why the forum selection clause should not be enforced and why this case should remain in Florida. Any instance of Coffee Holding addressing the convenience of the parties is an effort to rebut Coffee Bean's presumption that even if the forum selection clause is permissive, the Court's analysis ends and the case remains in Florida. Rather than address what it should have in its initial Opposition, Coffee Bean files this veiled attempt to gain a second bite at the apple to file affidavits it should have filed with its Opposition. Moreover, in contrast to Coffee Bean's contentions, the convenience of the parties is not a new argument1 but was raised by Coffee Holding in its original Transfer Motion as provided by the quotation below:

Coffee Bean's characterization of Coffee Holding's Reply as a "forum non coveniens challenge" is yet another misunderstanding of the law. Since the statutory enactment of 28 U.S.C. 1404(a), the common law doctrine

1

2[TPW: NYLEGAL:648988.2] 19499-00009

03/07/2007 01:35 PM

Case 1:07-cv-00235-JJF Document 52-3 Case 1:07-cv-20389-JEM Document 27 Entered onFiled 05/01/2007 Page 3 of 4 FLSD Docket 03/07/2007 Page 3 of 4

"Additionally, the parties agreed that Delaware law would govern. As stated above, governing law is an important factor in determining forum in a transfer motion. Finally, although some of the events giving rise to the dispute took place in Florida, Coffee Holding at all times operated out of New York, where Mr. Gordon resides. Coffee Bean's manager, who signed the Operating Agreement on behalf of the Plaintiff, resides in Switzerland. Thus, many of the events and some of the witnesses are not in Florida ­ therefore, not even convenience dictates that the case should remain in Florida." Coffee Holding's initial Motion to Transfer Venue at 7 (emphasis added). In sum, Coffee Holding did not raise any new arguments in its Reply but only rebutted Coffee Bean's unsubstantiated legal contention that this Court's analysis must start and end at determining whether a forum selection clause is mandatory or permissive. As such, the Court should deny Coffee Bean's motion to Strike and Leave for a Surreply. CONCLUSION Based on the foregoing, Coffee Holding respectfully requests that the Court deny Coffee Bean's Motion to Strike and Leave for Surreply and transfer this action to the District Court for the District of Delaware. Dated: March 7, 2007 KATZ, BARRON, SQUITERO, FAUST 2699 S. Bayshore Drive, Seventh Floor Miami, Florida 33133 Tel: 305-856-2444 Fax: 305-285-9227 /s/Mark S. Auerbacher, Esq. Florida Bar No. 978220 [email protected]
of forum non conveniens has been applied only to cases in which the alternative forum is abroad. 17 Moore's Federal Practice § 111.71 (Matthew Bender 3d Ed.). Therefore, in its Reply, Coffee Holding is not raising a forum non conveniens argument but rather addressing the same 1404(a) argument it has always maintained.

3[TPW: NYLEGAL:648988.2] 19499-00009

03/07/2007 01:35 PM

Case 1:07-cv-00235-JJF Document 52-3 Case 1:07-cv-20389-JEM Document 27 Entered onFiled 05/01/2007 Page 4 of 4 FLSD Docket 03/07/2007 Page 4 of 4

John R. Squitero, Esq. Florida Bar No. 121196 [email protected] Christopher F. Graham Mary H. Mulhearn Thacher Proffitt & Wood LLP Two World Financial Center New York, New York 10281 Tel: (212) 912-7669 Fax: (212) 912-7751 [email protected] COUNSEL FOR DEFENDANT

CERTIFICATE OF SERVICE I hereby certify that on March 7, 2007, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to the following: [email protected]. I further certify that I mailed the foregoing document and the notice of electronic filing by first-class mail to the following recipients: Jose Ferrer, Esq. BAKER & McKENZIE LLP Mellon Financial Center 1111 Brickell Avenue, Suite 1700 Miami, Florida 33131

Counsel of Defendants /s/Mark S. Auerbacher, Esq.

4[TPW: NYLEGAL:648988.2] 19499-00009

03/07/2007 01:35 PM

Case 1:07-cv-00235-JJF Document 52-4 Case 1:07-cv-20389-JEM Document 28 Entered onFiled 05/01/2007 Page 1 of 4 FLSD Docket 03/12/2007 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division CASE NO.: 07-20389-CIV-MARTINEZ/BANDSTRA COFFEE BEAN TRADING-ROASTING, LLC, a Delaware limited liability company, Plaintiff, vs. COFFEE HOLDING, INC., a Nevada corporation, Defendant. ________________________________________/ PLAINTIFF'S REPLY TO DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE OR, ALTERNATIVELY, FOR LEAVE TO FILE A SURREPLY Plaintiff, Coffee Bean Trading-Roasting, LLC ("Coffee Bean"), pursuant to S.D. Fla. L.R. 7.1(C), hereby replies to Defendant, Coffee Holding, Inc.'s ("Coffee Holding"), response in opposition to Coffee Bean's motion to strike certain portions of Coffee Holding's reply in support of its motion to enforce a forum selection clause, or, alternatively, for leave to file a surreply, and in support thereof states as follows: STATEMENT AND ARGUMENT Coffee Holding in its response argues that Section III of its Reply should not be stricken because the arguments contained in that section are merely a continuation of the arguments it made in its initial motion to transfer venue and responsive to Coffee Bean's argument that the forum selection clause does not require that the case be transferred to the District of Delaware. Coffee Holding's disingenuous attempt to recast its motion as a general request to transfer venue, rather than a specific request to enforce a forum selection clause, belies the specific arguments and statements made in, and even the title of, its initial motion.

Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-4 Case 1:07-cv-20389-JEM Document 28 Entered onFiled 05/01/2007 Page 2 of 4 FLSD Docket 03/12/2007 Page 2 of 4

As its title confirms, Coffee Holding's Motion is a "Motion to Enforce a Forum Selection Clause and To Transfer Venue[.]" (emphasis added). The introductory paragraph of Coffee Holding's motion further confirms that the intent of Coffee Holding in bringing the motion is to have the Court "enforce the parties [sic] choice of venue and transfer this case to the U.S. District Court for the District of Delaware[.]" (emphasis added). At page two of its Motion, Coffee Holding summarizes why it believes this Court should transfer venue by stating, "this case should be transferred to, and litigated in, the U.S. District Court of Delaware because the parties affirmatively agreed in the Limited Liability Agreement of Café La Rica, LLC (the "Operating Agreement") to litigate any causes of action arising from the Agreement in Delaware." (emphasis added). Coffee Holding goes on to argue that "[t]he venue mandated by a contractual forum-selection clause rarely will be outweighed by any other factor in a 1404(a) analysis." See Motion to Enforce Forum Selection Clause at p. 2. Additionally, all of the cases cited by Coffee Holding in its motion addressed a transfer of venue in the context of a mandatory forum selection clause. Thus, it is clear from even a cursory reading of Coffee Holding's motion that its arguments in support of a transfer of venue were initially based solely and exclusively on the forum selection clause contained in the parties' operating agreement, and not, as it now argues, on the purported convenience of the parties. Coffee Holding's argument that it specifically raised the convenience of the parties in its initial motion is equally unavailing. Courts have uniformly held that "if the party moving for transfer under § 1404(a) merely makes a general allegation that witnesses will be necessary, without identifying those necessary witnesses and indicating what their testimony at trial will be, the motion for transfer based on convenience of witnesses will be denied." J.I. Kislak Mortgage Corp. v. Connecticut Bank & Trust Co., N.A., 604 F.Supp. 346, 348 (S.D. Fla. 1985) (quoting

2
Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-4 Case 1:07-cv-20389-JEM Document 28 Entered onFiled 05/01/2007 Page 3 of 4 FLSD Docket 03/12/2007 Page 3 of 4

from American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D. Mo. 1980). "Similarly, as with witnesses, `general allegations that a transfer is needed because of the location of books and records are not enough. The moving papers [sic] must show the location, difficulty of transportation and importance of the books and records.'" Kislak, 604 F.Supp. at 348 (quoting from Bendix, 487 F.Supp at 264). Coffee Holding points to a single sentence in its three-page brief ("not even convenience dictates that the case should remain in Florida") which it argues sufficiently raised the issue. However, Coffee Holding elaborated no arguments on the merits regarding why the District of Delaware is purportedly a more convenient forum than the Southern District of Florida. Under the authorities cited above, Coffee Holding's passing reference cannot be construed as rising to the level of an argument. See Kislak, 604 F.Supp. at 348 ("Courts have been uniform in holding such a bald showing as insufficient."). In fact, the surrounding arguments ­ "Plaintiff has no basis whatsoever to argue that the forum selection clause is somehow not enforceable" and "In sum, in March of 2006, the parties knowingly entered into an agreement that provided that all disputes arising out of that agreement would be exclusively litigated in Delaware under Delaware law" ­ evidence that Coffee Holding's statement was an extension of its venue challenge based on the relevant forum selection clause, and not an independent challenge based on the convenience of the parties. CONCLUSION For all of the foregoing reasons, Coffee Bean respectfully reiterates its request for the entry of an order striking from the Court's consideration Section III of Coffee Holding's Reply or, alternatively, for leave to file a surreply to the new arguments raised by Coffee Holding and

3
Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-4 Case 1:07-cv-20389-JEM Document 28 Entered onFiled 05/01/2007 Page 4 of 4 FLSD Docket 03/12/2007 Page 4 of 4

to provide affidavits contradicting the conclusory and factually unsupported statements made by Coffee Holding regarding the location of the relevant witnesses and documents. Respectfully submitted, BAKER & McKENZIE LLP Mellon Financial Center 1111 Brickell Avenue, Suite 1700 Miami, Florida 33131 Telephone: (305) 789-8900 Facsimile: (305) 789-8953

By:

/s/ Jose M. Ferrer Jose M. Ferrer Florida Bar No. 173746

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 12th day of March, 2007 by facsimile and U.S. Mail upon Mark S. Auerbacher, Esq. and John R. Squitero, Esq., Katz Barron Squitero Faust, 2699 S. Bayshore Drive, Seventh Floor, Miami, Florida 33133; and Christopher F. Graham, Esq. and John P. Doherty, Esq., Thacher Proffitt & Wood LLP, Two World Financial Center, New York, New York 10281.

By:

/s/ Jose M. Ferrer Jose M. Ferrer

MIADMS/307465.2

4
Baker & McKenzie LLP, 1111 Brickell Avenue, Suite 1700, Miami, Florida 33131 ­ (305) 789-8900

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 1 of 21 1 of 21 FLSD Docket 03/13/2007 Page

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division Case Number: 07-20389-CIV-MARTINEZ-BANDSTRA

COFFEE BEAN TRADING-ROASTING, LLC, a Delaware limited liability company, Plaintiff, vs.

COFFEE HOLDING, CO. INC., a Nevada corporation Defendant.

ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM Defendant, Coffee Holding, Co. Inc., ("Coffee Holding") by and through its undersigned attorneys, do hereby answer the Verified Complaint (the "Complaint") filed by plaintiff Coffee Bean Trading-Roasting LLC ("Coffee Bean") in the captioned matter as follows: PARTIES, JURISDICTION AND VENUE 1. Coffee Holding admits, upon and information and belief, the truth of the

allegations contained in paragraph 1 of the Complaint. 2. Coffee Holding admits, upon and information and belief, the truth of the

allegations contained in paragraph 2 of the Complaint. 3. Paragraph 3 of the Complaint is an allegation of jurisdiction and causes of action

and does not require a response from Coffee Holding.

[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 2 of 21 2 of 21 FLSD Docket 03/13/2007 Page

4.

Paragraph 4 of the Complaint is an allegation of venue to which no response is

required. To the extent a response is required, Coffee Holding denies the allegations contained in paragraph 4 of the Complaint and avers that venue is improper in the Southern District of Florida pursuant to an exclusive forum selection clause in the Limited Liability Company Agreement of Café La Rica, LLC (the "Operating Agreement"). Coffee Holding respectfully refers the Court to Coffee Holding's Motion to Enforce a Forum Selection Clause and to Transfer Venue filed with this Court on February 15, 2007. 5. Paragraph 5 does not require a response from Coffee Holding. FACTS COMMON TO ALL CLAIMS The Operating Agreement 6. Coffee Holding admits, upon and information and belief, the truth of the

allegations contained in paragraph 6 of the Complaint, but respectfully refers the Court to the "Operating Agreement" for the true and complete terms thereof. 7. Coffee Holding admits the allegations set forth in paragraph 7 of the Complaint, but

respectfully refers the Court to the "Operating Agreement" for the true and complete terms thereof. 8. Coffee Holding denies the allegations set forth in paragraph 8 of the Complaint,

except admits that the Operating Agreement established a Board of Managers responsible for the management of the Company and all decisions concerning the business affairs of the Company and that the Board of Managers was to consist of two managers, each having one vote with respect to all matters requiring the vote of the Board of Directors, but respectfully refers to the Court to the Operating Agreement for the true and complete terms thereof. 9. Coffee Holding denies the allegations set forth in paragraph 9 of the Complaint

except admits, upon information and belief, that the initial Board of Managers of Café La Rica

2
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 3 of 21 3 of 21 FLSD Docket 03/13/2007 Page

was comprised of Andrew Gordon and Ernesto Aguila but respectfully refers to the Court to the Operating Agreement for the true and complete terms thereof. 10. Coffee Holding admits the Operating Agreement shall be governed and construed

in accordance with Delaware law as set forth in paragraph 10. The Expense Sharing Agreement 11. Coffee Holding admits, upon information and belief, the statements set forth in

paragraph 11 of the Complaint but respectfully refers to the Court to the Expense Sharing Agreement for the true and complete terms thereof. 12. Coffee Holding admits, upon information and belief, the statements set forth in

Paragraph 12 of the Complaint but respectfully refers to the Court to the Expense Sharing Agreement for the true and complete terms thereof. 13. Coffee Holding admits, upon information and belief, the statements set forth in

Paragraph 13 of the Complaint but respectfully refers to the Court to the Expense Sharing Agreement for the true and complete terms thereof. ANSWERING COUNT I

(Breach of the Operating Agreement)
14. 15. 16. Coffee Holding realleges and incorporates by reference paragraphs 1 through 13. Coffee Holding denies the allegations set forth in paragraph 15 of the Complaint. Coffee Holding admits, upon information and belief, the statements set forth in

paragraph 16 of the Complaint but respectfully refers to the Court to the Operating Agreement for the true and complete terms thereof. 17. 18. Coffee Holding denies the allegations set forth in paragraph 17 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 18 of the Complaint.

3
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 4 of 21 4 of 21 FLSD Docket 03/13/2007 Page

ANSWERING COUNT II

(Breach of the Expense Sharing Agreement)
19. 20. Coffee Holding incorporates by reference paragraphs 1 through 13 above. Coffee Holding admits the statements set forth in paragraph 20 of the Complaint

but respectfully refers to the Court to the Expense Sharing Agreement for the true and complete terms thereof. 21. 22. 23. 24. Coffee Holding denies the allegations set forth in paragraph 21 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 22 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 23 of the Complaint. Paragraph 24 of the Complaint is a legal conclusion to which no responsive

pleading is required. ANSWERING COUNT III

(Breach of Fiduciary Duty)
25. 26. Coffee Holding incorporates by reference paragraphs 1 through 13 above. Paragraph 26 of the Complaint is a legal conclusion to which no responsive

pleading is required. 27. Paragraph 27 of the Complaint is a legal conclusion to which no responsive

pleading is required. 28. 29. 30. 31. 32. Coffee Holding denies the allegations set forth in paragraph 28 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 29 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 30 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 31 of the Complaint. Paragraph 32 is a legal conclusion to which no responsive pleading is required.

4
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 5 of 21 5 of 21 FLSD Docket 03/13/2007 Page

ANSWERING COUNT IV

(Breach of the Implied Contractual Covenant of Good Faith and Fair Dealing)
33. 34. Coffee Holding incorporates by reference paragraphs 1 through 13. Paragraph 34 of the Complaint is a legal conclusion to which no responsive

pleading is required. 35. 36. Coffee Holding denies the allegations set forth in paragraph 35 of the Complaint. Paragraph 36 of the Complaint is a legal conclusion to which no responsive

pleading is required. 37. 38. 39. 40. Coffee Holding denies the allegations set forth in paragraph 37 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 38 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 39 of the Complaint. Paragraph 40 of the Complaint is a legal conclusion to which no responsive

pleading is required. ANSWERING COUNT V

(Accounting)
41. 42. Coffee Holding incorporates by reference paragraphs 1 through 13 above. Coffee Holding admits, upon information and belief, the statements set forth in

paragraph 42 of the Complaint but respectfully refers to the Court to the Expense Sharing Agreement for the true and complete terms thereof. 43. Paragraph 43 of the Complaint is a legal conclusion to which no responsive

pleading is required, to the extent that a response is required, Coffee Holding denies the allegations set forth in paragraph 43 of the Complaint. 44. Paragraph 44 of the Complaint is a legal conclusion to which no responsive

pleading is required.

5
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 6 of 21 6 of 21 FLSD Docket 03/13/2007 Page

ANSWERING COUNT VI

(Permanent and Temporary Injunction)
45. 46. 47. 48. 49. 50. Coffee Holding incorporates by reference paragraphs 1 through 13 above. Coffee Holding denies the allegations set forth in paragraph 46 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 47 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 48 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 49 of the Complaint. Coffee Holding denies the allegations set forth in paragraph 50 of the Complaint

except admits that on February 7, 2007, Mr. Gordon sent a fax to Washington Mutual Bank ("Washington Mutual") advising Washington Mutual that Café La Rica had been dissolved. 51. Coffee Holding denies knowledge or information sufficient to form a belief as to

the truth of the allegations contained in paragraph 51 of the Complaint. 52. 53. the Complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Plaintiff's, Not Defendant's, Actions Caused Damages) Coffee Bean's claims are barred because, to the extent that either Coffee Bean or Café La Rica suffered any damages, no act or omission of Coffee Holding was the proximate cause of any alleged injuries or damages allegedly incurred by Coffee Bean or Café La Rica; rather, the conduct of Coffee Bean and/or Café La Rica proximately caused any such alleged injuries or damages. Coffee Holding denies the allegations set forth in paragraph 52 of the Complaint. Paragraph 53 is a legal conclusion and does not require a responsive pleading of

6
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 7 of 21 7 of 21 FLSD Docket 03/13/2007 Page

SECOND AFFIRMATIVE DEFENSE

(Improper Venue)
Coffee Bean is barred from recovery because venue is improper. Coffee Bean files this Answer without prejudice to the pending Motion to Enforce Forum Selection Clause and Transfer Venue to the District Court for the District of Delaware and Coffee Holding hereby incorporates all objections to venue stated therein. THIRD AFFIRMATIVE DEFENSE (Failure to State a Cause of Action) Coffee Bean fails to state a claim upon which any relief may be granted. FOURTH AFFIRMATIVE DEFENSE (Unclean Hands) Coffee Bean is barred from obtaining relief by the doctrine of unclean hands. FIFTH AFFIRMATIVE DEFENSE (Lack of Standing) To the extent that Café La Rica has suffered any damages, Coffee Bean does not have standing to maintain this action individually or derivatively on behalf of Café La Rica and/or is not the real party in interest. SIXTH AFFIRMATIVE DEFENSE (Laches, Waiver and Estoppel) Coffee Bean is barred from recovery on the grounds of laches, waiver and estoppel.

SEVENTH AFFIRMATIVE DEFENSE (No Damages) Coffee Bean is barred from recovery on the grounds that Coffee Bean has failed to plead with particularity any damages to either Coffee Bean or Café La Rica as a direct or proximate result of the acts alleged to have been committed by Coffee Holding.

7
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 8 of 21 8 of 21 FLSD Docket 03/13/2007 Page

EIGHTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) Coffee Bean is barred from recovery on the grounds that Coffee Bean failed to mitigate any damages, if any, sustained by Coffee Bean or Café La Rica. WHEREFORE, Coffee Holding prays that the Complaint be dismissed in its entirety, together with costs and for such and other further relief as the Court may deem just and proper.

8
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 9 of 21 9 of 21 FLSD Docket 03/13/2007 Page

COUNTERCLAIM Defendant, Coffee Holding, by and through its undersigned attorneys, for its counterclaim, states as follows: INTRODUCTION In March 2006, the Plaintiff, Coffee Bean, and the Defendant, Coffee Holding, decided to enter into a joint venture. The idea was simple -- together, Coffee Bean and Coffee Holding would form "Café La Rica" a company that would roast, package and sell coffee. Each party would have a 50% interest in Café La Rica and would share in its profits equally. But, as detailed more thoroughly below, the venture was a complete failure. As a result, Coffee Holding simply exercised its rights under the definitive agreement and dissolved Café La Rica. Coffee Bean retaliated by initiating a series of baseless claims against Coffee Holding in this Court, including an ex parte Motion for a Temporary Restraining Order. Moreover, Coffee Bean has continued to operate Café La Rica and collect receivables in violation of the dissolution; in fact, upon information and belief, at least $170,000 has been collected from Café La Rica customers by Coffee Bean and either converted for personal use or deposited into an unauthorized bank account without Coffee Holding's knowledge or permission. THE PARTIES 1. of Delaware. 2. Coffee Holding is a corporation organized and operating under the laws of the Coffee Bean is a limited liability company organized and operating under the laws

State of Nevada. 3. Café La Rica was a limited liability company organized and operating under the

laws of Delaware.

9
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 10 of 21 10 of 21 FLSD Docket 03/13/2007 Page

FACTS AND PROCEDURAL POSTURE 4. On or about March 10, 2006, Coffee Bean and Coffee Holding entered into the

Operating Agreement which created and governs Café La Rica and, among other things, provides the mechanism for dissolution should one or both the parties decide to dissolve Café La Rica. Specifically, the Operating Agreement provides that should there be a material breach of any agreement between Café La Rica and one of the two members (Coffee Bean or Coffee Holding) or between any two members, Café La Rica would be "...dissolved without further action by the members...." See Operating Agreement at § 13.1 (e). A copy of the Operating Agreement is attached as Exhibit A of the Plaintiff's Complaint. 5. The Operating Agreement also provides that if the members enter into a dispute

about the interpretation of the Operating Agreement or enter into a dispute with respect to the relations among Members, the parties are required: first, to enter good faith negotiations during a sixty day period to resolve the dispute; second, to refer the dispute to mediation; and only third, bring an action in court in accordance with an exclusive forum selection clause. See Operating Agreement at § 14.13 (emphasis added). 6. The Operating Agreement provides that the Agreement would be governed by

Delaware law and that the parties agreed to exclusive jurisdiction in the state or federal courts of Delaware. See Operating Agreement at § 14.8. 7. On or about March 10, 2006, Coffee Holding and Café La Rica entered into the

Expense Sharing Agreement, which provides, among other things, that Coffee Holding would render certain management services in exchange for 5% of Café La Rica's monthly sales. The Expense Sharing Agreement also provided that Coffee Holding would sell coffee to Café La

10
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 11 of 21 11 of 21 FLSD Docket 03/13/2007 Page

Rica at fair market prices. A copy of the Expense Sharing Agreement is attached as Exhibit B of the Plaintiff's Complaint. 8. From its inception, however, Café La Rica never turned a profit and generated

loss after loss. In short, Café La Rica has been a complete failure. 9. Mr. Ernesto Aguila, managing director of Café La Rica, controlled the day-to-day

operations of Café La Rica; importantly, it was Mr. Aguila who was in charge of ordering coffee from Coffee Holding. Mr. Aguila continually placed large orders of coffee that Coffee Holding provided but for which Café La Rica rarely paid. 10. Not only did Mr. Aguila wholly mismanage and neglect Café La Rica, but he

attempted to personally gain from what little profits Café La Rica did make. Among other things, Mr. Aguila leased an unnecessarily expensive car at nearly $700 per month which he charged to Café La Rica. Mr. Aguila also fired key employees and hired family members, including his wife, who he employed at a salary of over $40,000 per year. In fact, upon information and belief, Mr. Aguila accepted cash payments from at least two customers of Café La Rica (Silba Coffee Services and Farm Stores) and converted the cash for personal use. 11. Coffee Holding, by contrast, did everything it could to keep Café La Rica afloat.

Not only did Coffee Holding consistently fulfill Café La Rica's many demands for coffee at fair market value -- notwithstanding the fact that Café La Rica paid for almost none of it -- but time and time again, Coffee Holding contributed cash and equipment to Café La Rica in an attempt to save the failing venture. 12. In March 2006, Coffee Holding contributed $250,000 in cash and a brick pack

packaging machine with a book value of $335,000 to Café La Rica. In December 2006, Coffee Holding furnished Café La Rica with an additional $50,000. Coffee Holding also advanced Café

11
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 12 of 21 12 of 21 FLSD Docket 03/13/2007 Page

La Rica a $19,000 security deposit which Café La Rica has still not reimbursed. Finally, Coffee Holding paid $20,000 for an insurance premium for Café La Rica. 13. Coffee Holding has sold approximately $530,000 of coffee to Café La Rica;

however, due to Mr. Aguila's management of Café la Rica, only $150,000 has been paid. 14. 15. Coffee Holding always sold coffee to Café La Rica at fair market value. Mr. Aguila has been kept fully informed of Café La Rica's financial condition by

Café La Rica accountants. Mr. Aguila has been provided with financial reports by Coffee Holding or Café La Rica's accountants. 16. $430,000. 17. Upon information and belief, Coffee Bean has never contributed cash or coffee to Currently, Café La Rica's financial statements demonstrate accumulated losses of

Café La Rica. In fact, upon information and belief, Coffee Bean withdrew $5,000 from Café La Rica for payment of rent for a previous business venture with Mr. Aguila without the consent of Coffee Holding. 18. Despite Coffee Holding's financial support of Café La Rica, the venture failed.

And, in order to salvage what little there was left, Coffee Holding had no choice but to exercise its rights under the Operating Agreement and dissolve Café La Rica due to a material breach of the Expense Sharing Agreement. This material breach consisted of Café La Rica's failure to pay Coffee Holding for the coffee that Coffee Holding continually provided. By letter dated

February 5, 2007 from Andrew Gordon, Coffee Holding rightfully dissolved Café La Rica. 19. Instead of trying to work with Coffee Holding to develop an amicable winding

down process, Mr. Aguila unilaterally changed the passcodes of Café La Rica's bank account, withdrew $20,000 from the same account and, for an extended period, cut off Coffee Holding's

12
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 13 of 21 13 of 21 FLSD Docket 03/13/2007 Page

access to Café La Rica's security cameras. Upon information and belief, Mr. Aguila continues to run Café La Rica and unilaterally dispose of its assets despite being notified of dissolution and the need to wind up. 20. Mr. Gordon did the only thing he could -- request Washington Mutual to freeze

Café La Rica's account so that its remaining assets would not be dissipated. 21. Instead of seeking to mediate or arbitrate this matter, as required by the Operating

Agreement, Coffee Bean filed not only a Complaint, alleging a series of baseless claims, but an ex parte Temporary Restraining Order (`TRO") in this Court. Moreover, the Complaint and TRO were filed in direct contravention to the exclusive Forum Selection Clause of the Operating Agreement. 22. Coffee Holding filed a Motion to Enforce a Forum Selection Clause and to

Transfer Venue on February 15, 2007. 23. This Court denied Plaintiff's TRO in an Order dated February 16, 2007 on the

basis that the Plaintiffs could not demonstrate irreparable harm. 24. Upon information and belief, since Café La Rica's dissolution, Coffee Bean has

taken $170,000 from Café La Rica's customers and deposited the money into Coffee Bean's Bank of America account without the knowledge, let alone the permission of Coffee Holding. COUNT I -- BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 25. of the above. 26. By entering into the Operating Agreement, Coffee Bean implicitly covenanted to Coffee Holding realleges and reincorporates by reference paragraphs 1 through 24

deal fairly and in good faith with Coffee Holding and Café La Rica.

13
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 14 of 21 14 of 21 FLSD Docket 03/13/2007 Page

27.

Coffee Bean's agent, Mr. Aguila has not only knowingly and purposefully

mismanaged Café La Rica, but, among other things, has leased an unnecessarily expensive car and employed his own wife as a salaried employee and accepted cash payments from at least two customers of Café La Rica for personal use. 28. Mr. Lensi, Manager of Coffee Bean, withdrew $5,000 from Café La Rica for

payment of rent owed by Coffee Bean for a previous business venture. 29. Coffee Bean's agent, Mr. Aguila also knowingly and purposefully unilaterally

changed the passcodes and withdrew $20,000 from Café La Rica's bank accounts soon after he learned of Café La Rica's dissolution. 30. Coffee Bean has also knowingly and purposefully constructively ousted Coffee

Holding from Café La Rica by shutting off Coffee Holding's access to Café La Rica's security cameras for an extended time. 31. Coffee Bean and Mr. Aguila have additionally taken at least $170,000 of account

receivables from Café La Rica customers which it has either converted for personal use or placed in an unauthorized Coffee Bean bank account without knowledge or permission from Coffee Holding. 32. Coffee Bean has breached the covenant of good faith and fair dealing by

undertaking the above acts. 33. Coffee Holding has suffered and continues to suffer damages as a direct,

foreseeable and proximate result of Coffee Bean's breach of the implied covenant of good faith and fair dealing. WHEREFORE, Coffee Holding respectfully requests the Court to dismiss Plaintiff's Complaint and enter judgment against Coffee Bean for damages, together with pre and post

14
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 15 of 21 15 of 21 FLSD Docket 03/13/2007 Page

judgment, interest, costs, and any other and further relief this Court deems equitable, just and proper. COUNT II - CONVERSION 34. of the above. 35. Soon after he learned of Café La Rica's dissolution, Coffee Bean's agent, Mr. Coffee Holding realleges and reincorporates by reference paragraphs 1 through 24

Aguila, without the permission of Coffee Holding, withdrew $20,000 from Café La Rica's Washington Mutual bank account to which, prior to that, Coffee Holding had maintained full access. Mr. Aguila also accepted cash payments from two customers for personal use. 36. Coffee Bean and/or Mr. Aguila has also taken at least $170,000 in accounts

receivables without Coffee Bean's knowledge or permission and upon information of belief, deposited such receivables into a Coffee Bean bank account. 37. 38. Coffee Bean has committed the act of conversion by undertaking the above acts. Coffee Holding has suffered and continues to suffer damages as a direct,

foreseeable, and proximate result of Coffee Bean's tortious conversion. WHEREFORE, Coffee Holding respectfully requests the Court to dismiss Plaintiff's Complaint and enter judgment against Coffee Bean for damages together with pre and post judgment interest, costs, and any other and further relief this Court deems equitable, just and proper. COUNT III - TORTIOUS INTERFERENCE WITH THE EXPENSE SHARING CONTRACT 39. of the above. Coffee Holding realleges and reincorporates by reference paragraphs 1 through 24

15
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 16 of 21 16 of 21 FLSD Docket 03/13/2007 Page

40.

Coffee Bean, through its agent, Mr. Aguila has continually mismanaged Café La

Rica causing its financial crisis and its inability to make its payments to Coffee Holding as required by the Expense Sharing Agreement. 41. It was Mr. Aguila who intentionally ordered significant amounts of coffee from

Coffee Holding on behalf of Café La Rica knowing that Café La Rica would be unable to pay and therefore would be in breach of the Expense Sharing Agreement ­ this has resulted in $380,000 worth of unpaid coffee. Additionally, under Mr. Aguila's management, Café La Rica was never able to re-pay to Coffee Holding the $50,000 cash advance, the $19,000 security deposit and the cost of inventory and packaging materials. 42. Mr. Aguila knew of the Expense Sharing Agreement, his actions were a

significant factor in the breach of the Expense Sharing Agreement by Café La Rica and he did so without justification. 43. By taking the above actions, Coffee Bean has tortiously interfered with the

Expense Sharing Agreement between Coffee Holding and Café La Rica. 44. Coffee Holding has suffered and continues to suffer damages as a direct,

foreseeable, and proximate result of Coffee Bean's and Mr. Aguila's tortious interference with the Expense Sharing Agreement between Coffee Holding and Coffee Bean. WHEREFORE, Coffee Holding respectfully requests the Court to dismiss Plaintiff's Complaint and enter judgment against Coffee Bean for damages, together with pre and post judgment interest, costs, and any other and further relief this Court deems equitable, just and proper.

16
[TPW: NYLEGAL:644432.3] 19499-00009 03/13/2007 05:30 PM

Case 1:07-cv-00235-JJF Document 52-5 Case 1:07-cv-20389-JEM Document 29 Entered onFiled 05/01/2007 Page 17 of 21 17 of 21 FLSD Docket 03/13/2007 Page

COUNT IV ­ TORTIOUS INTERFERENCE WITH COFFEE HOLDING'S BUSINESS RELATIONSHIPS AND PROPERTY 45. of the above. 46. Coffee Bean, through its agent, Mr. Aguila, knowingly and intentionally cut off Coffee Holding realleges and reincorporates by reference paragraphs 1 through 24

Coffee Holding's access to the security cameras monitoring Café La Rica's premises almost immediately after Coffee Holding put Coffee Bean on notice of Café La Rica's dissolution. As such, Coffee Holding has been constructively ousted from the property of Café La Rica. 47. By taking the above actions, Coffee Bean has interfered with the business

relationship between Coffee Holding and Café La Rica and Café La Rica's customers, creditors and vendors. 48. Coffee Holding has suffered and continues to suffer damages as a direct,

foreseeable, and proximate result of Coffee Bean's and Mr. Aguila's tortious interference with the Expense Sharing Agreement between Coffee Holding and Coffee Bean. WHEREFORE, Coffee Holding respectfully requests the Court to dismiss Plaintiff's Complaint and enter judgment against Coffee Bean for damages, together with pre and post judgment interest, costs, and any other and f