Free Complaint - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

) ) ) Plaintiff, ) - against ) ) DORCHESTER CAPITAL MANAGEMENT ) COMPANY, a Delaware corporation, ) ) Defendant. ) -----------------------------------------------------------------------X

THE TORRENZANO GROUP, LLC, a New York limited liability company,

C.A. No.

COMPLAINT FOR BREACH OF CONTRACT Now comes Plaintiff, The Torrenzano Group, LLC (sometimes hereinafter referred to as "Plaintiff"), through its undersigned counsel, and for its Complaint, complains and alleges of Defendant, Dorchester Capital Management Company (sometimes hereinafter referred to as "Defendant") as follows: JURISDICTION AND VENUE 1. Plaintiff is a limited liability company organized and existing under the

laws of New York with its principal place of business located at 60 East 42nd Street, New York, New York. 2. Plaintiff is informed and believes and thereon alleges that Defendant is a

corporation organized and existing under the laws of Delaware with its principal place of business located in Houston, Texas, and having a registered agent with a principal office located in the State of Delaware, County of New Castle.

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3.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332(a),

in that the matter in controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and is between parties that are citizens of different states. 4. Venue is appropriate in this Court pursuant to the terms of a written

agreement, hereinafter described in further detail. GENERAL ALLEGATIONS 5. On or about May 26, 2005, Plaintiff and Defendant entered into a written

agreement (the "Agreement") pursuant to which Plaintiff agreed to render certain investor relations and public relations work, labor and services to and on behalf of Defendant, and for which the Defendant agreed to pay Plaintiff. 6. The term of the Agreement was for a minium period of five months, which

would thereafter continue until terminated by either party upon not less than 30 days' written notice. A copy of the Agreement is annexed hereto as Exhibit "A" and is made a part hereof. 7. Pursuant to the Agreement, in consideration for the work, labor and services

to be performed by Plaintiff, Defendant agreed to pay Plaintiff a minimum fee of $10,000.00 per month, exclusive of out-of-pocket expenses, commencing June, 2005 (the "Minimum Fees"). 8. Pursuant to the Agreement, Defendant further agreed to pay Plaintiff its

agreed and reasonable staff time charges and expenses incurred on behalf of Defendant in excess of the Minimum Fees (collectively, the "Additional Charges"). 9. Pursuant to the Agreement, Defendant agreed to pay Plaintiff's monthly

invoices within 30 days of receipt thereof. 10. Pursuant to the Agreement, Plaintiff and Defendant further agreed that in the

event a monthly invoice was not paid by Defendant within thirty days of receipt, Plaintiff could 2

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charge, and Defendant would pay, a late payment charge equivalent to two (2%) per cent per month on the undisputed and unpaid balance thereof. 11. Pursuant to the Agreement, the Plaintiff and Defendant further agreed that the

failure of Plaintiff to issue any bill or invoice would not excuse or affect Defendant's obligation to pay Plaintiff according to the terms of the Agreement. 12. 13. Plaintiff has performed all parts of the Agreement on its part to be performed. Heretofore, and on or about and between January 18, 2006 and November 7,

2006, Plaintiff billed Defendant for $115,274.53 in Minimum Fees and Additional Charges for services rendered pursuant to the Agreement. 14. sum. 15. Despite due demand, Defendant has failed and refused to pay Plaintiff any Heretofore, Defendant paid Plaintiff $23,939.36 towards the aforementioned

other sums due pursuant to the Agreement. FIRST CAUSE OF ACTION (Breach of Contract) 16. Plaintiff incorporates by reference as if fully set forth herein, the allegations

contained in paragraphs 1 though 15 above. 17. of contract. 18. As a result of Defendant's breach of the Agreement with Plaintiff, Defendant Defendant's refusal and failure to pay, as set forth above, constitutes a breach

owes Plaintiff a balance of $91,335.17 in Minimum Fees and Additional Charges.

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SECOND CAUSE OF ACTION (Breach of Contract - Late Payment Charges) 19. Plaintiff incorporates by reference as if fully set forth herein, the allegations

contained in paragraphs 1 through 18 above. 20. Although duly billed and undisputed, Defendant has failed to timely pay any

of Plaintiff's monthly invoices to Defendant since at least April, 2006. 21. More that thirty days have elapsed from the dates of delivery of the

aforementioned invoices. 22. Accordingly, pursuant to the Agreement, and as a result of Defendant's breach

thereof, through May 31, 2008, Defendant owes Plaintiff late payment charges amounting to $29,893.00. THIRD CAUSE OF ACTION (Breach of Contract - Attorney Fees and Collection Costs) 23. Plaintiff incorporates by reference as if fully set forth herein, the allegations

contained in paragraphs 1 through 22 above. 24. Pursuant to the Agreement, Defendant further agreed that it would also pay

Plaintiff's reasonable attorneys' fees, costs and disbursements incurred in connection with collection of monies past due more than 90 days. 25. More than 90 days have elapsed since Defendant failed to pay the sums due

and overdue under the Agreement. 26. As a result thereof, Defendant owes or will owe Plaintiff its reasonable

attorneys' fees, costs and disbursements incurred in connection with collection of the sums due it

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pursuant to the Agreement, in such sum as may hereinafter be determined, but which, upon information and belief, will be in a sum no less than $5,000.00. WHEREFORE, Plaintiff prays for judgment as more fully set forth below: 1. For amounts due and owing under its Agreement with Defendant: $91,335.17

for unpaid Minimum Fees and Additional Charges; $29,893 for unpaid Late Payment Charges; plaintiff's reasonable attorneys' fees, collection costs and disbursements, in such sums as may hereinafter be determined and for which Plaintiff begs leave to prove, but not less than $5,000.00; together with applicable interest, costs and disbursements. 2. For such other and further relief as this Court may deem just and proper.

OF COUNSEL: Mitchell B. Shenkman The Abramson Law Group, PLLC 570 Lexington Avenue, 23rd Floor New York, New York 10022 Tel. (212) 686-4401 By:

CROSS & SIMON, LLC / s / Erica N. Finnegan Erica N. Finnegan (DE # 3986) 913 North Market Street, 11th Floor P.O. Box 1380 Wilmington, DE 19801 Tel: (302) 777-4200 Fax: (302) 777-4224 [email protected]

Dated: June 13, 2008 Attorneys for Plaintiff The Torrenzano Group, LLC

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EXHIBIT A

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2JS 44 (Rev. 12/07)

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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS The Torrenzano Group, LLC (b) County of Residence of First Listed Plaintiff
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS

Dorchester Capital Management Company
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney's (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Cross & Simon LLC, P.O. Box 1380, Wilmington, DE 19899 (302) 777-4200 II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff
u 1
U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party) u 4 Diversity
(Indicate Citizenship of Parties in Item III)

(For Diversity Cases Only) PTF u 1 Citizen of This State Citizen of Another State

DEF u 1

and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation

u 2

U.S. Government Defendant

u 2 u 3

u u

2

u 5 u 6

u 5 u 6

Citizen or Subject of a Foreign Country

3

IV. NATURE OF SUIT
CONTRACT

(Place an "X" in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY u 362 Personal Injury Med. Malpractice u 365 Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS u 510 Motions to Vacate Sentence Habeas Corpus: u 530 General u 535 Death Penalty u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u u u u u u u u u u u u u u u u u u

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veteran's Benefits 160 Stockholders' Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

u u u u u u u u u u u u u u u u

u 610 Agriculture u 620 Other Food & Drug u 625 Drug Related Seizure of Property 21 USC 881 u 630 Liquor Laws u 640 R.R. & Truck u 650 Airline Regs. u 660 Occupational Safety/Health u 690 Other LABOR u 710 Fair Labor Standards Act u 720 Labor/Mgmt. Relations u 730 Labor/Mgmt.Reporting & Disclosure Act u 740 Railway Labor Act u 790 Other Labor Litigation u 791 Empl. Ret. Inc. Security Act
IMMIGRATION u 462 Naturalization Application u 463 Habeas Corpus Alien Detainee u 465 Other Immigration Actions

u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 840 Trademark

u u u u u u u u u u u u u u u u u u u

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS u 870 Taxes (U.S. Plaintiff or Defendant) u 871 IRS--Third Party 26 USC 7609

u u u u u

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN

u 1 Original Proceeding

u 2 Removed from
State Court

(Place an "X" in One Box Only)

Appeal to District Appellate Court

u 3 Remanded from

u 4 Reinstated or u 5 Transferred from u 6 Multidistrict another district Reopened Litigation (specify)

u 7 Judge from Magistrate
Judgment

Diversity statute - 28 U.S.C. § 1332(a) VI. CAUSE OF ACTION Brief description of cause: Defendant breached contract and owes contractual amount, late fees and attorney fees and costs CHECK YES only if demanded in complaint: DEMAND $ u CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 121,228.17 No u Yes u JURY DEMAND: COMPLAINT:
VIII. RELATED CASE(S) IF ANY
DATE (See instructions):

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

JUDGE
SIGNATURE OF ATTORNEY OF RECORD

DOCKET NUMBER

06/13/2008
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/ s / Erica N. Finnegan

APPLYING IFP

JUDGE

MAG. JUDGE

JS 44 Reverse (Rev. 12/07)

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.