Cooper v. Cooper

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ) Dr. Lawrence Cooper, DDS, ) ) Plaintiff, ) No. 19 CV 6855 vs. ) ) Dr. Howard I. Cooper and ) Judge Elaine E. Bucklo Excellence in Dentistry, Ltd., ) ) Defendants. ) PLAINTIFF’S MOTION FOR ENTRY OF FINAL JUDGMENT AND VOLUNTARY DISMISSAL OF COUNTS ONE, THREE, AND FOUR Plaintiff Dr. Lawrence Cooper, DDS (“Larry” or “Plaintiff”), by and through his attorneys Blank Rome LLP, and pursuant to Federal Rules of Civil Procedure 41(a)(2) and 58(d), submits this Motion for Entry of Final Judgment on Count Two of the Amended Complaint (Dkt. 30) and Voluntary Dismissal of Counts One, Three, and Four of the Amended Complaint. In support of his motion, Larry states as follows: 1. On February 17, 2023, this Court issued a Memorandum Opinion & Order, Dkt. 89, granting in party and denying in part Plaintiff’s Motion for Summary Judgment, Dkt. 55. Specifically, the Court granted the Motion for Summary Judgment as to Count Two of Plaintiff’s Amended Complaint, for breach of contract. The Court denied Plaintiff’s Motion for Summary Judgment on Counts One (fraud), Three (breach of the covenant of good faith), and Four (unjust enrichment). Count Two was alleged solely against defendant Howard I. Cooper (“Howard”). 2. Plaintiff wishes to secure a final judgment on Count Two in favor of Plaintiff and, contemporaneous with the Court’s entry of that final judgment, voluntarily dismiss Counts One, Three, and Four. For the Court’s judgment to be final, these claims must be dismissed with prejudice. See Arrow Gear Co. v. Downers Grove Sanitary Dist., 629 F.3d 633, 636 (7th Cir. 2010). 3. With respect to Count Two, the Court already has found that “the damages to which Larry is entitled” from Howard on his breach of contract claim are $1,204,357.09. Dkt. 89 at 5. 4. In addition, Plaintiff seeks pre-judgment interest at a rate of 5% per year. Under the Illinois Interest Act, “[c]reditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any . . . instrument of writing.” 815 ILCS 205/2; see also Medcom Holding Co. v. Baxter Travenol Labs., Inc., 200 F.3d 518, 519 (7th Cir. 1999) (discussing awards of prejudgment interest for breach of contract under Illinois Interest Act). Here, Howard’s contract with Plaintiff required him to pay Plaintiff half of the sale proceeds if he sold his dental practice prior to a certain date. Howard sold his practice in a transaction that closed on April 22, 2019, and half of the net proceeds totaled $1,204,357.09—money Howard has retained for his exclusive use ever since. In order to “make [Larry] whole and discourage delay by [Howard] in making reparations,” McRoberts Software, Inc. v. Media 100, Inc. 329 F.3d 557, 572-73 (7th Cir. 2003), the Court should exercise its discretion to award pre-judgment interest as allowed by Illinois law. 5. Plaintiff also is entitled to post-judgment interest at the statutory rate prescribed by 28 U.S.C. § 1961 . As of the filing of this motion, the rate prescribed by 28 U.S.C. § 1961 (a) is 4.80% annually.1 6. Plaintiff is only voluntarily dismissing Counts One, Three, and Four in light of the Court’s order dated February 17, 2023, Dkt. 89, and contemporaneous with entry of final judgment on Count Two as requested herein. 7. Plaintiff is submitting herewith a proposed final judgment reflecting the foregoing terms. Conclusion For the foregoing reasons, Plaintiff Lawrence Cooper respectfully requests that the Court dismiss Counts One, Three, and Four of the Amended Complaint, Dkt. 30, and enter final judgment in Plaintiff’s favor and against Defendant Howard Cooper on Count Two in the form attached hereto, for $1,204,357.09 plus pre- and postjudgment interest. Respectfully submitted, s/ Andrew H. Schrag Paul H. Tzur Andrew H. Schrag BLANK ROME LLP 444 W. Lake Street, Suite 1650 Chicago, Illinois 60606 (312) 776-2600 paul.tzur@blankrome.com andy.schrag@blankrome.com Attorneys for Plaintiff Dr. Lawrence Cooper, DDS 1 See https://www.casb.uscourts.gov/post-judgment-interest-rates-2023