United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on Defendant, OTI Fiber
LLC's Motion for Summary Judgment [ECF No. 76], filed
August 18, 2019. Plaintiff, Change Capital Partners Fund I,
LLC, filed a Memorandum in Opposition [ECF No. 80]; to which
Defendant filed a Reply [ECF No. 88]. The Court has carefully
considered the Amended Complaint [ECF No. 39], the
parties' written submissions,  the record, and applicable
law. For the following reasons, the Motion is denied.
an action for breach of contract. (See generally Am.
Compl.). Plaintiff, Change Capital Partners Fund I, LLC, is a
Delaware limited liability company with its principal place
of business in New York; and Defendant, OTI Fiber LLC, is a
Florida limited liability company with its principal place of
business in Florida. (See Am. Compl. ¶¶
2-3). Plaintiff contends Defendant failed to make payments
Plaintiff, as an assignee, was owed under certain agreements.
(See generally id.). Plaintiff's claim arises
from a basic set of facts.
June 6, 2016 and August 19, 2016, non-parties, Azadian Group
LLC (“Azadian”) and Florida Fiber Networks LLC
(“FFN”), entered into three Merchant Receivables
Purchase and Security Agreements. (See Def.'s
Facts ¶ 1). Under the Merchant Agreements, Azadian
purchased FFN's right, title, and interest in a
percentage of future receivables. (See generally
Merchant Agreements). The terms of the Merchant Agreements
are essentially identical. (See id.).
February 2017, Azadian assigned “all of its rights and
obligations” under the Merchant Agreements to
Plaintiff. (Am. Compl., Ex. 7, Assignment [ECF No. 39-7]).
The Assignment provides:
1. [Azadian] and [Plaintiff] hereby agree that [Azadian]
shall assign all its right, title, and interest, and delegate
all its obligations, responsibilities and duties in and to
the [Merchant] Agreements, to [Plaintiff].
2. [Plaintiff] hereby accepts the assignment of all of
[Azadian's] obligations, responsibilities and duties
under the [Merchant] Agreements and all of [Azadian's]
right, title and interest in and to the [Merchant]
(Id. (alterations added)). Plaintiff acknowledges
with the Assignment, Azadian assigned all of its rights,
title, and interest in the Merchant Agreements to Plaintiff.
(See Def.'s Facts ¶ 3; Pl.'s Facts
November 2016, Defendant and FFN entered into an Asset
Purchase Agreement (“APA”). (See
Def.'s Facts ¶ 4). The APA was executed after the
Merchant Agreements but before the Assignment. (See
Id. ¶¶ 1-2, 4). Included in the APA was a
provision that set out the aggregate purchase price in
multiple parts. (See APA 8-9). In this regard,
Section 2.4(b)(v) provides a portion of the purchase price to
be paid as follows:
$2, 302, 427.23 pursuant to purchase money financing which
will be evidenced by a promissory note substantially in the
form attached hereto as Schedule 2.4(b)(iii) (the
“Purchase Money Note”) payable in four monthly
payments of $325, 606.81 beginning thirty (30) days after
closing (the “Installment Payments”) and one last
payment on the thirteenth month anniversary of the Closing
Date (the “Hold Back”). The Purchase Money Note
shall not accrue interest unless in default. Buyer shall make
the payments due under the terms of Purchase Money Note as
follows: first, to make any and all payments due to Azadian
Group, LLC, Yellowstone Capital, LLC and Pearl Capital, LLC
then, and only after all obligations due to Azadian,
Yellowstone and Pearl are satisfied in full, to the Seller.
(Id. 9). This portion of the purchase price was
funded by a Purchase Money Promissory Note (the
“Note”). (See generally Am. Compl., Ex.
5, Purchase Money Promissory Note [ECF No. 39-5]). The Note
is subject to the terms set forth in the APA. (See
23, 2018, Plaintiff filed this action against
Defendant. (See Notice of Removal 10). On
January 28, 2019, Plaintiff filed the operative Amended
Complaint, asserting a claim for breach of contract to
recover the outstanding amounts due under the APA and the
Note. (See generally Am. Compl.). Plaintiff seeks to
recover $214, 300.00 - the amount owed to Azadian under the
APA, and in connection with the Merchant Agreements, as of
January 2017. (See Id. ¶¶ 13, 18).
moves for entry of summary judgment in its favor, arguing the
Assignment relates only to Azadian's rights under the
Merchant Agreements, and thus the Assignment does not give
Plaintiff standing to bring claims related to the APA or
Note. (See Mot. 2). Plaintiff opposes summary