Perseus Telecorn, LTD. v Indy Research Labs, LLC

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Perseus Telecorn, LTD. v Indy Research Labs, LLC 2018 NY Slip Op 33083(U) November 30, 2018 Supreme Court, New York County Docket Number: 651587/2016 Judge: Eileen Bransten Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 SUPREME COURT OF THE STATE OF N'E\V YORK COUNTY OF NE\V YORK, IAS PART 3 -------------------------------------------------------------------------}{ Perseus Telecorn, LTD., Plaintiff, Index No. 651587/2016 Motion Seq. 001 -againstIndy Research Labs, LLC, Defondants. ------------------------------------------------------------------------){ Eileen Brn:nsten, .r.S.C.: In an action brought by _plaintiff seeking to recover damages for breach of contract, defendant moves to dismiss the complaint pursuant to CPLR 321 l(a)(l) and CPLR 321 l(a)(7). L Factual and Procedural Background Defendant Indy Research Labs, LLC ("Indy") is a quantitative trading firm that v.tas established in 2015 and began development of its proprietary trading system in September 2015. Sonies Affid. ~2. As a quantitative trading firm, Indy is highly dependent upon high-speed telecommunications networks and computer services to remain in constant contact with electronic trading exchanges, thereby, placing heavy demands on its network and data infrastructure. Id at ~[3. Small finns, such as Indy's, often rely on colocation venders to provide and manage this infrastructure. Id. In June 2015, Indy began evaluating defendant Perseus Telecom, Ltd ("Perseus") as a possible provider of c:olocation services. Indy had hoped to start live trading system development in September 2015, and to begin live tradjng in mid-2016, id at ~4, In August 2015, Indy and Perseus began negotiating a «Service Order Form" agreement, which itemized the colocation services that Perseus was to provide, and the related onetime 2 of 14 [*FILED: 2] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v, Jndy Research Labs (651587/2016) Page 2of13 expenses and monthly reoccurring fees, id at ~6. Pursuant to the terms of the Service Order Form, Perseus agreed to provide 36 months of colocation services, and Indy agreed to pay for monthly reoccurring fees for this service. See Comp. Ex. A. Indy also agreed to pay for non-reoccurring expenses. See id, Indy and Perseus also began negotiating the terms of a "Master Service Agreement", On August 12, 2015, Perseus sent Indy a draft Service Order, which referenced and incorporated the tenns of the proposed Master Services AgTeement. See &mies Ajfid. _hx. A. Specifically, the "Approval" section of the Sen1 ice Order Form stated that Indy agreed to the terms of the Master Services Agreement, however, if there was a conflict between the Service Order Form and the Master Services Agreement, the terms of the Service Order Form controlled. See id at §~4pproval. Indy infonned Perseus that, while it could agree t.o the Service Order Form, it could not agree to the tem1s of the Master Services Agreement, as currently drafted, because it believed the tem1s of the Master Services Agreement were too favorable to Perseus, See Sonies ..{[/id. ~,-J8-9; see also Sonies Affid Axs. B-D. Since Indy .and Perseus wanted to stmt work on the project, but could not come to an immediate agreement regarding the terms of the Master Services AgTeement, Indy and Perseus agreed to add the following language to the Service Order Fonn: "Notwithstanding any contrary provision under '"Approval" below, this Service Order Form constitutes only Customer's binding commitment to (a) pay Perseus the non-recurring charge for (i) the Servers (m1d any related infrastructure) to be procured by Perseus on Custom{.~r's behalf and (ii) any Professional Services delivered by Perseus in anticipation of delivery of the Services, in each case as provided in the Service Order Form, and (b) to negotiate in good faith to expeditiously negotiate the final terms and conditions of the [Master Services Agreement], related Service Schedules and Statement of \Vork referred to above (the '"Services Documents"). Upon Customer's execution of the Services 3 of 14 [*FILED: 3] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy Research Labs (651587/2016) Page 3 of13 Documents, this Service Order Form will become its binding cmnmitment to purchase the Services, on the terms provided herein and subject to the Servict:s Documents, Provided, however, that in the event that the Serviees Documents are not, in good faith, agreed to by the parties within [60 days] of execution of this Service Order Form and the Customer continues to use the Services, this Service Order Fom1 shall automatically become a binding commitment to purchase the Services and shall be governed by the Perseus standard terms and conditions and applicable service schedules. "'The Services shall be provided in accordance to the following documents -On-Net Service Schedule -PredsionSync Service Schedule -Hosting Service Schedule -Security Service Schedule -Statement of \Vork Managed Infrastructure v 1 -Logical Architecture Diagram." See Sonies ajj'id Ex. G. On August 31, 2015, Mitch Sonies, Indy's managing member, signed the Service Order Fonn on behalf oflndy, and returned the Service Order Form to Perseus. ,S'ee Sonies Ajfid. E"C. G. According to Sonies, during September and October 2015, it became clear that Perseus could not meet the deadline it had initially promised. See Sonies Ajjid ~~15-16. Thereft)re, on October 30, 2015, he called Anthony Gerace, Perseus's president of global sales, and told him that Indy no longer had confidence in Perseus, and had decided not to go forward with the colocation services under discussion. id However, on October 30, 2015, Sonies received an email from Tara Soni, Perseus's assistant general counsel, stating that Perseus was still working on revised language for certain Services Documents, and inquiring about Indy's comments on a revised ]\;faster Services Agreement that she had sent for review on October 7, 2015. See Sonies .Atlid ~ 17: see also Sonies Affid E:-ic. H. 4 of 14 [*FILED: 4] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy .Research Labs (651587/2016) Page 4 of13 Fmiher, according to Sonies, despite Indy's October 30 termination of the Service Order Form, Perseus' employees continued to email him asking that a conference call be scheduled to provide a status update, See Sonies Affid. ~17: see also Sonies Affid. Ex. L On November 6, 2015, Sonies attended a meeting at Perseus's ot11ce, and again infonned Gerace that Indy was not going forvvard \Vi.th the Service Order Form, See Gerace Ajfid. if40. According to Anthony Gerace, Soni es did tell him at that meeting that Indy was not going forward vdth the Service Order Form, however, Sonies also said that the ultimate decision lies with Indy's member, Vijay Prabhakar, See id. Gerace claims that he spoke with Prabhakar on November 11, 2015 to infonn him that Perseus was proceeding with the installation at a circuit-end point location on November 12, 2015, and that the installation of the other circuit-end point location vvould occur a few days later. See Gerace Ajfid ,42. According to Gerace, Prabhakar said okay, and that he would get back to Gerace on November 12 or 13. On November 12, 2015, in response to receiving an email from a Perseus employee regarding scheduling delivery of ce1tain colocation services, Sonies sent Marselen Spencer, a Perseus employee, an email \Vhich stated: "This is getting a bit surreal. Looking back at the calendar, I told Tony [Gerace] on Oct 30 that we decided not to [go] forward, confirmed that with you Iast Thursday and confirmed yet again in person the next day, And then Vijay confirmed for the nth time yesterday with Tony! So it's been almost two \Veeks and they now seem to have kicked into high gear. As I promised earlier today, I'll discuss with Vijay one more time tomorrow, But as I said, I really doubt he \Vants to reopen things at this point It's really too bad, because the lack of this kind of enort when it matters is what got us here. 5 of 14 [*FILED: 5] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy Research Labs (651587/2016) Page 5of13 How things are communicated internally is not really our business. But I still wanted to drop you a note, because it really does make me uncomfortable to see you burning cycles mmecessadly." See plaint{ff's rep(v memorandum, exhibit.!. On November 23, 2015, Soni.es emailed Perseus, again indicating that Indy had informed Perseus that it was not 1:noving fon:vard on October 30, 2015. See Sonies Af/id .Ex. .1 Nevertheless, Sonies indicated that Indy was willing to pay Perseus for the \Vork it performed up to that date, and for eight Dell servers that were called for in the implementation plan, if already pm·chased by Perseus. Id. On November 24, 2015, Perseus sent Indy an invoice, in the a.mm.mt of $193,036.24, for work performed through November 30, 2015 and for hard\vare procured. See Gerace Ajfid Ax. I Indy did not pay this invoice. On January 29, 2016, Perseus sent Indy a Notice of Breach that claimed that, pursuant to the terms of section 12.2 of the Master Services Agreement, non-payment was considered a voluntary termination of the contract, and that, pursuant to section 4.3 of the Master Services Agreement, in the event of a voluntary termination, Indy was liable for 100% of the an1mmt due under the agreement, to wit, $1,250,650. See Gerace Ajfid, Ex. J (notice of breach); see also Comp. Ex. A (a copy of the Service Order Fonn and an !-111~?;,~~mt~.4 Master Services Agreement) (emphasis added). On June 22, 2016, Perseus commenced this action against Indy seeking pa)TI1l~nt of $1,250,650. In its complaint, Perseus alleges that on August 31, 2015, Indy and Perseus entered into the Service Order Fonn and Master Services Agreement, which constitute a single agreement, 6 of 14 [*FILED: 6] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v . Indy Research Labs (651587/2016) Page 6 of13 and that Indy agreed to the terms set fmih in those documents. See Comp. 4115-11. Perseus's first cause of action alleges that Indy breached the express terms of the Service Order Form and the Master Services Agreement when it refused to pay Perseus's invoices for the services performed, See id at ~f~[l 6-35. Therefore, Perseus is entitled to liquidated damage of $1,250,650, representing 100% of the contract fees to have been paid over the 36-month contract term, pursuant to section 43 of the Master Services Agreement. ld at ~[36. In its second cause of action for breach of contract, Perseus alleges that Indy breached the terms of the Master Services Agreement, when it did not provide the proper written notice of tem1ination, as set fmih in the Master Services Agreement. See id at ~~37-48. Therefore, Perseus is entitled to invoke section 4.3 of the Master Services Agreement and seek the amount of $1,250,650. Id at ~49. In its third cause of act1on, Perseus alleges that it remitted invoices to Indy, which Indy did not pay; therefore, Indy's action deprived Perseus of the right to receive benefits under the Service Order Form and the Master Services Agreement Perseus alleges that Indy breached the covenant of good faith and fair dealing, which resulted in Perseus being damaged in the amount of $167,358.22, the amount of the equipment purchased by Perseus and the third-party services it paid for in performing its obligations under the Service Order Form and Master Services Agreement. Id at ~4! 50-59. II. Motion Sequence 001: Hefondaut's Motion to Dismiss Defendant Indy Research Labs moves to dismiss the complaint pursuant to CPLR 3211(a)(1) (documentary evidence) and CPLR 321 l(a)(7) (failure to state a claim). "On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction, We accept the facts as alleged in the Complaint as true, accord plaintiffs the benefit of every possible 7 of 14 [*FILED: 7] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Tdecom v, Indy Research Labs (651587/2016) Page 7 of13 favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." Leon v. Martinez, 84 NY2d 83, 87-88 (1994). "'A CPLR 321 l(a)(l) motion may be granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of Jaw", Goshen v lvfutual Life Ins. Co. ofNY., 98 N.Y.2d 314, 326 (2002). "However, allegations consisting of bare legal conclusions, as well as factual claims inherently incredible or flatly contradicted by documentary evidence are not entitled to such consideration", Caniglia v Chicago Tribune-NY, Neivs Syndicate, 204 AD2d 233, 233-234 (1 5t Dept 1994). A. First and Second Ca.uses of" Action ~ Breach of Contrn.ct Perseus's first tvvo causes of action allege that Indy breached the terms of the Service Order Fom1 and Master Services Agreement, \Vhich it claims is a single agreement. In order to allege a cause of action for breach of contract, the plaintiff must assert the existence of a contract, the plaintifl1s performance thereunder, the defendant's breach thereof~ and resulting damages. See Aforrts v 702 E Fifth St. HDFC, 46 AD3d 478, 479 (1st Dept 2007). In its first cause of action, Perseus alleges that Indy is bound by both the Service Order Fonn and Master Services AgTeement, that it performed in good faith and ddivered services to Indy, that despite sending Indy invoices, Indy would not pay for the services provided, and, thus, that Indy breached the Service Order Fom1 and Master Services Agreernent. Further, pursuant to the tem1s of the Master Services Agreement, Perseus alleges that it is entitled to liquidated damages in the amount of $1,250,650. In its second cause of action for breach of contract, Perseus alleges that Indy breached the Service Order Fonn and Master Services AgTeement by failing to provide 8 of 14 [*FILED: 8] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy Research Labs (651587/2016) Page 8 of13 it with a proper notice of termination, and, therefore, pursuant to the Master Services Agreement, Perseus is entitled to liquidated damages of $1,250,650. While Perseus has properly alleged t\vo claims for breach of contract, the documentary . evidence submitted bv Indy . contradicts Perseus's claims that the Service Order Form, incorporating the Master Services Agreement, became a binding agreement to purchase 36 months of colocation services. In fact, the documentary evidence conclusively establishes that the Defendant never agret:d to the Master Services Agreement and that it was never incorporated into the Service Order Fonn. If an agreement is not reasonably certain in its material tenns, there can be no legally enforceable contract This requirement of definiteness a->sures that courts will not impose contractual obligations when the parties did not intend to conclude a binding agreement Hm.vever, while a mere agreement to agree, in \.Vhich a material tem1 is left for future negotiations, is unenforceable, the terms of a contract do not need t.o be fixed with absolute certainty to give rise to an enforceable agreement At the same time, if the parties to an agreement do not intend it to be binding upon them until it is reduced to \\!Titing and signed by both of them, they are not bound and may not be held liable until it has been \\!Titten out and sig11ed. Kolchins v. Evolution A1arkets, Inc., 31 No Y3d 100, 106-07 (2018). On August 31, 2015, Perseus and Indy entered into the Service Order Form which expressly stated that it constituted "only" Indy's obligation to pay Perseus for non-recurring charges for the servers (and any related infrastructure) to be procured by Perseus on Indy's behalf: and for any professional services performed by Perseus in anticipation of deli very of the Services. See Comp. Ex. A. The Service Order Fom1 obligated Indy to negotiate the terms of separate Services Documents, including the Master Services Agreement, in good faith. See id (emphasis added). In the absence of an agreement regarding the tem1s of the Services Documents, Indy would be obligated to purchase 36 months of colocation services from Perseus only if: (1) the Services Documents were not agreed to, in good faith, within 60 days of August 31, 2015, and (2) Indy 9 of 14 [*FILED: 9] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy Research Labs (651587/2016) Page 9 of13 "continues to use" Perseus' colocation services. See id (Circuit Description and Special !nstructiom). Perseus did not deliver the colocation services within 60 days of the signing of the Service Order Form. See Sonies Aifid Ex. I (invoices for Perseus Services from November 16-November 30, 2015). On November 6, 2015, Sonies informed Gerace that Indy intended to not go forward with the Service Order Fonn. See Gerace A.Did. ~40. In a November 12, 2015 email to Sonies, Rob Valenti iJf Perseus ad:no\vledged that services had not yet been delivered, however, Valenti stated that Perseus was still on target for a November 16 delivery of certain colocation services. See Sonies A.Did. Ex. I Therefore, the docurnentary evidence conclusively establishes that the conditions set forth in the Service Order Form were not satisfied as Indy declined to continue to use the colocation services prior to their delivery, See Comp. Er:. A. Absent fulfillment of this condition precedent, Indy's obligation to purchase Perseus's colocation services, pursuant to Perseus' standards terms and conditions, was not triggered. See Oppenheimer & Co. v, Oppenheim. Appel, Dixon & Co., 86 N.Y2d 685, 690 (1995) (noting that a '"condition precedent is an act or event, other than a lapse of time, which, unless the condition is excused must occur before a. duty to perform a promise in the agreement arises" and that "m<Jst conditions precedent describe acts or events \Vhich nmst occur before a party is obliged to perform a promise made pursuant to an existing contract") (emphasis added), Therefore, the Service Order never incorporated the tenns of the Master Services Agreement 1 The Defendant argues that tht~ Master Services Agreement was incorporated in the "Approval" section of the contract \Vhile, at first glance, there appears to be a discrepancy in the contract in that the Circuit Description and Special Instructions section states "notwithstanding any contrary provision under 'Approval' below this Service Order Constitutes only, , ,", in 1 10 of 14 [*FILED: 10] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy Research Labs (651587/2016) Page 10of13 Under the express terms of the Service Order Form, Indy is only responsible for paying the non-recuuing charges for the servers (and any related infrastructure) procured by Perseus on Indy's behalf, and for any profossional services delivered by Perseus in anticipation of delivery of the Services, the amount of which is to be determined in this litigation. See Comp. Ex. A. In fact, in its motion papers, Indy acknowledges this contractual obligation. Moreover, even i:t~ as Perseus alleges, Indy had agreed to the tenns of the Master Services Agreement, the damages clause of the Master Services Agreement is unenforceable, Liquidated damages are "an estimate, made by the parties at the time they enter into their agreement, of the extent of the injury that would be sustained as a result of breach of the agreement"" Truck Rent-A- Ctr. v Puritan Farms 2nd, 41 N.Y.2d 420, 424 (1977). In 'fruck Rent-.A.-Center, the Court of Appeals stated that: "A contractual provision fixing damages in the event of breach will be sustained if the amount liquidated bears a reasonable proportion to the probable loss and the amount of actual loss is in.capable or difficult of precise estimation. If, however, the amount fixed is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and \.Vi!l not be enforced". Id. at 425 (emphasis added). Here, the liquidated damages clause of the Master Services Agreement is unenforceable because it is a penalty. Since the cost of the colocation services to be provided by Perseus is readily ascertainable from the foe schedule attached to the Service Order Fonn, Perseus cannot claim that its darnages were impossible to determine at the time it and Indy executed the Service Order Form. actuality the plain language of the "Approval" section resolves any disputes between the tem1s of the Service Order Form and the Master Services Agreement in favor of the terms expressed in the Service Order Form. See Comp. Ex. A.: see also J\1arin v. Constitution Realty, LLC, 28 N.Y.3d 666, 673 (2017) (stating that a written agreement which is cmnplete must be enforced according to tht~ plain meaning of its terms). 11 of 14 [*FILED: 11] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy Research Labs (651587/2016) Page 11 of B Further, the liquidated damages amount is $1,250,650, vvhen Perseus's actual damages are approximately $170,000. Notably, the liquidated damages amount is more than seven times that of Perseus's actual danmges. See }}r1JD H()/ding Cmp. v Congress Fin Corp., 309 A.. D.2d 645, 645-646 (1st Dept 2003) ("Since the liquidated damages clauses upon which appellant lender relies purport to entitle it to sums disproportionate to its potential damages, and the amount of actual principal and interest owed by the borrower under the agreement is precisely ascertainable, the motion court properly found the liquidated damages clauses unenforceable as exacting a penalty"); see also Truck Rent---A---Ctr., 41 N. Y.2d at 423-424; Vernitron Corp. v CF 48 Assoc., 104 A.D.2d 409, 409 (2d Dept 1984). The first cause of action is dismissed in part Claims which incorporate the Master Services Agreement are dismissed, however, the Plaintiff has generally pleaded a breach and damages related to "(a) pay Perseus the non-recurring charge for (i) the Servers (and any related infrastructure) to be procured by Perseus on Customer's behalf and (ii) any Professional Services delivered by Perseus in anticipation of delivery of the Services, in each case as provided in the Service Order Form." See Comp. Ex. A Instruction~), (.~'ervice Order Farm Circuit Description and Special Given that the Master Services Agreement cannot be enforced against the Defendants, the second cause of action is dismissed in its entirety. B. Third Cam~e of Action Perseus's third cause of action seeks approximately $170,0001n damages for Indy's breach of the covenant of good faith and fair dealingo Perseus claims it is entitled to damages for work it pe1formed, because Indy deprived it of the right to receive benefits under the Service Order Fcnm 12 of 14 [*FILED: 12] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecom v. Indy Research Labs (651587/2016) Page 12 of13 by failing to negotiate the tenns of the Service Documents in good faith, by failing to tender payment for the work perfonned by it, and by misleading it in continuing to communicate with it after allegedly tenninating the Service Order Form on October 30, 2015. See Comp. iiil51-59. In its motion papers, Perseus also claims that it is also entitled to assert a claim for quantum memit. These claims, whether they are stated as a breach of a breach of the covenant of good faith or in quantum memit, are duplicative of the Plaintiff's breach of contract claims, as the terms of the Service Order Fonn govern payment fr)r the complained of conduct See Sebastian Holdings, Inc. v Deutsche Bank, AG. 108 AD3d 433, 433 (Pt Dept 2013) (dismissing a claim for breach of the implied covenant of good faith and fair dealing as duplicative of a breach of contract claim); see also Hagman v. Swenson, 149 A.D.3d 1, 7 (l st Dep't 2017) (dismissing a claim for quantum meruit, and other quasi-contract clahns, as duplicative of a claim for breach of contract given that the contract covered the issues at hand). Accordingly, it is ORDERED that defendant's motion to dismiss the complaint is granted in part, the first cause of action is dismissed solely to the extent that it alleges that the Service Order Fonn incorporated the tenns of the Master Services Agreement; the second cause of action is dismissed in its entirety; and the third cause of action is dismissed in its entirety; it is farther ORDERED that court has analyzed the claims and determines that absent the liquidated damages provision of the Master Services Agreement the amount of damages likely does not meet the minimum threshold to appear before the commercial division, the Plaintiff is therefore 13 of 14 [*FILED: 13] NEW YORK COUNTY CLERK 12/04/2018 11:25 AM NYSCEF DOC. NO. 71 INDEX NO. 651587/2016 RECEIVED NYSCEF: 12/04/2018 Perseus Telecon1 v. Indy Research Labs (651587/2016) Page 13 of13 instructed to submit a revised calculation of its damages, taking into account the current order, within 15 days of entry of this order or have the matter transfon-ed into a general IAS Part; and it is further ORDERED the Defendant shall have twenty days from the entry of this Order to file an Answer. DATED: ENTER 14 of 14