Preview
Motion No. 5127493
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION FOR...
October 29,2023 22:49
By: ZIAD TAYEH 0088027
Confirmation Nbr. 3002940
ANUP GARGET AL. CV 22 969524
vs.
Judge: JOAN SYNENBERG
MARK JENKINS ET AL.
Pages Filed: 86
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANUP GARG, et al., CASE NO.: CV 22 969524
Plaintiffs, JUDGE: JOAN SYNENBERG
MAGISTRATE: AMY R. JACKSON
vs.
DEFENDANT MARK JENKINS’
MARK JENKINS, et al., MOTION FOR LEAVE TO FILE
AMENDED ANSWER AND
Defendants. COUNTERCLAIM
Now comes Defendant Mark Jenkins, by and through undersigned counsel, and hereby
requests that this Honorable Court grant him leave to file an Amended Answer and Counterclaim.
Defendant submits that he is required to amend his Counterclaim to address various matters that
have arisen during this litigation.
A Memorandum in Support is attached hereto and incorporated herein.
Respectfully Submitted,
/s/Ziad Tayeh______________
Ziad Tayeh (0088027)
Tayeh Law Offices, LLC
22255 Center Ridge Road, Suite 311
Rocky River, OH 44116
Phone: (440) 580-0365
Fax: (440) 359-8755
Email: info@Tayehlaw.com
Attorney for Defendant Mark Jenkins
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MEMORANDUM IN SUPPORT
I. FACTS
This case arises out of a dispute between Plaintiff Anup Garg (“Garg”) and Defendant Mark
Jenkins (“Jenkins”) over the following jointly owned companies and properties:
• Haystack Hills, LLC (“Defendant Haystack”)
• 1370 West 93rd LLC (“Defendant 1370”)
• 3644 Bosworth LLC (“Defendant 3644”)
• Bosworth 1 LLC (“Defendant Bosworth”)
• 3174 W 94 LLC (“Defendant 3174”)
• Jenkins Property Group LLC (“Defendant JPG”)
• 10810 Parkhurst LLC (“Defendant 10810”)
• S2 Holdings LLC (“Defendant S2”)
• 2071 w 93rd Street, Cleveland, OH 44102 (the “W 93rd Property”)
• 3071 W 47th Street, Cleveland, OH 44102 (the “W 47th Property”)
Jenkins and Garg are members of Defendants 1370, 3644, Bosworth, Haystack, 3174, JPG,
10810, and S2 (collectively, the “Companies”). Defendant Stephanie Jenkins (“Defendant
Stephanie”) is also a member of Defendants 3644, Bosworth, and Haystack. Jenkins and Garg met
at a networking event in or around early 2019. After some discussions, they agreed to embark on
joint real estate ventures under which Garg would provide funds and Jenkins would primarily
provide labor and services. Jenkins and Garg entered into agreements to become members of the
Companies. Each of the following Companies have Operating Agreements:
• Defendant Haystack (See Ex. A)
• Defendant 1370 (See Ex. B)
• Defendant Bosworth (See Ex. C)
• Defendant 3644 (See Ex. D)
• Defendant JPG (See Ex. E)
• Defendant S2 (See Ex. F)
Jenkins and Garg each own 50% membership interest in Defendants 10810 and 3174
pursuant to oral agreements. Further, Defendant Stronghold (an entity owned by Garg) and
Jenkins each contributed the sum of $10,000 each to purchase the W 93rd Property, which they
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agreed would be jointly owned in equal proportions. Also, Garg orally agreed that Jenkins would
receive 50% interest in the W 47th Property in exchange for Jenkins’ labor.
Jenkins has contributed capital to each of the Companies in the form of cash, property,
services, and/or use of his credit for loans including personal guarantees. Jenkins has worked 50
- 70 hours per week performing services to acquire his share of the Companies, including
rehabilitations to and acquisitions of the properties owned by the Companies.
Garg claimed to have reinvested cash generated by the Companies to purchase and
rehabilitate other properties during Garg and Jenkins’ business relationship. However, in early
2022, tensions between Jenkins and Garg escalated due to Garg’s freezing Jenkins out of and
repudiating Jenkins’ participation in each of the following Companies: Defendants 1370, 3644,
Bosworth, Haystack, 3174, and 10810 (collectively, the “Seized Companies”). Garg further
repudiated Jenkins claims to Jenkins’ share of the W 93rd Property and W 47th Property.1
The membership interest breakdown for each of the Seized Companies are as follows:
Company Membership Interest Breakdown
Defendant 1370 Garg: 50%
Jenkins: 50%
Defendant 3644 Stephanie: 25%
Jenkins: 25%
Garg: 50%
Defendant Bosworth2 Stephanie: 62%
Jenkins: 19%
Garg: 19%
Defendant Haystack Stephanie: 25%
Jenkins: 25%
Garg: 50%
Defendant 3174 Garg: 50%
Jenkins: 50%
Defendant 10810 Garg: 50%
Jenkins: 50%
1 For purposes of this Motion, the “Seized Companies,” W93M Property, and W 47th Property shall be
referred to the “Seized Assets.”
2 Defendant Bosworth also holds title to 1361 W 114th Street, Cleveland, OH 44102, which Jenkins will
demonstrate is governed by a different operating agreement with a different ownership schedule, as alleged
in Jenkins’ Counterclaim.
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Further, Garg refused and continues to refuse to allow Jenkins access to the Seized
Companies’ respective bank accounts despite Jenkins’ demands that he be listed as an authorized
signer on said accounts. Garg further refused and continues to refuse to account to Jenkins for
the funds generated by the Seized Assets and/or deposit proceeds generated by the Seized Assets
into said bank accounts. Garg further refused and continues to refuse to allow Jenkins to view the
books and records of the Seized Assets.
Garg excluded Jenkins from the Seized Assets, began to exercise sole dominion and
control over the Seized Assets, refused to account to Jenkins for the Seized Assets’ funds, and
refused to pay distributions to Jenkins. For example, Defendant Haystack sold six properties
during Jenkins’ membership in Defendant Haystack, and Jenkins has received no distribution or
accounting of his portion of proceeds from any of the six sales.
Despite Garg’s refusal to pay distributions to Jenkins, Garg has paid himself distributions
from the Seized Assets. Garg further received and continues to receive cash renal payments paid
by tenants of the Properties, failed, and continues to fail, to deposit same in any of the Companies’
bank accounts, and failed, and continues to fail, to account to Jenkins for same. Garg’s refusal to
account to J enkins for cash generated by the Seized Assets has caused Jenkins significant financial
hardship.
Also, Garg has unilaterally appointed Started, LLC, an entity wholly owned by Garg, as the
“management company” over the Seized Assets. Garg claims to “manage” the Seized Assets
through Started, LLC, however, Started, LLC is merely a vehicle Garg utilizes to siphon funds from
the Seized Assets and to control the money and affairs of the Seized Assets. Garg refuses to account
to Jenkins regarding the funds transferred from the Seized Assets to Started, LLC, and continues
to utilize Started, LLC as “manager” over the Seized Assets over Jenkins’ objections.
Garg filed his Complaint in this matter on October 3, 2022, naming Jenkins, Defendant
Stephanie, the Companies, and other defendants. Jenkins filed his Answer, Crossclaim, and
Counterclaim on October 22, 2022, which included claims against Garg, Defendant Stephanie,
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and the Companies. Garg submitted a Second Amended Complaint on January 13, 2023, which
did not name Defendant Stephanie as a defendant. However, Defendant Stephanie was never
dismissed from this action. Jenkins filed an Answer, Counterclaim, and Crossclaim to Garg’s
Second Amended Complaint on or about February 2, 2023, again including claims against Garg,
Defendant Stephanie, and the Companies.
Shortly thereafter, the parties agreed to mediate the case. As such, this Court stayed the
instant case from April 10, 2023 - September 28, 2023. Prior to the stay, on January 30, 2023,
Jenkins filed a Motion to Join Stephanie Jenkins Pursuant to Civ.R. 19, which this Court stayed
pending the mediation. Several events took place (discussed below) following the closing of the
pleadings, which now require Jenkins to amend his Counterclaim.3
II. LAW AND ARGUMENT.
Jenkins seeks to amend his Counterclaim to include additional claims and defendants, as
provided below. Ohio’s liberal policy of granting leave to file amended pleadings favors this
Honorable Court’s granting of Defendants’ Amended Answer. Civ. R. 15(a) provides, in relevant
part, "...a party may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court shall freely give leave when justice so requires."
Because the language of Civ. R. 15(A) favors a liberal amendment policy, a motion for leave
to amend should be granted absent a finding of bad faith, undue delay or undue prejudice to the
opposing party. Hoover v. Sumlin, 12 Ohio St. 3d 1, 7, 465 N.E.2d 377 (1984). Prejudice to an
opposing party is the most critical factor to be considered in determining whether to grant leave to
amend. Frayer Seed, Inc. v. Century 21 Fertilizer & Farm Chemicals, Inc., 51 Ohio App. 3d 158,
555 N.E.2d 654, (3rd Dist. 1988). Delay, in and of itself, should not operate to preclude an
amendment. Id.
3 Jenkins does not intend to limit his right to add additional claims or parties to those listed below. Should
this Court grant the within Motion, Jenkins reserves the right to add any additional claims and new parties
that may exist at the time of the filing of the Amended Counterclaim.
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A. Claims Against Garg and Stephanie for Breaching the Operating Agreement
Regarding Restrictions on Transfer.
Each of the Operating Agreements naming Defendant Stephanie as a member contain
provisions that restrict a member from transferring their respective membership interest. Such
provisions are set forth in Article 6 of the respective Operating Agreements, and provide various
restrictions on transfer, including notice to the members, right of first refusal, and other
limitations.
Despite said restrictions, Garg has admitted that he has accepted a transfer of interest from
Defendant Stephanie without adhering to Article 6 of the Operating Agreements. Such admissions
are repeated throughout his Answer to Jenkins’ Counterclaim, where Garg repeatedly states, “If
Stephanie is found to be a member of Bosworth, her membership has been effectively assigned to
[Garg].”
These admissions demonstrate a clear breach of the Operating Agreements by both Garg
and Defendant Stephanie, and were made only shortly before the parties agreed to mediate this
matter and the Court’s staying of the case. Moreover, Jenkins preserved his right to assert these
claims in his January 30, 2023 Motion to Join Defendant Stephanie as a party, which this Court
held in abeyance. As such, this Honorable Court should allow Jenkins to amend his Counterclaim.
B. Slander of Title and Tortious Interference Claims.
In addition to the above claims, Garg and his counsel have attempted to cloud title to 3547
West 50th Street, Cleveland, OH 44102, a property owned by a company which Jenkins owns
interest, Garg claims no interest, and has no connection to this litigation. Garg did so by filing a
frivolous affidavit with the Cuyahoga County Recorder on or about September 29, 2023, in which
he claimed to be a creditor of Jenkins despite having obtained no judgment against Jenkins. (See
Affidavit, attached as Exhibit G.) Further, Garg’s counsel delivered a threatening email to Jenkins’
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lender with the clear intention of preventing Jenkins from re-financing the property on October
24, 2023. (See Email attached as Exhibit H.)
Garg has no judgment against Jenkins, has not obtained a prejudgment attachment, and
has no legal basis to interfere with Jenkins’ ownership of this property given that it has no relation
to this case. These acts amount to slander of title, abuse of process, and tortious interference.
Because Garg and his counsel have only recently perpetrated these actions, Jenkins should be
granted leave to amend his Counterclaim to assert these claims.4
C. Claims in Case in Which Jenkins Seeks Consolidation.
As this Court is aware, Jenkins has requested that this case be consolidated with Mark
Jenkins v. Anup Garg, et al., Cuyahoga County Court of Common Pleas, Case No. CV-23-983388
(the “Second Action”). Jenkins filed the Second Action after Garg asserted claims seeking to expel
Jenkins from the Companies. The Second Action seeks compensation for the work Jenkins
performed for Garg. This Court may resolve Jenkins’ Motion to Consolidate by granting the
instant Motion to allow Jenkins to name the defendants in the Second Action as Counterclaim
Defendants in this case.
D. Jenkins is Entitled to Amend His Counterclaim.
Although Garg filed this case in October 2022, this case is still in its infancy for several
reasons. As an initial matter, Garg amended his Complaint multiple times, and, as a result, the
pleadings in the instant case were not closed until February 2, 2023, four months after Garg filed
this action. The parties then agreed to mediate the case, and therefore, the case was stayed for
more than five and a half months, from April 10, 2023 - September 28, 2023. Thus, this case was
in its pleading stage and stayed for at least nine and a half months since October 2022.
Moreover, while Garg complains that adding new parties would delay discovery, Garg has
not even bothered to propound discovery in this case. In fact, Jenkins propounded discovery to
4 The undersigned has delivered correspondence to Garg’s counsel demanding corrective action by Friday,
November 3, 2023. Should Garg refuse to comply, Jenkins will seek emergency injunctive relief with this
Court.
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Garg on May 9, 2023, hoping to have discovery responses in preparation for mediation. More than
five and a half months later, Garg has yet to respond to same.5 Thus, Garg’s claim that the addition
of new parties would hinder discovery is peculiar given that Garg has refused to participate in
discovery. Because this case is still early given the delays and stay, and Jenkins is filing this Motion
shortly after the Court lifted the stay, this Honorable Court should grant the within Motion.
III. CONCLUSION
This Court should grant Jenkins leave to file an Amended Counterclaim to seek redress
for the above claims. As such, this Court should grant the within Motion.
Respectfully Submitted,
/s/Ziad Tayeh______________
Ziad Tayeh (0088027)
Tayeh Law Offices, LLC
22255 Center Ridge Road, Suite 311
Rocky River, OH 44116
Phone: (440) 580-0365
Fax: (440) 359-8755
Email: info@Tayehlaw.com
Attorney for Defendant Mark Jenkins
CERTIFICATE OF SERVICE
I hereby certify that on October 29, 2023, the foregoing Motion was filed electronically.
Notice of this filing will be delivered to all parties indicated on the receipt of filing. All other
parties will be served by regular mail, postage pre-paid.
/s/Ziad Tayeh______________
Ziad Tayeh (0088027)
Tayeh Law Offices, LLC
Attorney for Defendant Mark Jenkins
5 The undersigned has conferred with Garg’s counsel regarding discovery and will file a Motion to Compel
if Garg continues to be uncooperative.
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANUP GARG, et al., CASE NO.: CV 22 969524
Plaintiffs, JUDGE: JOAN SYNENBERG
MAGISTRATE: AMY R. JACKSON
vs.
MARK JENKINS, et al., PROPOSED ORDER
Defendants.
Defendant Mark Jenkins’ Motion for Leave to File Amended Answer and Counterclaim is
granted. Defendant Jenkins shall have until to file an Amended Answer and
Counterclaim.
IT IS SO ORDERED.
JUDGE JOAN SYNENBERG
MAGISTRATE: AMY R. JACKSON
DATE
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OPERATING AGREEMENT
OF
Haystack Hillis LLC
^e Agreement is entered into as of ftis 5ft, day of May of 2019 by:
Anup Garg: 15319 Clifton Blvd ; Latewood : OH; 44107
Mark Jenkinis: 15301 Ficher Rd ; Cleveland ; OH ; 44111
Stephani Jenkins 15301 Ficher Rd ; Cleveland ; OH ; 44111
As Members of Hayst^k Hills LLC.
SECTION 1
DEFINITIONS
Unless fte context cle^ly indicates ofterwise, (i) dl of fte capitalired woris in ftis
Agreement have fte meanings set forft in the Act or ofter provisions of ftis Agreement rnd (ii)
all non-capitalired words in fte Act rnd used herein have fte meanings set forth in ftis Act.
SECTION 2
FORMATION
2.1 Organiration. The Members have authorized the formation of the Comply as
Ohio Limited Liability Comply p^su^t to the provisions of fte Act and wift fte Ohio
Secret^' of State.
2.2 Agent. The Agent for service of process upon fte Comply is Anup G^g.
2.3 ^mcipd office. The principal office of the Company wtil be located at 15319
Clifton Blvd: Lakewood, OH 44107, or at ^y ofter location fte Members detemine from
time to time by majority vote.
SECTION 3
MANAGEMENT
3.1 Management. ConUol of fte Comply rnd all of its affairs is vested in the
Members. Except as ofterwise provided in ftis Agreement, Comply business decisions may be
made by any of the Members rating on behalf of the Company. Any matter delegated by this
Agreement to a deternination by more thra one member must, except ra provided in SECTION
3.3, be decided by Majority Vote.
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3.2 Majority Vote. No Member has the authority to do any of the following on behalf
of the Company without the approval by Majority Vote of the Members:
(a) Assign, transfer, pledge, compromise, or release any claim of the Company
except for full payment;
(b) Make, execute, or deliver on behalf of the Company any guarantee, indemnity
bond, surety bond, or accommodation paper or accommodation endorsement;
(c) Sell all or substantially all of the Company's property;
(d) Lease, as lessor or lessee, any property;
(e) Purchase any services, supplies and/or property in an amount greater than $500;
(f) Expend any sum in excess of $500;
(g) Grant any lien upon any of the Company's property; or
(h) Enter into any contract to do any of the foregoing.
3.3 Unanimous Vote. No member has the authority to do any of the following on
behalf of the Company without the approval by unanimous vote of the Members:
(a) Make, execute, or deliver a general assignment for the benefit of creditors;
(b) Dispose of the good will of the Company;
(c) Do any act which would make it impossible to carry on the business of the
Company;
(d) Confess a judgment against the Company;
(e) Submit a claim or liability of the Company for arbitration or reference;
(f) Admit a new Member, except as provided for in Section 8; or
(g) Commence a bankruptcy or receivership proceeding with respect to the Company.
3.4 Compensation and Expense Reimbursement. No Member is entitled to
compensation for services rendered to the Company without the consent of all of the Members.
Upon substantiation of the amount and purpose thereof. Members are entitled to reimbursement
or expenses reasonably incurred in connection with the activities of the Company.
3.5 Time Commitment. Expect as provided in SECTION 4.4, Members may engage
in business or investment activities outside of the Company so long as such activities do not
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prevent the Members from fulfilling responsibilities to the Company.
3.6 Officers
(a) Election. The Members may by Majority Vote elect Officers for the
Company. The initial officers of the company are:
President: Anup Garg
Vice-President: Stephani Jenkins
Treasurer: Mark Jenkins
Secretary: Mark Jenkins
(b) Removal. Any Officer may be removed, with or without cause, by the
Members by Majority vote without prejudice to the contract rights of such Officer. The election
of an Officer for a given term does not create any contract rights. The Members may fill any
vacancy in any office occurring for whatever reason.
SECTION 4
MEMBERS
4.1 Unit Holder Schedule. The Members must record in the Unit Holder Schedule
(see Black Book “Share Ledger” and “Share Journal”) all Unit Transfers and admissions of new
Members, Capital Contribution, issuance’s and liquidations of Units, and changes of Members
addresses. The following is a summary of the initial Unit Holder Schedule:
Stephani Jenkins 25 units at no par value
Mark Jenkins 25 units at no par value
Anup Garg 50 units at no par value
4.2 Liability of Members.
(a) To Third Parties. No Member is (i) liable as such for the liabilities of the
Company or (ii) obligated to restore any deficit balance in his Capital Account. The failure of
the Company to observe any formalities or requirements relating to the exercise of its powers or
management of its business or affairs under this Agreement or the Act is not grounds for
imposing personal liability on the Members for liabilities of the Company.
(b) To Other Members. A Member is liable in damages for any action that the
Member takes or fails to take as a Member only if it is proved, by clear and convincing evidence,
in a court with jurisdiction, that his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the Company or undertaken with reckless
disregard for the best interests of the Company.
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4.3 Securities Law Matters. Each Member acknowledges that the Units have not
been registered under the Securities Act of 1993, as amended, or any state securities laws.
4.4 Related Party Transactions. No contract, action, or transaction is void or voidable
because it is between or affects the Company and one or more of it Members, or an entity in
which one of the Members is an interested party, if any of the following applies:
(a) The material facts as to his or their relationship or interest and as to the
contract, action, or transaction are disclosed or are known to the Members, and the members, in
good faith reasonably justified by those facts, authorize the contract, action or transaction by the
affirmative vote of a majority of the disinterested Members, even though the disinterested
Members constitute less than a quorum of the Members.
(b) The material facts as to his or their relationship or interest and as to the
contract, action, or transaction are disclosed or are known to the Members entitled to vote on the
contract, action, or transaction, and the contract, action or transaction is specifically approved at
a meeting of the Members held for that purpose by the affirmative vote of the Members entitled
to exercise a majority of the voting power of the Company held by persons not interested in the
contract, action, or transaction.
(c) The contract, action, or transaction is fair to the Company as of the time it
is authorized or approved by the Members.
4.5 Meetings of Members. The Members will meet as may be determined by
resolution of the Members. Failure to hold an annual meeting is not grounds for dissolution of
the company. Members may participate in any such meeting through the use of any means of
communication by which all of the Members may simultaneously hear each other during the
meeting. A Member participating in a meeting by this means is deemed to be present in person
at the meeting.
4.6 Notice of Record Date of Meetings. Notice of Annual or Special meeting must be
given between 10 and 50 days before the date of the meeting, either personally or by mail, to
each Member entitled to Vote at such meeting.
4.7 Quorum. The Members owning 100% of the Units in the Company represented in
person or by proxy constitute a quorum at any meeting of Members. No action may be voted
upon at a meeting of the Members unless a quorum is present.
4.8 Voting. The Members have one Vote for each Unit owned by them with respect
to all matters relating to the affairs of the Company. If a quorum is present, a Majority Vote of
the Members is sufficient to authorize any action of the Company unless the vote of a greater or
lesser number is otherwise required by the Articles or this Agreement.
4.9 Action by Members Without a Meeting. Any action may be taken without a
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meeting if the action is evidenced by written consent of all Members or a majority of the Units,
as necessary by this Agreement
4.10 Loans. Any Member may make loans to the Company upon such terms as the
Member and Company agree. (All Members will be offered the opportunity to make such loans
in proportion to Unit ownership.)
4.11 Expulsion. A Member may be expelled from the Company upon a Majority Vote
of the Members if such member breaches a provision of this Agreement, which breach is not
cured within 30 days of notice thereof.
SECTION 5
ALLOCATIONS AND DISTRIBUTIONS
5.1 Allocation of Profits. After giving effect to the Regulatory Allocations, Profits
may be allocated among Unit Holders in any proportion deemed beneficial to the Company by a
unanimous vote of Unit ownership. Absent an agreement otherwise. Profits shall be allocated
among Unit Holders in proportion to the number of units owned.
5.2 Allocation of Losses. After giving effect to the Regulatory Allocations, Losses
may be allocated among Unit Holders in any proportion deemed beneficial to the Company by a
unanimous vote of Unit ownership. Absent an agreement otherwise. Profits shall be allocated
among Unit Holders in proportion to the number of units owned
5.3 Distribution. Distributions may be made from time to time upon approval by
Majority Vote of the Members. All Distributions must be allocated in proportion to Unit
ownership.
5.4 Allocations and Distributions to New Unit Holders. If Units are TRANSFERED
or additional Units are issued to a new Member during any Fiscal Year, all profits, losses and/or
Distributions on or before the date of a Transfer shall be made to the Transferor, and all
Distributions after the date of a Transfer shall be made to the Transferee.
5.5 Capital Accounts. The Company must maintain a Capital Account with an
accounting of the amount held for each Unit Holder and no interest may be paid thereon.
SECTION 6
TRANSFER OF UNITS
6.1 Requirements for Effectiveness of Transfer. Any transfer of Units must be in
writing and notify the Company as to the date of Transfer, any consideration paid therefor, and
5
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the Transferee's name, address, and taxpayer identification number. The Members may perform
the following:
(1) Determine if Transferee is an Assignee or a Substitute member:
(2) Confirm that the Transferee has agreed to be subject to and bound by this
Agreement;
(3) Preserve the Company's status under the laws of each jurisdiction in which
the Company is qualified, organized or does business after the Transfer;
(4) Maintain the Company's classification for federal income tax purposes;
(5) Assure compliance with any applicable state and federal laws including
securities laws and regulations.
No voluntary Transfer of Units is effective until the transferor and Transferee have
complied with the provisions of this SECTION applicable thereto. Upon the completion of a
Transfer of Units, file Members must reflect such Transfer on the Unit Holder Schedule. Any
purported Transfer of Units not in compliance with this SECTION is null and void.
6.2 Admission of a Transferee as a Member. The other Members must admit a
Transferee of Units as a Member if the Transferee (a) complies with Subpart 1 of this SECTION
and (b) is (1) a Member, (2) a related person with respect to the Transferor, or (3) approved as a
Substitute Member by the Members other than the Transferee.
6.3 Transfer to a Person Not Admitted as a Member. Notwithstanding anything
contained in this Agreement to the contrary, any Transferee of Units who is not admitted as a
Member will be an Assignee and have no rights as a Member except to be allocated the
transferor's share of Profits, Losses, and Distributions and to receive the information required to
prepare the Assignee's income tax returns. Upon the Transfer of all of a Member's Units to a
Transferee, the Transferor ceases to be a Member of the Company.
6.4 Right of First Refusal.
(a) Notice of Intent to Sell. A Unit Holder desiring to sell all or any portion
of his Units must notify the other Members of his intention to sell, furnishing the terms of the
proposed sale to all other Members.
(b) Notice of Acceptance. The other members on a basis pro rata to the Unit
ownership of those other Members exercising their Right of First Refusal, each have the right to
purchase all (but not less than all) of the units proposed to be sold upon the same terms and
conditions of sale contemplated by the Selling Member and intended purchaser. If none of the
Members exercises his Right of First Refusal by giving Notice of Acceptance to the Selling
Member within fifteen (15) days of his furnishing a Notice of Intent to Sell, the Right of First
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Refusal terminates and the Selling Member is entitled to sell his Units, provided that the sale is
(1) on substantially the same terms as those furnished in the Notice of Intent to Sell and (2)
consummated within 45 days of the expiration of the Right of First Refusal.
SECTION 7
ADDITIONAL MEMBERS
The Members, by their unanimous consent, may make a Person a Member by (a)
specifying the amount of consideration to be paid by such Person, and (b) recording on the Unit
Holder Schedule the issuance of additional Units or sale of existing Units. The new Member
will be admitted as of the date the Members unanimously accept, in writing, a formal purchase
agreement signed by the new Member.
SECTION 8
DISSOCIATION OF A MEMBER
8.1 Dissociation. A Person ceases to be a Member upon the happening of any of the
following events.
(a) The Member becoming financially distressed to the point where he is:
i. Unable to perform his duties to the Company, or
ii. Jeopardizes the existence/continuance of the Company.
(b) If the Member is a natural person, the adjudication of incompetency or
death of the Member.
(c) If the Member is acting as a Member by virtue of being a trustee of a trust,
the termination of the trust (but not merely the substitution of a new
trustee);
(d) If the Member is an entity, upon the dissolution of the Member entity.
(e) If the Member is an estate, the distribution of the estate's membership
interest.
(f) A Transfer of all of the Units of a member not otherwise described in this
SECTION;
(g) The expulsion of a Member; or
(h) The voluntary withdrawal of a Member.
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A Dissociating Member, or bis Personal Representative where applicable, must notify the
Company of any of the events in SUBSECTIONS (a)-(g) above within 30 days thereafter.
Except as provided above, the events of withdrawal specified in Section 1705.15 of the Act will
not cause a Person to cease to be a Member.
8.2 Rights of Dissociating Member. Upon the Dissociation of a Member prior to the
dissolution and winding up of the Company:
(a) If the Dissociation causes a dissolution and winding up of the Company
under SECTION 9, the Member is entitled to participate in the winding up of the Company to the
same extent as any other Member, and
(b) If the Dissociation does not cause a dissolution and winding up of the
Company under SECTION 9 and the Dissociated Member continues to hold Units, the
Dissociated Member has no right to compel a liquidation of his Units and he will thereafter hold
his Units as an Assignee.
SECTION 9
DISSOLUTION AND WINDING UP
9.1 Dissolution. The Company will be dissolved and its affairs wound up, upon the
first to occur of the following events:
(a) The expiration of the term of existence of the Company set forth in the
Articles and this Agreement;
(b) Unanimous, written consent to dissolve by the Members;
(c) The Dissociation of any Member, unless the business of the Company is
continued with the written consent of all of the other Members;
(d) Upon entry of a decree ofjudicial dissolution.
Except as expressly provided above, the dissociation of any Member will not cause a
dissolution of the Company. Upon the occurrence of a dissolution event, a certificate of
dissolution containing the information required by the Act must be delivered to the Secretary of
State for filing.
9.2 Winding Up. Upon dissolution, the Members must wind up all of the company's
affairs and distribute all of the Company's property and cash:
(a) To creditors - first to Members who are creditors, then to outside creditors
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- to the extent permitted by law, in satisfaction of liabilities of the Company;
(b) To Unit Holders in accordance with positive Capital Account balances.
The winding up of the Company will be completed when all debts, liabilities, and
obligations of the Company have been paid and discharged or reasonably adequate provision
therefor has been made, and all of the remaining property and assets of the Company have been
distributed to the Unit Holders.
SECTION 10
INDEMNIFICATION
10.1 Authorization. The Company must indemnify an Indemnitee who has met the
Prescribed Standard of Conduct and who was or is a party, or threatened to be made a party, to
any Proceeding by reason of the fact that the Person is or was a Member of the Company, or
who, while a Member of the Company, is or was serving at the request of the Company as an
Agent of another entity, against expenses (including attorneys' fees), judgments, settlements,
penalties and fines (including excise taxes assessed with respect to employee benefit plans)
actually and reasonably incurred in accordance with such Proceeding.
10.2 Prescribed Standard of Conduct. An Indemnitee must have acted in good faith
and with a subjectively reasonable belief that the actions were in or not opposed to the best
interests of the Company, having had no reasonable cause to believe the conduct was unlawful;
10.3 Determinations as to Prescribed Standard of Conduct. The determination of any
Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its
equivalent, will not, of itself, create a presumption that the Indemnitee did not meet the
Prescribed Standard of Conduct. A determination as to whether the Prescribed Standard of
conduct has been met must be determined by:
(a) A Majority vote of the Members other than the Indemnitee;
(b) A written opinion by independent legal counsel other than an attorney, or
a firm having associated with it an attorney, who has performed services for the Company or any
Indemnitee in the past five years, if so directed by Majority Vote of the Members other than the
Indemnitee; or
(c) By the court in which the Proceeding referred to above is brought.
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SECTION 11
MISCELLANEOUS PROVISIONS
11.1 Entire Agreement. This Agreement and the Articles represent the entire
agreement among all Members.
11.2 Amendment. This Agreement may be amended from time to time only by a
written instrument approved by a Majority -In-Interest of the Members, except that any
amendment that would (a) increase the amount of Capital Contributions required of a Member or
accelerate the dates for a payment of any Required Capital Contribution, (b) impose an
additional liability on any member, or (c) modify SECTIONS 6, 9.2 or this SECTION 11.2
requires the unanimous consent of the Members.
11.3 No Partnership Intended for Non-tax Purposes. The Members have formed the
Company pursuant to the Act, and expressly do not intend to form a partnership or a limited
partnership. The Members do not intend to be partners one to another, or partners as to any third
party. To the extent any Member, by work or action, represents to another person that any other
Member is a partner or that the Company is a partnership, the Member making such wrongful
representation is liable to any other Members who incurs personal liability by reason of such
wrongful representation.
11.4 Rights of Creditors and Third Parties. This Agreement is entered into among the
Members for the exclusive benefit of the Company, its Members, and their successors and
assigns. This Agreement is expressly not intended for the benefit of any creditor of the
Company or any other Person. Except and only to the extent provided by applicable statute, no
creditor or third party has any rights under this Agreement or any agreement between the
company and any Member with respect to any Capital Contribution or otherwise.
11.5 Notice. All notices required or permitted by this Agreement must be in writing.
Notice to the Company must be given to its principal office or personally delivered to the
custodian of the Company's records. Notice to a Unit Holder must be personally delivered or
sent to the Unit Holder at the address on the Unit Holder Schedule.
11.6 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision of this Agreement is illegal or invalid for any reason, the illegal or invalid
provision shall be stricken and the remainder of the Agreement will remain fully valid.
11.7 Number and Gender. All provisions and references to gender and number is
deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the person
or persons may require.
11.8 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term, and provision of this Agreement is binding upon and inures to the benefit of the Members
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and their respective heirs, legatees, legal representatives, successors and assigns.
11.9 Ohio Law. The laws of the State of Ohio, excluding those relating to choice or
conflicts of laws, govern the validity of this agreement, the construction of its terms and the
interpretation of the rights and duties of the parties hereto.
11.10 Representation. Each party hereby represents that each has had the opportunity to
consult with independent attorneys and/or tax advisors prior to the execution of this Agreement.
SECTION 12
ARBITRATION
Any dispute among the Members arising out of the business of the Company must
be resolved by arbitration in Cleveland, Ohio. This agreement to arbitrate is specifically
enforceable and the arbitration award is final. Judgment may be entered upon it in any court
having jurisdiction over the subject matter of this dispute.
IN WITN^SJi WHEREOF, this Agreement has been executed as of the date first above written.
ember Date
Date
5~S~'
Stephani Jenkins - Member Date
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OPERATING AGREEMENT
OF
1370 W 93 LLC
The Agreement is entered into as of this 27th, day of January of2022 by:
Anup Garg: 15319 Clifton Blvd t Lakewood : OH: 44107
Mark Jenkins 153 OlFischer Rd ; Cleveland : OH: 44111
Stephanie Jenkins 15301 Fischer Rd : Cleveland : OH: 44111
As Members of Steph Invests LLC.
SECTION 1
DEFINITIONS
Unless the co otherwise, (i) all of the capitalized words in this
Agreement have the meanings set to
Preview
Motion No. 5127493 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION FOR... October 29,2023 22:49 By: ZIAD TAYEH 0088027 Confirmation Nbr. 3002940 ANUP GARGET AL. CV 22 969524 vs. Judge: JOAN SYNENBERG MARK JENKINS ET AL. Pages Filed: 86 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANUP GARG, et al., CASE NO.: CV 22 969524 Plaintiffs, JUDGE: JOAN SYNENBERG MAGISTRATE: AMY R. JACKSON vs. DEFENDANT MARK JENKINS’ MARK JENKINS, et al., MOTION FOR LEAVE TO FILE AMENDED ANSWER AND Defendants. COUNTERCLAIM Now comes Defendant Mark Jenkins, by and through undersigned counsel, and hereby requests that this Honorable Court grant him leave to file an Amended Answer and Counterclaim. Defendant submits that he is required to amend his Counterclaim to address various matters that have arisen during this litigation. A Memorandum in Support is attached hereto and incorporated herein. Respectfully Submitted, /s/Ziad Tayeh______________ Ziad Tayeh (0088027) Tayeh Law Offices, LLC 22255 Center Ridge Road, Suite 311 Rocky River, OH 44116 Phone: (440) 580-0365 Fax: (440) 359-8755 Email: info@Tayehlaw.com Attorney for Defendant Mark Jenkins Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH MEMORANDUM IN SUPPORT I. FACTS This case arises out of a dispute between Plaintiff Anup Garg (“Garg”) and Defendant Mark Jenkins (“Jenkins”) over the following jointly owned companies and properties: • Haystack Hills, LLC (“Defendant Haystack”) • 1370 West 93rd LLC (“Defendant 1370”) • 3644 Bosworth LLC (“Defendant 3644”) • Bosworth 1 LLC (“Defendant Bosworth”) • 3174 W 94 LLC (“Defendant 3174”) • Jenkins Property Group LLC (“Defendant JPG”) • 10810 Parkhurst LLC (“Defendant 10810”) • S2 Holdings LLC (“Defendant S2”) • 2071 w 93rd Street, Cleveland, OH 44102 (the “W 93rd Property”) • 3071 W 47th Street, Cleveland, OH 44102 (the “W 47th Property”) Jenkins and Garg are members of Defendants 1370, 3644, Bosworth, Haystack, 3174, JPG, 10810, and S2 (collectively, the “Companies”). Defendant Stephanie Jenkins (“Defendant Stephanie”) is also a member of Defendants 3644, Bosworth, and Haystack. Jenkins and Garg met at a networking event in or around early 2019. After some discussions, they agreed to embark on joint real estate ventures under which Garg would provide funds and Jenkins would primarily provide labor and services. Jenkins and Garg entered into agreements to become members of the Companies. Each of the following Companies have Operating Agreements: • Defendant Haystack (See Ex. A) • Defendant 1370 (See Ex. B) • Defendant Bosworth (See Ex. C) • Defendant 3644 (See Ex. D) • Defendant JPG (See Ex. E) • Defendant S2 (See Ex. F) Jenkins and Garg each own 50% membership interest in Defendants 10810 and 3174 pursuant to oral agreements. Further, Defendant Stronghold (an entity owned by Garg) and Jenkins each contributed the sum of $10,000 each to purchase the W 93rd Property, which they Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524/ Confirmation Nbr. 3002940 / BATCH agreed would be jointly owned in equal proportions. Also, Garg orally agreed that Jenkins would receive 50% interest in the W 47th Property in exchange for Jenkins’ labor. Jenkins has contributed capital to each of the Companies in the form of cash, property, services, and/or use of his credit for loans including personal guarantees. Jenkins has worked 50 - 70 hours per week performing services to acquire his share of the Companies, including rehabilitations to and acquisitions of the properties owned by the Companies. Garg claimed to have reinvested cash generated by the Companies to purchase and rehabilitate other properties during Garg and Jenkins’ business relationship. However, in early 2022, tensions between Jenkins and Garg escalated due to Garg’s freezing Jenkins out of and repudiating Jenkins’ participation in each of the following Companies: Defendants 1370, 3644, Bosworth, Haystack, 3174, and 10810 (collectively, the “Seized Companies”). Garg further repudiated Jenkins claims to Jenkins’ share of the W 93rd Property and W 47th Property.1 The membership interest breakdown for each of the Seized Companies are as follows: Company Membership Interest Breakdown Defendant 1370 Garg: 50% Jenkins: 50% Defendant 3644 Stephanie: 25% Jenkins: 25% Garg: 50% Defendant Bosworth2 Stephanie: 62% Jenkins: 19% Garg: 19% Defendant Haystack Stephanie: 25% Jenkins: 25% Garg: 50% Defendant 3174 Garg: 50% Jenkins: 50% Defendant 10810 Garg: 50% Jenkins: 50% 1 For purposes of this Motion, the “Seized Companies,” W93M Property, and W 47th Property shall be referred to the “Seized Assets.” 2 Defendant Bosworth also holds title to 1361 W 114th Street, Cleveland, OH 44102, which Jenkins will demonstrate is governed by a different operating agreement with a different ownership schedule, as alleged in Jenkins’ Counterclaim. Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524/ Confirmation Nbr. 3002940 / BATCH Further, Garg refused and continues to refuse to allow Jenkins access to the Seized Companies’ respective bank accounts despite Jenkins’ demands that he be listed as an authorized signer on said accounts. Garg further refused and continues to refuse to account to Jenkins for the funds generated by the Seized Assets and/or deposit proceeds generated by the Seized Assets into said bank accounts. Garg further refused and continues to refuse to allow Jenkins to view the books and records of the Seized Assets. Garg excluded Jenkins from the Seized Assets, began to exercise sole dominion and control over the Seized Assets, refused to account to Jenkins for the Seized Assets’ funds, and refused to pay distributions to Jenkins. For example, Defendant Haystack sold six properties during Jenkins’ membership in Defendant Haystack, and Jenkins has received no distribution or accounting of his portion of proceeds from any of the six sales. Despite Garg’s refusal to pay distributions to Jenkins, Garg has paid himself distributions from the Seized Assets. Garg further received and continues to receive cash renal payments paid by tenants of the Properties, failed, and continues to fail, to deposit same in any of the Companies’ bank accounts, and failed, and continues to fail, to account to Jenkins for same. Garg’s refusal to account to J enkins for cash generated by the Seized Assets has caused Jenkins significant financial hardship. Also, Garg has unilaterally appointed Started, LLC, an entity wholly owned by Garg, as the “management company” over the Seized Assets. Garg claims to “manage” the Seized Assets through Started, LLC, however, Started, LLC is merely a vehicle Garg utilizes to siphon funds from the Seized Assets and to control the money and affairs of the Seized Assets. Garg refuses to account to Jenkins regarding the funds transferred from the Seized Assets to Started, LLC, and continues to utilize Started, LLC as “manager” over the Seized Assets over Jenkins’ objections. Garg filed his Complaint in this matter on October 3, 2022, naming Jenkins, Defendant Stephanie, the Companies, and other defendants. Jenkins filed his Answer, Crossclaim, and Counterclaim on October 22, 2022, which included claims against Garg, Defendant Stephanie, Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524/ Confirmation Nbr. 3002940 / BATCH and the Companies. Garg submitted a Second Amended Complaint on January 13, 2023, which did not name Defendant Stephanie as a defendant. However, Defendant Stephanie was never dismissed from this action. Jenkins filed an Answer, Counterclaim, and Crossclaim to Garg’s Second Amended Complaint on or about February 2, 2023, again including claims against Garg, Defendant Stephanie, and the Companies. Shortly thereafter, the parties agreed to mediate the case. As such, this Court stayed the instant case from April 10, 2023 - September 28, 2023. Prior to the stay, on January 30, 2023, Jenkins filed a Motion to Join Stephanie Jenkins Pursuant to Civ.R. 19, which this Court stayed pending the mediation. Several events took place (discussed below) following the closing of the pleadings, which now require Jenkins to amend his Counterclaim.3 II. LAW AND ARGUMENT. Jenkins seeks to amend his Counterclaim to include additional claims and defendants, as provided below. Ohio’s liberal policy of granting leave to file amended pleadings favors this Honorable Court’s granting of Defendants’ Amended Answer. Civ. R. 15(a) provides, in relevant part, "...a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court shall freely give leave when justice so requires." Because the language of Civ. R. 15(A) favors a liberal amendment policy, a motion for leave to amend should be granted absent a finding of bad faith, undue delay or undue prejudice to the opposing party. Hoover v. Sumlin, 12 Ohio St. 3d 1, 7, 465 N.E.2d 377 (1984). Prejudice to an opposing party is the most critical factor to be considered in determining whether to grant leave to amend. Frayer Seed, Inc. v. Century 21 Fertilizer & Farm Chemicals, Inc., 51 Ohio App. 3d 158, 555 N.E.2d 654, (3rd Dist. 1988). Delay, in and of itself, should not operate to preclude an amendment. Id. 3 Jenkins does not intend to limit his right to add additional claims or parties to those listed below. Should this Court grant the within Motion, Jenkins reserves the right to add any additional claims and new parties that may exist at the time of the filing of the Amended Counterclaim. Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524/ Confirmation Nbr. 3002940 / BATCH A. Claims Against Garg and Stephanie for Breaching the Operating Agreement Regarding Restrictions on Transfer. Each of the Operating Agreements naming Defendant Stephanie as a member contain provisions that restrict a member from transferring their respective membership interest. Such provisions are set forth in Article 6 of the respective Operating Agreements, and provide various restrictions on transfer, including notice to the members, right of first refusal, and other limitations. Despite said restrictions, Garg has admitted that he has accepted a transfer of interest from Defendant Stephanie without adhering to Article 6 of the Operating Agreements. Such admissions are repeated throughout his Answer to Jenkins’ Counterclaim, where Garg repeatedly states, “If Stephanie is found to be a member of Bosworth, her membership has been effectively assigned to [Garg].” These admissions demonstrate a clear breach of the Operating Agreements by both Garg and Defendant Stephanie, and were made only shortly before the parties agreed to mediate this matter and the Court’s staying of the case. Moreover, Jenkins preserved his right to assert these claims in his January 30, 2023 Motion to Join Defendant Stephanie as a party, which this Court held in abeyance. As such, this Honorable Court should allow Jenkins to amend his Counterclaim. B. Slander of Title and Tortious Interference Claims. In addition to the above claims, Garg and his counsel have attempted to cloud title to 3547 West 50th Street, Cleveland, OH 44102, a property owned by a company which Jenkins owns interest, Garg claims no interest, and has no connection to this litigation. Garg did so by filing a frivolous affidavit with the Cuyahoga County Recorder on or about September 29, 2023, in which he claimed to be a creditor of Jenkins despite having obtained no judgment against Jenkins. (See Affidavit, attached as Exhibit G.) Further, Garg’s counsel delivered a threatening email to Jenkins’ Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524/ Confirmation Nbr. 3002940 / BATCH lender with the clear intention of preventing Jenkins from re-financing the property on October 24, 2023. (See Email attached as Exhibit H.) Garg has no judgment against Jenkins, has not obtained a prejudgment attachment, and has no legal basis to interfere with Jenkins’ ownership of this property given that it has no relation to this case. These acts amount to slander of title, abuse of process, and tortious interference. Because Garg and his counsel have only recently perpetrated these actions, Jenkins should be granted leave to amend his Counterclaim to assert these claims.4 C. Claims in Case in Which Jenkins Seeks Consolidation. As this Court is aware, Jenkins has requested that this case be consolidated with Mark Jenkins v. Anup Garg, et al., Cuyahoga County Court of Common Pleas, Case No. CV-23-983388 (the “Second Action”). Jenkins filed the Second Action after Garg asserted claims seeking to expel Jenkins from the Companies. The Second Action seeks compensation for the work Jenkins performed for Garg. This Court may resolve Jenkins’ Motion to Consolidate by granting the instant Motion to allow Jenkins to name the defendants in the Second Action as Counterclaim Defendants in this case. D. Jenkins is Entitled to Amend His Counterclaim. Although Garg filed this case in October 2022, this case is still in its infancy for several reasons. As an initial matter, Garg amended his Complaint multiple times, and, as a result, the pleadings in the instant case were not closed until February 2, 2023, four months after Garg filed this action. The parties then agreed to mediate the case, and therefore, the case was stayed for more than five and a half months, from April 10, 2023 - September 28, 2023. Thus, this case was in its pleading stage and stayed for at least nine and a half months since October 2022. Moreover, while Garg complains that adding new parties would delay discovery, Garg has not even bothered to propound discovery in this case. In fact, Jenkins propounded discovery to 4 The undersigned has delivered correspondence to Garg’s counsel demanding corrective action by Friday, November 3, 2023. Should Garg refuse to comply, Jenkins will seek emergency injunctive relief with this Court. Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524/ Confirmation Nbr. 3002940 / BATCH Garg on May 9, 2023, hoping to have discovery responses in preparation for mediation. More than five and a half months later, Garg has yet to respond to same.5 Thus, Garg’s claim that the addition of new parties would hinder discovery is peculiar given that Garg has refused to participate in discovery. Because this case is still early given the delays and stay, and Jenkins is filing this Motion shortly after the Court lifted the stay, this Honorable Court should grant the within Motion. III. CONCLUSION This Court should grant Jenkins leave to file an Amended Counterclaim to seek redress for the above claims. As such, this Court should grant the within Motion. Respectfully Submitted, /s/Ziad Tayeh______________ Ziad Tayeh (0088027) Tayeh Law Offices, LLC 22255 Center Ridge Road, Suite 311 Rocky River, OH 44116 Phone: (440) 580-0365 Fax: (440) 359-8755 Email: info@Tayehlaw.com Attorney for Defendant Mark Jenkins CERTIFICATE OF SERVICE I hereby certify that on October 29, 2023, the foregoing Motion was filed electronically. Notice of this filing will be delivered to all parties indicated on the receipt of filing. All other parties will be served by regular mail, postage pre-paid. /s/Ziad Tayeh______________ Ziad Tayeh (0088027) Tayeh Law Offices, LLC Attorney for Defendant Mark Jenkins 5 The undersigned has conferred with Garg’s counsel regarding discovery and will file a Motion to Compel if Garg continues to be uncooperative. Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524/ Confirmation Nbr. 3002940 / BATCH IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANUP GARG, et al., CASE NO.: CV 22 969524 Plaintiffs, JUDGE: JOAN SYNENBERG MAGISTRATE: AMY R. JACKSON vs. MARK JENKINS, et al., PROPOSED ORDER Defendants. Defendant Mark Jenkins’ Motion for Leave to File Amended Answer and Counterclaim is granted. Defendant Jenkins shall have until to file an Amended Answer and Counterclaim. IT IS SO ORDERED. JUDGE JOAN SYNENBERG MAGISTRATE: AMY R. JACKSON DATE Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 96952^/ Confirmation Nbr. 3002940 / BATCH OPERATING AGREEMENT OF Haystack Hillis LLC ^e Agreement is entered into as of ftis 5ft, day of May of 2019 by: Anup Garg: 15319 Clifton Blvd ; Latewood : OH; 44107 Mark Jenkinis: 15301 Ficher Rd ; Cleveland ; OH ; 44111 Stephani Jenkins 15301 Ficher Rd ; Cleveland ; OH ; 44111 As Members of Hayst^k Hills LLC. SECTION 1 DEFINITIONS Unless fte context cle^ly indicates ofterwise, (i) dl of fte capitalired woris in ftis Agreement have fte meanings set forft in the Act or ofter provisions of ftis Agreement rnd (ii) all non-capitalired words in fte Act rnd used herein have fte meanings set forth in ftis Act. SECTION 2 FORMATION 2.1 Organiration. The Members have authorized the formation of the Comply as Ohio Limited Liability Comply p^su^t to the provisions of fte Act and wift fte Ohio Secret^' of State. 2.2 Agent. The Agent for service of process upon fte Comply is Anup G^g. 2.3 ^mcipd office. The principal office of the Company wtil be located at 15319 Clifton Blvd: Lakewood, OH 44107, or at ^y ofter location fte Members detemine from time to time by majority vote. SECTION 3 MANAGEMENT 3.1 Management. ConUol of fte Comply rnd all of its affairs is vested in the Members. Except as ofterwise provided in ftis Agreement, Comply business decisions may be made by any of the Members rating on behalf of the Company. Any matter delegated by this Agreement to a deternination by more thra one member must, except ra provided in SECTION 3.3, be decided by Majority Vote. Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH 3.2 Majority Vote. No Member has the authority to do any of the following on behalf of the Company without the approval by Majority Vote of the Members: (a) Assign, transfer, pledge, compromise, or release any claim of the Company except for full payment; (b) Make, execute, or deliver on behalf of the Company any guarantee, indemnity bond, surety bond, or accommodation paper or accommodation endorsement; (c) Sell all or substantially all of the Company's property; (d) Lease, as lessor or lessee, any property; (e) Purchase any services, supplies and/or property in an amount greater than $500; (f) Expend any sum in excess of $500; (g) Grant any lien upon any of the Company's property; or (h) Enter into any contract to do any of the foregoing. 3.3 Unanimous Vote. No member has the authority to do any of the following on behalf of the Company without the approval by unanimous vote of the Members: (a) Make, execute, or deliver a general assignment for the benefit of creditors; (b) Dispose of the good will of the Company; (c) Do any act which would make it impossible to carry on the business of the Company; (d) Confess a judgment against the Company; (e) Submit a claim or liability of the Company for arbitration or reference; (f) Admit a new Member, except as provided for in Section 8; or (g) Commence a bankruptcy or receivership proceeding with respect to the Company. 3.4 Compensation and Expense Reimbursement. No Member is entitled to compensation for services rendered to the Company without the consent of all of the Members. Upon substantiation of the amount and purpose thereof. Members are entitled to reimbursement or expenses reasonably incurred in connection with the activities of the Company. 3.5 Time Commitment. Expect as provided in SECTION 4.4, Members may engage in business or investment activities outside of the Company so long as such activities do not Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH prevent the Members from fulfilling responsibilities to the Company. 3.6 Officers (a) Election. The Members may by Majority Vote elect Officers for the Company. The initial officers of the company are: President: Anup Garg Vice-President: Stephani Jenkins Treasurer: Mark Jenkins Secretary: Mark Jenkins (b) Removal. Any Officer may be removed, with or without cause, by the Members by Majority vote without prejudice to the contract rights of such Officer. The election of an Officer for a given term does not create any contract rights. The Members may fill any vacancy in any office occurring for whatever reason. SECTION 4 MEMBERS 4.1 Unit Holder Schedule. The Members must record in the Unit Holder Schedule (see Black Book “Share Ledger” and “Share Journal”) all Unit Transfers and admissions of new Members, Capital Contribution, issuance’s and liquidations of Units, and changes of Members addresses. The following is a summary of the initial Unit Holder Schedule: Stephani Jenkins 25 units at no par value Mark Jenkins 25 units at no par value Anup Garg 50 units at no par value 4.2 Liability of Members. (a) To Third Parties. No Member is (i) liable as such for the liabilities of the Company or (ii) obligated to restore any deficit balance in his Capital Account. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act is not grounds for imposing personal liability on the Members for liabilities of the Company. (b) To Other Members. A Member is liable in damages for any action that the Member takes or fails to take as a Member only if it is proved, by clear and convincing evidence, in a court with jurisdiction, that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company. Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH 4.3 Securities Law Matters. Each Member acknowledges that the Units have not been registered under the Securities Act of 1993, as amended, or any state securities laws. 4.4 Related Party Transactions. No contract, action, or transaction is void or voidable because it is between or affects the Company and one or more of it Members, or an entity in which one of the Members is an interested party, if any of the following applies: (a) The material facts as to his or their relationship or interest and as to the contract, action, or transaction are disclosed or are known to the Members, and the members, in good faith reasonably justified by those facts, authorize the contract, action or transaction by the affirmative vote of a majority of the disinterested Members, even though the disinterested Members constitute less than a quorum of the Members. (b) The material facts as to his or their relationship or interest and as to the contract, action, or transaction are disclosed or are known to the Members entitled to vote on the contract, action, or transaction, and the contract, action or transaction is specifically approved at a meeting of the Members held for that purpose by the affirmative vote of the Members entitled to exercise a majority of the voting power of the Company held by persons not interested in the contract, action, or transaction. (c) The contract, action, or transaction is fair to the Company as of the time it is authorized or approved by the Members. 4.5 Meetings of Members. The Members will meet as may be determined by resolution of the Members. Failure to hold an annual meeting is not grounds for dissolution of the company. Members may participate in any such meeting through the use of any means of communication by which all of the Members may simultaneously hear each other during the meeting. A Member participating in a meeting by this means is deemed to be present in person at the meeting. 4.6 Notice of Record Date of Meetings. Notice of Annual or Special meeting must be given between 10 and 50 days before the date of the meeting, either personally or by mail, to each Member entitled to Vote at such meeting. 4.7 Quorum. The Members owning 100% of the Units in the Company represented in person or by proxy constitute a quorum at any meeting of Members. No action may be voted upon at a meeting of the Members unless a quorum is present. 4.8 Voting. The Members have one Vote for each Unit owned by them with respect to all matters relating to the affairs of the Company. If a quorum is present, a Majority Vote of the Members is sufficient to authorize any action of the Company unless the vote of a greater or lesser number is otherwise required by the Articles or this Agreement. 4.9 Action by Members Without a Meeting. Any action may be taken without a 4 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH meeting if the action is evidenced by written consent of all Members or a majority of the Units, as necessary by this Agreement 4.10 Loans. Any Member may make loans to the Company upon such terms as the Member and Company agree. (All Members will be offered the opportunity to make such loans in proportion to Unit ownership.) 4.11 Expulsion. A Member may be expelled from the Company upon a Majority Vote of the Members if such member breaches a provision of this Agreement, which breach is not cured within 30 days of notice thereof. SECTION 5 ALLOCATIONS AND DISTRIBUTIONS 5.1 Allocation of Profits. After giving effect to the Regulatory Allocations, Profits may be allocated among Unit Holders in any proportion deemed beneficial to the Company by a unanimous vote of Unit ownership. Absent an agreement otherwise. Profits shall be allocated among Unit Holders in proportion to the number of units owned. 5.2 Allocation of Losses. After giving effect to the Regulatory Allocations, Losses may be allocated among Unit Holders in any proportion deemed beneficial to the Company by a unanimous vote of Unit ownership. Absent an agreement otherwise. Profits shall be allocated among Unit Holders in proportion to the number of units owned 5.3 Distribution. Distributions may be made from time to time upon approval by Majority Vote of the Members. All Distributions must be allocated in proportion to Unit ownership. 5.4 Allocations and Distributions to New Unit Holders. If Units are TRANSFERED or additional Units are issued to a new Member during any Fiscal Year, all profits, losses and/or Distributions on or before the date of a Transfer shall be made to the Transferor, and all Distributions after the date of a Transfer shall be made to the Transferee. 5.5 Capital Accounts. The Company must maintain a Capital Account with an accounting of the amount held for each Unit Holder and no interest may be paid thereon. SECTION 6 TRANSFER OF UNITS 6.1 Requirements for Effectiveness of Transfer. Any transfer of Units must be in writing and notify the Company as to the date of Transfer, any consideration paid therefor, and 5 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH the Transferee's name, address, and taxpayer identification number. The Members may perform the following: (1) Determine if Transferee is an Assignee or a Substitute member: (2) Confirm that the Transferee has agreed to be subject to and bound by this Agreement; (3) Preserve the Company's status under the laws of each jurisdiction in which the Company is qualified, organized or does business after the Transfer; (4) Maintain the Company's classification for federal income tax purposes; (5) Assure compliance with any applicable state and federal laws including securities laws and regulations. No voluntary Transfer of Units is effective until the transferor and Transferee have complied with the provisions of this SECTION applicable thereto. Upon the completion of a Transfer of Units, file Members must reflect such Transfer on the Unit Holder Schedule. Any purported Transfer of Units not in compliance with this SECTION is null and void. 6.2 Admission of a Transferee as a Member. The other Members must admit a Transferee of Units as a Member if the Transferee (a) complies with Subpart 1 of this SECTION and (b) is (1) a Member, (2) a related person with respect to the Transferor, or (3) approved as a Substitute Member by the Members other than the Transferee. 6.3 Transfer to a Person Not Admitted as a Member. Notwithstanding anything contained in this Agreement to the contrary, any Transferee of Units who is not admitted as a Member will be an Assignee and have no rights as a Member except to be allocated the transferor's share of Profits, Losses, and Distributions and to receive the information required to prepare the Assignee's income tax returns. Upon the Transfer of all of a Member's Units to a Transferee, the Transferor ceases to be a Member of the Company. 6.4 Right of First Refusal. (a) Notice of Intent to Sell. A Unit Holder desiring to sell all or any portion of his Units must notify the other Members of his intention to sell, furnishing the terms of the proposed sale to all other Members. (b) Notice of Acceptance. The other members on a basis pro rata to the Unit ownership of those other Members exercising their Right of First Refusal, each have the right to purchase all (but not less than all) of the units proposed to be sold upon the same terms and conditions of sale contemplated by the Selling Member and intended purchaser. If none of the Members exercises his Right of First Refusal by giving Notice of Acceptance to the Selling Member within fifteen (15) days of his furnishing a Notice of Intent to Sell, the Right of First 6 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH Refusal terminates and the Selling Member is entitled to sell his Units, provided that the sale is (1) on substantially the same terms as those furnished in the Notice of Intent to Sell and (2) consummated within 45 days of the expiration of the Right of First Refusal. SECTION 7 ADDITIONAL MEMBERS The Members, by their unanimous consent, may make a Person a Member by (a) specifying the amount of consideration to be paid by such Person, and (b) recording on the Unit Holder Schedule the issuance of additional Units or sale of existing Units. The new Member will be admitted as of the date the Members unanimously accept, in writing, a formal purchase agreement signed by the new Member. SECTION 8 DISSOCIATION OF A MEMBER 8.1 Dissociation. A Person ceases to be a Member upon the happening of any of the following events. (a) The Member becoming financially distressed to the point where he is: i. Unable to perform his duties to the Company, or ii. Jeopardizes the existence/continuance of the Company. (b) If the Member is a natural person, the adjudication of incompetency or death of the Member. (c) If the Member is acting as a Member by virtue of being a trustee of a trust, the termination of the trust (but not merely the substitution of a new trustee); (d) If the Member is an entity, upon the dissolution of the Member entity. (e) If the Member is an estate, the distribution of the estate's membership interest. (f) A Transfer of all of the Units of a member not otherwise described in this SECTION; (g) The expulsion of a Member; or (h) The voluntary withdrawal of a Member. 7 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH A Dissociating Member, or bis Personal Representative where applicable, must notify the Company of any of the events in SUBSECTIONS (a)-(g) above within 30 days thereafter. Except as provided above, the events of withdrawal specified in Section 1705.15 of the Act will not cause a Person to cease to be a Member. 8.2 Rights of Dissociating Member. Upon the Dissociation of a Member prior to the dissolution and winding up of the Company: (a) If the Dissociation causes a dissolution and winding up of the Company under SECTION 9, the Member is entitled to participate in the winding up of the Company to the same extent as any other Member, and (b) If the Dissociation does not cause a dissolution and winding up of the Company under SECTION 9 and the Dissociated Member continues to hold Units, the Dissociated Member has no right to compel a liquidation of his Units and he will thereafter hold his Units as an Assignee. SECTION 9 DISSOLUTION AND WINDING UP 9.1 Dissolution. The Company will be dissolved and its affairs wound up, upon the first to occur of the following events: (a) The expiration of the term of existence of the Company set forth in the Articles and this Agreement; (b) Unanimous, written consent to dissolve by the Members; (c) The Dissociation of any Member, unless the business of the Company is continued with the written consent of all of the other Members; (d) Upon entry of a decree ofjudicial dissolution. Except as expressly provided above, the dissociation of any Member will not cause a dissolution of the Company. Upon the occurrence of a dissolution event, a certificate of dissolution containing the information required by the Act must be delivered to the Secretary of State for filing. 9.2 Winding Up. Upon dissolution, the Members must wind up all of the company's affairs and distribute all of the Company's property and cash: (a) To creditors - first to Members who are creditors, then to outside creditors 8 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH - to the extent permitted by law, in satisfaction of liabilities of the Company; (b) To Unit Holders in accordance with positive Capital Account balances. The winding up of the Company will be completed when all debts, liabilities, and obligations of the Company have been paid and discharged or reasonably adequate provision therefor has been made, and all of the remaining property and assets of the Company have been distributed to the Unit Holders. SECTION 10 INDEMNIFICATION 10.1 Authorization. The Company must indemnify an Indemnitee who has met the Prescribed Standard of Conduct and who was or is a party, or threatened to be made a party, to any Proceeding by reason of the fact that the Person is or was a Member of the Company, or who, while a Member of the Company, is or was serving at the request of the Company as an Agent of another entity, against expenses (including attorneys' fees), judgments, settlements, penalties and fines (including excise taxes assessed with respect to employee benefit plans) actually and reasonably incurred in accordance with such Proceeding. 10.2 Prescribed Standard of Conduct. An Indemnitee must have acted in good faith and with a subjectively reasonable belief that the actions were in or not opposed to the best interests of the Company, having had no reasonable cause to believe the conduct was unlawful; 10.3 Determinations as to Prescribed Standard of Conduct. The determination of any Proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, will not, of itself, create a presumption that the Indemnitee did not meet the Prescribed Standard of Conduct. A determination as to whether the Prescribed Standard of conduct has been met must be determined by: (a) A Majority vote of the Members other than the Indemnitee; (b) A written opinion by independent legal counsel other than an attorney, or a firm having associated with it an attorney, who has performed services for the Company or any Indemnitee in the past five years, if so directed by Majority Vote of the Members other than the Indemnitee; or (c) By the court in which the Proceeding referred to above is brought. 9 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH SECTION 11 MISCELLANEOUS PROVISIONS 11.1 Entire Agreement. This Agreement and the Articles represent the entire agreement among all Members. 11.2 Amendment. This Agreement may be amended from time to time only by a written instrument approved by a Majority -In-Interest of the Members, except that any amendment that would (a) increase the amount of Capital Contributions required of a Member or accelerate the dates for a payment of any Required Capital Contribution, (b) impose an additional liability on any member, or (c) modify SECTIONS 6, 9.2 or this SECTION 11.2 requires the unanimous consent of the Members. 11.3 No Partnership Intended for Non-tax Purposes. The Members have formed the Company pursuant to the Act, and expressly do not intend to form a partnership or a limited partnership. The Members do not intend to be partners one to another, or partners as to any third party. To the extent any Member, by work or action, represents to another person that any other Member is a partner or that the Company is a partnership, the Member making such wrongful representation is liable to any other Members who incurs personal liability by reason of such wrongful representation. 11.4 Rights of Creditors and Third Parties. This Agreement is entered into among the Members for the exclusive benefit of the Company, its Members, and their successors and assigns. This Agreement is expressly not intended for the benefit of any creditor of the Company or any other Person. Except and only to the extent provided by applicable statute, no creditor or third party has any rights under this Agreement or any agreement between the company and any Member with respect to any Capital Contribution or otherwise. 11.5 Notice. All notices required or permitted by this Agreement must be in writing. Notice to the Company must be given to its principal office or personally delivered to the custodian of the Company's records. Notice to a Unit Holder must be personally delivered or sent to the Unit Holder at the address on the Unit Holder Schedule. 11.6 Severability. Every provision of this Agreement is intended to be severable. If any term or provision of this Agreement is illegal or invalid for any reason, the illegal or invalid provision shall be stricken and the remainder of the Agreement will remain fully valid. 11.7 Number and Gender. All provisions and references to gender and number is deemed to refer to masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require. 11.8 Binding Effect. Except as otherwise provided in this Agreement, every covenant, term, and provision of this Agreement is binding upon and inures to the benefit of the Members 10 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH and their respective heirs, legatees, legal representatives, successors and assigns. 11.9 Ohio Law. The laws of the State of Ohio, excluding those relating to choice or conflicts of laws, govern the validity of this agreement, the construction of its terms and the interpretation of the rights and duties of the parties hereto. 11.10 Representation. Each party hereby represents that each has had the opportunity to consult with independent attorneys and/or tax advisors prior to the execution of this Agreement. SECTION 12 ARBITRATION Any dispute among the Members arising out of the business of the Company must be resolved by arbitration in Cleveland, Ohio. This agreement to arbitrate is specifically enforceable and the arbitration award is final. Judgment may be entered upon it in any court having jurisdiction over the subject matter of this dispute. IN WITN^SJi WHEREOF, this Agreement has been executed as of the date first above written. ember Date Date 5~S~' Stephani Jenkins - Member Date 11 Electronically Filed 10/29/2023 22:49 / MOTION / CV 22 969524 / Confirmation Nbr. 3002940 / BATCH OPERATING AGREEMENT OF 1370 W 93 LLC The Agreement is entered into as of this 27th, day of January of2022 by: Anup Garg: 15319 Clifton Blvd t Lakewood : OH: 44107 Mark Jenkins 153 OlFischer Rd ; Cleveland : OH: 44111 Stephanie Jenkins 15301 Fischer Rd : Cleveland : OH: 44111 As Members of Steph Invests LLC. SECTION 1 DEFINITIONS Unless the co otherwise, (i) all of the capitalized words in this Agreement have the meanings set to