dkt. 6 amended complaint efiled 2-28-14 (00306138xbcd72)

Case 8:14-cv-00322-VMC-MAP Document 6 Filed 02/28/14 Page 1 of 20 PagelD 54

UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

HARGREAVES RAW MATERIALSERVICES GmbH, a German company,

Plaintiff, Case No.: 8:14-cv-00322-VMC-MAP

v.

WESLEY T. HILLER; MARTIN H. HILLER;NORTH SHORE HOLDINGS, LLC,

Defendants.

AMENDED COMPLAINT

Plaintiff Hargreaves Raw Material Services GmbH ("Hargreaves" or "Plaintiff'), a

German company, by and through its undersigned counsel, hereby files its Amended

Complaint against Defendants Martin H. Hiller ("M. Hiller"), Wesley T. Hiller ("W.

Hiller"), and North Shore Holdings, LLC ("North Shore") (collectively, "Defendants") for

their participation in a conspiracy to defraud Hargreaves through a commodities free-riding

scheme and alleges as follows:

NATURE OF THE ACTION

1. This is an action for fraudulent inducement, conspiracy to commit fraudulent

inducement, negligent misrepresentation, and negligent supervision. These claims arise out

of Defendants' conspiracy to induce Hargreaves to enter into contracts with Hiller Trading,

LLC ("Hiller Trading") to purchase approximately $10 million in metallurgical Coke

Case 8:14-cv-00322-VMC-MAP Document 6 Filed 02/28/14 Page 2 of 20 Pagel D 55

("Coke") through numerous fraudulent and false statements. When Defendants reneged on

their commitments, Hargreaves suffered millions of dollars in damages.

Defendant W. Hiller made numerous false and fraudulent statements about his

experience in and ability to supply Coke from Colombia, his familiarity with the Colombian

Coke market, his position and standing with Hiller Trading, and other facts about his

relationship and status in the Colombian Coke market. These misrepresentations were made

to and did deceive and induce Hargreaves to enter into the contracts, and came at a time

when the worldwide price of Coke was extremely volatile. Contrary to his representations,

W. Hiller had, in fact, never shipped a single ounce of Coke from Colombia and had no

experience doing so. Hargreaves never received any Coke pursuant to the contracts,

resulting in millions of dollars in damages to Hargreaves. North Shore, which owned and

operated Hiller Trading, was used as the financial and operational arm of the scheme, while

M. Hiller conspired with W. Hiller to make these statements to Hargreaves.

3. Hargreaves subsequently initiated arbitration proceedings against Hiller

Trading, and after a seven-day hearing, arbitrator Benjamin H. Hill, III, Esq. entered an

arbitration award in favor of Hargreaves and against Hiller Trading in the amount of

$1,147,735.08. In relevant part, Arbitrator Hill found that Hiller Trading, through its agents,

made multiple misrepresentations to Hargreaves. On September 19, 2013, the Thirteenth

Judicial Circuit in and for Hillsborough County, Florida, entered a Final Judgment

confirming the Award.

4. Post-judgment discovery showed that Hiller Trading was simply a shell

company used by M. Hiller and W. Hiller to conduct business and insulate themselves from

2


any ensuing liability. Despite entering into contracts worth approximately $10 million with

Hargreaves, Hiller Trading had no assets and indeed was insolvent, and subsequently ceased

doing business after reneging on its commitments to Hargreaves. To date, Hargreaves has

not recovered any amount of its Judgment.

5. Hargreaves brings this action to hold North Shore, M. Hiller, and W. Hiller,

Hiller Trading's parent company, sole officer and agent, respectively, liable for their role in

defrauding Hargreaves. As a result of Defendants' actions in fraudulently inducing

Hargreaves to enter into the contracts, Hargreaves suffered millions of dollars in damages.

As set forth herein, Hargreaves seeks to recover from Defendants based on fraudulent

inducement, negligent misrepresentation, and conspiracy to commit fraud.

JURISDICTION, PARTIES, AND VENUE

6. Plaintiff Hargreaves is a German limited liability company with its principal

office and place of business at Boningerstr. 29, D-47051 Duisburg, Germany.

7, Defendant Martin H. Hiller is an individual, sui juris, and is a citizen of and

resides in the State of Florida.

8. Defendant Wesley T. Hiller is an individual, sui furls, and is a citizen of and

resides in the State of Florida.

9. Defendant North Shore Holdings, LLC, is a Florida limited liability company

with its principal place of business in Hillsborough County, Florida, On information and

belief, Defendant Martin H. Hiller is the sole member of North Shore Holdings, LLC, and is

a citizen of and resides in the State of Florida.

3


10. The Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332

because there is complete diversity with respect to these claims, and the matter in

controversy exceeds $75,000 exclusive of interest and costs.

11. Personal jurisdiction and venue in this District and Division are proper

pursuant to 28 U.S.C. 1391(b) and 1391(c) as Defendants reside in this judicial district

and because a substantial part of these events giving rise to the claims asserted occurred in

this district.

FACTUAL ALLEGATIONS

Hargreaves Learns Of Hiller Trading's Advertisement To Sell Metallurgical Coke

12. Hargreaves is a supplier of raw materials to customers in various industries,

including steel, foundry, and ceramic manufacturing. To meet these obligations, Hargreaves

sources raw materials from around the world. Many of these raw materials are commodities

and thus subject to worldwide pricing fluctuations due to supply and demand dynamics, and

Hargreaves seeks to avoid pricing volatility by contracting with raw materials suppliers.

13. In February 2010, Hargreaves was contacted by Udit Chanchani

("Chanchani"), an independent broker affiliated with Prima Coal & Coke in Bangalore,

India, concerning whether Hargreaves had any interest in purchasing Colombian

metallurgical Coke. Chanchani learned of this opportunity from a posting on alibaba.com,

Chinese online marketplace, by W. Hiller on behalf of Hiller Trading. W. Hiller previously

communicated to Chanchani that Hiller Trading had been in existence since 1975. This

representation was false.

4


14. Hiller Trading, which was formed in 2005 by M. Hiller, is a subsidiary of

North Shore, which also serves as the company's sole member. In addition to sharing office

space in the same building as North Shore, Hiller Trading depended on North Shore for

operational and financial support. On information and belief, M. Hiller is the sole officer of

both North Shore and Hiller Trading.

15. Following receipt of Chanchani's correspondence, Hargreaves employee

Marya Dietzen ("M. Dietzen" )I began communicating with Chanchani, who acted as a

middleman between Hargreaves and W. Hiller. As the amount of Coke offered for sale had a

market value of approximately $10 million, and because of her unfamiliarity with Hiller

Trading or W. Hiller, M. Dietzen requested more information from Chanchani relating to

both the Coke offered for sale and W. Hiller's familiarity and experience doing business in

Colombia. M. Dietzen indicated that while Hargreaves had previously purchased Coke from

Colombia for its customers, it was looking for a partner who can control "dealing in

Col ombi e.

16. On February 8, 2010, W. Hiller sent an email to Chanchani in response to

several questions posed by M. Dietzen, with the understanding that the email would be

forwarded to M. Dietzen. W. Hiller stated that he was dealing with two Colombian suppliers

that provided W. Hiller with differing amounts of Coke on a monthly basis. The email

signature included at the bottom of the February 8, 2010 correspondence contained the

notation "Founder Hiller Trading, LLC." As W. Hiller later admitted in sworn testimony,

M. Dietzen was previously known as Marya Abreu de Barros before her marriagesubsequent to the events at issue.

5

Case 8:14-cv-00322-VMC-MAP Document 6 Filed 02/28/14 Page 6 of 20 Pagel D 59

these representations were false. Rather, the representations were knowingly made to induce

Hargreaves to enter into a contract with Hiller Trading. Additionally, these representations

were known to be false by M. Hiller.

17. Several days later, W. Hiller sent another email in which he again made a

number of statements regarding his familiarity and experience in transacting Coke in

Colombia, explaining that he was "pleased to inform you of how differently business is in

Colombia." W. Hiller represented that Hiller Trading was working with all four of the large

Coke manufacturers, and indicated that he known each of those producers for over 20 years.

W. Hiller also indicated that he currently had committed and contracted Coke to a German

trading company. As W. Hiller later admitted in sworn testimony, each of these

representations was false. Rather, these representations were made to induce Hargreaves to

enter into a contract with Hiller Trading. Additionally, these representations were known to

be false by M. Hiller.

18. Under the supervision of M. Hiller, W. Hiller intentionally and knowingly

failed to disclose material facts to Hargreaves, including but not limited to his position as a

consultant to Hiller Trading, his lack of experience transacting Coke in Colombia, the fact he

had never worked with the "Big 4" Colombian Colce producers, that Hiller Trading was

insolvent or on the brink of insolvency, and that Hiller Trading did not have the ability to

fulfill the Contracts. These omissions were intentionally made to induce Hargreaves to enter

into the Contracts with Hiller Trading.

19. These actions were part of a scheme orchestrated and masterminded by

Defendants to induce Hargreaves and others to make commitments of capital and enter into

6


transactions when Hiller Trading the company controlled by Defendants did not have the

ability to complete those transactions, nor did they intend to, unless they could subsequently

do so in a profitable fashion. This scheme was intentionally set up to avoid exposing any of

Hiller Trading's funds or assets to transactions that Hiller Trading was entering into, and

thereby defrauding Hargreaves and others of the benefit of profitable transactions.

20. Indeed, W. Hiller's intend to conduct this fraudulent scheme is exemplified by

his sworn deposition testimony where, in response to a question as to why Hiller Trading

would not put up its own money to assist with the Hargreaves transaction, W. Hiller

responded, "Why should I put my own money?"

21. As a part of and conclusion to its scheme to complete the Coke transactions

with Hargreaves only if it could do so profitably, Hiller Trading ceased operations on June

30, 2010 shortly after it reneged on its commitments to supply Coke to Hargreaves, and

subsequently filed articles of dissolution with the State of Florida.2

Hargreaves Enters Into The First Contract With Hiller Trading

22. Based on the representations made by W. Hiller, Hargreaves began moving

forward with negotiating the specific terms of the proposed contracts with Hiller. During the

course of negotiations, W. Hiller indicated that the Coke would be acquired from several

small producers in Columbia who were each capable of producing 5,000 to 10,000 metric

tons per month, and claimed that he had already secured the first 10,000 metric tons of Coke

from a Columbian producer. W. Hiller also represented to Chanchani that Hiller Trading was

2 Hiller Trading filed notice of revocation of the Articles of Dissolution on December 30,2010.

7


advancing money to the producers to secure the Coke as the price of Coke was rapidly

increasing.

23. After finalizing product specifications, Hargreaves executed a contract on

March 11, 2010, for the purchase of 10,000 metric tons of Coke at $287 per metric ton (the

"March 1 Contract"). The following day, Hargreaves opened a letter of credit in the

amount of $3,157,000.00, which accounted for the full contract price should Hargreaves

exercise a contractual option to purchase a 10% increase to the original quantity of 10,000

tons. By providing the letter of credit pursuant to the March 1 Contract, Hargreaves fulfilled

its contractual obligations and triggered Hiller Trading's obligation to perform.

24. However, while W. Hiller had represented that he had secured the 10,000

metric tons of Coke specified in the March 1 Contract, this was not true. Instead, W. Hiller

provided a litany of excuses relating to his inability to procure the Coke, and was ultimately

unable to supply any Coke. Indeed, Defendants never intended to proceed with the

transactions unless they could subsequently find a market participant who would supply the

Coke at a price that would assure a profit. M. Hiller, W. Hiller, and North Shore used Hiller

Trading as a shell company precisely for this purpose, and put no assets into the company to

ensure they were not exposed to any risk. Indeed, if Hiller Trading could not procure Coke

at an advantageous price, it intended to renege on the contract with Hargreaves and other

customers and deprive them of profitable business transactions. Neither Hiller Trading nor

W. Hiller ever obtained a fully executed contract with any Colombian supplier.

8


25. Despite these numerous issues in securing the Coke for Hargreaves, M. Hiller

did not monitor or otherwise communicate with W. Hiller and had no knowledge of these

problems until several weeks later.

Hargreaves Is Induced To Enter Into A Second Contract With Hiller Trading As PartOf The Same Scheme And Course Of Conduct

26. After W. Hiller advised Chanchani and Hargreaves of the various problems he

was encountering, Hargreaves scheduled a face-to-face meeting with W. Hiller in Tampa,

Florida on March 31, 2010. At that meeting, in which M. Hiller also participated, W. Hiller

reassured Hargreaves that he would be able to supply the Coke, that the pre-export financing

issues had been resolved, and that he could have the product ready within 60 days. These

representations were false and were knowingly made to induce Hargreaves to both continue

its relationship with Hiller Trading and to enter into another contract to purchase more Coke

from Hiller Trading. These representations were also known to be false by M. Hiller.

27. After Hargreaves refused W. Hiller's request to increase the price of Coke in

the March 1 Contract, the parties entered into two separate and independent contracts. The

first was a contract nearly identical to the March 1 Contract, with Hiller contracting to deliver

10,000 metric tons of Coke to Hargreaves at an agreed-upon price of $287 per metric ton (the

"March 31 Contract"). The March 31 Contract expressly stated that it replaced the March 1

Contract.

28. The Parties also entered into an additional contract in which Hiller Trading

contracted to deliver an additional 20,000 metric tons of Coke at a price of $366.50 per

metric ton (the "Second Contract") (the Second Contract and March 31 Contract are

9


collectively referred to as the "Contracts"). The Second Contract's price of $366.50 per

metric ton reflected the rising market price of Coke.

29. Following execution of the Second Contract, Hargreaves amended the original

letter of credit to reflect a new loading date, which again triggered Hiller Trading's

obligation to perform. At no time, with respect to any of the contracts, did M. Hiller or W.

Hiller ever contribute any assets or cash to Hiller Trading, but instead used Hiller Trading as

a shield to defraud Hargreaves and attempt to defraud other clients.

Hiller Trading Reneges On Its Commitments To Hargreaves

30. Despite amending the original letter of credit and triggering Hiller Trading's

contractual obligation to perform, Hiller Trading continued having issues securing Coke from

its producers, and W. Hiller continued to provide Hargreaves with various disingenuous

excuses as to why he could not procure the contracted-for Coke. On April 19, 2010, W.

Hiller notified Hargreaves that he was continuing to experience problems relating to pre-

export financing with his suppliers, requested permission to return the Hargreaves letter of

credit, and instructed Hargreaves to refiain from issuing the additional letter of credit for the

Second Contract.

31. After Hargreaves refused W. Hiller's invitation to cancel the contracts, M.

Hiller intervened in the Parties' email correspondence, stating that "we have expended

considerable resources to get the transaction to a commercial state," and re-asserting W.

Hiller's position in an April 21, 2010 email in which he again proposed that Hargreaves

consider providing pre-export financing to Hiller Trading's Colombian suppliers. Again,

Hargreaves reminded W. Hiller and M. Hiller that it was not in favor of pre-paying a

10


Colombian company with which it had no relationship. Despite Hargreaves' continued

requests for performance, Hargreaves' amended letter of credit was cancelled by W. Hiller in

early May 2011, and W. Hiller provided the names of his suppliers to Hargreaves and wished

them best of luck.

Hiller Trading's Free-Riding Scheme Emerges

32, Free-riding is a well-recognized fraudulent practice engaged in by

unscrupulous and dishonest merchants to take advantage of potential customers and profit by

utilizing the credit of others without committing any assets to the transaction, as did Hiller.

An entity or individual committing free-riding does so with the intent not to complete the

transaction if they cannot acquire the goods or securities to be sold at an advantageous price.

33. The statements by W. Hiller and M. Hiller and use of Hiller Trading as a mere

alter ego of North Shore showed that Hiller Trading's plan to transact Coke with Hargreaves

was nothing more than a free-riding scheme. In a free-riding scheme, a seller seeks out a

buyer for a product which the seller has not yet secured. Upon contracting with a buyer, the

seller then attempts to secure a source for the product at a price lower than the contractual

price with the buyer. Assuming the stability of the market price of the product, this

essentially allows the seller to make a risk-free profit from the difference in the prices.

However, in the event that sudden price volatility prevents the seller from securing the

product at a price that would still be profitable, the seller can simply walk away and avoid

any liability despite the buyer having a signed contract in hand and committed its funds.

34. Here, Hiller Trading sought a risk-fiee profit from the transaction by first

seeking a buyer without having previously secured the Coke from a seller. After contracting

11


with Hargreaves, Hiller Trading then sought to use Hargreaves' letter of credit to fund a

purchase from a seller provided, of course, that the market price of Coke remained stable

enough to still allow Hiller Trading to secure a profit based on the price differential.

Essentially, Defendants, through Hiller Trading, sought to engage in risk-free speculation in

the Coke market.

35. However, the market price of Coke began rapidly increasing, and Hiller

Trading was unable to secure Coke from a seller at a price that would still allow it to make a

profit. As a result, and rather than fulfilling Hiller Trading's contractual obligations,

Defendants simply walked away from the transaction, and deprived Hargreaves not only of

the commitment and use of its credit, but also the opportunity to profit through market

transactions it was ready and willing to complete.

Despite Participating In Arbitration, Hiller Trading Has Refused To Honor Any OfThe Obligations It Undertook

36. After W. Hiller and Hiller Trading reneged on their commitments to

Hargreaves in May 2010, Hargreaves first engaged legal counsel to remind Hiller Trading of

its obligations under the Contracts. When these efforts were unsuccessful, Hargreaves

provided Hiller Trading's counsel with a request to begin arbitration proceedings on

September 29, 2010.

37. The Parties agreed to select Benjamin H. Hill, III ("Arbitrator Hill") as an

arbitrator. In the Arbitration, Hargreaves asserted various claims against Hiller Trading

based on its breach of contract, and sought damages under Fla. Stats. 672.713, pre- and

post-judgment interest, and attorneys' fees and costs. Hiller Trading filed a counterclaim

12


against Hargreaves, sought dismissal of the claims against it, and requested its attorneys' fees

and costs.

38. In sworn testimony given at a deposition and at the arbitration hearing, W.

Hiller admitted that he had never transacted business in Colombia, was not the founder of

Hiller Trading, had never shipped "a single ounce of Coke from Colombia, never intended

to commit any assets to the transactions, and had not been working with the major

Colombian producers for over twenty years.

39. Following an arbitration hearing, Hargreaves obtained an arbitration award

entered in its favor and against Hiller Trading awarding damages in the amount of

$750,000.00, along with $77,735.08 in prejudgment interest, resulting in a total award of

damages to Hargreaves in the amount of $827,735.08 (the "Award"). See Exhibit A,

Arbitrator's Award.

40. The Award contained a number of findings as to the various representations

and omissions by W. Hiller, including that:

a. "The evidence established that Wesley Hiller did not haveexperience in dealing with suppliers of Colombian Coke";Arbitration Award, 10.

b. "Hiller had never purchased, moved, loaded, or shipped.Colombian Coke" Id.;

c. "Hiller never entered into a contract with a supplier/producerfor the Colombian Coke";

d. Hiller Trading breached "either contract" by its repudiation ofthe contracts via its email on May 3, 2010. Id., 40; and

e. "The only material misrepresentations established by theevidence were those of Hiller concerning its experience and

13


expertise in dealing with the Colombian Coke market." Id, 48.; and

Hiller Trading entered into the transactions intending to nevercommit its funds or assets to the transaction and as aconsequence intended to default or renege if it couldn'tcomplete the transaction profitably.

41. A revised Award was subsequently issued which included an additional

$360,000 for Hargreaves' attorneys' fees and costs as the prevailing party. Hargreaves

obtained confirmation of the revised Award from the Thirteenth Judicial Circuit in and for

Hillsborough County, Florida, on September 19, 2013.

Hiller Trading Has Since Ceased Doing Business, Has No Assets, And Is Nothing MoreThan A Shell Company That Is Essentially Judgment-Proof

42. Subsequent post-judgment discovery demonstrated that Hiller Trading was a

single-member limited liability company that was formed, owned, and operated by North

Shore. North Shore and Hiller Trading were controlled by the same person, M. Hiller, who

owned 100% of North Shore and was the Manager/Member, President, Chief Executive

Officer and Director of Hiller Trading. These two entities shared the same employees, had

the same office address (in a building owned by North Shore), and Hiller Trading was treated

as a disregarded entity of North Shore for income tax purposes. Hiller Trading was never

capitalized, lacked the ability to fulfill the Contracts, and indeed appeared to have been

utilized solely to funnel money to and from North Shore. This allowed North Shore to

conduct business as the undisclosed principal of Hiller Trading yet avoid any subsequent

liability for Hiller Trading's conduct by looting the entity of any assets.

43. Indeed, beginning in February 2010, when Hargreaves' claim arose against

Defendants, M. Hiller and North Shore transferred over $700,000 from Hiller Trading to

14


North Shore until Hiller Trading ceased business operations. Thus, despite entering into

contracts to supply approximately $10 million of Coke to Hargreaves, Hiller Trading ceased

operations less than three months later, subsequently filed Articles of Dissolution, and closed

its bank account.

44. Hargreaves has suffered significant damages due to Defendants' tortious

conduct.

Hargreaves Has Suffered Significant Damages Due To Defendants' Actions

45. As more fully described above, Hargreaves was induced to enter into two

separate contracts with Hiller Trading for the purchase of over $10 million in Coke.

46. Hargreaves was ready and willing to complete the transactions at the heart of

the Contracts, and indeed stood to benefit from these transactions due to the sharp increase in

the market price of Coke after the Contracts were executed. Yet, when Defendants and

Hiller Trading were unable to obtain Coke at a price that would also allow them to profit

from the transactions, they chose to renege on their commitments and to deprive Hargreaves

of its profitable business transactions.

47. But for Defendants' tortious conduct, Hargreaves was deprived of the

opportunity to benefit from the significant increase in the market price of Coke. In the

Arbitration, Arbitrator Hill found that the market price of Coke was $470 per metric ton in

May 2010.

48. Hargreaves is entitled to the benefit of the bargain and out-of-pocket losses for

Defendants tortious conduct. Based upon an average price of $340 per metric ton of Coke

that Hiller Trading was obligated to deliver, Hargreaves would have realized a profit of at

15


least $130 per metric ton of Coke. Applying this profit to the 30,000 of tons of Coke that

Hiller Trading was obligated to supply, Hargreaves suffered damages of at least $3,900,000,

as well as any out-of-pocket losses, for its inability to profit from its favorable business

transactions as a result of Defendants' tortious conduct.

COUNT I (FRAUDULENT INDUCEMENT)

(Defendant Wesley T. Hiller)

49. Plaintiff repeats and incorporates by reference the allegations set forth in

Paragraphs 1 - 48 above.

50. Defendant Wesley T. Hiller made numerous misrepresentations and omissions

of material facts regarding, among other things, his experience transacting metallurgical

Coke in Colombia.

51. These representations and omissions were material and Defendant Wesley T.

Hiller knew the representations were false at the time they were made.

52. Defendant Wesley T. Hiller made the above statements for the purpose of

deceiving Plaintiff and inducing Plaintiff into entering into contracts to purchase Coke.

53. Plaintiff justifiably relied on Defendant Wesley T. Hiller's representations by

entering into the Contracts.

54. Defendant Wesley T. Hiller's fraudulent inducement was intentional or

grossly negligent.

55. Plaintiff was damaged by W. Hiller's misrepresentations and omissions in an

amount to be determined at trial.

WHEREFORE, Plaintiff demands judgment for damages against Defendant Wesley

16


T. Hiller in an amount to be determined at trial, together with interest, attorneys' fees, and

costs, together with such other relief as the Court may deem just and proper.

COUNT II(CONSPIRACY TO COMMIT FRAUDULENT INDUCEMENT)(Defendants North Shore, Wesley T. Hiller, and Martin H. Hiller)



57. Defendants North Shore, Wesley T. Hiller, and Martin H. Hiller agreed and

conspired to fraudulently induce Plaintiff into entering into the Contracts by knowingly

representing, among other things, the facts involving Hiller Trading's corporate status and

ownership, and W. Hiller's experience transacting business in the Colombian Coke market.

58. Defendants North Shore and Martin H. Hiller acted in concert with Defendant

Wesley T. Hiller to fraudulently induce Plaintiff into entering into a contract with Hiller

Trading

59. Defendants knowingly made material misrepresentations for the purpose of

inducing Plaintiff to act in reliance thereupon.

60. Plaintiff relied on Defendants' misrepresentations when it entered into the

Contracts.

61. Defendants' fraudulent inducement was intentional or grossly negligent.

62. As a result of Defendants' unlawful conduct, Plaintiff was damaged in an

amount to be determined at trial.

17

Case 8:14-cv-00322-VMC-MAP Document 6 Filed 02/28/1.4 Page 18 of 20 PagelD 71

WHEREFORE, Plaintiff demands judgment for damages against Defendants, jointly

and severally, in an amount to be determined at trial, together with interest, attorneys' fees,

and costs, together with such other relief as the Court may deem just and proper.

COUNT III (NEGLIGENT MISREPRESENTATION)

(Defendant Wesley T. Hiller)



64, Defendant Wesley T. Hiller made numerous false statements of material fact

and withheld or failed to convey material information to Hargreaves, including, but not

limited to, facts involving his experience transacting business in the Colombian metallurgical

Coke market.

65. Defendant Wesley T. Hiller made these material misrepresentations and

omissions for the purpose of inducing Plaintiff to act in reliance thereupon.

66. Defendant Wesley T. Hiller either should have known that his statements were

false at the time they were made or exhibited a reckless disregard for the truth or falsity of his

statements at the time they were made to Plaintiff.

67. These statements were material, and Defendant Wesley T. Hiller knew that

the statements were false at the time they were made.

68. Plaintiff acted in reliance on Defendant's statements.

WHEREFORE, Plaintiff demands judgment for damages against Defendant Wesley

T. Hiller in an amount to be determined at trial, together with interest, attorneys' fees, and


18


COUNT IV(NEGLIGENT SUPERVISION)(Defendant Martin H. Hiller)



70. A principal conducting activities through agents is subject to liability for harm

resulting from the actions of such agents if the principal is negligent or reckless in the

supervision of the agents' activities.

71. Defendant Wesley T. Hiller, at all times relevant to the claims herein,

conducted business on behalf of Hiller Trading and was thus an agent of Hiller Trading.

Defendant Martin H. Hiller was the President and Chief Executive Officer of Hiller Trading,

and any action to be taken by Defendant Wesley T. Hiller on behalf of Hiller Trading was

subject to the approval and review of Defendant Martin H. Hiller,

72. Defendant Martin H. Hiller failed to properly supervise Defendant Wesley

Hiller during his actions on behalf of Hiller Trading, including, but not limited to, Defendant

Wesley T. Hiller's representations to Hargreaves that he was the founder of Hiller Trading

and his communication of material misrepresentations and omissions of material facts

concerning his experience transacting Coke in Colombia. Defendant Martin H. Hiller knew

or should have known that Defendant Wesley T. Hiller was engaging in this wrongful

conduct, and failed to take any action to prevent this wrongful conduct.

73. The failure of Defendant Martin T. Hiller to exercise reasonable care in

properly supervising Defendant Wesley T. Hiller proximately caused damages to Hargreaves.

19


WHEREFORE, Plaintiff demands judgment for damages against Defendant Martin

H. Hiller in an amount to be determined at trial, together with interest, attorneys' fees, and


NOTICE OF INTENTION TO SEEK PUNITIVE DAMAGES

The actions of Defendants, as described in this Complaint, were intentional and/or

grossly negligent and entitle Plaintiff to seek punitive damages. Notice is hereby given that

Plaintiff will, at the appropriate time, request the Court to include a claim for punitive

damages in this case pursuant to the procedures established in Fla. Stats. 768.22.

DEMAND FOR JURY TRIAL

Plaintiff hereby demands a trial by jury as to all facts, issues and claims so triable.

DATED: February 28, 2014

s/Michael S. Lamont Burton W. Wiand, Esq.Email: [email protected] Michael S. Lamont, Esq.Email: [email protected] Jordan D. Maglich, Esq.Email: [email protected] WIAND GUERRA KING P.L.5505 West Gray StreetTampa, FL 33609Telephone: (813) 347-5100Facsimile: (813) 347-5198ATTORNEYS FOR PLAINTIFF HARGREAVES RAWMATERIAL SERVICES

20

Case 8:14-cv-00322-VMC-MAP Document 6-1 Filed 02/28/14 Page 1 of 18 PagelD 74

EXHIBIT A


ARBITRATOR'S AWARD

HARGREAVES RAW MATERIALSSERVICES (Germany),

Claimant,

v.

HILLER TRADING, LLC (UnitedStates),

Respondent.

February 23, 2012

Benjamin H. Hill, IIIHill Ward Henderson, P.A.101 East Kennedy Blvd., Suite 3700Tampa, FL 33602(813)221-3900(813)221-2900 - facsimileArbitrator


ARBITRATOR'S AWARD

This matter comes before the undersigned arbitrator pursuant to an

Arbitration Agreement dated February 18, 2011 between Hargreaves Raw Materials

Services ("Hargreaves") and Hiller Trading, LLC ("Hiller") (collectively, the "Parties").

The dispute arises out of business dealings between the Parties involving contracts for the

purchase and sale of Columbian metallurgical coke.

2. The claims are set forth in the Statement of Claim filed by Hargreaves, the

responses filed by Hiller, the counterclaim filed by Hiller, and the response to the

counterclaim filed by Hargreaves.

3. An evidentiary hearing began on November 15, 2011 and recessed the

afternoon of November 18, 2011. The hearing resumed on January 9, 2012, and

concluded on January 11, 2012. The Parties submitted proposed Findings of Fact and

Conclusions of Law on January 25, 2012.

4. PUrsuant to the Arbitration Agreement and the agreement of the Parties, the

Arbitrator's Award must be issued on or before February 24, 2012, which is thirty (30)

days from the submission by the Parties of their respective proposed Findings of Fact and

Conclusion of Law,

5. The Parties have agreed that Florida law applies.

6. The Parties entered into a Joint Prehearing Stipulation, dated November 18,

2011, which is incorporated in this Final Order, and is attached,

-1-

Case 8:14-cv-00322-VMC-MAP Document 6-1 Filed 02/28/1.4 Page 4 of 1.8 PagelD 77

FINDINGS

Findings of Fact

7. Udit Chanchani contacted Hargreaves in February of 2010 regarding

possible interest in purchasing Columbian metallurgical coke ("Columbian Coke"), He

was an independent broker, but during the course of dealing with Hargreaves and Hiller

became an agent for both. Hargreaves agreed to pay Chanchani $5.00 per ton for

Columbian Coke purchased from Hiller. (Ex. 155.)

8, In an email dated February 4, 2011, Hiller represented it had the

opportunity to work with a Columbian Coke producer to ship 25,000 metric tons of

Columbia Coke per month. (Ex. 1.)

9. Hiller represented to HargreaveS that Wesley Hiller had a long and

productive relationship with several large and small suppliers of metallurgical coke in

Columbia, and he would take extraordinary steps to ensure no loopholes, including

ensuring banking procedures go smoothly, (Ex. 7.)

10. The evidence established that Wesley Hiller did not have experience in

dealing with suppliers of Columbian Coke. Hiller had never purchased, moved, loaded,

or shipped Columbian Coke.

11. On March 11, 2010, the Parties executed a contract, dated March 1, 2010,

which provided for the purchase by Hargreaves of 10,000 metric tons +/- 10% of

Columbian Coke from Hiller at a price of $287,00 per metric ton ("March 1 Contract"),

12. Pursuant to the March 1 Contract, Hargreaves caused to be issued a Letter

of Credit in favor of Hiller for the full contract price. (Ex. 47.)

-2-

Case 8:14-cv-00322-VMC-MAP Document 6-1 Filed 02/28/14 Page 5 of 1.8 PagelD 78

13, On March 16, 2010, Hiller acknowledged receipt of the letter of credit in

the amount of $2,870,000.00 USD. (Ex. 52.) The form and content of the letter of credit

were accepted by Hiller without noting any problems.

14. Hiller initiated contact with producers of Columbian Coke in March in

order to provide the Columbian Coke pursuant to the March 1 Contract. Hiller received

offers from three suppliers for the coke (ex. 63), but did not enter into a contract with any

of them because the suppliers/producers required 30% pre-export financing, which

appeared to be a surprise to Wesley Hiller. He described the requirement for pre-export

financing as a "major problem." (Ex. 65.)

15. Hiller attempted to work through the problem presented by the pre-export

financing requirement, working with Hiller's bank, Wachovia, which in turn tried to

resolve the problem with the Bank of Bogota, (Exs. 62-63.) Hiller was unsuccessful,

16. In the meantime, the price of metallurgical coke was increasing, making it

unprofitable for Hiller to perform under the March 1 Contract.

17. Hiller continued to present offers to Columbian suppliers, including Cinko

and Carbones Andinas, for 10,000 metric tons of Columbian Coke, The price varied

from $300,000 USD per metric ton to $360,00 USD per metric ton, (Ex. 75.) But Hiller

never entered into a contract with a supplier/producer for the Columbian Coke.

18. On March 31, 2010, the Parties met in Tampa, Florida. The March 1

Contract was replaced by a contract dated March 31, 2010, which, consistent with the

March 1 Contract, provided for the purchase and shipment of 10,000 metric tons of

Columbian Coke at $287.00 USD per metric ton ("10,000 mit Contract"). (Ex. 146.)

-3-


The Parties also entered into a second contract dated March 31, 2010 for 20,000 metric

tons of Columbian Coke at a price of $366,50 USD per metric ton ("20,000 m/t

Contract). (Ex. 145.) These contracts are collectively referred to herein as the "March 31

Contracts."

19. As of March 31, 2010, the March 1 Contract was no longer in existence

since it was superseded by the 10,000 m/t Contract,

20. On April 6, 2010, Hargreaves' original letter of credit (for payment under

the March 1 Contract) was amended to secure payment under the terms of the 10,000 m/t

Contract. (See Joint Pre-Hearing Stipulation.)

21, Hiller accepted the amended letter of credit without objection,

22. On April 19, 2010, Hiller notified Hargreaves that it was experiencing

problems procuring Columbian Coke for Hargreaves and was not inclined to perform its

obligations under the March 31 Contracts due to pre-export financing issues, (Ex. 106.)

Hiller stated "do not issue the additional L/C until the financing issue is resolved between

the parties." (Id.) He further stated: "Let us cancel all contracts and start anew from the

results of our team effort." (Id.)

23. On April 20, 2010, Hargreaves refused to cancel the contracts, noted that it

contracted with Hiller based on its experience in Columbia, and stated that it was "simply

waiting for the material to be load ready in the loading port," (Ex. 115.)

24. On April 28, 2010, the Parties met in Portugal to discuss the March 31

Contracts, Hargreaves informed Hiller it would not be posting the second letter of credit

because, according to the testimony of Hargreaves' employee Marya Dietzen, Hiller had

-4-


no Columbian Coke, was having problems with suppliers, and was not willing to do any

pre-export financing, (Tr. 468.)

25. On May 3, 2010, Hiller advised Hargreaves it was not moving forward

under the March 31 Contracts. (Ex. 128.) Hiller offered to provide Hargreaves with its

Columbian suppliers' contact information, and then wished Hargreaves "the best of

luck," (Id.)

26. On May 10, 2010, Hiller asked Wells Fargo to request the cancellation of

the amended letter of. credit that Hargreaves had procured for the 10,000 m/t Contract.

(Ex. 133.)

Findings of Law

27. In this matter, Hargreaves claims the March 31 Contracts are separate and

independent contracts, and Hiller breached the 10,000 mit contract, In contrast, Hiller

argues the March 31 Contracts are interrelated and Hargreaves' failure to perform under

the 20,000 m/t Contract justifies Hiller's non-performance of the 10,000 m/t Contract.

Hiller also claims, in its counterclaim, that Hargreaves breached the March 31 Contracts,

or in the alternative, that the contracts should be rescinded for mutual mistake or fraud,

28. Based on the evidence presented, I find that the March 31 Contracts are

interrelated and must therefore be construed together to determine the intent of the

parties. See Citicorp Real Estate, Inc. v. Ameripalms 6B GP, Inc., 633 So. 2d 47, 49 (Fla,

3d DCA 1994) (holding that "trial court properly considered parol evidence to construe

the parties' intent and to determine the correct payment term" where there were "two

writings executed by the same parties, at or near the same time, and concerning the same

-5-


subject matter"); see also Jackson v. Parker, 15 So. 2d 451, 459 (Fla, 1943) ("Parol

evidence is admissible to connect several written instruments and show that they were all

parts of one transaction,").

29. Reading and construing the two March 31 Contracts together, and

considering the relevant surrounding circumstances, I further find the Parties intended

there would be one transaction, involving two shipments of Columbian Coke, that

resulted in an average price of $340 mit for all Columbian Coke sold by Hiller to

Hargreaves. This finding is consistent with the specific prices used in the March 31

Contracts, which when applied to the amounts of the agreed upon shipments average out

to $340 rn/t.

30, This finding is also supported by the testimony of Hargreaves' employee,

Marya Dietzen, Ms. Dietzen testified: "What we said at the meeting in Tampa [on

March 31, 2011] is that we have a contract for $287. And Wes [Hiller] was crying and

explaining all prices went up. And we said, okay. For the 20,000 metric tons, we are

willing to give you more money." (Tr. at 440.) She further testified that Hargreaves

"agreed to give Mr. Hiller, because he was crying [about the price of the 10,000 mA

contract], some more money on the 20,000-metric ton contract," (Tr. at 443.)

31. This testimony reflects that, in response to Hiller's "crying" about being

obligated to sell Columbian Coke at $287 mit, Hargreaves agreed to an overall

transaction whereby the average price paid to Hiller under the March 31 Contracts would

be $340 m/t. I therefore find that, even though different pricing numbers were set forth in

the March 31 Contracts, the Parties agreed to a transaction whereby Hiller would

-6-


ultimately be paid $340 m/t for the Columbian Coke it sold to Hargreaves in connection

with these contracts.

32. Hargreaves claims that, in May 2010, Hiller breached its contractual

agreement to provide Columbian Coke under the 10,000 rn/t Contract. I agree. On May

3, 2010, Hiller repudiated its agreement to provide the first 10,000 m/t of Columbian

Coke by advising Hargreaves it was not moving forward under the contracts and by

wishing Hargreaves "the best of luck." (Ex. 128.)

33, Hiller argues it was not obligated to produce the 10,000 m/t of Columbian

Coke until Hargreaves posted an additional letter of credit pursuant to the 20,000 m/t

Contract. I disagree. As a leading contracts treatise states; "even though several

instruments relating to the same subject and executed at the same time should be

construed together in order to, ascertain the intention of the parties, it does not necessarily

follow that those instruments constitute one contract or that one contract was accordingly

merged in or unified with another so that every provision in one becomes a part of every

other." Richard A. Lord, 11 Williston on Contracts 30:26 (4th ed. 2011) (footnote

omitted).

34. Here, construing the March 31 Contracts together reveals the Parties

intended to reach an average price of $340 rn/t for Coke sold by Hiller to Hargreaves. It

does not, however, necessarily follow that the two contracts were merged, making

shipment under one contract contingent upon shipment of the other,

-7-


35. Even if the March 31 Contracts were so interrelated as to constitute a single

contract with performance of one shipment contingent upon the other, Hiller's conduct

excused Hargreaves from performing its obligation to post the second letter of credit.

36. Under section 672.609, Florida Statutes, "[w]hen reasonable grounds for

insecurity arise with respect to the performance of either party the other may in writing

demand adequate assurance of due performance and until he or she receives such

assurance may if commercially reasonable suspend any performance for which he or she

has not already received the agreed return."

37. In Hiller's communication on April 19, 2010, Hiller notified Hargreaves it

was experiencing problems procuring Columbian Coke for Hargreaves and was not

inclined to perform its obligations under the March 31 Contracts due to pre-export

financing issues. (Ex. 106.) Hiller also stated "do not issue the additional L/C until the

financing issue is resolved between the parties," and offered to "cancel all contracts and

start anew." (Id.) This message from Hiller constituted reasonable grounds for

Hargreaves to believe Hiller could not perform its obligations.

38. In response, Hargreaves declined to cancel the contracts and stated it was

"waiting for the material to be load ready in the loading port," (Ex, 115.) Hargreaves

further stated that it "seriously insist[s] in the fulfillment of the contracts" and requested

"the information on when we can load the vessel under the existing contracts , . ." (Id.)

I find that this message from Hargreaves constituted a written demand for adequate

assurance of due performance from Hiller, which permitted Hargreaves to suspend

-8-


performance of its obligations under the 20,000 m/t Contract until it received such

assurances from Hiller.

39. Hiller never provided any assurances to Hargreaves. Indeed, despite the

fact that Hiller received several proposed contracts from' Columbian suppliers, Hiller

never executed a contract which would allow Hiller to supply the Columbian Coke it

promised to Hargreaves. This, I find, is because Hiller was not willing to front the pre-

export financing charges, an obligation that was Hiller's to meet, not Hargreaves'.

40. Furthermore, regardless of whether adequate assurances were sought or

received under section 672.609, Florida Statutes, I find that Hiller was the first to breach

either contract by its repudiation of the contracts via its e-mail on May 3, 2010. Although

the Parties argued there were various statements, representations, or conduct during the

month of April 2010 that constituted a repudiation of the contracts, I find that Hiller's

statements in its May 3 e-mail was the first conduct by a party indicating a refusal to

perform that is "distinct, unequivocal, and absolute," as required to serve as a repudiation

under Florida law. Mori v. Matsushita Elec. Corp. of Am., 380 So. 2(1461, 463 (Fla. 3d

DCA 1980). Hiller's repudiation of the contract was itself a breach of the contract that

excused Hargreaves' obligation to cause the second letter of credit to be issued. Hosp.

Mortg, Group v. First Prudential Dev. Corp., 411 So, 2d 181, 182 (Fla. 1982) (where one

party has anticipatorily repudiated a contract, "the nonbreaching party is relieved of its

duty to tender performance").

41. Hargreaves seeks damages for Hiller's breach of the 10,000 mit

Contract under section 672.713, Florida Statutes. To determine damages under

-9-


this section, I must determine the market price for coke on May 3, 2010, which is

the time Hargreaves learned of Hiller's repudiation.

42. Hargreaves' expert, Emily S. Medine, determined the market price based

upon the Coke Market Report published by Resource-Net. She relied upon Resource-Net

because that "was the benchmark utilized by the parties in the March 31 Contract to price

future shipments," (Hargreaves' Proposed Findings and Conclusions 82,) The March

31 Contracts both state, however, that the Parties would rely upon the "Coke Market

Report or any other benchmark that moves with the market," (Exs. 145-46 (emphasis

added).) Hargreaves' expert specifically recognized IHS McCloskey as one of the

industry benchmarks (ex. 146 IN 18-19), and I rely upon that benchmark to establish

market price. For May 2010, the IHS McCloskey benchmark reflected a market price for

coke sold to Europe at $470 Hilt. (Id. at Ex. 3.)

43. Accordingly, Hargreaves' damages are the market price at the time

Hargreaves learned of the breach ($470 m/t) less the average agreed upon price for coke

($340 tn/t) less shipping cost ($50 mit) less the commission to Chanchani ($5 m/t) times

10,000 m/t, which equals $750,000.

44. Hiller argues that Hargreaves failed to mitigate its damages, There is,

however, no duty to mitigate damages where a buyer seeks only the direct damages of the

difference between the market price and the contract price under section 672.713, Florida

Statutes, See 4A Lawrence Anderson, Lawrence Anderson on the Uniform Commercial

Code 2-713:48 (3d. ed. 2011) ("When the buyer seeks to recover only the direct

damages of the difference between the market price and the contract price, as authorized

-10-


by UCC 2-713, it does not matter that the buyer had failed to mitigate damages, as that

becomes relevant only when the recovery of consequential damages is sought.").

Hargreaves seeks only direct damages under section 672.713; not consequential damages.

Hargreaves' alleged failure to mitigate is therefore irrelevant,

45. Hargreaves is entitled to prejudgment interest in the amount of $77,735.08,

which results in an award of damages to Hargreaves in the amount of $827,735,08,

46. Hiller's Counterclaim is without merit. With respect to Hiller's claim that

Hargreaves breached the March 31 Contracts, I agree with Hargreaves that Hiller cannot

establish any losses. Hiller never entered into a contract with a supplier in Columbia to

produce Columbian Coke and the evidence clearly demonstrates Hiller's unwillingness to

do so because of the pre-export financing issues,

47. Furthermore, as stated above, Hargreaves was excused from performing

any further obligations under the March 31 Contracts due to Hiller's (a) conduct in

communicating its reluctance or inability to perform its obligations and (b) repudiation of

the contracts via its May 3, 2010 e-mail.

48. I also find that there was no fraud on the part of Hargreaves. The only

material misrepresentations established by the evidence were those of Hiller concerning

its experience and expertise in dealing with the Columbian coke market.

49. Lastly, I find no grounds for rescission based upon mutual mistake. Mutual

mistake exists where "the parties agree to one thing and then, due to either a scrivener's

error or inadvertence, express something different in a written document." Provident

Square Ass'n, Inc. v. Biancardi, 507 So. 2d 1366,1372 (Fla. 1987). Here, I find there was

-11-

Case 8:14-cv-00322-VMC-MAP Document 6-1 Filed 02/28/14 Page 14 of 18 Pagel D 87

no mistake. The parties agreed to achieve an average price of $340 m/t for Columbian

Coke sold by Hiller to Hargreaves under the March 31 contracts, and they achieved that

agreement by including a price for the 10,000 m/t Contract and an offsetting price for the

20,000 m/t Contract.

AWARD

50. For the foregoing reasons, the Arbitrator finds for Hargreaves on its breach

of contract claim and awards Hargreaves $827,735,08 for damages and prejudgment

interest flowing from Hiller's breach, The Arbitrator also find for Hargreaves on Hiller's

Counterclaim and therefore awards nothing to Hiller.

51, Pursuant to the Parties' agreement, the Arbitrator retains jurisdiction to

determine (if necessary) entitlement to attorneys' fees and costs and the reasonableness of

any amounts claimed. The Parties, upon reviewing this Arbitrator's Award, are requested

to advise if they can resolve their issues concerning attorneys' fees and costs, whether

they prefer to submit their respective positions in writing without a hearing, or whether a

hearing is needed on these issues, The Arbitrator respectfully requests the Parties to

advise him of their preference within ten (10) days of this Arbitrator's Order,

Benjami H. Hill, IIIArbitrator

-12-


JOINT PRE-HEARING STIPULATION

HAR_GREAVES RAW MATERIALS SERVICES(Germany),Claimant,

v.

KILLER TRADING, LLC(United States),Respondent,

November 8, 2011

Claimant, Hargreaves Raw Materials Services ("Hargreaves"), and Respondent, Hiller

Trading, LLC ("Hiller"), by and through their undersigned counsel, and pursuant to the Revised

Joint Scheduling Order, hereby file this Joint Pre-Hearing Stipulation as follows:

1. PLEADINGS RAISING THE ISSUES

On February 22, 2011, Hargreaves filed its Request for Arbitration. On March 11, 2011,

Hiller filed its Answer to Demand for Arbitration & Counterclaim, In. reply, Hargreaves filed its

Reply to Respondent's Answer to Demand for Arbitration & Counterclaim on March 30, 2011,

On November 7, 2011, Hiller filed its Amended Answer to Demand for Arbitration &

Counterclaim. Hargreaves objected to Hiller's Amended Answer to Demand for Arbitration &

Counterclaim, Arbitrator Hill has yet to rule as to whether Hiller's Amended Answer to Demand

for Arbitration & Counterclaim will be accepted.

Case 8:14-cv-00322-VMC-MAP Document 6-1 Filed 02/28/14 Page 16 of 18 Pagel D 89

2. CONCISE STATEMENT OF UNCONTESTED FACTS WHICH WILL REQUIRENO PROOF AT FINAL I-WARING

a. Pursuant to Udit Chanchani's request, Hargreaves issued an Inter CorporatePurchase Order dated February 10, 2010.

b, On February 10, 2010, Hargreaves provided a draft contract to Hiller, throughUdit Chanchani, for the purchase of 25,000 m/t of metallurgical coke fromHiller,

a, On February 12, 2010, the parties executed a Non-Circumvent &Confidentiality Agreement,

d. On February 23, 2010, Hiller provided a draft contract to Hargreaves, throughUdit Chanchani, for the purchase of 10,000 mit of metallurgical oolce,

e. The parties executed a March 1, 2010 contract for the purchase of 10,000 m/tof metallurgical coke, The contract was fully executed on March 11, 2010,

f, On March 12, 2010, Hargreaves posted a letter of credit for the benefit ofHiller pursuant to the March 1, 2010 contract,

g. On March 31, 2010, the parties had a meeting in Tampa, Florida and replacedthe March 1, 2010 contract and executed a contract dated March 31, 2010 for$10,000 m/t of metallurgical coke,

h. On March 31, 2010, the parties also executed a contract for 20,000 m/t ofmetallurgical coke,

i. Both of the March 31, 2010 contracts (10,000 m/t and 20,000 m/t ), werenegotiated and executed by the parties 'during their meeting in Tampa onMarch 31, 2010.

J, On April 5, 2010 Hargreaves asked Hiller to keep them informed about thedelivery of product to the Port to allow Hargreaves to plan a visit to inspectthe product,

k, On April 6, 201.0, Hargreaves amended the letter of credit issued on March 12,2010 to extend the expiration date to June 21, 2010,

On April 19, 2010, Hiller offered to return Hargreaves' letter of credit andcancel the contracts. Hargreaves refused the offer and insisted on thefulfillment of the contracts,

2

Case 8:14-cv-00322-VMC-MAP Document 6-1 Filed 02/28/14 Page 17 of 18 PageiD 90

m, On April 28, 2010, the parties had a meeting in Lisbon, Portugal to discusstheir ongoing business relationship,

n, The letter of credit for the 20,000 m/t contract was never issued byHargreaves,

o, Hiller did not notify Hargreaves that product was at the Port BarranquillaColumbia port/storage area,

P. Hargreaves did not nominate a vessel in connection with the purchase ofmetallurgical coke from Hiller,

q. On May 10, 2010 Hiller instructed Wells Fargo Bank to make the necessaryarrangements to cancel Hargreaves letter of credit and return it to Hargreaves'bank,

r, On July 9, 2010, Hargreaves formally terminated the March 31, 2010 contractfor 10,000 m/t,

Dated November 8, 2011,

E,A, "Seth" Mills, Jr., Esq.Florida Bar No, 339652Kevin M. Mekler, Esq,Florida Bar No, 856711100 N, Tampa Street, Suite 2010Tampa, FL 33602Telephone: (813) 229-3500Facsimile: (813) 229-3502Attorneys for Respondent,Hiller Trading, LLC

3

urton W, Wiand, Esq,bwiand@wiandlaw,comMichael S. Lamont, Esq,mlamont@wiandlaw,comJordan D MEtglich, Esq,jmaglich@wiandlaw, coinWIAND GUERRA KING P,L,3000 Bayport Drive, Suite 600Tampa, FL 33607Telephone: (813) 347-5100Facsimile: (813) 347-5198Attorneys for Claimant HargreavesRaw Materials Services


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via E-mailand U.S. Mail this 23rd day of February, 2012, to:

Burton W. Wiand, Esq.Michael S. Lamont, Esq.Jordan D. Maglich, Esq.Wiand Guerra King P.L.3000 Bayport Drive, Suite 600Tampa, FL [email protected] m I amo nt@wiandl aw.com

E. A. Seth Mills, Esq.Kevin Melder, Esq.100 N. Tampa StreetSuite 2010Tampa, FL [email protected]@mpdlegal.com

dkt. 6 amended complaint efiled 2-28-14 (00306138xbcd72)

Documents