Well, I’m siding with DC/WB for once. The Batmobiles of the old TV show and the movies are copyrighted designs and it’s just plagiarism. There’s a reason miniature versions of the old-school Batmobile are sold by DC as a company – it’s *their* design. Especially when it comes to ones like the TV show versions, which had a lot of work done on them to make them look like that. People will make DC/WB out to be the bad guy, but if this was a smaller company or an artist who had been plagiarised, people would be all over the people copying stuff.

But the point is that this is NOT a small company or an artist. It’s a big, soulless corporation with a mountain of legal money to help them throw their weight around. No one at DC or Warner Brothers was being hurt in any way by what this man was doing. Making him stop is nothing more than DC/Warners showing what jackass suits they are. Nothing new there.

Is this any different than Hot Wheels needing to get permission to make little toy Batmobiles? I think they even need permission from major auto companies to do likenesses of their cars too. What about plastic model kit companies and such also?

Matt – so what? It’s still plagiarism. This isn’t like the Siegel/Shuster Heirs thing where DC is denying a family money, this is something that they presumably poured money into back in the 60′s to get that particular Batmobile made, and this guy is plagiarising their concept. It might not be hurting them, but they guy’s making money off of something that ISN’T HIS. He should know better – as Chris points out, if someone makes a model kit for sale – say of a Gundam or a Godzilla? Usually they’re contracted by the people who own the visuals and the concepts. Here, this guy’s making money off of things that HE DOESN’T OWN. DC might be the huge company, but they’re still the victims here.

It’s also worth noting that currently, Fiberglass Freaks makes licensed versions of the same Batmobile, at over $150,000 each, and they’ve been doing it for quite some time.
Here is a link to their site:
http://www.buybatparts.com/joomla/index.php/home

Matt one other thing of note, is DC doesn’t protect their copywrite, then what’s to staop a LARGE company from mass producing Batmobiles. That is what DC/Warner’s is protiectingthemselves from by stoppping the little guy.

Matt, to add to Ninersphan’s point, legally, if DC doesn’t actively fight to protect their trademarks and copyrights, it is one hundred percent ok for another company to undercut them and steal it. The only way to protect ANY copyright or trademark is to do exactly what DC did in this situation.

Exactly. If the guy went to DC, showed his work and enthusiasm and wanted a license to make Batmobiles, they’d probably let him.

All logical points, folks. But I’m not talking about legalities. I’m talking about being decent.

How about approaching the company to go into partnership with them? Everyone wins. Oh, no, that won’t do. Much too logical and might actually engender some good will. Can’t have that.

Ask George Barris if he cares. If he’s fine with it, so am I.

Oh, I very much doubt that, Statham.

This isn’t about what you consider to be fair. What he’s doing is and has always been illegal.

Sorry, I love to side with the little guy, but this time DC was in the right. Sure, they could have arranged some sort of deal with Towle, but Fibreglass Freaks could then turn around and say, “Hey, we made a good faith deal with DC, got the proper licensing from the get-go, and now DC screws us over to help out the guy who plagiarized the design?” In this case being decent to him would have meant acting less than decent to people who have decent to them.

It seems that George was going ahead and making these without approaching DC. Someone else it seems already has the licence to produce the Batmobiles likeness as a full-sized operating vehicle. George is infringing on the licencees rights as well. The decent thing is not to steal.The only reason he makes Batmobiles is because they have name recognition which means he can sell them for a lot, but he never invested in making movies, TV shows, comic books, toys etc. So in effect he is riding on the back of a lot of other peoples time, money and effort.

Can I make and sell Batarangs?

[quote]Can I make and sell Batarangs?[/quote]

If you contact DC about licencing then probably.

There are lots of iffy and obnoxious copyright deals going around (DC and Marvel’s ownership of the word “superhero” is completely absurd) but DC is totally in the right here. The main thing is that Towle was selling the Batmobiles. If he just made one for himself or made vehicles that were similar but not quite the Batmobile, I’d be on his side.

All that said, he still gets props for the sweet replica. I just wish he’d put some effort into some original designs.

Hmm, apparently Robot 6 doesn’t support the same formatting stuff as Comics Should Be Good. Interesting.

DC is in the right here, they or I suppose Bob Kane and Bill Finger own the Batmobile. You can’t just make ‘em without their say so.

Maybe if he sold them as NOT-The Batmobile (like those porn parodies) he’d be able to win.

Matt, it doesn’t matter what George Barris thinks either, he created the original version as a work-for-hire project and he holds no stake in the copyright. They couldn’t have just asked formed a partnership with this guy, because they already have a partnership doing the same thing with another company. This guy did something highly illegal, most likely he was aware of that fact, and he did it anyway. That’s negligence and stealing, so “being decent” isn’t something he’s accustomed to, which means he doesn’t deserve to make Batmobiles in the first place. Period.

Bad

Mason, You are incorrect in your assertion that George Barris created the original as a work-for-hire. George created the Batmobiles and leased them to ABC. He retained all rights to the design. In fact, back in the late 60s or early 70s, some independent guy made his own Batmobile replica for his own personal use. Barris sued the guy and won. He was awarded the replica Batmobile by the court and that became another Batmobile in Barris’ stable (#5, I believe). How DC now owns the rights to the design, I do not know. But, they originally belonged to George.

Matt Halteman – Are you unable to read? It actually SAYS there are people who make licensed versions of this Batmobile. If the guy GOT a license from DC/WB or in this case, perhaps Fox, he wouldn’t be in this mess. Decency goes both ways – this guy shouldn’t have been a thief.

DC did the right thing.

Fremgen, Towle was selling his Batmobile as “The Gotham Prowler.” The name doesn’t change the fact that it’s the design is being stolen.

The porn “parodies” are in the same boat (complete rip-offs) but I think both DC and Marvel consider those to be free advertising and so they allow it.

Parodies fall under fair use

I think the ruling was fair up until the punishment. If they had told him “You can no longer make these, and you have to give DC, idk, even up to 50% of the profit from each”, that would be one thing…but $750k for EACH infringement? I get the feeling this guy can’t afford that, nor does DC need it. THAT is what I find to be messed up.

Cease and desist is fine. Destroy all vehicles. So be it. But to ask this dude to pay $750,000 for each infringement is killing this dude financially. There is no way this guy could possibly come up with that kind of money and DC knows that. Who gets that money by the way? Did DC show (in any way) what this guy did hurt them financially? How did it hurt them financially if they never sold any life size bat mobiles? DC lost nothing. I understand they need to protect their “copyright” but to bury this guy is wrong. Tell him to stop. Make him get the cars back and dismantle them, but don’t bankrupt him…just to line their own pockets. That’s despicable!!

Mark Racop Fiberglass freaks is to blame for all of this .
I cant wait till people start to learn about all the returned cars from fiberglass freaks
Greed a very sad thing

So he’s got to pay out $750,000 for each infringement, but the vehicles sold for up to $90,000? This guy’s life is ruined.

So you guys who think the cars shouldn’t be produced… you think everyone who makes a Herbie the love bug is wrong? A General Lee from the Dukes of Hazzard is wrong? Do you think the guys making those cars have licensing?

Curiously enough, Towle also sells Herbie replicas …

Batfan – there’s a difference. The General Lee is just a dodge with a confederate flag and some numbers slapped on it. Herbie the Love Bug is a painted VW Beetle. They’re ACTUAL CARS. That said, if someone specifically owns the visual for that particular car? YES it’s WRONG. However, again, the Lee and Herbie are actual cars. The Batmobile – like the one in the sixties show or the Burton movies, has clearly had more work done on it. But yes. If those cars were copyrighted visuals, YES it would be WRONG to reproduce those visuals illegally.

Statham, I guarantee you the rights to things like Herbie and the General Lee are the same as the batmobile. Kevin… does he?

He does, Batfan.

However, I don’t know that, if we’re to go by Judge Lew’s decision, the General Lee or Herbie the Love Bug would qualify as “copyrightable characters.” They’re distinctive only because of their paint jobs and decals — otherwise, as Statham suggests, they’re simply regular, operational cars (of specific makes and models, of course).

So what about people who bought Batmobiles from Gotham Garage, do they now have to destroy a car they paid $90k for? How would you feel having to destroy something you paid that much for? Do they in turn get to sue Gotham Garage to recoup their loss?

As I recall it was George Barris himself who held the copyright to the 1966 Batmobile and that’s why there were not any die cast or toy versions of it made after the Corgi #267 Batmobile from the late ‘60’s early ‘70’s until Mattel made some in early 2000’s. Barris owned the car until it sold at auction a couple weeks ago. He leased it to the Batman TV series. When did it become WB or DC property?

What about other people who were making Batmobile replicas? While Fiberglass Freaks has the Offical DC License, Gotham Garage was not the only other Batmobile builder out there. Has WB/DC gone after these builders as well, or was this just a witch hunt against Towle?

Actually, the licensing was not as simple as any of you have guessed. Barris designed the car and therefore has a stake in the license. 20th century fox owned the TV show and had a stake also. Greenway productions produced the show. WB/DC owned the batman character and “batmobile” name. For a long time, getting everyone involved to approve licensing deals and agree on who got what percentage of the proceeds was impossible, and only in 2006 or 2007 did they finally figure out some angle to get licensing deals done, just for the car. The actual show is another level of complexity because the likenesses of the actors also comes into play, and that mess finally just got sorted out within the past year. I don’t know if WB just decided to buy everyone else out, or if they all simply got together and hashed everything out, and worked out acceptable terms for everyone involved. In any case, a few builders have been making replicas since it was illegal including mark racop, but somehow he was the first to land a license to make full-sized replicas. The problems is not in people building their own replicas to look at and drool over or even take for a quick spin. It’s when folks start making money off them by building and then selling them for a profit, taking them for public appearances as if they were the real tv car, which is misrepresentation, and other unlicensed public use of the replicas (parades, charity fund raisers, movie cameos, etc.). WB needs to look after it’s trademarked property and ensure it’s not being degraded by, for example, a really poorly built, terrible-looking replica, an unsafe replica endangering the driver or bystanders who get close, a racist fake batman driving it around yelling slurs at people, a batman wearing only a cowl and otherwise naked driving it in a race, a vigilante using it to run over criminals, or any other weird scenario anyone could dream up that the license owners wouldn’t approve of or want the bad publicity associated with it.

Dan, Fiberglass freaks are the only one I have ever heard of to have problems with most of their cars and even have cars returned for many defects way to go Dc Comics So if we are talking about unsafe cars I will go with Mark Racop and Fiberglass Freaks with zero auto background

Seems Fiberglass Freaks with Dc /WB has a law suit of their own

http://1966batvehicles.yuku.com/topic/4724/Streeeeerike-one?page=5#.UZzn974o6Uk

Sorry 1966 batmobile .com removed the info on the law suit against Mark Racop DBA Fiberglass Freaks here is a new link since Eric Seltzer of 1966batmobile.com is in Mark Racops pocket http://batrodz.yuku.com/topic/352/JMA-ENERGY-CO-SUES-MARK-RACOP-FIBERGLASS-FREAKS#.UZ4zyb4o6Uk

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF
INDI~~”1
SOUTH BEND DIVISION
Hil I I PH ,: 18
…..

JMA ENERGY COMPANY, L.L.C.,
)
)

)

)

)

)

)

)

)

)

)

FORYi7(

Plaintiff,

v.
CASE
MARK RACOP, INDIVIDUALLY AND

DOING BUSINESS AS

FIBERGLASS FREAKS

Defendant.

COMPLAINT FOR DECLARATORY RELIEF, SPECIFIC PERFORMANCE

INJUNCTIVE RELIEF, AND DAMAGES

Plaintiff, JMA Energy Company, L.L.c. (“JMA”), by counsel, for its claims against

Defendant, Mark Racop, individually and doing business as Fiberglass Freaks (“Racop”), states

and alleges as follows:

Jurisdiction and Venue

1.
JMA is a limited liability company organized and existing under the laws of the
State of Oklahoma. JMA is comprised of three members, as follows:

1.1
JMA Resources, Inc. JMA Resources, Inc., is a corporation organized and
existing under the laws of, and with its principal place of business in, the State of

Oklahoma.

1.2 The Jeffrey
J. McDougall Revocable Trust as amended and restated on
July 27,2006. The situs of the Jeffrey J. McDougall Revocable Trust as amended

and restated on July 27, 2006, is the State of Oklahoma. The primary beneficiary

1

.;
.
is Jeffrey
J. McDougall. The sole trustee is Jeffrey J. McDougall. Jeffrey J.
McDougall is a citizen of the State of Oklahoma.

1.3 MA Resources Company, L.L.c. MA Resources Company, L.L.c., is a

limited liability company organized and existing under the laws of the State of

Oklahoma. MA Resources Company, L.L.C., is comprised of two members, as

follows:

1.3(a) The Andrew Michael McDougall 2008 In-evocable Trust dated

December 23, 2008. The situs of the Andrew Michael McDougall 2008

Irrevocable Trust dated December 23, 2008, is the State of Oklahoma. The

primary beneficiary is Andrew Michael McDougall. Andrew Michael

McDougall is a citizen of the State of Oklahoma. The sole trustee is Chad T.

McDougall. Chad T. McDougall is a citizen of the State of Oklahoma.

1.3(b) The Maggi Lynne McDougall 2008 In-evocable Trust dated

December 23, 2008. The situs of the Maggi Lymle McDougall 2008

Irrevocable Trust dated December 23, 2008, is the State of Oklahoma. The

primary beneficiary is Maggi Lynne McKim, fon-nerly Maggi Lynne

McDougall. Maggi Lynne McKim, fon-nerly Maggi Lynne McDougall, is a

citizen of the State of Oklahoma. The sole trustee is Chad T. McDougall.

Chad T. McDougall is a citizen of the State of Oklahoma.

2. Racop is a citizen of the State of Indiana and conducts business in Logansport,

Cass County, Indiana.

2

3. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332 because

the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs,

and is between citizens of different states.

4. Venue is proper pursuant to 28 U.S.C.
§ 1391 because a substantial pmi of the
events giving rise to JMA’s claims occurred in this judicial district, and Racop resides in this

judicial district.

Allegations Common to All Claims for Relief

5. JMA and Racop entered into a written agreement on January 3, 2012, pursuant to

which Racop agreed to build a 1966 Batmobile Replica (the “Car”) and JMA agreed to purchase

the Car (the “Agreement,” attached hereto under seal as
Exhibit A). The pmiies added to the
Agreement by way of an Upgrade Package (“Upgrade Package”) on February 14,2012 (attached

hereto under seal as
Exhibit B). The value of the property involved meets the minimum amount
for diversity jurisdiction, and JMA’s damages are sufficient to meet the minimum amount for

diversity jurisdiction.

6. The Agreement is between JMA “and Mark Racop of Fiberglass Freaks,” and

Racop signed the Agreement as “Mark Racop, Builder for Fiberglass Freaks.”

7. The Agreement provides that it is to be governed by and to be construed
In
accordance with Indiana law. (Agreement
~ 7).
8. Under the Agreement, the Car was estimated to be completed about October 31,

2012. (Agreement
~ 2). Any delay in delivery was to be mutually agreed upon. (Agreement ~
3.2). JMA and Racop never mutually agreed to a delay in the delivery date.

9. Under the Agreement, JMA agreed that it would not “at any time, whether during

the Term of this Agreement or after the termination hereof, use or disclose to any third person,

3

firm or corporation, or publish or cause to be published, any information relating to the tenns of

this Agreement[] (including but not limited to, the terms of [Racop's] compensation hereunder)

without Builder’s written consent first had and obtained.” (Agreement
~ 5.7). Thus, the
Agreement and related Exhibits have been filed under seal.

10. Under the Agreement, JMA and Racop agreed that in any action between the

parties “relating to this Agreement, the enforcement of its telms, or to any other contract relating

to the subject matter of this Agreement, the prevailing party shall, in addition to any other award

of damage or other remedy, be entitled to reasonable attorneys’ fees, costs, and expenses, as may

be fixed by the court.” (Agreement
~ 9.8).
11. Under the Agreement, each pmiy agreed to “perform any further acts and execute,

acknowledge and deliver any other instruments or documents that may be reasonably necessary

or desirable to evidence, effectuate, confilm, or carry out any of the provisions of this Agreement

promptly upon the request of the other party therefore.” (Agreement
~ 9.9).
12. Racop has demanded payments from JMA under the Agreement.

13. Although JMA has made a substantial amount of payments, JMA has not made

celiain payments to Racop because it obtained information that JMA believed provided

reasonable grounds for insecurity with respect to the ability of Racop to perfornl his obligation to

build the Car in accordance with the Agreement.

14. Specifically, on or about October 16, 2012
[i.e., fifteen (15) days prior to the
estimated completion date in the Agreement], JMA gave written notice to Racop that JMA had

reasonable grounds for insecurity. Those grounds for insecurity included but were not limited to:

(1) the fact that there were four (4) cars ahead of JMA’s Car in various stages of completion; (2)

the reasonable estimates of time to complete the cars ahead of JMA’s Car varied from six (6)

4

weeks to six (6) months or more; (3) the reasonable estimate of the time to complete JMA’s Car

could be up to another year; (4) there were indications that Racop had a cash flow problem that

an additional payment by JMA would not solve; (5) Racop had advised of disruptions with a

former partner that cost Racop both time and significant monies; (6) there were indications that

JMA’s prior payments had been used to complete vehicles ahead of JMA’s Car instead of being

used to build the JMA’s Car; and (7) Racop had not provided his group of customers with any

concrete evidence that there were more sales which would provide Racop with future revenues

on which to continue to operate. As a consequence, JMA requested that Racop provide it with

adequate assurance of performance under Indiana law.
See Ind. Code § 26-1-2-609. Actions
andlor documents related to adequate assurance are also required under
~ 9.9 of the Agreement.
15. In demanding adequate assurance, JMA requested that Racop provide financial

information, including: (1) a current balance sheet; (2) statement of cash flows for the last year;

(3) existing arrangements for access to capital (whether equity or debt) in an amount sufficient to

cover operating expenses for the next year; (4) satisfactory evidence of the uses of the monies

JMA has paid to date; and (5) a complete customer list with current contact information.

16. As an alternative to the financial information, JMA later proposed that Racop

provide (1) an alternative payment schedule based on verifiable progress; (2) a performance

bond; or (3) a lien on Racop’s personal batmobile as collateral against Racop’s perfOlmance in

building JMA’s Car.

17. Racop refused on mUltiple occaSIOns to provide adequate assurance of

performance. As a consequence, JMA is entitled to suspend its further perfOlmance of the

Agreement. JMA is entitled to seek remedies under Indiana law upon Racop’s repudiation.
See
Ind. Code § 26-1-2-610; Ind. Code § 26-1-2-711.

5

18. Racop has suspended building the Car and has asserted that the Car will be

completed on “his timetable.” On infOlmation and belief, the Car is approximately fifty percent

(50%) complete and will require at least six (6) months and possibly up to a year to complete.

19.
Under the Agreement, Racop has the option of accelerating any balance owed
under the Agreement upon JMA’s default and of selling the Car. (Agreement
~ 5.2).
20. On December 21, 2012, Racop served on JMA a written Notice of Default and

Notice ofIntent to Sell Vehicle (the “Default Notice,” attached hereto under seal as
Exhibit C).
First Claim for Relief

[Declaratory Judgment]

21. The allegations of paragraphs 1 – 20 are incorporated by reference.

22. There is an actual controversy between JMA and Racop as to: (l) the right of

JMA to demand that Racop provide adequate assurance of perfom1ance under Indiana law and

under the Agreement; (2) the nature of any required adequate assurance of performance; (3) the

right of JMA to suspend further performance under the Agreement and seek remedies in the

absence of Racop providing adequate assurance of performance; (4) the right of Racop to declare

JMA to be in default under the Agreement; and (5) Racop’s obligations to JMA related to the

sale of the Car if JMA is in default.

23. JMA requests the Court to declare the rights of JMA and Racop as to the matters

set forth in paragraph 22 above pursuant to 28 U.S.C.
§ 2201.
WHEREFORE, JMA demands judgment and relief as follows with respect to the First

Claim for Relief:

A.
A declaration that JMA was entitled to adequate assurance of Racop’ s
performance under Indiana law and under
~ 9.9 of the Agreement;
6

B.
A declaration that Racop failed to provide adequate assurance as required by
Indiana law and by,-r 9.9 of the Agreement;

C. A declaration that Racop has repudiated the Agreement by not providing adequate

assurance of performance;

D. A declaration that JMA had the right to suspend fmiher perfonnance under the

Agreement and is not in default under the Agreement;

E. A declaration that the Notice of Default is void and of no force and effect;

F. A declaration that Racop be prohibited from moving forward with the sale of the

Car because JMA is not in default as described herein;

G. A declaration ofRacop’s obligations to JMA related to the sale of the Car if JMA

is found to be in default;

H.
A declaration that JMA is entitled to pursue remedies;
1.
An order of specific performance of,-r 9.9 of the Agreement requiring that Racop
provide adequate assurance of his performance;

J. An order of specific performance requiring that Racop complete the Car in a

timely fashion and in accordance with the Agreement;

K.
Judgment for JMA’s reasonable attorneys’ fees, costs and expenses to be fixed by
the Court; and

L.
Judgment for such other and further relief to which JMA is entitled, whether at
law or in equity.

Second Claim for Relief

[Specific Performance]

24. The allegations of paragraphs 1 – 23 are incorporated by reference.

7

25. By failing to provide the required adequate assurance of performance, Racop has

repudiated the Agreement. JMA considers the repudiation to be final. JMA has substantially

performed its obligations under the Agreement and is ready, willing, and able to perform upon

Racop’s performance.

26. The Car is a unique good, the loss of which cannot be adequately remedied at law,

because, upon JMA’ s information and belief, there are no other licensed builders of the Car and

only a limited number of Cars are available. The Car is not substantially complete.

27. JMA is entitled to a decree of specific performance ordering: (1) that Racop

provide adequate assurance of his performance under 4J 9.9 of the Agreement; (2) that Racop

complete the Car in a timely fashion and in accordance with the Agreement; and (3) that Racop

ensure that Car will be free from all claims, liens, or demands of others upon completion.

WHEREFORE, JMA demands judgment and relief as follows with respect to the Second

Claim for Relief:

A. Judgment for specific perfOlmance of the Agreement containing the following

terms and such other equitable terms as the Court may detennine are reasonable

and proper: (1) requiring that Racop provide adequate assurance of performance

under 4J 9.9 of the Agreement; (2) that Racop complete the Car in a timely fashion

and in accordance with the Agreement; and (3) that Racop ensure that the Car will

be free from all claims, liens, or demands of others upon completion;

B.
Judgment for JMA’s reasonable attorneys’ fees, costs and expenses to be fixed by
the Court; and

C. Judgment for such other and further relief to which JMA is entitled, whether at

law or in equity.

8

Third Claim for Relief

[Permanent Injunctive Relief]

28. The allegations of paragraphs 1 – 27 are incorporated by reference.

29. The Car is a unique good, the loss of which JMA could not be adequately

compensated at law, because, upon JMA’s information and belief, there are no other licensed

builders of the Car and only a limited number of Cars are available. JMA would suffer celiain

and irreparable harm if the injunction were denied because the Car would be sold.

30. This Court should declare that JMA was justified in demanding adequate

assurance of performance under Indiana law and
~ 9.9 of the Agreement, and that Racop has
failed to provide adequate assurance of performance, thereby repudiating the Agreement.

Because JMA’s suspension of perfOlmance is not a default of the Agreement, Racop is not

entitled to sell the Car. Thus, JMA should succeed on the merits.

31. The injury to JMA upon Racop’s selling the Car outweighs the threatened harm to

Racop. Upon Racop’s providing adequate assurance and resuming work on the Car, Racop will

be compensated as provided in the Agreement for the Car.

32. Public interest would not be disserved by granting JMA injunctive relief because

Racop will be compensated for the Car as provided in the Agreement after he provides adequate

assurance of performance and resumes work on the Car.

WHEREFORE, JMA demands judgment and relief as follows with respect to the Third

Claim for Relief:

A. Judgment of permanent injunctive relief enjoining Racop from selling the Car on

the basis that the Car is a unique good, that JMA is not in default of the

Agreement as described in herein, that the injury to JMA outweighs the hmm to

Racop, and that the public interest would not be disserved;

9

Racop.

B.
Judgment for JMA’s reasonable attorneys’ fees, costs and expenses to be fixed by
the Court; and

C. Judgment for such other and further relief to which JMA is entitled, whether at

law or in equity.

Fourth Claim for Relief

[Breach of Contract]

33. The allegations of paragraphs 1 – 32 are incorporated by reference.

34. The Agreement constitutes a valid and binding agreement between JMA and

35. JMA agreed to compensate Racop according to the tenns of the Agreement in

return for Racop’s promises under the Agreement. JMA has substantially perfonned its

obligations under the Agreement.

36. Under
~ 9.9 of the Agreement, Racop covenanted that he would “perfonn any
further acts and execute, acknowledge and deliver any other instruments or documents that may

be reasonably necessary or desirable to evidence, effectuate, confinn, or
CatTY out any of the
provisions of this Agreement promptly upon the request of [JMA].”

3 7. JMA has requested that Racop perfonn certain acts and deliver documents that are

reasonably necessary and desirable to effectuate, confinn, and carry out the Agreement. Racop

has failed to do so. Racop’s failure is a breach of the Agreement. Failure to provide adequate

assurance is also a repUdiation under Indiana law.

38. Over two months have passed since the estimated time for completing the Car.

The parties have not agreed to an extension of time for completion. Racop has failed to timely

complete the Car under the Agreement.

39. JMA has been damaged as a direct and natural result of Racop’s breach.

10

40. As a direct result of Racop’s breach, JMA may recover damages under the

contract and Indiana law.
See Ind. Code § 26-1-2-711.
WHEREFORE, in the alternative, JMA demands judgment and relief as follows with

respect to the Fourth Claim for Relief:

A. Judgment for JMA awarding to JMA all payments made by it to Racop in reliance

on Racop’s promises to build the Car under the terms of the Agreement;

B. Judgment for JMA awarding to JMA all other damages for the difference between

the Agreement price and JMA’s purchasing a similar car if one can be purchased

or, alternatively, the market price of a similar car;

C. Judgment for JMA for all of its incidental and consequential damages resulting

from Racop’ s breach;

D. Judgment for JMA’s reasonable attorneys’ fees, costs and expenses to be fixed by

the Court; and

E. Judgment for such other and further relief to which JMA is entitled, whether at

law or in equity.

Respectfully submitted,

~~~
It.~o. 21535-49
Emily M. Slaten, No. 29491-49

BOSE MCKINNEY
& EVANS LLP
111 Monument Circle, Suite 2700

Indianapolis, IN 46204

(317) 684-5000

(317) 684-5173 (Fax)

Attorneys for Plaintiff,

JMA Energy Company, L.L.C.