Michael Taylor Designs, Inc. v. Travelers Property Casualty Company of America

Filing 51

STIPULATION AND ORDER RE 49 ORDER OF ENTRY OF JUDGMENT. Stipulation filed by Travelers Property Casualty Company of America, ***Civil Case Terminated.Signed by Judge Richard Seeborg on 3/28/11. (cl, COURT STAFF) (Filed on 3/28/2011)

Michael Taylor Designs, Inc. v. Travelers Property Casualty Company of America

Doc. 51

*E-Filed 3/28/11* 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Attorneys for Plaintiff MICHAEL TAYLOR DESIGNS, INC. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 \\\ \\\ \\\ -12128361v2SF Stipulation and [Proposed] Order for Entry of Judgment
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SEDGWICK, DETERT, MORAN & ARNOLD LLP BRUCE D. CELEBREZZE Bar No. 102181 [e-mail] MATTHEW C. LOVELL Bar No. 189728 [e-mail] One Market Plaza Steuart Tower, 8th Floor San Francisco, California 94105 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA GAUNTLETT & ASSOCIATES David A. Gauntlett (SBN 96399) James A. Lowe (SBN 214383) Andrew M. Sussman (SBN 112418) 18400 Von Karman, Suite 300 Irvine, California 92612 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA MICHAEL TAYLOR DESIGNS, INC., a California corporation, Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, a Connecticut corporation, Defendant. CASE NO. C10-02432-RS STIPULATION AND [PROPOSED] ORDER FOR ENTRY OF JUDGMENT Judge: Court: Hon. Richard Seeborg Courtroom 3, 17th Floor

CASE NO. C10-02432-RS

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Plaintiff Michael Taylor Designs, Inc. ("MTD") and defendant Travelers Property Casualty Company of America ("Travelers") (collectively, "the Parties"), by and through their attorneys of record, jointly stipulate as follows: WHEREAS, on January 20, 2011, the Court entered an order granting in part MTD's motion for partial summary judgment and denying Travelers' cross-motion for partial summary judgment, finding that Travelers had a duty to defend MTD in the matter Rosequist v. Michael Taylor Designs, Inc., U.S.D.C. (N.D. Cal.) Case No. C 08-1588 SBA ("the Rosequist action") that arose upon MTD's tender of the original Rosequist complaint to Travelers (ECF No. 38) ("the Duty to Defend Order," a true and correct copy of which is attached as Exhibit A and incorporated herein by reference); WHEREAS, the Duty to Defend Order did not resolve all of the issues pending in this action, as the issue of the amount of damages, if any, MTD is entitled to recover from Travelers remains unadjudicated, and hence it is premature for the Court to enter a judgment from which an appeal to the United States Court of Appeals for the Ninth Circuit may be taken; WHEREAS, a final appealable judgment may be entered only after the issue of damages has been adjudicated; WHEREAS, absent a stipulation, the amount of damages, if any, MTD is entitled to recover from Travelers must be decided on motion or, if genuine issues of material fact remain, by trial; WHEREAS, in order to avoid the costs and inconvenience to the Parties and to the Court of a motion and/or trial on the issue of damages, the Parties have agreed that the amount of damages (inclusive of any and all claims of right to recover prejudgment interest) recoverable by MTD against Travelers shall be the amount of Two Hundred Ten Thousand and 00/100 Dollars ($210,000.00), with interest accruing thereon at a rate of Fifty and 00/100 Dollars ($50.00) per day from the date final judgment is entered by the Court until the date Travelers satisfies the entire stipulated judgment; WHEREAS, the Parties agree that judgment should be entered pursuant to Rule 58 of the Federal Rules of Civil Procedure in favor of MTD and against Travelers in the amount of Two Hundred Ten Thousand and 00/100 Dollars ($210,000.00), with interest accruing thereon at a rate -22128361v2SF Stipulation and [Proposed] Order for Entry of Judgment

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of Fifty and 00/100 Dollars ($50.00) per day from the date final judgment is entered by the Court until the date Travelers satisfies the entire stipulated judgment, with the express recognition that each of the Parties is expressly and explicitly reserving any and all of its rights to appeal the judgment, as well as any and all portions of the Duty to Defend Order; WHEREAS, consistent with U.A. Local 342 Apprenticeship & Training Trust v. Babcock & Wilcox Constr. Co., Inc., 396 F.3d 1056 at 1058 (9th Cir. 1986), and Continental Ins. Co. v. Federal Express Corp., 454 F.3d 951 at 954 (9th Cir. 2006) (in which the Ninth Circuit exercised jurisdiction over the appeals of stipulated judgments which explicitly reserved the parties' rights of appeal), the Parties intend that the stipulated judgment be deemed appealable in all respects within the meaning of Rule 58 of the Federal Rules of Civil Procedure; WHEREAS, the Parties agree that each Party shall bear its own costs and attorneys' fees incurred in this action; NOW, THEREFORE, THE PARTIES STIPULATE, AND REQUEST THE COURT TO ENTER JUDGMENT, AS FOLLOWS: 1. Judgment shall be entered forthwith in favor of plaintiff Michael Taylor Designs,

Inc., and against defendant Travelers Property Casualty Company of America ("Travelers") in the amount of Two Hundred Ten Thousand and 00/100 Dollars ($210,000.00), plus interest accruing thereon at a rate of Fifty and 00/100 Dollars ($50.00) per day from the date judgment is entered by the Court, until Travelers satisfies the judgment; 2. Judgment shall be entered pursuant to Rule 58 of the Federal Rules of Civil

Procedure, with the recognition that each of the Parties is expressly and explicitly reserving any and all of its rights to appeal the judgment, as well as any and all portions of the Court's January 20, 2011 Order regarding the Parties' Cross-Motions for Summary Judgment (ECF No. 38); 3. Consistent with U.A. Local 342 Apprenticeship & Training Trust v. Babcock &

Wilcox Constr. Co., Inc., 396 F.3d 1056 at 1058 (9th Cir. 1986), and Continental Ins. Co. v. Federal Express Corp., 454 F.3d 951 at 954 (9th Cir. 2006), the judgment shall constitute an appealable judgment in all respects within the meaning of Rule 58 of the Federal Rules of Civil Procedure; \\\ -32128361v2SF Stipulation and [Proposed] Order for Entry of Judgment

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4.

Each Party shall bear its own costs and attorneys' fees incurred in the action.

IT IS SO STIPULATED. DATED: March 25, 2011 SEDGWICK, DETERT, MORAN & ARNOLD LLP

By:

/s/ Matthew C. Lovell Bruce D. Celebrezze Matthew C. Lovell Attorneys for defendant Travelers Property Casualty Company of America

DATED: March 25, 2011 9 10

GAUNTLETT & ASSOCIATES

By: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/s/ Andrew M. Sussman Andrew M. Sussman Attorneys for plaintiff Michael Taylor Designs, Inc.

ATTESTATION OF FILING Pursuant to General Order 45.X.B, I attest that I have obtained concurrence in the filing of this document from the parties listed above. /s/ Matthew C. Lovell Matthew C. Lovell

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[PROPOSED] ORDER IT IS ORDERED THAT JUDGMENT IN ACCORDANCE WITH THE FOREGOING STIPULATION SHALL BE ENTERED FORTHWITH. PURSUANT TO SUCH STIPULATION, IT IS ORDERED THAT: 1. Judgment shall be entered forthwith in favor of plaintiff Michael Taylor Designs,

Inc., and against defendant Travelers Property Casualty Company of America ("Travelers") in the amount of Two Hundred Ten Thousand and 00/100 Dollars ($210,000.00) (each party to bear its own costs and attorneys' fees), plus interest accruing thereon at a rate of Fifty and 00/100 Dollars ($50.00) per day from the date judgment is entered by the Court, until Travelers satisfies the judgment; 2. Judgment shall be entered pursuant to Rule 58 of the Federal Rules of Civil

Procedure, with the recognition that each of the Parties is expressly and explicitly reserving any and all of its rights to appeal the judgment, as well as any and all portions of the Court's January 20, 2011 Order regarding the Parties' Cross-Motions for Summary Judgment (ECF No. 38); 3. Consistent with U.A. Local 342 Apprenticeship & Training Trust v. Babcock &

Wilcox Constr. Co., Inc., 396 F.3d 1056 at 1058 (9th Cir. 1986), and Continental Ins. Co. v. Federal Express Corp., 454 F.3d 951 at 954 (9th Cir. 2006), the judgment shall constitute an appealable judgment in all respects within the meaning of Rule 58 of the Federal Rules of Civil Procedure; 4. Each Party shall bear its own costs and attorneys' fees incurred in the action.

______________________________________ HON. RICHARD G. SEEBORG UNITED STATES DISTRICT JUDGE

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