Yates et al v. Portofino Equity & Management Company, LLC et al

Filing 216

ORDER granting 206 Plaintiffs' Motion to Amend Judgment Pursuant to Federal Rule of Civil Procedure 59(e). The judgment shall be amended to remove the provision of costs, by Judge Philip A. Brimmer on 12/9/10.(ebs, )

-MJW Yates et al v. Portofino Equity & Management Company, LLC et al

Doc. 216

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Case No. 08-cv-00324-PAB-MJW MARGARET L. YATES, and TODD F. MAYNES, Plaintiffs, v. PORTOFINO REAL ESTATE PROPERTIES COMPANY, LLC, THE PORTOFINO CLUB, LLC, ROCKS AZ 1, LLC, SUN RIVER I, LLC, and RONALD A. TAPP, Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ This matter is before the Court on plaintiffs' motion to amend judgment pursuant to Federal Rule of Civil Procedure 59(e) [Docket No. 206]. The Court dismissed this action without prejudice for lack of subject matter jurisdiction on November 3, 2010 [Docket No. 193]. The Clerk of Court entered judgment in favor of defendants on November 4, 2010 [Docket No. 200]. That judgment provided that defendants could have their costs upon the filing of a Bill of Costs within 14 days from entry of judgment. In their motion, plaintiffs seek to have this aspect of the judgment removed, arguing that an award of costs pursuant to Federal Rule of Civil Procedure 54(d)(1) is inapplicable upon dismissal without prejudice for lack of subject matter jurisdiction. Cf. Callicrate v. Farmland Indus. Inc., 139 F.3d 1336, 1340 n.8 (10th Cir. 1998) (noting the distinction between an award of costs pursuant to Fed. R. Civ. P. 54(d)(1) and an award pursuant

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to 28 U.S.C. § 1919 upon dismissal for lack of jurisdiction). On November 12, 2010, the Court stayed the judgment's provision regarding the award of costs until such time as plaintiffs' motion to amend judgment is resolved. The Court further stated that, in the absence of a timely response to plaintiffs' motion by Portofino Real Estate Properties Company, LLC ("PREPCO"), the motion would be deemed conceded. PREPCO did not file a response to plaintiffs' motion.1 Therefore, it is ORDERED that plaintiffs' motion to amend judgment pursuant to Federal Rule of Civil Procedure 59(e) [Docket No. 206] is GRANTED. The judgment shall be amended to remove the provision of costs.

DATED December 9, 2010. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

1

PREPCO did file a proposed second amended bill of costs [Docket No. 209]. 2