Peiker Acustic, Inc. et al v. Kennedy

Filing 167

ORDER re Motion 165 to Amend Judgment. The Peiker entities' Response to Kennedy's Motion to Amend Final Judgment is due on or before June 5, 2012. If no Response is received as of 9 a.m. on June 6, 2012, I will assume none is forthcoming and will prepare an Amended Final Judgment along the lines discussed above by Judge John L. Kane on 05/29/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane

Civil Action No. 10-cv-02083-JLK
PEIKER ACUSTIC, INC. and
PEIKER ACUSTIC GMBH & CO. KG,
Plaintiffs/Counterclaim Defendants,
v.
PATRICK KENNEDY,
Defendant/Counterclaimant.

ORDER re Motion (Doc. 165) to Amend Judgment
Kane, J.
I have reviewed Defendant Patrick Kennedy’s Motion to Amend Final Judgment (Doc.
165) and agree the May 11, 2012 Final Judgment erroneously omitted reference to Plaintiffs’
defamation claim against Mr. Kennedy, which was voluntarily dismissed with prejudice on April
4, 2012. Accordingly, the Final Judgment shall be amended to order that judgment enter both in
favor of Mr. Kennedy and against Plaintiffs on Plaintiffs’ defamation claim against him, and in
favor of Plaintiffs and against Mr. Kennedy on Mr. Kennedy’s counterclaims for abuse of process
against them. Given the mixed judgment in this case, the declaration in the Final Judgment
entered that Plaintiffs were the “prevailing parties” in this case for purposes of a cost award under
Fed. R. Civ. P. 54(d) is also erroneous. Mr. Kennedy asks that he be declared the “prevailing
party” because the “crux of th[is] case was [the] defamation claim brought by Plaintiffs,” and

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without that claim no litigation and no losing counterclaim would have occurred. The Peiker
Plaintiffs, foreseeably, object.
While the Peiker entities may file a response to Mr. Kennedy’s Motion on the question of
“prevailing party,” both sides should be aware that my intent at this point is to decline to award
costs to either side. Both sides prevailed on certain aspects of this litigation and lost on others.
Mr. Kennedy “prevailed” on Plaintiffs’ defamation claim against him premised on IdeaJacked
because I ruled IdeaJacked was speech on matters of public interest subject to a standard of proof
the Peiker entities decided they could not meet. Mr. Kennedy elected to proceed to trial on his
counterclaim for abuse of process, and the jury rejected that claim. The Peiker entities, as a
result, “prevailed” on the counterclaim. Unless I am convinced to the contrary, the Amended
Judgment will include a finding that neither side was the “prevailing party” for purposes of an
award of costs under Rule 54(d).
The Peiker entities’ Response to Kennedy’s Motion to Amend Final Judgment is due on or
before June 5, 2012. If no Response is received as of 9 a.m. on June 6, 2012, I will assume none
is forthcoming and will prepare an Amended Final Judgment along the lines discussed above.
DATED: May 29, 2012.
/s/ John L. Kane
Senior U.S. District Court Judge

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