Pioneer Centres Holding Company Employee Stock Ownership Plan and Trust, The v. Alerus Financial, N.A. et al

Filing 358

ORDER granting 357 Motion to Dismiss. Denying as moot motions 350 , 351 , 352 , 353 , 354 , and 355 . All pending hearings are vacated. Ordered that the Clerk of the Court shall enter judgment. By Judge Raymond P. Moore on 05/27/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 1:12-cv-02547-RM-MEH
THE PIONEER CENTRES HOLDING COMPANY
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
AND ITS TRUSTEES, MATTHEW BREWER,
ROBERT JENSEN AND SUSAN DUKES,
Plaintiffs,
v.
ALERUS FINANCIAL, N.A. and
BERENBAUM WEINSHIENK, P.C.,
Defendants.
ALERUS FINANCIAL, N.A.,
Third-Party Plaintiff and Counterclaim Plaintiff,
v.
MATTHEW BREWER, ROBERT JENSEN,
SUSAN DUKES, PIONEER CENTRES HOLDING COMPANY, and
RICHARD EASON,
Third-Party Defendants and Counterclaim Defendants.
ORDER
By the following orders, the Court dismissed all claims in this action except Third-Party
Plaintiff Alerus Financial, N.A.’s (“Alerus”) Count II for Contractual Indemnification against
Third-Party Defendant Pioneer Centres Holding Company (“Pioneer”):

(1) Oral order issued on February 19, 2015 (ECF No. 339), dismissing Alerus’ Count III
for Accounting against Third-Party Defendant Pioneer and Plaintiff Trustees Brewer,
Jensen and Dukes;
(2) Order dated May 1, 2015 (ECF No. 343), dismissing Alerus’ Count I for
Indemnification and Contribution against Plaintiff Trustees Brewer, Jensen and
Dukes and Third-Party Defendants Pioneer and Richard Eason; and
(3) Order dated May 1, 2015 (ECF No. 342), dismissing Plaintiffs’ claims against
Defendants.
By Unopposed Motion to Dismiss its Contractual Indemnification Claim against Pioneer
Centres Holding Company with Prejudice (“Motion”) (ECF No. 357), filed pursuant to Fed. R.
Civ. P. 41(a)(2), Alerus requests this Court to dismiss its remaining count (Count II) – and the
only claim remaining in this matter – with prejudice. In the Motion, Alerus has advised the
Court that “Pioneer and its related parties stated that they reserve their rights to seek costs in
connection with the entry of a final judgment.” In addition, via email, Pioneer has advised the
Court and the parties “that Pioneer has reserved its rights to seek any recoverable costs or fees at
the appropriate time.” Upon review of Alerus’ Motion, the prior orders, the court file, the
applicable rules, and being otherwise fully advised, it is
ORDERED that Alerus Financial, N.A.’s Unopposed Motion to Dismiss its Contractual
Indemnification Claim against Pioneer Centres Holding Company with Prejudice (ECF No. 357)
is GRANTED, and it is
FURTHER ORDERED that Alerus Financial, N.A.’s Count II of its Third-Party
Complaint and Counterclaims seeking contractual indemnification against Third-Party Defendant
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Pioneer Centres Holding Company (ECF No. 64) is DISMISSED WITH PREJUDICE, and it
is
FURTHER ORDERED that the issue of costs and attorney’s fees as between ThirdParty Plaintiff Alerus Financial, N.A. and Third-Party Defendant Pioneer Centres Holding
Company relating to Alerus Financial, N.A.’s Count II for Contractual Indemnification is
expressly reserved by Pioneer Centres Holding Company. Any issue which Pioneer Centres
Holding Company wishes to raise, however, must be timely made and in accordance with all
applicable laws, rules and procedures, and it is
FURTHER ORDERED that the Trial Preparation Conference set for June 5, 2015 at
9:00 a.m. is hereby VACATED, and it is
FURTHER ORDERED that the Daubert Hearing set for June 19, 2015 at 1:30 p.m. is
hereby VACATED, and it is
FURTHER ORDERED that all pending motions (ECF Nos. 350-355) are DENIED AS
MOOT, and it is
FURTHER ORDERED that the four-day Bench Trial set to begin June 29, 2015 is
hereby VACATED, and it is
FURTHER ORDERED that the Clerk of the Court shall enter JUDGMENT in
accordance with the Court’s Orders, and it is
FURTHER ORDERED that the following parties are awarded costs and shall within 14
days of the date of this Order file a bill of costs, in accordance with the procedures under Fed. R.
Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1, which shall be taxed by the Clerk of the Court:
(1) Costs are awarded in favor Plaintiff Trustees Matthew Brewer, Robert Jensen and
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Susan Dukes and Third-Party Defendants Pioneer Centres Holding Company and
Richard Eason and against Alerus Financial N.A. on Alerus Financial N.A.’s Count I
for Indemnification and Contribution;
(2) Costs are awarded in favor of Third-Party Defendant Pioneer Centres Holding
Company and Plaintiff Trustees Matthew Brewer, Robert Jensen and Susan Dukes
and against Alerus Financial N.A. on Alerus Financial N.A.’s Count III for
Accounting; and
(3) Costs are awarded in favor of Defendants Alerus Financial, N.A. and
Berenbaum Weinshienk, P.C. and against Plaintiffs The Pioneer Centres Holding
Company Employee Stock Ownership Plan and Trust and its Trustees, Matthew
Brewer, Robert Jensen and Susan Dukes.

DATED this 27th day of May, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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