Import Fresh Direct LLC v. Premier Trading, LLC et al
ORDER Defendants Motion to Strike Entry of Judgment ECF No. 58 is GRANTED; and The Final Judgment ECF No. 57 is VACATED, by Judge William J. Martinez on 5/8/2014. (evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-0877-WJM-MJW
IMPORT FRESH DIRECT, LLC,
PREMIER TRADING, LLC, d/b/a ALLIANCE WHOLESALE,
DIRECT LINE TRANSPORTATION, LLC,
WILLIAM VOGEL, and
ORDER VACATING FINAL JUDGMENT
Plaintiff Import Fresh Direct, LLC (“Plaintiff”) brings this action against Premier
Trading, LLC, doing business as Alliance Wholesale (“Premier”), Direct Line
Transportation, LLC (“Direct Line”), William Vogel, and Anthony Filpi (collectively
“Defendants”) alleging violations of various provisions of the Perishable Agricultural
Commodities Act (“PACA”), 7 U.S.C. §§ 499a et seq., and related claims. (ECF No. 1.)
This matter is before the Court on Defendants’ Motion to Strike Entry of Judgment
Based Upon Clerk’s Erroneous Reliance Upon Stricken Pleading. (ECF No. 58.)
On April 15 and 16, 2014, Defendants filed a Notice of Offer of Settlement and
Amended Notice of Offer of Settlement, offering to resolve the case for a payment of
$80,000 and citing Colorado Revised Statute § 13-17-202. (ECF Nos. 40 & 41.) On
April 29, 2014, Plaintiff filed an Acceptance of Defendants’ Offer of Judgment and
Motion for Order of Payment, again citing § 13-17-202 and moving the Court to issue
an order for Defendants to pay the balance owed to Plaintiff under the settlement
agreement. (ECF No. 51.) However, because neither party cited federal procedural
law, the Court struck Plaintiff’s Acceptance of Offer of Judgment and Motion for Order
of Payment on May 6, 2014. (ECF No. 55.) The Court permitted Plaintiff to re-file a
notice of Acceptance of Offer of Judgment pursuant to Federal Rule of Civil Procedure
On May 6, 2014, Plaintiff filed a Notice of Acceptance of Offer of Judgment
pursuant to Rule 68, attaching Defendants’ filed settlement offer, and Plaintiff’s
acceptance with proof of service. (ECF No. 56 at 1, Ex. D.) Plaintiff requested that the
Clerk of Court enter judgment with the notation that attorneys’ fees and costs had not
been determined based on the absence of any such language in Defendants’ offer.
(Id. at 2.) Accordingly, and pursuant to Rule 68(a), the Clerk entered Final Judgment
with Plaintiff’s requested notation. (ECF No. 57); Fed. R. Civ. P. 68(a) (“If, within 14
days after being served, the opposing party serves written notice accepting the offer,
either party may then file the offer and notice of acceptance, plus proof of service. The
clerk must then enter judgment.”).
On May 7, 2014, Defendants filed a Motion to Strike Entry of Judgment, arguing
that the Clerk should not have entered judgment because Plaintiff’s acceptance was
stricken, and that the judgment erroneously stated that fees and costs had not been
determined when Defendants intended their offer to be inclusive of any fees and costs.
(ECF No. 58 at 1-2.) On the same day, Defendants filed a Motion to Stay Entry of
Judgment Pending Negotiated Settlement of the Case, stating that the parties were in
the process of resolving their dispute about the issue of attorneys’ fees and costs and
that judgment should not yet be entered. (ECF No. 60.)
Based on the parties’ recent filings, the Court concludes that despite Plaintiff’s
representations in its notice of Acceptance of Offer of Judgment, the parties are not yet
in agreement with respect to the terms of the settlement of this case. Accordingly,
judgment was entered in error, and the Final Judgment must be vacated pursuant to
Federal Rule of Civil Procedure 60(a). Defendants’ Motion to Strike Entry of Judgment
is therefore granted. However, the Court will permit Plaintiff to address the merits of
Defendants’ contentions raised in their Motion to Strike Entry of Judgment when
Plaintiff files its response to the Motion to Stay Entry of Judgment.
For the reasons set forth above, the Court ORDERS as follows:
Defendants’ Motion to Strike Entry of Judgment (ECF No. 58) is GRANTED; and
The Final Judgment (ECF No. 57) is VACATED.
Dated this 8th day of May, 2014.
BY THE COURT:
William J. Martínez
United States District Judge
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