Alarid v. Biomet, Inc et al

Filing 138

ORDER Granting 133 plaintiffs Request for Entry of Judgment; That excepting any pending motion for leave to restrict, all other substantive pending motions are denied as moot; Denying as moot 106 Defendants Motion To Strike Plaintiffs Untimel y Claim for Physical Impairment and Disfigurement Damages; Denying as moot 109 Defendants Motion To Strike John McCloys Untimely Expert Opinions; That the combined Final Pretrial Conference/Trial Preparation Conference set for February 19, 2016 , at 10:00 a.m., and the trial set to commence February 29, 2016, are vacated; That the courts Minute Order 132 , filed February 4, 2016, is vacated; and That this civil action is dismissed, and the case closed, by Judge Robert E. Blackburn on 2/4/2016.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-CV-02667-REB-NYW
ALFONSO A. ALARID
Plaintiff,
v.
BIOMET, INC.;
BIOMET ORTHOPEDICS, LLC; and
BIOMET MANUFACTURING, LLC.
Defendants.

ORDER GRANTING REQUEST FOR ENTRY OF JUDGMENT
Blackburn, J.
The matter is before me is plaintiff’s Request for Entry of Judgment [#133],1
filed February 4, 2016. The motion and evidence attached thereto demonstrate that
defendants made a timely offer of judgment under Fed. R. Civ. P. 68 to plaintiff, which
offer plaintiff has accepted. (Motion App., Exhs. 1& 2.) I grant the request.
Rule 68 provides, in relevant part:
At least 14 days before the date set for trial, a party
defending against a claim may serve on an opposing party
an offer to allow judgment on specified terms, with the costs
then accrued. 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.

1

“[#133]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

FED. R. CIV. P. 68(a). The offer and acceptance were made in the time and manner
required under Rule 68. It therefore is appropriate to direct the entry of judgment in the
amount of the offer, which both by its own terms (see Motion App., Exh. 1) and
operation of the rule itself, see Marek v. Chesney, 473 U.S. 1, 6-7, 105 S.Ct. 3012,
3015, 87 L.Ed.2d 1 (1985), is inclusive of all costs recoverable in the action, including
attorney fees.
THEREFORE, IT IS ORDERED as follows:
1. That plaintiff’s Request for Entry of Judgment [#133], filed February 4, 2016,
is granted;
2. That the clerk of the court is directed to enter judgment in favor of plaintiff,
Alfonso Alarid, and against defendants, Biomet, Inc.; Biomet Orthopedics, LLC; and
Biomet Manufacturing, LLC, pursuant to Fed. R. Civ. P. 68(a) in the amount of
$350,000, inclusive of all damages and liabilities of any kind claimed in the action, all
claims for attorney fees, all claims for fees associated with expert witnesses, and any
other costs accrued to date that might be recoverable in this action;
3. That excepting any pending motion for leave to restrict,2 all other substantive
pending motions are denied as moot, including but not limited to the following:
a. Defendants’ Motion To Strike Plaintiff’s Untimely Claim for
Physical Impairment and Disfigurement Damages [#106], filed January
15, 2016; and

2

The court refers specifically, but without limitation to Plaintiff’s Motion To File Under
Restriction Level One [#128], filed February 1, 2016, which will be resolved by separate order when it
becomes ripe.

2

b. Defendants’ Motion To Strike John McCloy’s Untimely Expert
Opinions [#109], filed January 19, 2016;
4. That the combined Final Pretrial Conference/Trial Preparation Conference set
for February 19, 2016, at 10:00 a.m., and the trial set to commence February 29, 2016,
are vacated;
5. That the court’s Minute Order [#132], filed February 4, 2016, is vacated; and
6. That this civil action is dismissed, and the case closed.
Dated February 4, 2016, at Denver, Colorado.
BY THE COURT:

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