Developers Surety and Indemnity Company v. Asby et al

Filing 57

ORDER denying as moot 47 Motion for Summary Judgment, and granting 52 Stipulated Motion for Judgment. The Clerk of the Court shall enter judgment by separate entry in favor of Plaintiff Developers Surety and Indemnity Company and against Defendants Robert M. Seidel and Melanie F. Seidel, jointly and severally. Entered by Judge Raymond P. Moore on 2/22/2016. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Civil Action No. 15-cv-00079-RM
DEVELOPERS SURETY AND INDEMNITY COMPANY,
Plaintiff,
v.
EVAN ASBY,
JACQUELINE ASBY,
ROBERT M. SEIDEL,
MELANIE F. SEIDEL, and
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the following three filings (collectively, “Papers”): (1)
Plaintiff Developers Surety and Indemnity Company and Defendants Robert M. Seidel and
Melanie F. Seidel’s (collectively, “Settling Parties”) Stipulated Motion for Entry of Judgment by
Confession (“Stipulated Motion”) (ECF No. 52); (2) Stipulation to Dismiss all Claims and CrossClaims against Defendants Evan Asby and Jacqueline Asby Without Prejudice (“Stipulation”)
(ECF No. 55); and (3) Joint Status Report (ECF No. 56). Collectively, the Papers seek to
dismiss the claim and crossclaim against the Asby Defendants without prejudice, and to
effectuate the settlement of Plaintiff Developers’ claim against the Seidel Defendants.

Upon consideration of the Papers, the applicable rules and case law,1 the Court file, and
being otherwise fully advised, the Court FINDS and ORDERS as follows:
(1) That upon the filing of the Stipulation to Dismiss all Claims and Cross-Claims
against Defendants Evan Asby and Jacqueline Asby Without Prejudice (ECF No. 55),
(a) Plaintiff Developers Surety and Indemnity Company’s claim against Defendants
Evan Asby and Jacqueline Asby is dismissed without prejudice; and (b) Defendants
Robert M. Seidel and Melanie F. Seidel’s crossclaim against the Asby Defendants is
dismissed without prejudice;
(2) That the Stipulated Motion for Entry of Judgment by Confession (ECF No. 52) is
GRANTED, in resolution of Plaintiff Developer’s sole remaining claim in this
action;
(3) That Plaintiff Developers Surety and Indemnity Company’s Motion for Summary
Judgment (ECF No. 47) is DENIED AS MOOT;
(4) That the Clerk of the Court shall enter JUDGMENT in favor of Plaintiff Developers
Surety and Indemnity Company and against Defendants Robert M. Seidel and
Melanie F. Seidel, jointly and severally, in the amount of $85,000.00, with interest to
accrue thereon from the date of the entry of this Order at the legal rate prescribed by
28 U.S.C. § 1961(a);

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The Settling Parties cite to Fed. R. Civ. P. 41(a)(1)(A)(ii) – for dismissal of actions – in support of their Stipulated
Motion as to Developers’ dismissal of its claim against the Asby Defendants. There is, however, uncertainty in the
Tenth Circuit whether Fed. R. Civ. P. 21 or 41 applies to the dismissal of a party from an action involving more than
one defendant. See Van Leeuwen v. Bank of Am., N.A., 304 F.R.D. 691, 692–97 (D. Utah 2015); see also Gobbo
Farms & Orchards v. Pool Chem. Co., 81 F.3d 122, 123 (10th Cir. 1996) (Rule 41 “speaks of dismissal of an action,
not just a claim within an action. [Plaintiff] offers no authority, and we have found none, to support its contention
that Rule 41(a) applies to dismissal of less than all claims in an action.”). Regardless, the Court agrees that, in most
instances (such as the Stipulated Motion at issue), it is immaterial whether it acts under Rule 21 or 41. 9 Charles
Alan Wright et al., Federal Practice and Procedure § 2362 (3d ed. 2008).
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(5) That pursuant to Plaintiff Developers Surety and Indemnity Company and Defendants
Robert M. Seidel and Melanie F. Seidel’s agreement, Plaintiff Developers Surety and
Indemnity Company shall forebear from execution on the judgment for 30 days from
the date of entry of judgment; and
(6) That Plaintiff Developers Surety and Indemnity Company and Defendants Robert M.
Seidel and Melanie F. Seidel shall pay his, her, and its own respective attorney fees
and costs.
DATED this 22nd day of February, 2016.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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