Balducci v. Congo Ltd.

Filing 58

ORDER denying without prejudice 57 Motion for Attorney Fees, vacating the 56 Default Judgment, and reopening case. Entered by Judge Raymond P. Moore on 1/13/2020.(cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 17-cv-02755-RM-MEH
MICHAEL BALDUCCI,
Plaintiff,
v.
CONGO LTD., a Colorado Corporation,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees and Costs (ECF
No. 57), seeking a total of $48,426.67 in attorney’s fees and $1,733.19 in costs pursuant to Colo.
Rev. Stat. Ann. § 8-4-110. Upon consideration of the Motion and the court record, and being
otherwise fully advised, the Court finds and orders as follows.
Plaintiff seeks attorney’s fees and costs after prevailing on his motion for default
judgment which included a claim under § 8-4-109 of the Colorado Wage Claim Act (“CWCA”).
On this record, the Court finds the requested relief may not be had.
While courts have discretion to award reasonable fees and costs to any employee who
recovers wages in an amount greater than the amount tendered by the employer, see Colo. Rev.
Stat. Ann. § 8–4–110(1), Plaintiff fails to discuss why the Court should award all of the fees and
costs requested when Plaintiff raised six claims for relief (ECF No. 36), moved for (and was
granted) default judgment on two of such claims, and the CWCA affords discretion to award fees

on only one of those claims. In other words, Plaintiff fails to show why the Court should award
fees and costs associated with any claim other than the one claim under the CWCA.
These facts bring the Court to another issue which it raises sua sponte. As stated,
Plaintiff moved for default judgment on two of his six claims. This means four claims remain.
Thus, while default judgment could enter on the two claims, final judgment should not have been
entered. See Fed. R. Civ. P. 54(b) (“When an action presents more than one claim for relief . . .
the court may direct entry of a final judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no just reason for delay.”); D&H
Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1444-45 (10th Cir. 1984)
(recognizing that although the order directed entry of default judgment against some defendants,
absent the entry of final judgment under Rule 54(b), the order was not final and not enforceable
by the prevailing party until the entire case was terminated). Plaintiff’s motion for default
judgment did not request a determination be made under Rule 54(b). And, further, Plaintiff has
not made any request—by motion or notice of dismissal under Rule 41—with respect to the
disposition of the four remaining claims. Accordingly, the Court finds the Default Judgment
should be vacated to reflect that final judgment will not be entered at this time. See Fed. R. Civ.
P. 60(a) (Court may sua sponte “correct a clerical mistake or a mistake arising from oversight or
omission whenever one is found in a judgment, order, or other part of the record.”) It is
therefore ORDERED
(1) That Plaintiff’s Motion for Attorney’s Fees and Costs (ECF No. 57) is DENIED
WITHOUT PREJUDICE;

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(2) That the Default Judgment (ECF No. 56) shall be VACATED and the Clerk shall
enter a new Default Judgment to reflect that final judgment shall not enter at this
time; and
(3) That the Clerk shall reopen this case.
DATED this 13th day of January, 2020.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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