Fidelity & Deposit Company of Maryland v. Goran, LLC et al
Filing
180
ORDER AND MEMORANDUM DECISION granting 172 Motion to Amend/Correct 133 Memorandum Decision granting Plaintiff summary judgment on its first claim for relief for breach of contract. Signed by Judge Tena Campbell on 9/23/21 (alt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
FIDELITY & DEPOSIT COMPANY OF
MARYLAND, a Maryland corporation,
Plaintiff,
vs.
GORAN, LLC, a Utah limited liability
company; SCOTT CUSICK, an individual;
MARLISE CUSICK, an individual;
TODD CUSICK, an individual;
JENNIFER CUSICK, an individual;
MINER CREEK, LLC, a Utah limited
liability company; TJC FAMILY, LLC, a
Utah limited liability company;
CONSTRUCTION MATERIALS
COMPANY, LLC, a Utah limited liability
company; CMC ROCK, LLC, a Utah
limited liability company; WESTLAKE
MATERIALS, LLC, a Utah limited
liability company; and CMC
CONSTRUCTION, LLC, a Utah Limited
Liability Company,
ORDER AND
MEMORANDUM DECISION
Case No. 2:17-cv-00604-TC-JCB
District Judge Tena Campbell
Defendants and Third-Party
Plaintiffs,
vs.
WASATCH LEAVITT INSURANCE
AGENCY, INC., a Utah corporation f/k/a
ATKISON-LEAVITT INSURANCE
AGENCY, INC., an expired Utah corporation,
Third-Party Defendants.
On December 17, 2020, the court granted summary judgment in favor of Plaintiff Fidelity
& Deposit Company of Maryland (F&D) on F&D’s first cause of action—breach of contract
against Goran, LLC, Todd Cusick, Jennifer Cusick, and Todd Cusick’s other commercial entities
(collectively, the “Goran Defendants”). (ECF No. 133.) In April 2021, the court granted F&D’s
motion to amend the judgment to include costs and attorneys’ fees. (ECF No. 160.) Now F&D
moves the court to amend its judgment a second time to include prejudgment and postjudgment
interest. The Goran Defendants oppose F&D’s motion. For the reasons below, the court
GRANTS F&D’s motion (ECF No. 172).
Both sides are acquainted with the facts in this case. (See generally ECF No. 133.)
F&D’s motion paints a straightforward picture. F&D deserves prejudgment interest because “the
damage is complete, the amount of the loss is fixed as of a particular time, and the loss is
measurable by facts and figures.” AE, Inc. v. Goodyear Tire & Rubber Co., 576 F.3d 1050, 1055
(10th Cir. 2009) (citing Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 51,
210 P.3d 263, 272). It deserves postjudgment interest because 28 U.S.C. § 1961 mandates
interest “on any money judgment in a civil case recovered in a district court.” The Goran
Defendants muddy the waters. In their view, not only is F&D’s motion untimely, but F&D also
miscalculated the prejudgment interest at a much higher statutory rate than would be warranted.
F&D responds to the first argument by pointing to Federal Rule of Civil Procedure 54(b), which
allows the court to revise “any order . . . that adjudicates fewer than all the claims . . . at any
time” before a final judgment. And as for the second argument, F&D concedes that it is only
entitled to a 2.86% prejudgment interest rate, acknowledging the holding in USA Power, LLC v.
PacifiCorp, 2016 UT 20, ¶¶ 106–109, 372 P.3d 629, 669–70.
The court agrees with F&D. There has been no final judgment in this case—the court’s
December 17, 2020 order only granted summary judgment on F&D’s first cause of action, and
only against some of the Defendants. The court has since granted summary judgment on F&D’s
first cause of action against Marlise Cusick and given F&D leave to amend its complaint to
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eliminate its second cause of action against all Defendants and to eliminate all claims against Scott
Cusick.1 But until all of the claims against all of the parties are resolved, Rule 54(b) leaves open
the door to amend any of the court’s orders. After all, “district courts generally remain free to
reconsider their earlier interlocutory orders.” Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th
Cir. 2007); see also United States v. Loera, 182 F. Supp. 3d 1173, 1205–06 (D.N.M. 2016). There
are no time constraints preventing the court from reconsidering its order.
Contrary to the Goran Defendants’ claim, this is not a new motion for summary judgment
filed past the dispositive motion deadline. There are no merits involved, just math. Although it
is unclear why F&D did not request interest in its first motion to amend (ECF No. 134), F&D’s
complaint prayed for prejudgment interest. (Compl. at 12, ECF No. 2.) Besides the timeliness
and overcalculation arguments, the Goran Defendants do not contest the merits, so the court sees
no reason why F&D should not be entitled to the interest it seeks. F&D’s $799,709 award (plus
fees and costs) is fixed and measurable under Utah law, and postjudgment interest on “any
money judgment” is mandatory. Wheeler v. John Deere Co., 986 F.2d 413, 415 (10th Cir. 1993).
Accordingly,
IT IS ORDERED that F&D’s motion to amend the amended judgment (ECF No. 172) is
GRANTED. The judgment entered by the court on December 17, 2020, (ECF No. 133), is
hereby amended to include, in addition to the $799,709.00 award, $163,619.00 in attorneys’ fees,
and $9,797.36 in costs:
(a) Prejudgment interest through December 17, 2020, recalculated at the stipulated
2.86% rate, for the payments made to resolve the Warren Transport bond claim, to
resolve the Big Sky bond claim, and to pay F&D’s costs and fees;
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The court anticipates that F&D will do so expediently.
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(b) Postjudgment interest on the judgment amount, calculated at the rate established in
28 U.S.C. § 1961;
(c) any additional fees and costs incurred in resolving the remaining claims in the
lawsuit, to be established by affidavit; and
(d) any fees and costs incurred in the process of collecting the judgment from the Goran
Defendants.
IT IS FURTHER ORDERED that within fourteen days of the date of this order, F&D
file with the court an updated prejudgment interest calculation at the correct rate of 2.86%.
DATED this 23d day of September, 2021.
BY THE COURT:
TENA CAMPBELL
United States District Judge
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