Free Judgment - District Court of Colorado - Colorado

Case 1:01-cv-00568-LTB-PAC

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Filed 06/01/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LEWIS T. BABCOCK, CHIEF JUDGE Civil Case No. 01-cv-00568-LTB-PAC CROSS COUNTRY LAND SERVICES, INC., a Texas corporation, Plaintiff, v. PB NETWORK SERVICES, INC., a Delaware corporation, PB TELECOMMUNICATIONS, INC., a Delaware corporation, LEVEL 3 COMMUNICATIONS, L.L.C., a Delaware limited liability company, KIEWIT NETWORK SERVICES, INC., a Delaware corporation, and KIEWIT CONSTRUCTION CO., a Delaware corporation, Defendants, and PB NETWORK SERVICES, INC., a Delaware corporation, and LEVEL 3 COMMUNICATIONS, L.L.C., a Delaware limited liability company, and KIEWIT NETWORK SERVICES, INC., a Delaware corporation, Third-Party Plaintiffs. _____________________________________________________________________ JUDGMENT _____________________________________________________________________ PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge on July 22, 2003, it is ORDERED that Cross-Claim Defendant Kiewit Network Services, Inc.' 12(b)(6) s motion to dismiss Cross-Claim Plaintiff Cross Country' Cross-Claim Number One is s granted. It is FURTHER ORDERED that Cross-Claim Defendant Kiewit Network Services, Inc.' 12(b)(6) motion to dismiss Cross-Claim Plaintiff Cross Country' Cross-Claim s s
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Number Thirteen is granted. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge on November 6, 2003, it is FURTHER ORDERED that Defendant PB Network Services, Inc.' motion for s partial summary judgment is granted only insofar as it seeks a determination that Cross Country' claim of economic duress cannot function as an affirmative claim to support s an award of money damages. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge, on December 22, 2003, it is FURTHER ORDERED that the Defendants PB Network Services, Inc. and Level 3 Communications, L.L.C.' motion to dismiss their claims against Cross Country Land s Services, Inc. for breach of contract on a third-party beneficiary theory is granted. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge, on December 26, 2003, it is FURTHER ORDERED that upon Defendant Cross Country Land Services, Inc.' s motion to dismiss its promissory estoppel claim against Defendant PB Network Services, Inc., the motion is granted and Cross Country Land Services, Inc.' s promissory estoppel claim against Defendant PB Network Services, Inc. is dismissed. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge, on May 24, 2004, it is FURTHER ORDERED that Plaintiff Cross Country Land Services' Claim for

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Relief No. 1, set forth in its pleading entitled " Cross Country' Third Amended s Cross-Claims,"tendered on July 1, 2003 and granted by Order dated July 3, 2003, is dismissed in part with prejudice to the extent that it asserts breach of the MOU by Defendant' failure to exercise good faith and fair dealing and it seeks " s contract concession"damages. It is FURTHER ORDERED that Plaintiff Cross Country Land Services, Inc.' claims s for Relief Nos. 2, 6, 9 and 10 set forth in its pleading entitled, " Cross Country' Third s Amended Cross-Claims,"are dismissed with prejudice. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge, on February 25, 2005, it is FURTHER ORDERED that Kiewit Network Services, Inc. and Kiewit Construction, Co.' Motion for Summary Judgment is granted on Cross Country Land s Services, Inc.' claim for constructive trust to the extent that Cross County Land s Services, Inc. seeks to impose a constructive trust against these parties for amounts representing the Case Credit, the Per Diem Expense Concession, the Computer Expense Concession, the Go-Forward Rate Concession and $633,985.94 of the Withheld Amount. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge on February 25, 2005, it is FURTHER ORDERED that Defendant Level 3 Communications, L.L.C.'s motion for summary judgment is granted on Cross Country Land Services, Inc.' claim for s

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constructive trust. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge on April 21, 2005, it is FURTHER ORDERED that in view of their election to affirm the PBNS-Cross Country Contract, Defendants' claim for breach of the PBNS-Cross Country MOU remains valid; and Defendants' claims for rights in stolen property, unjust enrichment, fraud, and constructive trust are dismissed. This matter came on for a bench trial before the Court on November 21, 2005, the Honorable Lewis T. Babcock, United States District Chief Judge, presiding. At the conclusion of the plaintiff' case, on November 28, 2005, plaintiff s confirmed standing on the concealment allegations in Paragraphs 31 and 32 and the misrepresentation allegation in Paragraph 45(d) of Cross Country Land Services, Inc.' s Third Amended Cross-Claims, and it is FURTHER ORDERED that any other claims of concealment with specific misrepresentations are considered abandoned. PURSUANT to and in accordance with the Findings of Fact, Conclusions of Law and Order entered on December 30, 2005, and the Order entered on April 14, 2006 by the Honorable Lewis T. Babcock, United States District Chief Judge, amending the Findings entered on December 30, 2005, it is FURTHER ORDERED that Judgment is entered in favor of Plaintiff Cross County Land Services, Inc. and against Defendant Kiewit Network Services, Inc. on its

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claim for constructive trust in the amount of $344,810.60. It is FURTHER ORDERED that Judgment is entered in favor of Defendant PB Network Services, Inc. and against Plaintiff Cross Country Land Services, Inc. on Plaintiff Cross Country Land Services, Inc.' claims for breach of the PBNS-Cross s Country MOU and for fraud and deceit; Judgment is entered in favor of Defendant Kiewit Network Services, Inc. and against Plaintiff Cross Country Land Services, Inc. on Plaintiff Cross Country Land Services, Inc.' claim for breach of contract; s Judgment is entered in favor of Defendant Kiewit Construction Co. and against Plaintiff Cross Country Land Services, Inc. on Plaintiff Cross Country Land Services, Inc.' claim for breach of contract; s Judgment is entered in favor of Plaintiff Cross Country Land Services, Inc. and against Defendant PB Network Services, Inc. on Defendant PB Network Services, Inc.' s claim for breach of the PBNS-Cross Country MOU; Judgment is entered in favor of Defendant Level 3 Communications, L.L.C. on its claim for breach of contract against Plaintiff Cross Country Land Services, Inc. PURSUANT TO and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge on May 9, 2006, it is FURTHER ORDERED that PB Network Services, Inc. and Level 3 Communications, L.L.C.'s Motion for Attorney Fees is granted. It is FURTHER ORDERED that Judgment is entered in favor of Defendant PB

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Network Services, Inc. and against Plaintiff Cross Country Land Services, Inc. for attorney fees in the amount of $781,886.50. It is FURTHER ORDERED that post-judgment interest shall accrue at the legal rate of 4.99% from date of entry of this Judgment. It is FURTHER ORDERED that Judgment is entered in favor of Defendant Level 3 Communications, L.L.C. and against Plaintiff Cross Country Land Services, Inc. for attorney fees in the amount of $117,557.91. It is FURTHER ORDERED that post-judgment interest shall accrue at the legal rate of 4.99% from date of entry of this Judgment. PURSUANT to and in accordance with the Order entered by the Honorable Lewis T. Babcock, United States District Chief Judge on May 30, 2006, it is FURTHER ORDERED that Plaintiff Cross Country Land Services, Inc.' motion s for prejudgment interest is granted. It is FURTHER ORDERED that Plaintiff Cross County Land Services, Inc. and Kiewit Network Services, Inc. are awarded pre-judgment interest on the constructive trust amount of $344,810.60 at the statutory rate of 8% per annum from May 2, 2003 through the date that Judgment enters. It is FURTHER ORDERED that post-judgment interest shall accrue at the legal rate of 4.99% from date of entry of this Judgment. It is FURTHER ORDERED that Defendants PB Network Services, Inc., PB Telecommunications, Inc., Level 3 Communications, Inc., and Kiewit Construction, Col.

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Case 1:01-cv-00568-LTB-PAC

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Are awarded costs as prevailing parties upon the filing of a Bill of Costs with the Clerk of Court within 10 days entry of Judgment. It is FURTHER ORDERED that neither Plaintiff Cross County Land Services, Inc. nor Defendant Kiewit Network Services, Inc. is awarded costs since neither is deemed to be a prevailing party with respect to the claims that Plaintiff Cross Country Land Services, Inc. asserted against Defendant Kiewit. Dated at Denver, Colorado, this 1st day of June, 2006.

APPROVED:

FOR THE COURT: GREGORY C. LANGHAM, CLERK

s/Lewis T. Babcock Lewis T. Babcock, Chief Judge United States District Court

By: s/Stephen P. Ehrlich Stephen P. Ehrlich, Chief Deputy Clerk

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