Free Motion for Judgment - District Court of Colorado - Colorado

Case 1:01-cv-00413-JLK-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-CV-00413-JLK-BNB M.D. MARK, INC., Plaintiff, vs. KERR-McGEE CORPORATION and ORYX ENERGY COMPANY, Defendants. DEFENDANTS' UNOPPOSED MOTION FOR ENTRY OF A FINAL JUDGMENT AND TO STAY EXECUTION Defendants Kerr-McGee Corporation ("Kerr-McGee") and Oryx Energy Company ("Oryx") (collectively "Defendants") hereby submit their Unopposed Motion for Entry of a Final Judgment and to Stay Execution. In support of this unopposed motion, Defendants would respectfully show the Court as follows: INTRODUCTION Defendants are filing this motion because Defendants believe that ­ in light of this Court's January 18, 2008 order partially granting Mark's motion to amend the judgment ­ a final appealable judgment has not yet been entered in this case as required in order for Defendants to be able to pursue their appeal. Through this motion, Defendants are requesting that this Court enter an amended final judgment that incorporates this Court's January 18, 2008 rulings on the prejudgment interest issues. Those prejudgment interest rulings are significant substantive

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rulings that may roughly double the amount of this Court's prior $25 million judgment dated September 28, 2007. Defendants are requesting that the amended final judgment be set forth in a separate document as required by Rule 58 of the Federal Rules of Civil Procedure. In addition,

Defendants are asking that the amended final judgment specify the applicable prejudgment and post-judgment interest rates as well as the dates on which the accrual of prejudgment interest should begin and end, and also the date on which the accrual of post-judgment interest should begin. Finally, Defendants are seeking a stay of execution of judgment until 10 days after this Court's entry of an amended final judgment. By filing this motion, Defendants are not waiving (but rather are continuing to urge and assert) all arguments, objections, complaints, and contentions that they have previously made, including (without limitation) their arguments that no prejudgment interest is recoverable and that Texas law is controlling on the substantive issues in this case (including issues relating to prejudgment interest). Defendants have filed this motion to obtain the entry of a final appealable judgment without prejudice to any of their objections and arguments relating to that judgment. BACKGROUND On September 28, 2007, this Court entered a judgment awarding Plaintiff M.D. Mark, Inc. ("Mark") $25,266,381 in compensatory damages. The Court's judgment did not include any award of prejudgment interest. The judgment did include an award of post-judgment interest at the rate of 4.11%. Plaintiff Mark subsequently filed a motion to amend this Court's final judgment. In that motion to amend, Mark sought, among other things, to amend the judgment to include an award

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of prejudgment interest. Defendants filed a response opposing Mark's request for prejudgment interest. On January 18, 2008, this Court entered an order on post-trial motions in which the Court denied almost all of the parties' post-trial motions. However, with respect to Mark's motion to amend the judgment, this Court's order stated: "Plaintiff's `Motion to Amend the Judgment Pursuant to Fed. R. Civ. P. 59 (e)' (Doc 267) is . . . GRANTED as to the request for prejudgment interest." Thus, this Court granted Mark's request to amend the September 28, 2007 judgment by adding an award of prejudgment interest to that judgment. However, this Court has not yet entered an amended judgment containing the prejudgment interest award and prejudgment interest rulings made in its January 18, 2008 order. ARGUMENT A. This Court's Multi-Million Dollar Award of Prejudgment Interest Should Be Included in an Amended Judgment That Is a Separate Document.

Rule 58(a)(1) of the Federal Rules of Civil Procedure specifically provides that every "judgment and amended judgment must be set forth on a separate document." Rule 58 also provides that a "party may request that judgment be set forth on a separate document as required by Rule 58(a)(1)." Through this motion, Defendants are requesting that the rulings that this Court made in granting Mark's motion to amend the judgment be included in an amended judgment that is a separate document as specified in Rule 58. Unlike motions for attorneys' fees and motions for costs, motions seeking prejudgment interest are considered substantive motions that relate to the underlying merits of a case and thus affect the finality of a judgment. Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989). Where a timely motion to amend a judgment to include prejudgment interest has been filed, the

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underlying judgment is not considered final and appealable until the motion for prejudgment interest has been disposed of. Id. Although this Court has now ruled on Mark's request for prejudgment interest by partially granting Mark's motion to amend the judgment, the Court has not entered an amended judgment in a separate document as required by Rule 58. The absence of a separate amended judgment that includes all relief awarded to Mark impairs the finality and appealability of this Court's September 28, 2007 judgment. To assure that a final appealable order has been entered, Defendants respectfully request that an amended judgment be entered reflecting the rulings that this Court made on the prejudgment interest issues in its January 18, 2008 order. The entry of an amended judgment also is needed to specify the dates on which prejudgment interest will begin running and will stop running, and thus the date on which post-judgment interest will begin running, as well as the rate for prejudgment interest and the rate for post-judgment interest (in light of the entry of an amended judgment). B. The Amended Judgment Should Include Additional Details About the Court's Awards of Prejudgment and Post-Judgment Interest.

This Court's January 18, 2008 order did not specify the rate of prejudgment interest. However, if this Court maintains its ruling that Colorado law applies in this case (a ruling with which Defendants respectfully disagree), then Defendants assume that the prejudgment interest rate applied by the Court would be 8% compounded annually. Colo. Rev. Stat. § 5-12-102(1)(b). As specified in the original September 28, 2007 judgment, the post-judgment rate would be 4.11%. In this Circuit, where a judgment is amended to include an award of prejudgment interest, the prejudgment interest accrues up to the date of the original judgment. BancAmerica

Commercial Corp. v. Mosher Steel of Kansas, Inc., 103 F.3d 80, 81-82 (10th Cir. 1996). Post-

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judgment interest begins to accrue as of the date of the original judgment and runs until the judgment is paid. Id. Counsel for Defendants represent to this Court that they have conferred with counsel for Plaintiffs, and Plaintiffs do not oppose the inclusion of the following provisions in a new amended final judgment to be entered by this Court: · Prejudgment interest shall be awarded on the amount of $25,266,381 (the amount of actual damages that this Court has determined should be awarded) at the rate of 8% compounded annually from February 1, 1999 through September 27, 2007 (the date of the original final judgment entered in this case), for a total prejudgment interest award of $23,949,712.68. These amounts are exclusive of costs. · Post-judgment interest shall accrue on the total amount of the amended final judgment at the rate of 4.11% from September 28, 2007 (the date of the original final judgment) until paid. 1

All parties continue to assert all objections that they have previously asserted to the $25,266,381 damages award and to the award of prejudgment interest. The parties are only agreeing to (1) the rate for post-judgment interest and (2) the date upon which prejudgment interest will stop accruing and post-judgment interest will start accruing. The parties are not agreeing to the start date for prejudgment interest or to the rate for prejudgment interest, but recognize that this Court already has ruled on those matters. Nor are the parties agreeing that Colorado law governs the award of prejudgment interest. The parties also are not agreeing that any prejudgment interest is recoverable at all. With respect to dollar amounts, the parties are agreeing to the calculation only, that is, to the calculation that $23,949,712.68 would be the amount of prejudgment interest on $25,266,381 calculated at the rate of 8% compounded annually from February 1, 1999 through September 27, 2007. 5

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C.

Execution Should be Stayed Until 10 Days After the Entry of an Amended Judgment.

Further, Defendants request that this Court stay any execution until 10 days after this Court enters an amended judgment. Defendants intend to file a supersedeas bond promptly after the interest issues have been determined by this Court and an amended judgment has been entered. CONCLUSION AND REQUEST FOR RELIEF In sum, an amended judgment is needed (1) to assure that the judgment is final and appealable, (2) to comply with the "separate document" requirement of Rule 58, (3) to reflect the amendment of the judgment ordered by this Court in its order on post-judgment motions dated January 18, 2008, and (4) to clarify the applicable prejudgment and post-judgment interest rates and dates of accrual. As noted, Plaintiffs do not oppose the relief requested in this Motion. For the foregoing reasons, Defendants respectfully request that this Court: (1) enter a separate amended judgment reflecting the rulings of the Court concerning prejudgment interest, (2) specify the rates and dates of accrual of prejudgment and post-judgment interest, and (3) stay any execution until 10 days after the entry of an amended judgment. Defendants also request such other and further relief to which they may be entitled.

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Respectfully submitted,

s/M. Antonio Gallegos_______ Scott S. Barker Gregory E. Goldberg M. Antonio Gallegos HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Post Office Box 8749 Denver, Colorado 80201-8749 Phone: (303) 295-8513 Fax: (303) 975-5416 [email protected] [email protected] [email protected] Marie R. Yeates Vinson & Elkins LLP 1001 Fannin Street, Suite 2500 Houston, Texas 77002-6760 Phone: 713.758.4576 Fax: 713.615.5544 [email protected] ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF CONFERENCE The undersigned counsel hereby certifies that that she conferred with Harlan P. Pelz, counsel for Plaintiff, and was informed that Plaintiff does not oppose the granting of the relief requested in this Motion. s/Marie R. Yeates_______

CERTIFICATE OF SERVICE I hereby certify that, on January 29, 2008, I electronically filed the foregoing document with the Clerk of Court using CM/ECF system which will serve such filing by e-mail to: Harlan P. Pelz Daniele W. Bonifazi Pelz, Bonifazi & Inderwish [email protected] [email protected]

s/Randi L. Dixon_______

Houston 3503354v1
3823474_1.DOC

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