Free Motion to Vacate - District Court of Colorado - Colorado


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Date: December 6, 2005
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State: Colorado
Category: District Court of Colorado
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Case 1:04-cv-01258-LTB-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-cv-1258-LTB-BNB STUDENT MARKETING GROUP, INC., Plaintiff, v. COLLEGE PARTNERSHIP, INC., f/k/a COLLEGE BOUND STUDENT ALLIANCE, INC., Defendant. STUDENT MARKETING GROUP, INC.'S UNOPPOSED MOTION TO VACATE STAY

Student Marketing Group, Inc. ("SMG"), by and through its counsel, hereby files the following Unopposed Motion to Vacate Stay. Certificate of Compliance Under the terms of the Settlement Agreement and Mutual Release entered into by the parties on November 21, 2005 ("Settlement Agreement"), Defendant, College Partnership, Inc. ("CPI"), agreed not to oppose SMG's Motion to Vacate Stay in the event of CPI's default on its payment obligations. Accordingly, Pursuant to Local Rule 7.1, CPI does not oppose this Motion. Motion 1. SMG commenced this action against CPI on June 18, 2004 alleging, among other

things, claims for breach of contract against CPI for CPI's failure to pay SMG pursuant to the terms of the contractual relationship between the parties. 2. CPI filed counterclaims against SMG alleging damages in excess of $1.5 Million.

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3.

On August 22, 2005, the Court granted summary judgment to SMG on all claims,

finding that CPI breached the Agreement and that: "SMG is entitled to damages of $127,462.59 plus costs and expenses, including attorney fees." 4. 5. On September 2, 2005, SMG filed a Motion for Approval and Award of Fees. After various submissions from both parties, the parties negotiated a settlement of

all remaining claims, including CPI's obligation to reimburse SMG for its attorneys' fees in this matter. That settlement eventually was memorialized in the Settlement Agreement, a copy of which is attached hereto as Exhibit 1. 6. In light of the settlement discussions between the parties, on October 28, 2005,

this Court entered a Minute Order vacating the status/scheduling hearing previously set for November 3, 2005. The Minute Order also held in abeyance Plaintiff's Motion for Approval and Award of Fees filed September 2, 2005 and stayed the matter until December 15, 2005 at which time the parties were directed to file a status report with the Court. 7. CPI already paid SMG $133,389.98 which represents the original judgment, plus

interest and certain costs. The only outstanding issue is the amount of SMG's attorneys' fees award against CPI. Pursuant to the terms of the Settlement Agreement, SMG compromised its claims for attorney fees and CPI was to make three payments to SMG totaling $167,200, the first of which was due on December 1, 2005 in the amount of $75,000. 8. CPI failed to make this first payment of $75,000 to SMG. CPI has not advised

whether or when it will honor its payment obligations to SMG. 9. As set forth in the Settlement Agreement, default on this payment obligation

entitles SMG to file a motion to vacate stay seeking the Court to rule on SMG's pending Motion for Attorney Fees:

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In the event that CPI fails to timely make the $75,000 payment due on December 1, 2005 or the $75,000 payment due on December 15, 2005, SMG may request the District Court immediately vacate the stay entered by the District Court's order dated October 28 2005 and to rule as soon as practicable upon SMG's pending motion for attorneys' fees upon receipt of CPI's Sur-Reply within five (5) business days; CPI will not oppose the motion to vacate stay. Settlement Agreement, pp. 2-3, ΒΆ 2. 10. In light of CPI's default of its payment obligations under the Settlement

Agreement, SMG now respectfully requests the Court to vacate the stay, order CPI to file its SurReply to SMG's Motion for Approval and Award of Fees within five (5) business days, and make a ruling, as soon as practicable, upon SMG's Motion for Approval and Award of Fees. WHEREFORE, SMG respectfully requests this Court to enter an Order, in the form of the Order attached hereto, vacating the October 28, 2005 stay and ordering CPI to file its SurReply to SMG's Motion for Approval and Award of Fees within five (5) business days. Dated: December 6, 2005 Respectfully submitted: s/R. Daniel Scheid ______________ LEWIS SCHEID LLC R. Daniel Scheid River Point Building 2300 Fifteenth Street, Suite 320 Denver, CO 80202 Telephone: (303) 534-5040 Facsimile: (303) 534-5039 KIRKPATRICK & LOCKHART NICHOLSON GRAHAM LLP Patrick J. McElhinny, Esquire Dianna S. Karg, Esquire 535 Smithfield Street Pittsburgh, PA 15222 Telephone: (412) 355-6500 Facsimile: (412) 355-6501 Counsel for Plaintiff, Student Marketing Group, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of December, 2005, I electronically filed the foregoing UNOPPOSED MOTION TO VACATE STAY with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Rosemary Orsini, Esquire Brian Matise, Esquire BURG, SIMPSON, ELDREDGE, HERSH, JARDINE, P.C. [email protected] [email protected]

s/Diane L. Weber