Free Motion to Alter Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

Document 129

Filed 12/26/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01160-LTB-CBS ISABELLE DerKEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP Defendants. ______________________________________________________________________________ PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT ______________________________________________________________________________ Plaintiff, by her attorneys, Dietze and Davis, P.C., respectfully moves this Court, pursuant to F.R.C.P. 59, for its Order altering or amending the Judgment entered December 11, 2006. As grounds for her motion, Plaintiff states: Pursuant to Local Rule 7.1, counsel for Plaintiff has conferred with counsel for Defendant on the substance of this motion. Defendant opposes the motion because it is filing a motion for posttrial relief. A. Pre-judgment interest on noneconomic damages. 1. The Judgment states that Plaintiff is awarded pre-judgment interest calculated at the

rate of 8% per annum. Plaintiff believes that pre-judgment on noneconomic damages for breach of fiduciary duty, a tort, should be calculated at 9% per annum pursuant to C.R.S. §13-21-101(1). Further, the statute requires that interest be calculated from the date the action accrued and that interest be compounded on the date the suit was filed and annually thereafter.

Case 1:04-cv-01160-LTB-CBS

Document 129

Filed 12/26/2006

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(1) In all actions brought to recover damages for personal injuries sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, ...... it is lawful for the plaintiff in the complaint to claim interest on the damages alleged from the date said suit is filed; and, on and after July 1, 1979, it is lawful for the plaintiff in the complaint to claim interest on the damages claimed from the date the action accrued. When such interest is so claimed, it is the duty of the court in entering judgment for the plaintiff in such action to add to the amount of damages assessed by the verdict of the jury, or found by the court, interest on such amount calculated at the rate of nine percent per annum on actions filed on or after July 1, 1975, ........, and calculated from the date such suit was filed to the date of satisfying the judgment and to include the same in said judgment as a part thereof. On actions filed on or after July 1, 1979, the calculation shall include compounding of interest annually from the date such suit was filed. ....... (emphasis added). 2. Plaintiff believes that "the action accrued" against Lionbridge no later than October

1, 2002. By that date, Lionbridge had told Plaintiff that it would not proceed with the green card application unless she accepted an immediate demotion. Further, the application had to be filed by that date - one year prior to the expiration of her H-1B Visa - in order for Plaintiff to stay in the country beyond October 1, 2003 while the application was pending. Lionbridge had breached its fiduciary duty by October 1, 2002. Plaintiff had begun to suffer some noneconomic damages during the preceding months, but by October 1, 2002 she was aware that she would have to resign her

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Case 1:04-cv-01160-LTB-CBS

Document 129

Filed 12/26/2006

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employment on October 1, 2003 and then leave the country. Also, in Fall 2002, Lionbridge put her on the Performance Improvement Plan, which threatened termination among other things. 3. 4. The suit was filed May 18, 2004. Plaintiff requests that the Judgment be amended to state:

IT IS FURTHER ORDERED that plaintiff is awarded pre-judgment interest on noneconomic damages calculated at the rate of 9% per annum from October 1, 2002 to December 7, 2006. The amount of interest shall be compounded on May 18, 2004, May 18, 2005, and May 18, 2006. B. Calculation of pre-judgment interest on economic damages. 1. Plaintiff agrees that pre-judgment interest on economic damages should be calculated

at 8% per annum, pursuant to C.R.S. §5-12-102. This statute requires that interest be compounded annually. 2. The Judgment states that pre-judgment interest is calculated from January 1, 2004,

"the date of Plaintiff's termination." Plaintiff was terminated October 1, 2003 (See Plaintiff's Exhibit 31). 3. Plaintiff requests that the Judgment be amended to state:

IT IS FURTHER ORDERED that plaintiff is awarded pre-judgment interest on economic damages calculated at the rate of 8% per annum, compounded annually, from October 1, 2003, the date of Plaintiff's termination, to December 7, 2006. WHEREFORE, Plaintiff respectfully requests that the Judgment of December 11, 2006 be amended in the manner requested above. Plaintiff requests such other and further relief as the Court deems just and proper.

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Case 1:04-cv-01160-LTB-CBS

Document 129

Filed 12/26/2006

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Dated this 26th day of December, 2006. Respectfully submitted, DIETZE and DAVIS, P.C. By: "s/ Joel C. Maguire" Joel C. Maguire Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected] Attorney for Plaintiff Isabelle DerKevorkian CERTIFICATE OF SERVICE I hereby certify that on December 26, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: John Edwin Bolmer, II [email protected] [email protected] [email protected] Dan S. Cross [email protected] [email protected] David Everett Leavenworth, Jr. [email protected] [email protected] [email protected] Michael James Hofmann [email protected] [email protected]

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Case 1:04-cv-01160-LTB-CBS

Document 129

Filed 12/26/2006

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David Bruce Wilson [email protected] [email protected] By: "s/ Susan J. Armour" Susan J. Armour, Legal Assistant Dietze and Davis, P.C. 2060 Broadway, Suite 400 Boulder, CO 80302 Telephone: (303) 447-1375 Fax: (303) 440-9036 Email: [email protected]

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