Dairy America, Inc. v. New York Marine and General Insurance Company et al, No. 1:2007cv00537 - Document 117 (E.D. Cal. 2009)

Court Description: ORDER DENYING AS MOOT 115 Defendant's Motion for Entry of Partial Final Judgment and VACATING the October 27, 2009 Hearing on This Motion, signed by District Judge Lawrence J. O'Neill on 9/25/2009. (Jessen, A)

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Dairy America, Inc. v. New York Marine and General Insurance Company et al Doc. 117 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAIRY AMERICA, INC., 12 13 14 CASE NO. CV F 07-0537 LJO SMS Plaintiff, ORDER ON PLAINTIFF’S MOTION FOR ENTRY OF FINAL JUDGMENT (Doc. 115.) vs. NEW YORK MARINE AND GENERAL INSURANCE COMPANY, et. al, 15 Defendants. 16 / 17 This Court’s June 11, 2009 Summary Judgment Decision (“decision”) granted defendants New 18 York Marine and General Insurance Company (“NY Marine”) and Crump Insurance Services dba 19 Southern Marine & Aviation Underwriters, Inc. (“Southern Marine”) summary judgment on plaintiff 20 Dairy America, Inc.’s (“Dairy America’s”) breach of insurance contract claim. The decision directed 21 the clerk to enter judgment in favor of NY Marine and Southern Marine and against Dairy America. On 22 June 11, 2009, the clerk entered a judgment (“judgment”) “IN ACCORDANCE WITH THE 23 COURT’S ORDER OF 6/11/09.” (Uppercase and bold in original.) 24 On September 24, 2009, Dairy American filed its motion for entry of F.R.Civ.P. 54(b) final 25 judgment as to the decision. This Court surmises that Dairy America misconstrues the judgment as not 26 final since neither the decision nor judgment expressly indicated there was no just reason to delay entry 27 of judgment for appeal. See F.R.Civ.P. 54(b). To the extent there is any question, the judgment is final 28 under F.R.Civ.P. 54(b) as to Dairy America, NY Marine and Southern Marine because the decision 1 Dockets.Justia.com 1 disposed of all claims among those parties. Entry of the judgment itself indicated “there is no just reason 2 for delay” to enter judgment for appeal. As such, this Court DENIES as moot Dairy America’s motion 3 in that the June 11, 2009 judgment is final for F.R.Civ.P. 54(b) purposes and this Court found no just 4 reason to delay appeal of the judgment. This Court VACATES the October 27, 2009 hearing on Dairy 5 America’s motion for entry of final judgment, and NY Marine and Southern Marine need to respond to 6 Dairy America’s motion. 7 8 IT IS SO ORDERED. Dated: 66h44d September 25, 2009 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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