Opinion
CASE NO.: 3:12-cv-05132-MEJ
03-29-2013
LEHMAN BROTHERS HOLDINGS, INC. Plaintiff, v. MASON McDUFFIE MORTGAGE CORPORATION, Defendant.
FOSTER GRAHAM MILSTEIN & CALISHER, LLP Daniel K. Calisher David S. Canter Attorneys for Plaintiff Lehman Brothers Holdings, Inc.
Daniel K. Calisher (State Bar No. 181821)
calisher@fostergraham.com
David S. Canter (State Bar No. 144289)
dcanter@fostergraham. com
FOSTER GRAHAM MILSTEIN & CALISHER LLP
360 South Garfield Street, 6th Floor
Denver, Colorado 80209
Telephone: 303-333-9810
Facsimile: 303-333-9786
Attorneys for Plaintiff
LEHMAN BROTHERS HOLDINGS, INC.
AMENDED NOTICE OF SETTLEMENT AND REQUEST TO HOLD CASE IN
ABEYANCE OR OTHERWISE ADMINISTRATIVELY CLOSE ACTION
I. AMENDED NOTICE OF SETTLEMENT
PLEASE TAKE NOTICE that Plaintiff Lehman Brothers Holdings, Inc. ("Plaintiff") and Defendant Mason-McDuffie Mortgage Corporation ("Defendant") (collectively, the "Parties"), have reached a settlement of all claims asserted in the above-captioned action.
On February 15, 2013, Plaintiff filed its initial Notice of Settlement advising the Court a) a settlement had been reached; b) the Parties were in the process of reducing the settlement to writing; and c) the Parties anticipated filing a stipulation to dismiss the action pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii) within 45 days (i.e., by April 1, 2013).
Plaintiff hereby files this instant Amended Notice of Settlement and advises the Court as follows:
1. The Parties have executed a Settlement Agreement and Mutual Release ("Agreement") whereby Defendant agrees to perform pursuant to the terms of the Agreement over time.
2. Defendant has begun to perform pursuant to the terms of the Agreement.
3. Though it was originally anticipated that Defendant's performance under the Agreement would be completed by April 1, 2013, it now appears that Defendant's performance will not be completed until June 3, 2013.
4. The parties now anticipate that the stipulation to dismiss this action pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii) will occur by on or about June 14, 2013.
II. REQUEST TO HOLD CASE IN ABEYANCE OR OTHERWISE
ADMINISTRATIVELY CLOSE ACTION
Given the above, and in the interests of judicial economy, Plaintiff requests this Court hold the case in abeyance or otherwise administratively close this action through June 21, 2013, thereby affording the Parties sufficient time to a) complete the settlement of this action, and b) file the stipulation to dismiss this action.
Respectfully submitted this 20th day of March, 2013.
FOSTER GRAHAM MILSTEIN
& CALISHER, LLP
____________
Daniel K. Calisher
David S. Canter
Attorneys for Plaintiff
Lehman Brothers Holdings, Inc.
This case shall be held in abeyance until June 21, 2013. The parties shall either file a dismissal at that time or file a status report as to the status of the settlement of this action
IT IS SO ORDERED.
Judge Maria-Elena James
PROOF OF SERVICE
STATE OF COLORADO, CITY & COUNTY OF DENVER
I am employed in the aforesaid county, State of Colorado; I am over the age of 18 years old and not a party to the within action, my business address is 360 S. Garfield Street, 6th Floor, Denver, Colorado 80209.
On the below date, I served a copy of the AMENDED NOTICE OF SETTLEMENT AND REQUEST TO HOLD CASE IN ABEYANCE OR OTHERWISE ADMINISTRATIVELY CLOSE ACTION as follows:
James W. Brody
American Mortgage Law Group, P.C.
75 Rowland Way, Suite 350
Novato, California 94945
(BY MAIL)
I deposited such envelope in the mail at Denver, Colorado. The envelope was mailed with postage thereof fully prepaid.
I am readily familiar with the business practice of my place of employment in respect to the collection and processing of correspondence, pleadings and notices for mailing with the United States Postal Service. The foregoing sealed envelope was placed for collection and mailing this date consistent with the ordinary business practice of my place of employment, so that it will be picked up this date with postage thereon fully prepaid at Denver, Colorado, in the ordinary course of such business.
X (BY ELECTRONIC SERVICE VIA CM/ECF SYSTEM)
In accordance with the electronic filing procedures of this Court, service has been effected on the aforesaid party above, whose counsel of record is a registered participant of CM/ECF, via electronic service through the CM/ECF system
(BY ELECTRONIC MAIL)
On the below date prior to 5:00 p.m., PST, I transmitted the foregoing document(s) by electronic mail, and the transmission was reported as complete and without error. A true and correct copy of the electronic transmission is attached to this declaration. This method was made pursuant to the agreement of counsel.
(BY FACSIMILE)
One the below date, I transmitted the foregoing document(s) by facsimile sending number. Pursuant to Rule 2.306(3)(4), Icaused the machine to print a transmission record of the transmission.
(BY FEDERAL EXPRESS)
I am readily familiar with the business practice of my place of employment in respect to the collection and proceeding of correspondence, pleadings and notices for delivery by Federal Express. Under the practice it would be deposited with Federal Express on the same date with postage thereon fully prepared at Denver, Colorado in the ordinary course of business. I am aware that on motion of the party service, service is presumed invalid if delivery by Federal Express is more than one day after the date of deposit with Federal Express. Executed on the below date, at Denver, Colorado.
(BY PERSONAL SERVICE)
caused to be delivered such envelope by hand to the addressee noted above. Executed on the below date at Denver, Colorado.
X (FEDERAL)
I declare under penalty of perjury that the foregoing is true and correct, and that I am employed at the office of a member of the bar of this Court at whose direction the service was made.
Executed on March 20, 2013, at Denver, Colorado.
Daniel K. Calisher