Opinion
Civil Action No. 10-cv-01964-WJM-KMT
04-24-2012
RALPH DIMEO, individually, DEBBY DIMEO, individually, and doing business as Alex Outdoors, and KINGOFTHEMOUNTAINONLINE, a New Jersey general partnership, Plaintiffs, v. KING OF THE MOUNTAIN, INC., a Wyoming corporation, Defendant, and ALEX DIMEO, Third-Party Defendant.
Judge William J. Martínez
ORDER DENYING MOTION TO ENFORCE JUDGMENT
This matter is before the Court on Plaintiffs' May 2, 2011 Motion for Enforcement of Order and Judgment (the "Motion"). (ECF No. 61.) Defendant has filed a Response to the Motion (ECF No. 64), and Plaintiffs have filed a Reply (ECF No. 65).
As background, on April 11, 2011, this Court entered an Order and Judgment incorporating the terms of the parties' settlement of this action. (ECF No. 57.) As part of the settlement, Defendant was required to pay Plaintiffs a total of $60,000, to be made in eleven monthly installments. (Id. ¶ 17.) On April 12, 2011, the Court dismissed the action with prejudice, subject only to the Court's continuing jurisdiction to enforce the terms of the Order and Judgment. (ECF No. 60.)
The basis for Plaintiffs' Motion was that Defendant had failed to make the first monthly installment payment in a timely manner. (ECF No. 61.) Plaintiffs argued that this constituted a breach of the settlement agreement entitling Defendant to an accelerated payment of the $60,000. (Id.) In response, Defendant argued that the late payment resulted from an innocent mistake of having insufficient funds in the account upon which the payment would be drawn, and that Defendant provided prompt payment upon learning of the mistake. (ECF No. 64.)
On April 17, 2012, more than two months after the last installment payment from Defendant to Plaintiffs was due, this Court ordered the parties to file status reports updating the Court regarding "Defendant's satisfaction (or lack thereof) of the Order and Judgment, and any other related and relevant matters." (ECF No. 66.) The Court required the parties to file their status reports on or before April 23, 2012.
On April 23, 2012, Defendant filed the required status report. (ECF No. 67.) To date, Plaintiffs have not filed the required status report. In Defendant's status report, Defendant represents that it has made all of the required monthly payments under the settlement agreement. (ECF No. 67.) These statements are verified under penalty of perjury by the President of Defendant. (Id.) Defendant has also provided documentary evidence establishing that the required payments have been made. (Id.)
Because Defendant has established that it has made all of its required payments under the parties' settlement agreement, and because Plaintiffs have violated this Court's order to file a status report updating the Court as to whether there was any further dispute between the parties, the Court hereby ORDERS that Plaintiffs' Motion for Enforcement of Order and Judgment (ECF No. 61) is DENIED.
BY THE COURT:
__________________
William J. Martínez
United States District Judge