United States District Court, D. Colorado
AURARIA STUDENT HOUSING AT THE REGENCY, LLC, a Colorado limited liability company, Plaintiff,
CAMPUS VILLAGE APARTMENTS, LLC, a Delaware limited liability company, Defendant.
ORDER GRANTING MOTION TO VACATE ATTORNEYS' FEE
William J. Martínez United States District Judge.
matter is before the Court's on the Defendant's
“Unopposed Fed.R.Civ.P. 60(b)(5) Motion to Vacate the
Attorneys' Fee Judgment [Docket # 312].” (ECF No.
322 (“Defendant's Motion”).)
considered the motion, the Court FINDS and ORDERS as follows:
February 3, 2015, an amended merits judgment was entered
against Defendant, Campus Village Apartments, LLC
(“Campus Village”). (ECF No. 260.) On September
24, 2015, Campus Village's Rule 50 motions were denied.
(ECF No. 286.)
Campus Village appealed the amended judgment and the order on
the Rule 50 motions to the United States Court of Appeals for
the Tenth Circuit. (See ECF No. 287 (Notice of
Plaintiff subsequently moved for an award of its fees and
costs under the Clayton Act, 15 U.S.C. § 15(a).
(See ECF No. 302.)
August 5, 2016, the Court issued an Opinion and Order on the
motion for fees and costs, granting the motion in part and
denying it in part. (ECF No. 311.)
August 8, 2016, the Court entered a judgment (the “Fee
Judgment”) awarding certain fees and costs to the
Plaintiff. (ECF No. 312.)
December 15, 2016, the Court of Appeals vacated the merits
judgment. See Auraria Student Housing at the Regency, LLC
v. Campus Village Apartments, LLC, -- F.3d --, 2016 WL
7260600 (10th Cir. 2016). (See also ECF Nos. 313,
Tenth Circuit's mandate issued on January 6, 2017.
(See ECF No. 317.)
Under Rule 60(b)(5) of the Federal Rules of Civil Procedure,
the Court may vacate a judgment if that judgment “is
based on an earlier judgment that has been reversed or
vacated[.]” See Fed. R. Civ. P. 60(b)(5)
a fee judgment was based upon a merits judgment that is later
vacated, the fee judgment is also properly vacated under Rule
60(b)(5). See Flowers v. So. Regional Phys. Svcs.,
Inc., 286 F.3d 798, 801 (5th Cir. 2002); Cal. Med.
Ass'n v. Shalala, 207 F.3d 575, 577-78 (9th Cir.
2000) (“Since the fee award is based on the merits
judgment, reversal of the merits removes the underpinnings of
the fee award.”); Mother Goose Nursery Schools,
Inc. v. Sendak, 770 F.2d 668, 675-676 (7th Cir. 1985)
(losing party at district court is not “forced into the
ludicrous position of appealing fee awards they might
otherwise choose not to challenge in order not to be faced
with a fee award . . . if the underlying action is
reversed”); RMA Ventures California v.
SunAmerica Life Ins. Co., 576 F.3d 1070, 1976
(10th Cir. 2009) (Lucero, J., concurring) (“If we were
to reach the merits and reverse the district court's
decision, however, there is little doubt that RMA would be
entitled to relief from the subsidiary attorneys' fee
judgment.”); 12-60 Joseph T. McLaughlin, et al.,
Moore's Federal Practice - Civil § 60.46
(2016) (“Rule 60(b)(5) authorizes a district court to
grant relief from an attorney's fee award if the
underlying merits judgment that was the basis for the fee
award is vacated on appeal.”).
Rule 60 requires that motions to vacate be made “within
a reasonable time[.]” See Fed. R. Civ. P.
60(c)(1). Here, Defendant made its motion shortly (less than
two weeks) after the Tenth Circuit's mandate vacating the
merits judgment was filed with the Clerk of Court.
(See ECF No. 317.) The Court finds the motion was
made within a reasonable time. See Cal. Med., 207
F.3d at 579; Ass'n for Retarded Citizens of
Connecticut, Inc. v. Thorne, 68 F.3d 547, 553 (2d ...