Civil No. 95-CV-037J
March 28, 1996.
William M McKellar, Boley McKellar, Cheyenne, WY, Glenn E Smith, Glenn E Smith Associates, Cheyenne, WY, for plaintiff.
Bradley T Cave, Holland Hart, Cheyenne, WY, Michael S Beaver, Jimmy Goh, Holland Hart, Denver, CO, for defendant.
VACATUR OF JUDGMENT AND ORDER DATED NOVEMBER 8, 1995, AND ORDER OF DISMISSAL WITH PREJUDICE
After considering the parties' cross-motions for summary judgment, this Court entered an Order and Judgment in favor of Plaintiff Sam J. Lindsey on November 8, 1995. Defendant Metropolitan Life Insurance Company subsequently filed a timely Notice of Appeal, Plaintiff filed a cross-appeal, and jurisdiction in the matter was assumed by the U.S. Court of Appeals for the Tenth Circuit. That Court ordered the parties to submit to non-binding mediation. After protracted negotiations, the parties reached an amicable resolution of their differences. The Tenth Circuit then conditionally dismissed the appeal, with an instruction that this Court should consider a request by the parties to vacate the Judgment and Order of November 8, 1995. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, ___ U.S. ___, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). The parties subsequently have submitted a joint motion to this effect.
The Court has considered the parties' Motion, the facts to which the parties stipulate, and the law controlling this issue. The Court finds that there are ample exceptional circumstances justifying vacatur as requested by the parties. See Rule 60(b)(5) and (6), Fed.R.Civ.P.; U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, supra; Motta v. District Director, I.N.S., 61 F.3d 117 (1st Cir. 1995); Alexander v. Perrill, 872 F. Supp. 722 (D.Ariz. 1995). The Court further finds that the equities presented by the parties weigh in favor of the requested vacatur. It is therefore
ORDERED, ADJUDGED, AND DECREED that the Court's previous Order and Judgment, dated November 8, 1995, be and hereby are VACATED. This matter is further DISMISSED with prejudice.