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Millard Gutter Co. v. Metropolitan Property & Casualty Insurance Co.

United States District Court, D. Nebraska

February 12, 2019

MILLARD GUTTER COMPANY, a corporation; Plaintiff,
v.
METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge

         This matter is before the Court on the Motion to Amend Consent Judgment, ECF No. 14, filed by Plaintiff Millard Gutter Company (Millard). For the reasons stated below, the Motion will be denied.

         BACKGROUND

         Defendant Metropolitan Property & Casualty Insurance Company (“MetLife”) issued insurance policies to a number of homeowners and, following a storm in April 2013, several of the insured homeowners hired Millard to complete repairs on their damaged homes. Millard alleged that some of these homeowners assigned their rights to payments under their insurance policies to Millard, and Millard sued MetLife for payment in the District Court for Douglas County, Nebraska, on April 9, 2018. MetLife removed the case to this Court on September 7, 2018.

         On December 6, 2018, MetLife filed a Notice of Offer of Judgment, ECF No. 11, which provided:

[MetLife] makes an Offer of Judgment in amount of Forty-Five Thousand Dollars and 00/100 ($45, 000.00). This Offer will resolve any and all disputes concerning the scope and cost of repairs to any homes involved in this matter.
In addition, Claimant, Candice Novak, has not cashed several checks, a total of one hundred twenty-nine thousand, five hundred ninety-three dollars and 00/100 ($129, 593.00), issued by [MetLife] as payment for amounts that [MetLife] does not dispute are owed under her policy. If this Offer of Judgment is accepted, [MetLife] will re-issue payment in the amount of $129, 593.00. The payment will be made payable to Candice Novak and Millard Roofing & Gutter. This offer is condition [sic] upon Candice Novak executing an agreement that her claim is fully and finally resolved.
This Offer of Judgment is subject to all terms and conditions set forth in Fed.R.Civ.P. 68, including the term that this offer is automatically revoked if not accepted within 14 days.

         Six days later, on December 12, 2018, Millard filed a Notice of Acceptance of Offer of Judgment, ECF No. 12, which provided:

[Millard] hereby gives written notice of the acceptance of [MetLife's] Offer of Judgment dated the 6th day of December 2018 in the amount of $45, 000.00 in the form of Exhibit ‘A' attached hereto and incorporated herein by reference, together with the promised re-issue of payment in the amount of the $129, 593.00, for the referenced claim of Candice Novak. Attached hereto as Exhibit ‘B' is [Millard's] confirmation of authorization to accept the offer . . . .
Attached hereto as Exhibit ‘C' is the confirmation from Candice Novak that she makes no personal claim upon the funds retained by [Metlife].

         In the attached Exhibit C, Candice Novak stated, “this is direction to make payment in the amount $129, 593.00 directly to Millard Gutter Company.” ECF No. 12-3, Page ID 58. She also stated, “I do not wish to be included or named upon any reissued check[, ]” “I have assigned my claim[, ]” and “I claim no further dollar amounts owed[.]” Id.

         Accordingly, under Rule 68(a) of the Federal Rules of Civil Procedure, [1] the Clerk of Court entered Judgment “consistent with the parties' offer and acceptance.” Judgment, ECF No. 13.

         On January 10, 2019, however, Millard moved to amend the Judgment under Rule 59(e) because MetLife issued a check in the amount of $129, 593.00 to Candice Novak, Wells Fargo Bank, and Millard. ECF No. 14. MetLife has not yet made payment on the $45, 000 owed to Millard. Specifically, Millard asks the Court to amend the Judgment “to indicate expressly that a monetary Judgment in the principal amount of $45, 000.00 is entered against [MetLife], together with a Judgment that [Millard] is entitled to additional payment of $129.593.00 as of December 13, 2018.” ECF No. 14, Page ID 61. Millard also asks the Court to award its costs under Rule 54(d)(1). Millard did not separately file a ...


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