International Marble & Granite of Colorado, Inc. v. Congress Financial Corp.

ORDER GRANTING DEFENDANT’S MOTION TO BE DECLARED PREVAILING PARTY AND FOR AWARD OF COSTS AND ATTORNEYS’ FEES [63]

I. INTRODUCTION

The Court previously heard and granted via minute order Defendant Congress Financial Corporation’s (“Defendant” or “Congress”) motion to dismiss the Second Amended Complaint (“SAC”) filed by Plaintiff International Marble & Granite of Colorado, Inc. (“Plaintiff’). The SAC was based on a loan agreement between Plaintiff and Defendant; Plaintiff essentially argued that Defendant wrongfully used its position of power over Plaintiff to drive Plaintiff out of business. Plaintiff was given leave to file a new complaint (“New Complaint”) within three (3) weeks. Rather than file a New Complaint, Plaintiff elected to voluntarily dismiss the action without prejudice.

On October 27, 2005, Defendant filed this motion to be declared the prevailing-party and to be awarded costs and fees. On November 15, 2005, the Court vacated the hearing on this matter and took it under submission. On January 9, 2006, the Court heard a motion in a separate case that involves these same two parties. During the pendency of that motion, the Court became aware of a Letter Agreement…