Page:Olcott v. Delaware Flood Co.pdf/10

 The pre-trial order states that jurisdiction is predicated on the claims Defendants allege the court dismissed: "Jurisdiction is predicated upon the May 5, 1997 Order of [the Court], wherein this Court ruled that this Court would retain jurisdiction over Plaintiff's pendant state claims." The order also notes: "Although Mr. Olcott would be willing to accept a final default judgment for the amount of his investment plus pre-judgment interest less his actual return on investment, he has consented to forego his breach of contract and fraud claims . . . ." (emphasis in the original).

In transcripts of hearings, the court also repeatedly notes that Plaintiff's claims were "merged" into the default rather than dismissed. At a January 1998 conference, the court specifically ruled that Plaintiff's remaining claims had merged into the default judgment: "I further find and order that the contract claims of Plaintiff merged into the 1.9 million dollar judgment entered by this court." During the August 10, 2000 pretrial conference, at which the parties reviewed the pretrial order in question, the district court repeatedly reaffirmed the merger of Plaintiff's breach of contract and fraud claims into the sanction judgment: "This is not a contract case. The contract case and the fraud case into the Court's $1.9 million judgment."

At the set-off hearing, the district court instructed counsel that Plaintiff's fraud claims would be addressed, if necessary, following the court's resolution of the default judgment proceedings. Finally, in its June 6, 2001 judgment order, the court stated:

"On remand [from the appellate court] this Court granted summary judgment on a number of claims and held that the remaining claims into the $1.9 million default judgment award entered in 1990." -10-