Free Response to Motion - District Court of Colorado - Colorado

Case 1:01-cv-01807-MSK-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-1807-MSK-MJW BANK ONE, COLORADO, N.A., BANK ONE TRUST COMPANY, N.A. as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Plaintiffs, v. BOULDER CLEANERS, INC., C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, JOHNNY ON THE SPOT, INC., Defendants.

BOULDER CLEANERS, INC., and JOHN'S CLEANERS, INC. Cross-Plaintiffs, v. C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Cross-Defendant.

C.V.Y. CORPORATION, d/b/a Your Valet Cleaners, Counterclaimant, v. BANK ONE, COLORADO, N.A., BANK ONE TRUST COMPANY, N.A. as Trustee of the Dora Lucille Jamison Trust and the Jamison Family Trust, Counterclaim Defendants.

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PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION OF THE COURT'S MARCH 31, 2004 AND MARCH 23, 2007 ORDERS

Plaintiffs Bank One, Colorado, N.A. and Bank One Trust Company, N.A. (collectively, "Plaintiffs"), respectfully submit their Response in Opposition to the Motion of Defendants C.V.Y. Corporation, d/b/a Your Valet Cleaners, and Johnny on the Spot, Inc. (collectively, "Defendants"), entitled "Motion for Reconsideration of Prior Orders (Nos. 381 and 458) Based on Recent U.S. Supreme Court Authority." For the reasons set forth below, the Motion should be denied in its entirety. 1. With less than 8 weeks remaining before trial, Defendants ask the Court to allow

them to assert a new counterclaim for contribution under CERCLA section 113, 42 U.S.C. § 113(f)(1), and to resurrect their counterclaim for contractual indemnification, which the Court dismissed over three years ago. Defendants' Motion, styled as a motion for reconsideration, seeks the identical relief they requested almost exactly a year ago (and the Court denied) in a pair of motions entitled (1) "Motion For Leave to Assert Counterclaim For CERCLA 42 U.S.C. § 9613 Contribution Against Plaintiffs" (#437) and (2) "Motion for Reconsideration of the Court's Order Granting Summary Judgment on Counterclaims Asserted by Defendant C.V.Y. Corporation." (#438). Defendants' repetitive motion for reconsideration should be denied, again. 2. It is inappropriate to file a motion for reconsideration merely "to revisit issues

already addressed or advance arguments that could have been raised in prior briefing." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Bartholic v. Scripto-Tokai Corp.,

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140 F. Supp. 2d 1098, 1124 (D. Colo. 2000) ("A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed."); Shields v. Shetler, 120 F.R.D. 123, 126 (D. Colo. 1988) ("A motion for reconsideration is not a license for a losing party's attorney to get a `second bite at the apple' by using a word processor to move around the paragraphs from a previously submitted brief, and file a retread of the old brief disguised as a motion for reconsideration."). 3. The purported basis for another motion for reconsideration is the Supreme Court's

decision in United States v. Atlantic Research Corp., 551 U.S. ----, 127 S.Ct. 2331 (2007). Primarily, it must be noted that Atlantic Research is a CERCLA case; therefore, it has absolutely no bearing on Defendants' request to reinstate their contract claim. Indeed, it is difficult to conceive how the Atlantic Research case helps Defendants at all. Atlantic Research holds that a party who has incurred CERCLA response costs can sue for cost recovery even if the claimant is a potentially responsible party or "PRP." Id. at 2334. Therefore, it appears that the main effect of Atlantic Research is to eliminate Defendants' long-standing argument that Bank One, N.A. is a PRP, and therefore cannot assert a section 107 claim. 4. Another puzzling aspect of Defendants' motion is their request to assert a

CERCLA section 113 contribution counterclaim against Bank One Trust Company, N.A., as well as Bank One, N.A. Mot. at 1. Defendants' entire argument centers on the potential recovery of joint and several liability on Plaintiffs' CERCLA section 107 claim. But Bank One Trust Company does not, and has never, asserted a CERCLA section 107 claim. See, e.g., Pretrial Order at 12. Therefore, Defendants provide no basis whatever for their request to assert a CERCLA counterclaim against Bank One Trust. 3

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5.

Turning to the substance of Defendants' arguments, because Bank One has always

asserted a section 107 claim against Defendants in this case, Defendants were free in their response to Plaintiffs' original complaint ­ and at all times since, before or after Atlantic Research ­ to assert a counterclaim for contribution under section 113. Although the law of CERCLA has changed in that time, joint and several liability has been recognized as a consequence of a section 107 claim since well before the time of the original complaint in this case. See, e.g., Sun Co., Inc. (R&M) v. Browning-Ferris, Inc., 124 F.3d 1187, 1190 (10th Cir. 1997) ("PRPs' liability in cost recovery actions under § 107 is strict, joint and several."); United States v. Colo. & E. R.R., 50 F.3d 1530, 1535 (10th Cir. 1995) ("It is also well settled that § 107 imposes joint and several liability on PRPs regardless of fault."); State of Colo. v. Idarado Min. Co., 916 F.2d 1486, 1489 (10th Cir. 1990) ("Liability [under section 107] among responsible parties is joint and several."). And nothing in Atlantic Research purports to change this law; in fact, the Supreme Court explicitly refrained from ruling on the joint-and-several liability issue. Id. at 2339 n.7. 6. More importantly, however, this Court has made it clear ­ on a number of

occasions ­ that it will not hold Defendants responsible for more than their fair share of the costs of cleanup in this case. The Court reaffirmed that ruling in March of this year. Doc. #458 at 5 ("[T]his Court has repeatedly ruled that . . . CVY/JOS cannot be liable for more than its share of fault ­ not just in the context of Bank One's contribution claim, but also in the context of disposing of CVY's counterclaim for indemnification against Bank One. This ruling stands."). And the Court reiterated its ruling as recently as the Pretrial Conference on May 24.

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7.

Although both sides have had their share of disagreement with the Court's ruling,

Plaintiffs see little to be gained by repetitive motions for reconsideration. In fact, courts in this district have found it sanctionable to file such a repetitious motion. See Shields, 120 F.R.D. at 126 (denying motion for reconsideration and sanctioning party and his counsel for filing it). This Motion unreasonably and vexatiously multiplies the proceedings in this case, both for the Court, who now must decide these issues for the umpteenth time, and for Plaintiffs, who now must brief this issue yet again when they need to be preparing for trial. See 28 U.S.C. § 1927. This Motion also needlessly increases the cost of this litigation for Plaintiffs. See Fed. R. Civ. P. 11(b). 8. Defendants argue that it is not their "intention to delay the trial date" and that

granting their Motion and adding two additional counterclaims will "not require additional discovery or preparation by counsel." This is not so. At a minimum, two additional claims would require substantial amendment to the 250-plus-page Pretrial Order, which, the Court may recall was not an easy process to finalize. Such an undertaking would be an unnecessary distraction in the final weeks before trial. Moreover, two additional claims would unnecessarily complicate the trial and either prolong it or cut into the parties' limited trial time. This six-yearold case is now ready for trial. The time for adding new claims and moving to reconsider the Court's legal rulings is long past.1 See Doc. #458 at 6 ("[T]here is no justification for reconsideration of the 3-year old summary judgment ruling, nor to further complicate this longstanding controversy by amendment of the pleadings at this time.").

By submitting lengthy proposed jury instructions and verdict forms on Plaintiffs' CERCLA and RCRA claims, Defendants also appear to be requesting reconsideration of the Court's three-year-old ruling denying their motion for an advisory jury on these claims. See Doc. #312, Doc. #390.
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9.

For the foregoing reasons and upon the foregoing authorities, the Court should

deny Defendants' Motion and grant such other and further relief in favor of Plaintiffs and against Defendants as the Court deems just and proper. July 11, 2007. Respectfully submitted, DAVIS GRAHAM & STUBBS LLP

s/ Jonathan W. Rauchway Laura J. Riese Jonathan W. Rauchway 1550 Seventeenth Street, Suite 500 Denver, Colorado 80202 Telephone: (303) 892-9400 Facsimile: (303) 893-1379 E-mail: [email protected] Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on July 11, 2007, I electronically filed the foregoing PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION OF THE COURT'S MARCH 31, 2004 AND MARCH 23, 2007 ORDERS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: C. Michael Montgomery, Esq. Max K. Jones, Jr. Esq. Montgomery, Kolodny, Amatuzio & Dusbabek LLP 1775 Sherman Street, 21st Floor Denver, Colorado 80203 Scott Jurdem, Esq. Buchanan, Jurdem & Cederberg, P.C. 1621 18th Street, Suite 260 Denver, Colorado 80202

s/ Judy Terranova

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