Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01160-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-B-1160 (CBS) ISABELLE Der KEVORKIAN, Plaintiff, v. LIONBRIDGE TECHNOLOGIES, INC., d/b/a LIONBRIDGE US, INC., SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP, Defendants. ______________________________________________________________________________ RESPONSE TO "PLAINTIFF'S MOTION FOR NEW TRIAL OR TO ALTER OR AMEND JUDGMENT REGARDING SUMMARY JUDGMENT DISMISSING FIFTH CLAIM FOR RELIEF AGAINST ROSS DEFENDANTS" ______________________________________________________________________________ Defendants Sharryn E. Ross and Ross, Martel & Silverman, LLP (hereafter "Ross") submit the following response to "Plaintiff's Motion for New Trial or to Alter or Amend Judgment Regarding Summary Judgment Dismissing Fifth Claim for Relief Against Ross Defendants" (hereafter the "Motion for Reconsideration"). 1. A motion to reconsider an order granting summary judgment is properly brought

under Rule 59(e), F.R.C.P., as a motion to alter or amend the judgment. All West Pet Supply Co. v. Hill's Pet Products Division, 847 F.Supp. 858, 860 (D. Kansas 1994) (hereafter "All West"). Any motion that calls into question the correctness of a judgment is a motion to alter or amend under Rule 59(e), whatever its label. Norman v. Arkansas Dept. of Education, 79 F.3d 748, 750 (8th Cir. 1996); Quartana v. Utterback, 789 F.2d 1297, 1300 (8th Cir. 1996). Here, plaintiff has properly brought her motion under Rule 59 but has improperly included a request for new trial in the title. Because no trial was held, a new trial is not the appropriate relief. Rather, because

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plaintiff challenges the correctness of summary judgment, the only relief she may seek is an order altering or amending the judgment under Rule 59(e). 2. Rule 59(e) serves the narrow purpose of allowing a party to correct manifest

errors of law or fact or to present newly discovered evidence. Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004); Domenech v. Perez, 254 F.Supp.2d 232, 234 (D.P.R. 2003). A motion under Rule 59(e) must, therefore, either establish a manifest error of law or fact, demonstrate an intervening change of law, or present newly discovered evidence. All West, supra, 847 F.Supp. at 860; FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986); Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994); Rivera v. Doctor Susoni Hospital, Inc., 323 F.Supp.2d 262, 265 (D.P.R. 2004). 3. Reconsideration of a prior judgment is an extraordinary remedy to be employed

sparingly. Templet, supra, 367 F.3d at 479; Sussman, supra, 153 F.R.D. at 694. The party filing a motion under Rule 59(e) must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Sussman, supra, 153 F.R.D. at 694. Reconsideration will be denied unless the moving party can point to controlling decisions or data that the court overlooked and which might reasonably be expected to alter the conclusion reached by the court. Schrader v. CSX Transportation, Inc., 70 F.3d 255, 257 (2d Cir. 1995); Rivera, supra, 323 F.Supp.2d 262, 265. A party's failure to present his strongest case in the first instance does not entitle him to a second chance in the form of a motion for reconsideration. All West, supra, 847 F.Supp. at 860. Nor may a motion to reconsider be used as a vehicle for the losing party to rehash arguments previously considered and rejected by the court. Id.; Rivera, supra, 323 F.Supp.2d at 266; Domenech, supra, 254 F.Supp.2d at 234.

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4.

Plaintiff here fails to articulate, let alone make an effort to satisfy, the high

standards for relief under Rule 59(e). Plaintiff identifies no newly discovered evidence and no intervening change in the law. Nor does plaintiff argue that the Court committed a manifest error of law or fact when entering summary judgment for Ross. Rather, plaintiff merely presents arguments which were already "discussed, considered and denied by this Court". Rivera, supra, 323 F.Supp.2d at 266. denied. 5. Although plaintiff argues that the Court committed four errors when entering Accordingly, the Motion for Reconsideration should be summarily

summary judgment for Ross (see Motion for Reconsideration at ¶ 2), plaintiff's arguments coalesce around two propositions: (1) that the Court failed to consider the original answer given by Sharryn Ross to a question asked at her deposition; and (2) that the Court erred in holding that the creation of an attorney-client relation requires mutual consent (i.e., consent from both the attorney and the client). The first proposition is contradicted by the record, and the second is contrary to law. 6. When entering summary judgment for Ross, the Court expressly considered her (Order at p.21) The Court also

original answer to the question asked at her deposition.

recognized that Ross clarified her original answer when submitting the "Statement of Changes" to her deposition, as allowed by Rule 30(e), F.R.C.P. (Id. at pp.21-22) The Court considered and rejected plaintiff's argument that Ross' original answer raised an issue of fact regarding the formation of an attorney-client relation. Plaintiff simply disagrees with the Court's resolution of this issue and re-argues a point the Court already rejected. 7. Regarding her second proposition, plaintiff asserts that the Court "misapplied

Colorado law relating to the requirements for the formation of an attorney-client relation" and

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"mistakenly held that the attorney-client relation requires a showing that the client sought and/or received legal advice from the attorney". (Motion for Reconsideration at ¶¶ 2.b and 2.d) It is plaintiff's position that an attorney-client relation could be formed between Ross and plaintiff, even if plaintiff did not know that Ross was acting as her attorney. (Motion to Reconsider at pp.4, 6). In making these assertions, it is plaintiff who errs. 8. The attorney-client relation is contractual, and may be formed expressly or Schmidt v. Frankewich, 819 P.2d 1074, 1077

implicitly by the conduct of the parties.

(Colo.App. 1991); Klancke v. Smith, 829 P.2d 464, 466 (Colo.App. 1991); People v. Razatos, 636 P.2d 666, 671 (Colo. 1981). Whether formed expressly or implicitly, the parties to this relation must agree upon all essential terms. Schmidt, supra, 819 P.2d at 1077; International Tele-Marine Corp. v. Malone & Associates, Inc., 845 F.Supp. 1427, 1432 (D.Colo. 1994); Hoiles v. Alioto, 345 F.Supp.2d 1178, 1186 (D.Colo. 2004). If the parties did not agree to all essential terms of the proposed relation, there was no meeting of the minds and hence no contract. Schmidt, supra, 819 P.2d at 1077. Further, to demonstrate the existence of an implied attorneyclient relation based upon the conduct of the parties, the purported client must show that she sought and received legal advice from the attorney. Klancke, supra, 829 P.2d at 466; Turkey Creek LLC v Rosania, 953 P.2d 1306, 1311 (Colo.App. 1998). This is a logical requirement, considering that a client "is a person who employs or retains an attorney for advice or assistance on a matter relating to legal business". People v. Morley, 725 P.2d 510, 517 (Colo. 1986). 9. The Court recognized these principles. (Order at pp.20-21) Because plaintiff

admits that she never believed Ross was acting as her attorney, the Court correctly found that no attorney-client relation was formed. (Order at pp. 21-22) Obviously, if plaintiff never believed that Ross was acting as her attorney, she could not have consented to any of the terms of the

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ostensible attorney-client relation. Further, because plaintiff never believed that Ross was acting as her attorney, Ross' original answer to the question in her deposition could not raise an issue of fact sufficient to defeat the motion for summary judgment. If plaintiff never believed that Ross was acting as her attorney, plaintiff could not have consented to allowing Ross to act as her attorney. And if plaintiff never consented to allowing Ross to act as her attorney, then no attorney-client relation could have been formed, as a matter of law. 10. It is plaintiff's position that an attorney-client relation can be formed without the

client's knowledge (and therefore without the client's consent). The only cases plaintiff offers to support this position involve mentally incapacitated clients. Obviously, in such a situation, the client cannot consent to the relation but must act through a third party. Those are not the facts of this case, however. Plaintiff is not mentally incapacitated and is not legally required to act through a third party. 11. If plaintiff's argument is correct ­ that an attorney-client relation can be formed

without the knowledge and consent of the client (in the absence of mental incapacity) ­ then an attorney-client relation could also be formed contrary to the client's desires. An attorney could perform legal services, send a bill to the client, and force the client to pay ­ even though the client never consented to allow the attorney to act for her, and even though the client in fact does not want the attorney to act for her. That cannot be correct, and in fact it is not the law. WHEREFORE, Ross respectfully requests that the Court enter an order denying "Plaintiff's Motion for New Trial or to Alter or Amend Judgment Regarding Summary Judgment Dismissing Fifth Claim for Relief Against Ross Defendants." Dated this 20th day of February, 2006.

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Respectfully submitted, HALL & EVANS, LLC s/ _____________ John E. Bolmer, II David E. Leavenworth Suite 600 1125 Seventeenth Street Denver, Colorado 80202 (303) 628-3366 ATTORNEYS FOR DEFENDANTS SHARRYN E. ROSS and ROSS, MARTEL & SILVERMAN, LLP CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 20th day of February, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Joel C. Maguire, Esq. Dietz and Davis, P.C. Suite 400 2060 Broadway Boulder, Colorado 80302 [email protected] Dan S. Cross, Esq. The Overton Law Firm 1080 Kalamath Street Denver, Colorado 80204 [email protected] s/ Glenda J. York___________________
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