Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01124-JLK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1124-JLK-MEH LINDA FORGACS, et al., Plaintiffs, vs. EYE CARE CENTER OF NORTHERN COLORADO, P.C. et al., Defendants.

DEFENDANTS' RESPONSE OPPOSING PLAINTIFF'S MOTION FOR RECONSIDERATION OF THE COURT'S ORDER OF AUGUST 10, 2006

Defendants, through counsel, file their Response Opposing Plaintiff's Motion for Reconsideration of the Court's Order of August 10, 2006. 1. On August 10, 2006, the Court entered its Order granting summary judgment and

dismissing as to four of the individual Defendants the defamation claim for which Plaintiff Linda Forgacs ("Forgacs") is now the sole remaining claimant. That claim remains in the case as asserted against Defendant William Benedict. 2. 3. On November 8, 2006, Forgacs' attorney filed his Motion for Reconsideration. Forgacs' attorney did not confer with the undersigned before filing the Motion for

Reconsideration. See M.M. v. Zavaras, 939 F.Supp. 799, 800 (D.Colo. 1996)(citing failure to confer as required by Court's Local Rule as one reason to deny motion to reconsider). 4. The Motion references a single case that the Court has already reviewed and on

which the Court relied in the August 10 Order. The Motion does not cite any new case or other

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authority that issued after the August 10 Order which means the Court should review its ruling. The Motion also fails to cite any factual discovery or other new evidence the Court did not review before entering the August 10 Order. 5. In Proffitt v. Cornuke, 2006 WL 722370, *1 (D.Colo. March 22, 2006)[courtesy

copy provided], this Court set out the standard for a motion to reconsider: A motion for reconsideration is proper when the court has "made a mistake not of reasoning but of apprehension AAA [or] if there has been a significant change or development in the law or facts since submission." EEOC v. Foothills Title Guar. Co., 1991 WL 61012 at *3 (D.Colo. April 12, 1991), aff'd, 956 F.2d 277 (10th Cir.1992); see Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981)(explaining the law of the case doctrine generally requires a court to adhere to its rulings in the interest of expeditious resolution of disputes and to prevent continued reargument of issues already decided). A motion to reconsider is not a second opportunity for the losing party (through new or additional counsel) to make its strongest case, to rehash arguments, or to dress up argument that previously failed. See Voelkel v. General Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484 (10 Cir.1994). See also M.M. v. Zavaras 939 F.Supp. at 801 (D.Colo. 1996). 6. Forgacs' Motion for Reconsideration does not meet any of the standards that

would provide grounds to reconsider the August 10 Order. 7. Forgacs' Motion complains that Defendant Holms was not an original movant but

fails to provide any legal or factual reason that would justify reconsidering the August 10 Order's ruling that nothing Holms said about the subject Plaintiffs would support the defamation claim. Holms was not originally a movant. Then, Plaintiffs' response opposing summary judgment confirmed that the only evidence Plaintiffs had about any potentially defamatory communication by Holms was a statement he made in a staff meeting. Therefore, Defendants' March 20, 2006 Reply in Support of Motions for Summary Judgment at pp. 22-23 addressed the reasons why this -2-

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claim should also be dismissed on summary judgment as asserted against Holms due to the qualified privilege an employer has to comment on employees as part of internal communications. Plaintiffs' April 24, 2006 Supplement to their earlier response did not object to including Holms in the summary judgment motion and, in fact, made a feeble argument why this claim should not be dismissed as asserted against Holms. Therefore, Forgacs was not prejudiced by the subsequent inclusion of Holms as a movant, and her counsel used the opportunity of the Supplement to argue why summary judgment should be denied as to Holms. For all these reasons, Defendants respectfully request the Court to enter its Order denying the Motion for Reconsideration, to award Defendants the attorney fees and costs they reasonably incurred to oppose that motion, and entering such other relief as the Court deems just. Dated: December 1, 2006. Respectfully submitted, By: s/ John R. Paddock, Jr. . . . . . . . . . . . John R. Paddock, Jr. Attorney for Defendants CERTIFICATE OF SERVICE I certify that on this 1st day of December, 2006, a copy of the foregoing Defendants' Response Opposing Plaintiff's Motion for Reconsideration of the Court's Order of August 10, 2006 was served by ECF filing on the following: George Price, Esq. 1115 Grant Street, Suite 106 Denver, CO 80203 Fax: 303-484-2421 s/ Marisa Showalter __________________________________ paralegal to John R. Paddock, Jr. -3-