Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

Document 251

Filed 11/02/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01067-REB-CBS WILLIAM R. CADORNA, v. Plaintiff,

THE CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant. DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER GRANTING DEFENDANT NEW TRIAL Defendant, City and County of Denver, Colorado, a Municipal Corporation, by and through its Attorneys, Christopher M.A. Lujan and Franklin A. Nachman, Assistant City Attorneys, responds to Plaintiff's Motion for Reconsideration of Order Granting Defendant New Trial (ECF No. 250), as follows: INTRODUCTION By Plaintiff's own admission, after this Court promptly denied his Motion for Certification under 28 U.S.C. § 1292(b), he extracted the bulk of his argument from that unsuccessful Motion and recast it as a Motion for Reconsideration. Plaintiff offers no greater justification for granting reconsideration than he did for §1292 (b) certification. His Motion must be denied.

Case 1:04-cv-01067-MSK-CBS

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LEGAL ARGUMENT The Court of Appeals for the Tenth Circuit recently stated "For nearly twenty years, beginning with Wilson v. Al McCord, Inc., 858 F. 2d 1469, 1478 (10th Cir. 1988), we have admonished counsel that the Federal Rules of Civil Procedure do not recognize that creature known all too well as the `motion to reconsider' or `motion for reconsideration.'" Warren v. American Bankers Ins. of Florida, Nos. 06-1305 and 061440 (10th Cir. 10/30/07) at p. 7. Notwithstanding the lack of existence of such motion, the court did note that a district court always has the inherent power to reconsider interlocutory rulings, and it should do so where error is apparent. Id. In this case, having failed to obtain relief from this Court's interlocutory order granting a new trial, Plaintiff again attempts to obtain relief through yet another avenue, through the same bootless arguments. As in the case of his §1292(b) certification motion, Plaintiff failed to cite any of the requirements for obtaining such relief in the limited circumstances where a court may entertain such a motion. Motions to reconsider, when filed within ten days after an entry of judgment, are proper within Federal Rule of Civil Procedure 59(e), but a motion to reconsider is granted only under limited circumstances. Alpine Bank v. Hubbell, No. 05-cv-00026EWN-PAC 2007 U.S. Dist. LEXIS 79258, at *3 (D. Colo. 10/25/07). As the Tenth Circuit has explained, "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) a need to correct clear error or [(4)] prevent manifest injustice." Servants of the Paraclete v. Does, 204 F. 3d 1005, 1012 (10th Cir. 2000), citing Brumark Corp. v. Samson Resp.

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Corp., 57 F. 3d 941, 948 (10th Cir. 1995). The Court of Appeals held in the Servants of the Paraclete case that a motion for reconsideration is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing. Id. at 1012. See Van Skiver v. United States, 952 F. 2d 1241, 1243 (10th Cir. 1991). Plaintiff's Motion fails to cite any of the grounds warranting a Motion for Reconsideration or authority for why this Court should grant such motion. Plaintiff's latest effort, on its face, is yet another attempt to revisit issues already raised, addressed and promptly rejected by the Court. The motion certainly does not allege any intervening change in the controlling law or new evidence previously unavailable. Plaintiff has previously argued that the Court committed clear error in his § 1292(b) motion, and the Court correctly rejected this argument. Rather than lard the record with extended discussion of this issue, Defendant refers the Court to pages 8 through 12 of its response to that Motion, which addressed the issue of a controlling issue of law for which there is substantial ground for difference of opinion. As Defendant has previously argued, courts have the power under Rule 59(a) of the Federal Rules of Civil Procedure to grant new trials on the basis of attorney misconduct, see Rodgers v. Hyatt, 697 F. 2d 899, 902 (10th Cir. 1983). appropriate that the Court do so in this case. There is not clear error. It was

The only

manifest injustice would be to Denver if Plaintiff's motion were granted. CONCLUSION Defendant need proceed no further. Plaintiff may not "measurably bolster his cause by hurling rancorous epithets and espousing tenuous insinuations." Wynn v.

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Case 1:04-cv-01067-MSK-CBS

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Tufts Sch. of Med., 976 F. 2d 791, 796 (1st Cir. 1992). The Court has already considered Plaintiff's arguments in his certification motion and found them wanting. It should do so again. Dated this 2nd day of November, 2007. Respectfully submitted, FRANKLIN A. NACHMAN

_s/Franklin A. Nachman Franklin A. Nachman Christopher M. A. Lujan Assistant City Attorneys Denver City Attorney's Office 201 W. Colfax Ave., Dept. 1108 Denver, CO 80202 Telephone: (720) 913-3100 Facsimile: (720) 913-3182 E-mail: [email protected] Attorneys for Defendant: City and County of Denver

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Case 1:04-cv-01067-MSK-CBS

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of November, 2007, 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: Mark E. Brennan [email protected] and, I hereby certify that I have e-mailed the document to the following non CM/ECF participants in the manner indicated by the non-participant's name to: Manager Alvin LaCabe, Jr. Manager of Safety Department of Safety [email protected] Chief James Sestrich Department of Safety [email protected] _s/Marilyn Montoya Marilyn Montoya Legal Secretary Denver City Attorney's Office

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