Free Brief in Opposition to Motion - District Court of Colorado - Colorado

Case 1:03-cv-01973-PSF-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-F-1973 (MJW)

J. E. H. KNUTSON, Plaintiff, v. THE WALKER GROUP, INC., Defendant

THE WALKER GROUP, INC. Plaintiff, v. FIRST LAYER COMMUNICATIONS, INC. and J.E.H. KNUTSON Defendants.

WALKER GROUP'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO RECONSIDER EXCLUSION OF HIS EXPERT EVIDENCE OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL

This Court already considered extensive briefs from both parties regarding the reliability and admissibility of Ms. Masten's analysis and correctly determined that her testimony was irrelevant (See Order on Walker Group's Motion for Partial Summary Judgment, 08/12/05 at 2225; Order On Walker Group's Motion To Exclude Expert Testimony, 09/07/05). Plaintiff

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Knutson, in his current Motion, challenges this Court's decision to exclude the proffered witness. Although it is unmistakable that Plaintiff disagrees with the Court's decision, he fails to demonstrate any intervening change in law, new evidence, or a manifest need to correct clear error on the part of the Court. Instead, he repackages old arguments that this Court previously rejected.1 The Court also should deny Plaintiff's alternative Motion for Continuance. Plaintiff seeks to delay the case and obtain yet another extension of time to identify a qualified expert. As Magistrate Judge Watanabe noted in its April 12, 2005 Minute Order (attached as Ex. A), "Plaintiff has caused numerous delays in this case." Plaintiff filed no fewer than eight (8) motions for extensions of time, including two (2) motions to extend the expert disclosure deadlines. Id. From this Minute Order, it is evident that Magistrate Judge Watanabe was tired of Plaintiff's litigation tactics. I. THIS COURT PROPERLY EXCLUDED PLAINTIFF'S PROPOSED EXPERT TESTIMONY AND SHOULD NOT NOW RECONSIDER ITS RULING A. Plaintiff Fails To Cite Any Rule Or Statute Authorizing Reconsideration Of The Court's Order.

As an initial matter, Plaintiff has failed to cite any statute or procedural rule that permits a "motion for reconsideration" of this Court's ruling on the admissibility of Ms. Masten's testimony. Pursuant to Local Rule 7.1, "a motion involving a contested issue of law shall state under which rule or statute it is filed and be supported by a recitation of legal authority incorporated into the motion." (D.C.COLO.LCivR 7.1(c).) Not only has Plaintiff failed to cite any rule of procedure or statute that provides for a motion for reconsideration, he also has failed
To the extent Plaintiff contests this Court's decision to exclude Ms. Masten's proffered testimony, he should appeal to the Tenth Circuit after final judgment has been entered.
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to present any new legal authority supporting the admissibility of Ms. Masten's testimony. Instead, he merely reargues facts and cases included in his original response to Walker Group's motion to exclude Ms. Masten's testimony and his brief in opposition to Walker Group's motion for partial summary judgment. These failures alone support denial of Plaintiff's motion. B. Plaintiff Fails To Demonstrate An Intervening Change In Controlling Law, New Evidence, Or A Manifest Need To Correct Clear Error On The Part Of The Court And Instead Simply Reargues The Same Position Properly Rejected By The Court.

If this Court nevertheless determines that it should reconsider its order excluding Ms. Masten's testimony, Plaintiff has failed to state, much less meet, the reconsideration standard. Motions for reconsideration should be granted sparingly and only in extraordinary circumstances. Pyeatt v. Does, 19 Fed. Appx. 785, 788 (10th Cir. Sep. 20, 2001) (unpublished opinion, attached as Ex. B); Abbott Labs. v. Syntron Bioresearch, Inc., No. 98-CV-2359, 2001 WL 34082554, *2 (S.D. Cal. Mar. 7, 2001) (unpublished opinion, attached as Ex. C). The Court's rulings should "not be viewed as mere first drafts, subject to revision and reconsideration at a litigant's pleasure." Mahurkar v. C.R. Bard, Inc., No. 01 C 8452, 2003 WL 22844237, *1 (N.D. Ill. Dec. 1, 2003) (quotation and citation omitted) (unpublished opinion, attached as Ex. D). Thus, to establish that reconsideration of this Court's Order excluding Ms. Masten's testimony is appropriate, Plaintiff must demonstrate: (1) a pertinent intervening change in the controlling law; (2) pertinent new evidence, not previously discovered or discoverable; or (3) a manifest need to correct clear error on the part of the Court in interpreting the facts or law. See Ayers v. Espy, 873 F. Supp. 455, 472 (D. Colo. 1994); see also Astrazeneca AB v. Mut. Pharm. Co., Inc., No. Civ. A. 00-4731, 2002 WL 32348145, *1 (E.D. Pa. Oct. 3, 2002) (unpublished opinion, attached as Ex. E).

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Plaintiff's motion entirely ignores and does not even attempt to meet the reconsideration standard. Instead, throughout his motion, Plaintiff renews his previous arguments regarding the reliability and admissibility of Ms. Masten's testimony and faults the Court for not adopting his position. But "[d]issatisfaction with the Court's ruling is not a proper basis for reconsideration." Astrazeneca, 2002 WL 32348145 at *4. Although Plaintiff now seeks to reargue admissibility issues, motions for reconsideration are not to be used to restate arguments already briefed or to raise arguments that previously could have been raised. See id. As the Tenth Circuit held in Pyeatt, denial of a motion for reconsideration is proper "where the motion basically revisits, albeit in somewhat different forms, the same issues already addressed and dismissed by the court." Pyeatt, 19 Fed. Appx. at 788 (internal quotation omitted). In the present case, Plaintiff does not even repackage his prior argument in a different form. Rather, Plaintiff seeks a second bite at the apple. He identifies no new relevant facts or case law and no misapprehension on the Court's part, and, therefore, reconsideration is not appropriate. II. THE TRIAL SHOULD NOT BE CONTINUED A cursory review of Plaintiff's handling of this case evidences a strategy of delay which has been executed throughout the course of this litigation. As Magistrate Judge Watanabe noted in its April 12, 2005 Minute Order: Plaintiff has caused numerous delays in this case. Plaintiff has filed eight (8) motions for extensions of time. In addition, Plaintiff has sought and was granted, but this court, a stay of discovery from April 30 to May 26, 2004. Moreover, Plaintiff has filed two (2) motions to extend the expert disclosure deadlines as well as two (2) motions to extensions of time to respond to discovery. . . . This case was filed in 2003, and both sides have had an adequate opportunity to complete discovery.

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(Minute Order, 4/12/2005.) Now, Plaintiff seeks to continue trial for a period of "not less than three months from the current trial date." (Pl.'s Mot. for Reconsideration at 2.) Again, Plaintiff does not cite any statute or rule permitting such an extension, nor does he cite any legal authority that supports his position. He merely claims that Walker Group will not be prejudiced by a continuance. Walker Group, however, would be prejudiced by a continuance. Contrary to Plaintiff's suggestion, Walker Group's right to collect any judgment at all, much less any additional interest incurred as a result of the delay, is far from protected. Walker Group has legitimate concerns about its ability to collect any judgment it will receive, and believes Plaintiff has tried to render himself judgment-proof by transferring assets. As a result, Walker Group has been forced to file a state-court action against Plaintiff alleging fraudulent conveyance.2 Furthermore, Plaintiff had ample opportunity to "re-focus his expert"3 long before the Court held that her testimony was inadmissible. Walker Group's expert, Ronald Haas, described his alternate valuation theory in his report, which was served on Plaintiff on December 30, 2004. As a matter of litigation strategy, Plaintiff elected not to have Ms. Masten opine as to an alternative theory in the face of Walker Group's distinct and opposing position on the proper method for valuing any items allegedly received from First Layer upon its dissolution. Plaintiff remained committed to Ms. Masten's valuation methodology.4 Plaintiff made the strategic

Compl., Walker Group, Inc. v. J.E.H. Knutson, Suzanne W. Knutson, Suzanne W. Knutson Revocable Trust, No. 05 CV 786, District Court, Boulder County, State of Colorado (Aug. 23, 2005) (attached as Ex. F). 3 Pl.'s Mot. for Reconsideration at 5. Interestingly, in the Amended Scheduling Order, even Plaintiff realized that the proper valuation analysis would have been to look at what Walker Group actually received from First Layer. (Am. Scheduling Order at 5, Ex. G.) 4 Between December 30, 2004, and September 7, 2005, there was nothing to prevent Plaintiff from requesting that Ms. Masten file a supplemental report to consider Mr. Haas's valuation theory and offer her own opinion on the value of the assets Walker Group received under his valuation methodology.

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decision to wait to see how the Court would rule on Walker Group's Motion to Exclude Ms. Masten's testimony and Walker Group's Motion for Partial Summary Judgment. In the meantime, Walker Group has been diligently preparing for trial on October 25, 2005. Walker Group will be prejudiced by the delay that would result from a continuance and, importantly, the additional expense that it will incur in addressing any new theory Plaintiff's expert may suggest. Simply put, Plaintiff should not be permitted to continue his strategy of delay, and this Court should deny his motion to continue trial for a minimum of three months. CONCLUSION For the reasons discussed herein, Walker Group respectfully requests that the Court deny Plaintiff's Motion to Reconsider Exclusion of His Expert Witness and Plaintiff's Alternative Motion to Continue Trial, and that the Court further award Walker Group its costs and attorneys' fees incurred in opposing this motion. This the 26th day of September, 2005.

/s/ Richard S. Gottlieb Richard S. Gottlieb Laura A. Greer Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 Attorneys for Defendant Walker Group, Inc. Joshua Maximon, Esq. The Maximon Law Firm, LLC 12202 Airport Way, Suite 170 Broomfield, Colorado 80021 Telephone: (303) 991-3344
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 26, 2005, I electronically filed the foregoing WALKER GROUP'S RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION TO RECONSIDER EXCLUSION OF HIS EXPERT EVIDENCE OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected], and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants by first class mail addressed as follows: none. This the 26th day of September, 2005. /s/ Richard S. Gottlieb Richard S. Gottlieb Attorney for Defendant Walker Group, Inc. Kilpatrick Stockton LLP 1001 West Fourth Street Winston-Salem, North Carolina 27101-2400 Telephone: (336) 607-7300 [email protected]
02560-207219 WINLIB01:1149715.4

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