Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01876-RPM

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IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF COLORADO Civil Action No. 04-cv-01876-RPM

KIRK WARREN, Plaintiff, v.

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, a Florida insurance company, Defendant.

DEFENDANT'S REPLY IN SUPPORT OF MOTION TO STRIKE PLAINTIFF'S MOTION FOR RECONSIDERATION

Defendant, AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA ("American Bankers"), by its attorneys, SENTER GOLDFARB & RICE, LLC and WELLS MARBLE & HURST, PLLC, submits this Reply in Support of Motion to Strike Plaintiff's Motion for Reconsideration. REPLY ARGUMENT Plaintiff's Motion for Reconsideration [#128] should be stricken from the Court's record because Plaintiff has submitted his Motion for Reconsideration for improper purposes and as part of a thinly veiled attempt to create a record for appeal after the fact. A Motion to Strike in this situation is proper. 1

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The Court properly dismissed Plaintiff's entire Amended Complaint without prejudice on June 23, 2006. On July 24, 2006, Plaintiff filed a Notice of Appeal to the Tenth Circuit Court of Appeals. On July 28, 2006, Plaintiff submitted a Docketing Statement to the Court of Appeals. [See Exhibit A-1]. In the Docketing Statement, Plaintiff informed the Court of Appeals that timing for his appeal was fixed pursuant to Fed. R. App. 4(a)(1)(A).1 Id. at p. 1. Also on July 28, 2006, Plaintiff filed his Motion for Reconsideration. The July 24, 2006 Notice of Appeal divested this Court of jurisdiction to decide Plaintiff's Motion for Reconsideration. Incredibly, Plaintiff now claims that he filed his Notice of Appeal as a "precautionary measure" under Fed. R. App. 4(a)(2). Plaintiff took this position for the first time only after Defendant pointed out that the Notice of Appeal divested the Court of jurisdiction over the Motion for Reconsideration. It is apparent that Plaintiff has changed his position in effort to get the newly raised arguments made in his Motion for Reconsideration into the record on appeal. Plaintiff's Motion for Reconsideration raises arguments for the first time that Plaintiff did not make in his Response to Defendant's Motion to Dismiss. After the Court dismissed Plaintiff's Amended Complaint, Plaintiff waited over one month before filing his Motion for Reconsideration and after filing his Notice of Appeal pursuant to Fed. R. App. 4(a)(1)(A). Plaintiff is now not only trying to correct his failure to properly raise all arguments during the briefing of the Motion to Dismiss, but he is also attempting to avoid the fact that this Court no longer has jurisdiction over his Motion for Reconsideration by claiming that he filed his Notice of Appeal as a precautionary measure under
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Fed. R. App. 4 (a) Appeal in a Civil Case. (1) Time for Filing a Notice of Appeal.

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Fed. R. App. 4(a)(2) when he actually filed his appeal under Fed. R. App. 4(a)(1)(A). The straightforward facts and Plaintiff's own Docketing Statement do not support Plaintiff's claim that he filed his Notice of Appeal as a precautionary measure. Plaintiff also claims, after the fact, that this Court still has jurisdiction because no separate judgment was entered pursuant to Fed. R. Civ. P. 58. First, no separate document was required in this case because the Court disposed of Plaintiff's entire Amended Complaint. See, e.g., Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir. 1995). Second, Plaintiff filed a timely Notice of Appeal; therefore, the protections for which Rule 58 was enacted are not needed by Plaintiff. Plaintiff is attempting to use Rule 58 and the separate document requirement as a means to salvage the arguments belatedly made in his Motion for Reconsideration. The Rule was not enacted for this purpose. The separate-document requirement was established expressly to eliminate confusion about whether a purported "judgment" effectively started the running of the time for appeal, and to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. United States v. Kansas City, 761 F.2d 605, 606-07 (10th Cir. 1985). In other words, the separate document requirement was enacted to protect a party from unknowingly missing the deadline for filing a Notice of Appeal. In this case, Plaintiff filed a timely Notice of Appeal within 30 days of the Court's Order

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by

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dismissing his entire Amended Complaint. Plaintiff does not need the protection afforded by Rule 58. Plaintiff is attempting to use Rule 58 as an excuse to argue that his Notice of Appeal did not divest the Court of jurisdiction over his Motion for Reconsideration. Simply put, Plaintiff is misapplying the Rule to this case to compensate for his failure to file his Motion for Reconsideration before this Court lost jurisdiction to the Tenth Circuit Court of Appeals. Striking Plaintiff's Motion for Reconsideration from the record under these circumstances is appropriate. Finally, Plaintiff makes the ironic argument that he is merely trying to save time and resources through his Motion for Reconsideration. Plaintiff ignores the fact that he could have avoided additional expenditure of judicial time and resources by voluntarily dismissing his Amended Complaint after the DiCocco decision was announced or, at the latest, when Defendant filed its Motion to Dismiss. Plaintiff's counsel was also counsel of record in the DiCocco case. It should have been apparent to Plaintiff that the facts and circumstances of this case are identical to those in DiCocco. Plaintiff could have simply dismissed this action against American Bankers and re-filed it if excess coverage is eventually triggered. Stated differently, Plaintiff should have voluntarily dismissed this case pending a ruling or verdict in Warren v. Liberty Mutual. Plaintiff could have alternatively asked for the case to be administratively closed pursuant to D.C.COLO.LCivR 41.2. Plaintiff elected to do neither of these options but, instead, chose to appeal this matter to the Tenth Circuit and simultaneously ask the Court (which no longer has jurisdiction) to reconsider its ruling by putting forth new arguments. Plaintiff is improperly seeking to interject into the record previously unmade arguments after filing a Notice of Appeal to the Tenth Circuit Court of Appeals.

Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

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This should not be permitted, and the Court should strike Plaintiff's Motion for Reconsideration from the record. WHEREFORE, American Bankers respectfully requests that the Court deny Plaintiff's Motion for Reconsideration and strike the same from the Court's record. Respectfully submitted,

By s/ Billy-George Hertzke Arthur J. Kutzer Billy-George Hertzke SENTER GOLDFARB & RICE, LLC 1700 Broadway, Suite 1700 Denver, Colorado 80290 Telephone: 303-320-0509 Facsimile: 303-320-0210 E-mail: [email protected] Walter D. Willson WELLS MARBLE & HURST, PLLC Post Office Box 131 Jackson, Mississippi 39205-0131 Telephone: 601-355-8321 Facsimile: 601-355-4217 E-mail: [email protected] Attorneys for Defendant American Bankers Insurance Co. of Florida CERTIFICATE OF SERVICE I certify that on this 11th day of September 2006, a true and correct copy of the above and foregoing DEFENDANT'S REPLY IN SUPPORT OF MOTION TO STRIKE PLAINTIFF'S MOTION FOR RECONSIDERATION was filed with the Clerk of the Court using the ECF system which sent notification of such filing to the following: Julie Bettencourt Cliff - [email protected] Attorney for Plaintiff s/ Billy-George Hertzke 5

00234933

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