Free 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

04-cv-01876-RPM-CBS

KIRK WARREN, Plaintiff, v. AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA, a Florida insurance company, Defendant.

PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S MOTION FOR RECONSIDERATION

Plaintiff Kirk Warren, by and through his attorneys of record, The Carey Law Firm, responds to Defendant's Motion to Strike Plaintiff's Motion for Reconsideration, as follows: In sum, Defendant argues that because the trial court does not have jurisdiction to consider Plaintiff's motion for reconsideration, Plaintiff's motion for reconsideration is "superfluous, immaterial, and should be stricken from the record." (Def.'s Mot. at 3.) Federal Rule of Civil Procedure 12(f) provides that "upon motion by a party or upon the court's initiative at any time, the court may order stricken from any pleading any insufficient, immaterial, impertinent, or scandalous matter." Motions to strike on the grounds of

insufficiency, immateriality, irrelevancy, and redundancy are not favored, often being considered `time wasters' and will usually be denied unless the allegations have no possible relation to the

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controversy and may cause prejudice to one of the parties." Lamar Advertising of Mobile, Inc. v. City of Lakeland, Florida, 1999 WL 33590589, *21-22 (M.D. Fla.). Since the function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial, striking a motion to reconsider fails to comply with the policies underlying Fed. R. Civ. P. 12(f). See Kennedy v. City of Cleveland, 797 F.2d 297, 305 (6th Cir. 1986), rehearing denied (1986), cert. denied (Hanton v. Kennedy, 479 U.S. 1103 (1987)). Defendant here has not met the standard for a motion to strike. Not only is Plaintiff's motion for reconsideration here not insufficient, immaterial, impertinent, or scandalous, Plaintiff's motion will actually prevent the court and counsel from spending time and money from litigating at the appellate level a very basic issue that could easily be resolved in the context of a motion for reconsideration. As more fully stated in Plaintiff's Reply Re: Motion for Reconsideration (Doc. No. 140),1 Plaintiff's Notice of Appeal does not divest this trial court of jurisdiction to consider Plaintiff's motion for reconsideration. A notice of appeal is not effective until judgment has been entered. Fed. R. Civ. P. 4(a)(2) permits a notice of appeal filed from certain non-final decisions to serve as an effective notice from a subsequently entered final judgment. FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 274 (1991). Under Rule 4(a)(2), a premature notice of appeal does not ripen until such a judgment has been entered. Plaintiff filed his Notice of Appeal as a precautionary measure. Since it is not yet effective, it does not divest the trial court of jurisdiction.

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Plaintiff incorporates his Reply (Doc. No. 140) by reference as though fully set forth herein.

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Defendant cites Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) in arguing that a notice of appeal divests a district court of jurisdiction. (Def.'s Mot. at 2.) However, upon remand in that same case, the Third Circuit held that a notice of appeal filed while a timely motion to alter or amend a judgment was pending in the district court was without effect. (Griggs v. Provident Consumer Discount Co., 699 F.2d 642, 643 (3d Cir. 1983.) The Third Circuit then dismissed the appeal for lack of appellate jurisdiction. (Id. at 644.) Further, Defendant cites Kunkel v. Continental Cas. Co. for the argument that the court of appeals has jurisdiction of "final decisions" of the district court under 28 U.S.C. § 1291 if no question exists as to the finality of the district court's decision. Kunkel v. Continental Cas. Co., 866 F.2d 1269, 1272 n.3 (10th Cir. 1989). However, jurisdiction under § 1291 generally is contingent upon "the existence of a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (quotations omitted); Trout Unlimited v. U.S. Dept. of Agriculture, 441 F.3d 1214, *1218 (10th Cir. 2006) (emphasis supplied). That is not the case here. Here, the court did not end the litigation on the merits, but specifically dismissed the action without prejudice. The court entered a order of dismissal for lack of subject matter jurisdiction, and nothing more. The court did not enter a subsequent "final judgment" on a separate document as required by Fed. R. Civ. P. 58.2 Since there is no final judgment, there is no divestment of jurisdiction and this court may consider Plaintiff's motion for reconsideration.
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The bases for Plaintiff's motion for reconsideration are pertinent to the

E.g., this court recently did enter a final judgment on a separate document in Wilson v. Titan Indemnity Co., D.Colo. 05-cv-020206-RPM (Doc. No. 33 in that action).

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controversy and will not cause prejudice to any party (Lamar Advertising of Mobile, Inc. v. City of Lakeland, Florida, 1999 WL 33590589, #21-22). Plaintiff brought his motion because it appears that the court inadvertently dismissed several of his claims, and believed that Plaintiff did not bring a claim for declaratory relief, when in fact he did. These are very basic issues that could much more economically be resolved in a motion for reconsideration. Thus, Plaintiff's motion for reconsideration is not insufficient, immaterial, impertinent, or scandalous. Defendant has not met its burden for a motion to strike, and its motion to strike should be summarily denied. Respectfully submitted this 7th day of September, 2006. s/Julie Cliff Robert B. Carey Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 FAX: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Kirk Warren

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Case 1:04-cv-01876-RPM

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 7, 2006, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address(es): Arthur Joel Kutzer [email protected]

Billy-George Hertzke [email protected]; [email protected] Walter D. Willson [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant in the matter (mail, hand-delivery, etc) indicated by the non-participant's name: Kirk Warren 3589 S. Nucla Street Aurora, CO 80013 Mary R. Cullen, Esq. Department of Veterans Affairs Office of Regional Counsel 155 Van Gordon Street, Suite 25126 Denver, CO 80225

s/Julie Cliff Robert B. Carey Julie Cliff The Carey Law Firm 2301 East Pikes Peak Avenue Colorado Springs, CO 80909 Telephone: (719) 635-0377 Fax: (719) 635-2920 E-mail: [email protected] Attorney for Plaintiff Kirk Warren

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