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

04-cv-01876-RPM-CBS

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

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION

Plaintiff Kirk Warren, by and through his attorneys of record, The Carey Law Firm, replies to Defendant's Response to Plaintiff's Motion for Reconsideration of Order of Dismissal for Lack of Subject Matter Jurisdiction, as follows: I. THE TRIAL COURT HAS JURISDICTION OVER PLAINTIFF'S MOTION FOR RECONSIDERATION The Court's Order of Dismissal for Lack of Subject Matter Jurisdiction (Doc. No. 122) does not meet the standard for a final judgment under Fed. R. Civ. P. 58. The order (1) does not satisfy the "separate document" requirement, (2) contains legal analysis, (3) does not address all claims, and (4) merely dismisses those claims that were addressed without prejudice. American Bankers argues that the filing of a notice of appeal "divests the district court of its control over those aspects of the case involved in the appeal." Def.'s Resp. at 2.

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However, under Fed. R. App. P. 4(a)(2), 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 judgment is entered. Id. Once judgment is entered, the Rule treats the premature notice of appeal "as filed after such entry." Id. The filing of a notice of appeal divests the district court of jurisdiction with two recognized exceptions: (1) untimeliness of the notice, and (2) dependence on an unappealable order. Arthur Andersen & Co. v. Finesilver, 10 Cir., 546 F.2d 338, 340, cert. denied, 429 U.S. 1096, 97 S.Ct. 1113, 51 L.Ed.2d 543. Plaintiff filed a Notice of Appeal on July 24, 2006, as a precautionary measure. That Notice does not become effective until after entry of a final judgment and thus does not divest the trial court of jurisdiction to consider a motion for reconsideration filed pursuant to Fed. R. Civ. P. 60. Only after a final judgment is entered will jurisdiction of the trial court will be divested. Until that time, the trial court maintains jurisdiction and can act upon any motions for reconsideration. Plaintiff filed his Notice of Appeal as a prophylactic measure. Since it is not yet effective, it does not divest the trial court of jurisdiction. Further, Fed. R. Civ. P. 58 requires a separate document, which has not yet occurred. Fed. R. Civ. P. 58 provides: Every judgment ... must be set forth on a separate document, but a separate document is not required for an order disposing of a motion: (A) for judgment under Rule 50(b); (B) to amend to make additional findings of fact under Rule 52(b); (C) for attorney fees under Rule 54; (D) for a new trial, or to alter or amend the judgment, under Rule 59; or (E) for relief under Rule 60. Since this Court's order of dismissal in the instant action disposed of Defendant's motion

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pursuant to Fed. R. Civ. P. 12(b)(1), and not one of the above, a separate document is required. Pursuant to Fed. R. Civ. P. 58(b), judgment is entered if Rule 58(a)(1) requires a separate document, when judgment is entered in the civil docket under Rule 79(a), and when the earlier of these events occurs: (A) when it is set forth on a separate document, or (B) when 150 days have run from entry in the civil docket under Rule 79(a). Fed. R. Civ. P. 58(b). Here, a separate document is required, a judgment has not been entered in the civil docket pursuant to Fed. R. Civ. P. 79(a), and 150 days have not run from such an entry. The Tenth Circuit has recognized an exception to Rule 58's separate judgment requirement when there is no question about the finality of the court's decision and when the order contains no discussion of the court's reasoning or any dispositive legal analysis. See Clough v. Rush, 959 F.2d 182, 185 (10th Cir.1992) (emphasis supplied). "However, where an order does contain such analysis, a separate document is necessary to start the time to appeal. Id. Because the district court's order contains legal analysis, it does not satisfy the requirement for a Rule 58 judgment or its exception." Martha v. Brill, 37 Fed.Appx. 957, 958 n.2 (10th Cir. 2002) (unpublished disposition).1 A final decision is one that "`leaves nothing for the court to do but execute the judgment.'" Servants of Paraclete v. Does, 204 F.3d 1005, 1010 (10th Cir. 2000); Albright v. UNUM Life Ins. Co., 59 F.3d 1089, 1092 (10th Cir.1995) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). The order of dismissal filed in the within action contains a discussion of the court's reasoning and dispositive legal analysis. Since it does contain such analysis, it is not a final
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A copy of this opinion is attached to this Reply in accordance with D.Colo.LCivR 7.1D. 3

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judgment. Since the Court's order of dismissal for lack of subject matter jurisdiction does not satisfy the "separate document" requirement, contains legal analysis, does not address all claims, and merely dismisses those claims that were addressed without prejudice, it does not constitute a "final judgment" and Plaintiff's Notice of Appeal does not divest the trial court of jurisdiction. II. PLAINTIFF'S MOTION FOR RECONSIDERATION RAISES ISSUES THAT SHOULD NOT HAVE BEEN AND COULD NOT HAVE BEEN INCLUDED IN ITS RESPONSE TO DEFENDANT'S MOTION TO DISMISS. American Bankers argues that Plaintiff did not make any argument in his Response to Defendant's motion to dismiss regarding his UM/UIM claims or his Colorado Consumer Protection Act claims. (Def.'s Mot. at 3.) However, Defendant's motion to dismiss for lack of subject matter jurisdiction only argued for dismissal of plaintiff's enhanced PIP claims and did not address his UM/UIM claims or the UM/UIM CCPA claim, even though it requested dismissal of Plaintiff's entire amended complaint. (Def.'s Mot. to Dismiss, Doc. No. 114.) Servants of Paraclete v. Does, 204 F.3d at1012 is cited by Defendant for the argument that "a motion for reconsideration is not appropriate to advance arguments that could have been raised in prior briefing, and that such a motion is an improper vehicle to introduce new arguments that could have been adduced during the briefing of the Motion to Dismiss." (Def.'s Mot. at 3.) However, that is not what the Tenth Circuit held in that case. It held that a motion for reconsideration is an inappropriate vehicle to reargue an issue previously addressed by the court. Id. at 1012. Here, the issue of Plaintiff Kirk Warren's UM/UIM claims was not addressed by the court in its order of dismissal. (Doc. No. 122.) Indeed, it seems as if it was an oversight that it was dismissed. It is not judicially economical to turn to the Tenth Circuit for correction of

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a simple oversight. reconsideration.

It is more appropriately addressed in the context of a motion for

Further, the issue of dismissal of Plaintiff's UM/UIM claims, including the CCPA claim based upon Defendant's failure to offer UM/UIM coverage, was never raised in Defendant's motion to dismiss, and thus was not addressed in response to that motion. Servants of the Paraclete v. Does also holds that a motion for reconsideration is appropriate where the court has misapprehended the facts,2 a party's position, or the controlling law. While it also holds that "[i]t is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing" (Id. at 1012), it is clear when that holding is put in context that the court intended that statement to apply to issues, and arguments, that were raised in the initial motion and already addressed by the court in its ruling (Id.), not arguments that were not raised in Defendant's motion to dismiss and issues that were not addressed in the court's order. Id. Further, Defendant argues that Plaintiff previously abandoned his UM/UIM claims. (Def.'s Resp. at 4.) That also is not the case. Plaintiff addressed UM/UIM coverage in his

statement of claims. (Doc. No. 106-1, p. 3.) D.C.Colo.LCivR16.3 instructs the parties to eliminate claims which are no longer asserted. This, Plaintiff did not do. (Id.) Plaintiff alleged claims based upon Defendant's failure to offer and extend UM/UIM coverage and has not abandoned those claims. (Id.)

Plaintiff here requested declaratory relief (Pl.'s Am. Compl. ¶¶ 44-57.); however, see the Court's Order of Dismissal (Doc. No. 122) at 2.

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Plaintiff also completely addressed all issues raised in Defendant's motion to dismiss for lack of subject matter jurisdiction in his response to that motion. (Doc. No. 120.) Plaintiff has not abandoned any claims and continues to assert those claims. Defendant's assertion that Plaintiff's UM/UIM claims have been abandoned and that Plaintiff is only now asserting them in an attempt to get "a second bite at the apple" or as a "tactic" are unfounded. Plaintiff therefore respectfully requests that his motion for reconsideration be granted. 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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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 1, 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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