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 Civil Action No. 04-cv-01876-RPM-CBS

KIRK WARREN, Plaintiff, v.

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

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

Defendant, AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA ("American Bankers"), by its attorneys, SENTER GOLDFARB & RICE, LLC and WELLS MARBLE & HURST, PLLC, submits this Response to Plaintiff's Motion for Reconsideration of Order of Dismissal for Lack of Subject Matter Jurisdiction. RESPONSE ARGUMENT The Court should summarily deny Plaintiff's Motion for Reconsideration [#128] because the Court no longer has jurisdiction over this matter, as Plaintiff filed a Notice of Appeal before filing his Motion for Reconsideration. Moreover, the Motion for Reconsideration raises arguments that Plaintiff could have made in his Response Brief to Defendants' Motion to Dismiss. A Motion for 1

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Reconsideration is inappropriate to advance arguments that could have been raised in prior briefing.

A.

The Court Does Not Have Jurisdiction to Consider Plaintiff's Motion for Reconsideration. Plaintiff filed his Motion for Reconsideration on July 28, 2006, four days after Plaintiff filed

a Notice of Appeal to the Tenth Circuit Court of Appeals. "The filing of a notice of appeal is an event of jurisdictional significance ­ it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); see also Garcia v. Burlington N. R.R. Co., 818 F.2d 713, 721 (10th Cir. 1987)(filing of notice of appeal divests district court of jurisdiction; therefore, "any subsequent action by it is null and void"); Howard v. Mail-Well Envelope Co., 164 F.R.D. 524, 526 (D. Colo. 1996). Consequently, this Court lacks jurisdiction to consider Plaintiff's Motion for Reconsideration.1 The Court's Order dismissing this case was a final appealable order. And, because the Court's June 23, 2006 Order disposed of the entire Amended Complaint, no separate document was necessary under Fed. R. Civ. P. 58. See Kunkel v. Continental Cas. Co., 866 F.2d 1269, 1272 n.3 (10th Cir. 1989)(No separate documents needed when entire complaint is dismissed); see, also, Trotter v. Regents of the Univ., 219 F.3d 1179, 1183 (10th Cir. 2000)("the separate document rule does not apply...where there is no question about the finality of the court's decision.")(citing Clough v. Rush, 959 F.2d 182 (10th Cir. 1992)). Plaintiff filed his Notice of Appeal on July 24, 2006,
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This Court, however, retains jurisdiction over collateral matters not involved in the appeal, including Defendant's motion for fees and costs. See Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir.

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thereby divesting this Court of jurisdiction to entertain the Motion for Reconsideration filed on July 28, 2006. B. Plaintiff's Motion for Reconsideration Raises Arguments that Could Have Been Made in the Response Brief to the Motion to Dismiss. Even assuming the Court has jurisdiction to entertain Plaintiff's Motion for Reconsideration, the Court should deny it. Defendant filed its Motion to Dismiss Plaintiff's entire Amended Complaint on May 26, 2006 [#114]. Plaintiff filed his Response Brief on June 15, 2006 [#120]. Plaintiff did not make any argument in his Response Brief concerning the UM/UIM claims or the Colorado Consumer Protection Act ("CCPA") claim in his Response to Defendant's Motion to Dismiss. Now, over a month after the Court's Order dismissing this case for lack of subject matter jurisdiction (and after filing a Notice of Appeal) Plaintiff has submitted a Motion for Reconsideration advancing arguments that could have and should have been made in his Response Brief to the Motion to Dismiss. Even though the arguments Plaintiff makes in his Motion to Reconsider are flawed, he should nevertheless have raised them in his Response to the Motion to Dismiss. A Motion for Reconsideration is not appropriate to advance arguments that could have been raised in prior briefing. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Such a motion is an improper vehicle to introduce new arguments that could have been adduced during the briefing of the Motion to Dismiss. See, e.g., Evans v. Bd. of County Comm'rs, 752 F. Supp. 973, 978 (D. Colo. 1990). Relief under Fed. R. Civ. P. 60(b) is discretionary and is warranted only in exceptional circumstances. Van Skiver v. U.S., 952 F.2d 1241, 1243 (10th Cir. 1990). Plaintiff has

1998)("[a]ttorney's fees awards are collateral matters over which the district court retains jurisdiction").

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not shown any exceptional circumstances in this case. Rather, Plaintiff merely makes arguments that could have been made in the prior briefing or reargues his position regarding the DiCocco decision. It is clear that the reason why Plaintiff did not make arguments in his Response to the Motion to Dismiss concerning UM/UIM coverage and the CCPA claim is because Plaintiff had previously abandoned these claims. Only after the Court dismissed this action did Plaintiff give any attention to these claims in his Motion for Reconsideration. The parties in this case submitted two Final Pretrial Orders to the Court. The first was submitted on April 27, 2006, and the second was submitted on June 6, 2006. This Court's procedures for completing the Final Pretrial Order instructed Plaintiff to "Summarize the claims...and legal theories," "identify the specific relief sought," and "eliminate claims...which are unnecessary, unsupported, or no longer asserted." [See D.C.COLO.LCivR 16.3 and Appendix G to local rules (emphasis added)]. In both Final Pretrial Orders, Plaintiff only asserted claims for reformation of the PIP policies and bad faith and breach of contract related to the PIP policies. [See Final Pretrial Orders submitted to Court on 4/27/06 and 6/6/06 at § 3]. The claims Plaintiff once asserted for UM/UIM benefits, breach of the implied duty of good faith and fair dealing, and violation of the CCPA are not included in Plaintiff's statement of claims in either Final Pretrial Order. Further, Plaintiff did not raise these claims in his Response to Defendant's Motion to Dismiss. It is obvious that Plaintiff was no longer asserting these claims at the time the Motion to Dismiss was filed. If he was, these claims should have been included in the Final Pretrial Orders, and he should have made the arguments he now makes in the Motion to Reconsider during the briefing period for the Motion to Dismiss. Plaintiff is using his previously abandoned claims to

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persuade the Court to reconsider its prior ruling. The Court should reject this tactic. A Motion for Reconsideration is not a license for a losing party's attorney to get a "second bite at the apple." George Carlson & Assocs. v. United States Bankr. Court (In re Zamora), 251 B.R. 591, 595 (D. Colo. 2000). Every one of the issues and arguments made in Plaintiff's Motion for Reconsideration could have been made during the briefing of the Motion to Dismiss. No new facts have been discovered and no new law has been established since the day Plaintiff filed his Response to the Motion to Dismiss. Plaintiff's Motion for Reconsideration is a thinly veiled attempt to make a record for appeal after the fact and resurrect claims that had previously been abandoned or forgotten. The Court's analysis and interpretation of DiCocco v. National Gen. Ins. Co., ___ P.3d___ (Colo. App. 2006) was correct and dismissal of the entire Amended Complaint for lack of subject matter jurisdiction was appropriate. Plaintiff has made no showing that he will exhaust his primary coverage under the Liberty Mutual policy. The Court should deny Plaintiff's Motion for

Reconsideration because the Court does not have jurisdiction over this matter and because Plaintiff has failed to show exceptional circumstances for reconsideration of the Court's Order. Furthermore, the Court should strike the Motion for Reconsideration from the record. See Defendant's Motion to Strike, filed separately. WHEREFORE, American Bankers respectfully requests that the Court deny Plaintiff's Motion for Reconsideration and strike the same from the Court's record.

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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 18th day of August 2006, a true and correct copy of the above and foregoing DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF ORDER OF DISMISSAL FOR LACK OF SUBJECT MATTER JURISDICTION 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/ Rita Sinks

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