Free Motion to Strike - District Court of Colorado - Colorado

Case 1:04-cv-01876-RPM

Document 137

Filed 08/18/2006

Page 1 of 3

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 MOTION TO STRIKE PLAINITFF'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, hereby files its Motion to Strike Plaintiff's Motion for Reconsideration as follows: 1. On May 26, 2006, American Bankers filed its Motion to Dismiss for Lack of Subject

Matter Jurisdiction [#114] based upon the recent Colorado Court of Appeals decision of DiCocco v. National Gen. Ins. Co., 2. P.3d (Colo. App. 2006).

This Court granted American Bankers' motion and ordered the dismissal of this

action on June 23, 2006 [#122].

Case 1:04-cv-01876-RPM

Document 137

Filed 08/18/2006

Page 2 of 3

3.

On July 24, 2006, Plaintiff filed a Notice of Appeal to the Tenth Circuit Court of

Appeals [#124]. 4. Thereafter, on July 28, 2006, Plaintiff filed a Motion for Reconsideration of the

Court's June 23, 2006 Order dismissing this matter for lack of subject matter jurisdiction [#128]; however this Court lacks jurisdiction over said motion as a result of Plaintiff's Notice of Appeal. 5. "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. This Court, however, retains jurisdiction over collateral matters not involved in the appeal, including Defendant' Motion for Attorney Fees and Costs and this Motion to Strike. See Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1237 (10th Cir. 1998)("[a]ttorney's fees awards are collateral matters over which the district court retains jurisdiction"). 6. The Court's Order dismissing this case was a final appealable order. No separate

document was necessary under Fed. R. Civ. P. 58 because the Court's June 23, 2006 Order disposed of the entire Amended Complaint. 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). 7. Plaintiff's Motion for Reconsideration should be stricken from the record because it

2

Case 1:04-cv-01876-RPM

Document 137

Filed 08/18/2006

Page 3 of 3

was filed well after Plaintiff filed his Notice of Appeal. The Court does not have jurisdiction to consider the Motion for Reconsideration. Thus, it is superfluous, immaterial, and should be stricken from the record. WHEREFORE, American Bankers respectfully requests that the Court strike Plaintiff's Motion for Reconsideration from the 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 18th day of August, 2006, a true and correct copy of the above and foregoing DEFENDANT'S MOTION TO STRIKE PLAINITFF'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/ Rita Sinks

3
00235017