Free Order on Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

Case 1:02-cv-00664-EWN-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 02­ 00664­ cv­ EWN­ MJW FABIAN MEDINA and SILVIA MEDINA, Plaintiffs, v. ELWYN F. SCHAEFER, Defendant.

ORDER FOR ENTRY OF JUDGMENT

This matter has come before the court on a motion for a hearing or conference filed by Defendant on October 21, 2005 (#71). The motion requests a hearing or conference on objections filed by Defendant to a magistrate judge' ruling. The ruling denied Defendant' s s motion to reconsider the magistrate judge' decision awarding Defendant attorney fees against s Plaintiffs'counsel. Defendant filed the motion to reconsider, and now objets to its denial, because he was dissatisfied with the amount of the award. Although the court does not agree fully with Defendant' position, the motion for a hearing has had the effect of calling the court' attention to s s some loose ends and unresolved issues in the case. Because the court' file discloses all the facts s needed for a final decision in the case, it is not necessary to hold a hearing or conference. The standard of review which this court employs in considering a magistrate judge' s submissions depends upon whether the motion before the court and magistrate judge is viewed as dispositive or non-dispositive. Under Rule 72(a) of the Federal Rules of Civil Procedure, a district court may reverse a magistrate judge' decision on a non-dispositive matter only if the s

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decision is found to be " clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a). See also 28 U.S.C.A. § 636(b)(1)(A) (2004) Under the clearly erroneous standard of review, the magistrate judge' finding should not be rejected merely because the court would have decided the matter s differently. Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985). Rather, the district court must affirm the decision of the magistrate judge unless the district court, " the entire evidence[,] is left with the definite and firm conviction that a mistake has been on committed." Id. at 1464 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 [1948]). The court believes that the magistrate judge properly exercised his discretion in denying the motion for reconsideration. The file discloses that this case was initiated under the federal Fair Debt Collections Practices Act. Plaintiffs, through their attorney, Vincent Todd, claimed that Defendant had violated the act during the course of collecting a debt from them. Eventually, the court granted Defendant' motion to dismiss. It is not necessary to recite here the lamentable s history of Mr. Todd' omissions and derelictions preceding the court' dismissal, because both s s this court and the magistrate judge have previously recited them in granting Defendant' motion s for sanctions and awarding attorney fees against Mr. Todd for his conduct. After granting Defendant' motion to dismiss, the court, on January 27, 2003, bifurcated s the motion for sanctions. Insofar as the motion sought sanctions for Mr. Todd' conduct in s handling dispositive motions, this court retained authority to decide the motion for sanction because it had conducted the proceedings relating to dispositive motions and was familiar with them. Insofar as the motion sought sanctions for Mr. Todd' conduct in discovery, settlement s conferences, and the like, the court referred the motion to the magistrate judge, who had conducted these proceedings and was familiar with them. -2-

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Thereafter, each part of the bifurcated motion proceeded on parallel tracks. On January 28, 2003, the magistrate judge promptly set his part of the motion for a hearing to commence on February 28, 2003. On February 6, 2003, this court granted its part of the bifurcated motion and, pursuant to Fed. R. Civ. P. 54(d), established a schedule for deciding the amount of attorney fees to be awarded. The schedule required Defendant to submit documentation concerning attorney fees by February 19, 2003. Defendant did timely comply with this court' scheduling order by filing documentation s concerning attorney fees on February 18, 2003. The documentation requested fees in the amount of $3,680.00. On February 28, 2003, the magistrate judge held a hearing concerning his part of the motion, at which each side presented argument (although Mr. Todd, characteristically, appeared one hour late). The magistrate judge took the matter under advisement. On March 3, the magistrate judge issued his written order. He granted his part of the motion for sanctions. He also made an award of attorney fees, basing his determination on the only documentation before him, namely, the affidavit which Defendant had filed on February 18. He found that parts of the affidavit exclusively to the " dispositive motion"portion of the bifurcated proceeding and declined to rule on those parts. He found that other parts of the affidavit apparently related to both parts of the bifurcated proceeding. Consequently, he attempted to make an allocation, awarding $2,312.50 as the attorney fees for his part of the bifurcated motion. He awarded Defendant an additional $130 because Mr. Todd' conduct had s delayed the commencement of the hearing by one hour. On March 7, 2003, this court held a hearing on its part of the bifurcated motion. Mr. Todd appeared. During this hearing Defendant' counsel, referring to the written ruling of the s magistrate judge, announced that she would be filing a motion asking the magistrate judge to -3-

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reconsider his order because Defendant had filed the wrong affidavit for the magistrate judge' s review and was now going to file an affidavit seeking fees for Mr. Todd' conduct relating to s matters other than dispositive motions. Defendant' counsel also represented that the had filed a s motion asking that Mr. Todd be personally responsible for the $548.05 in costs awarded by the clerk. Mr. Todd indicated that he had no opposition to the motion. On this state of the record, the court awarded (1) the $3,680.00 sought in the affidavit submitted by Defendant on February 18, 2003 and (2) $548.05 in costs. The court also made clear that a final judgment concerning fees and costs would have to await the magistrate judge' ruling on the motion to reconsider his s previous award. Consistent with representations made at the hearing, Defendant immediately filed an affidavit seeking $6,262.50 in attorney fees for the " discovery"part of the bifurcated motion. Defendant also filed the motion asking the magistrate judge to reconsider his previous ruling. Compounding the mounting confusion, the motion sought $5,827.50 in fees, an amount which matches neither the new affidavit nor the sum resulting when the magistrate judge' previous s award is subtracted from the new affidavit. The magistrate judge denied the motion to reconsider, finding that Defendant had not shown " good cause"for the motion. On this state of the record, the court cannot find that the magistrate judge' ruling is s clearly erroneous or contrary to law. Motions to reconsider are rarely granted, and ruling on such a motion is committed to the sound discretion of the court. A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. General Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994), aff' 43 F.3d 1484 (10th Cir. 1994). Most importantly, a motion to d, reconsider is not a motion " reargue those issues already considered when a party does not like to -4-

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the way the original motion was resolved." In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996). Certain things become clear only in retrospect. The order bifurcating proceedings created opportunity for confusion, and Defendant leaped at the opportunity. Although a close reading of the first affidavit (of February 18) convinces the court that it was meant to cover only those fees relating to the " dispositive motion"part of the bifurcated proceeding, Defendant failed to place before the magistrate judge any additional documentation concerning fees relating to other parts of the proceeding, despite having had ample opportunity to do so before and at the hearing before the magistrate judge. Indeed, Defendant has compounded the confusion by submitting inconsistent evidence and proposals for reconsideration. The court therefore agrees with the magistrate judge' observation that both parties had adequate notice of the hearing and sufficient s opportunity to prepare for it. It follows that the magistrate judge' ruling on the motion to s reconsider should not be overturned. In accordance with the findings and conclusions stated herein, it is ORDERED as follows: 1. The objections to the magistrate judge' ruling on the motion to reconsider are s OVERRULED, and the ruling is AFFIRMED and adopted as the order of this court. It follows that the $2,442.50 awarded by the magistrate judge is the order of this court for the " discovery" part of the bifurcated motion. 2. The court re-affirms its previous ruling that $3,680 in attorney fees should be awarded for the " dispositive motion"portion of the proceeding and that Mr. Todd should pay costs of $548.05.

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3. In accordance with the previous paragraphs, the clerk will enter final judgment in favor of Defendant and against Mr. Vincent Todd in the total amount of $6,122.50 ($2442.50 awarded by the magistrate judge + $3,680.00 awarded by this court)* as attorney fees , plus $548.05 in costs, for a total judgment of $6,670.55. 4. The motion for a hearing (#71) is DENIED.

Dated this 1st day of November, 2005.

BY THE COURT:

/s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

The court is aware that the magistrate judge and this court each based their awards on the first affidavit (February 18, 2003) and that a fee award should arguably be limited to the total amount disclosed in that affidavit. This, in the court' view, ignores the procedural posture of the s case and the manifest intent of both orders. This court intended that the sum which it awarded relating to dispositive matters would be added to whatever sum the magistrate judge awarded for other matters after he ruled on the prospective motion to reconsider. The magistrate judge denied the motion to reconsider and thus left standing his previous award relating to non-dispositive matters. Plaintiff can hardly complain of this disposition, because granting of the motion to reconsider would have resulted in an award of $9,637.50 in attorney fees. Defendant cannot complain either, for reasons stated in this order. -6-

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