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Anderson v. Seven Falls Co.

United States District Court, D. Colorado

November 25, 2014

KARL T. ANDERSON, solely in his capacity as Chapter 7 Trustee for the bankruptcy estate of Robert Leone Davies and Amber Tracey Davies, Plaintiff,


RAYMOND P. MOORE, District Judge.

This matter is before the Court on Plaintiff's Motion for Reconsideration of Summary Judgment (ECF No. 148) (the "Motion to Reconsider"). Defendant's Motion to Set Case for Status Conference (ECF No. 166) will also be addressed.


The facts in this case were set forth in a previous Order of this Court (ECF No. 146), and the Court will only repeat facts that are necessary for the resolution of the instant motions.

In June of 2010, Amber Davies[1] and her future husband were visiting Seven Falls, a natural canyon tourist attraction in Colorado Springs run by Defendant, and stepped into a gap in a walkway. As a result, she twisted her ankle and injured her foot. Ms. Davies contends the ankle injury later developed into Complex Regional Pain Syndrome ("CRPS") and that she has a permanent and serious impairment. (ECF No. 82 at 2.)

In August of 2010, Ms. Davies entered into a fee agreement with counsel to pursue compensation for her injuries from Defendant. In a letter dated August 26, 2010, entitled "Notice of Claim and Representation, " Ms. Davies' attorneys, on her behalf, informed Seven Falls' insurance company of her injury and asked for "copies of any photographs or estimates associated with event." (ECF No. 92-1 at 1.)

On July 15, 2011, Ms. Davies and her new husband Sergeant Robert Davies together filed a Chapter 7 Bankruptcy Petition in California, where she now resides. (ECF No. 82 at 2.) They retained Genesis Law Group as bankruptcy counsel. Ms. Davies' claims against Defendant were not disclosed in her bankruptcy proceeding-not in her schedules, nor at her creditors meeting, nor elsewhere.

In March of 2013, Ms. Davies' attorney disclosed the instant suit to the bankruptcy trustee, who reopened the proceedings in bankruptcy court. Within one month, a Motion for Substitution of Party Filed by Real Party in Interest had been filed by Karl T. Anderson (the "Trustee").

This Court issued an Order on Defendant's Motion for Summary Judgment Based on Judicial Estoppel, granting in part and denying in part. The Court found in favor of the Defendant and applied the doctrine of judicial estoppel against Ms. Davies individually, but found that judicial estoppel should not be applied against the Trustee. ( See ECF No. 146 at 14-15 ("The Trustee and Ms. Davies' creditors should be made whole. Ms Davies should not... The doctrine of judicial estoppel will not be applied to block the claims of the Trustee Karl T. Anderson on behalf of Ms. Davies' creditors or the Trustee's interests, but it will be applied as to any recovery in excess of the referenced amount which would be surrendered back to Ms. Davies, effectively neutering the doctrine of judicial estoppel.") Subsequently, the parties filed the instant motions.

In Plaintiff's Motion to Reconsider, she attaches three new affidavits. Two of those are from her personal injury attorneys, Mr. John Gelhausen and Mr. David M. Sargent. In her personal affidavit, she provides further facts and elaboration about her initial meeting with Chris Kim of the Genesis Law Group, stating that she "believed him to be a bankruptcy attorney with the firm, " and that she did not fill out the "Statement of Affairs" section of the bankruptcy form she previously attached to her original affidavit. (ECF No. 148-1 at 2-3.) She also expands upon her reasons for not reporting the lawsuit to the bankruptcy court and her reasons for not initially reporting her bankruptcy to her personal injury lawyers. ( Id. at 4.)


A. Motion to Reconsider

"Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Though Plaintiff does not initially clearly articulate which of the three possible bases for reconsideration it wishes the Court to consider, it is clear from the Motion to Reconsider that Plaintiff is not arguing either that an intervening change in the law has occurred or that there is new evidence that was previously unavailable. Rather, Plaintiff argues that reconsideration is warranted because "[t]he Court improperly drew an inference that Amber Davies purposely manipulated and deceived the bankruptcy Court and/or the Trustee." (ECF No. 148 at 10.) As to how this presents "clear error, " Plaintiff offers largely the exact same arguments and evidence that were contained in the previous briefing on the topic. Defendant notes this in its response briefing, arguing that Plaintiff's arguments do not meet the standard for filing a motion to reconsider.

Judicial estoppel is an equitable remedy "foremost designed to protect the federal judicial process." Eastman v. Union P. R. Co., 493 F.3d 1151, 1156 (10th Cir. 2007). The purpose of the doctrine is to ensure "a federal court's ability to protect itself from manipulation" "by prohibiting parties from deliberately changing positions according to the exigencies of the moment." Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001)). According to Eastman, there are a variety of factors that might cause a court to invoke the doctrine, but three in particular are typically part of the inquiry: First, a parties' position must be clearly inconsistent with its previous position. Second, the party must have been successful in persuading a court to ...

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