United States District Court, D. Colorado
ORDER
KRISTEN L. MIX MAGISTRATE JUDGE
This
matter is before the Court on Plaintiffs' Motion
for Reconsideration of Court's Order Granting
Defendants' Motion for Determination as a Matter of
Law [#254][1] (the “Motion”). Defendants
filed a Response [#255] in opposition to the Motion. No.
Reply was permitted. See [#256].
On June
11, 2018, the Court ruled that because “the opt-in
Plaintiffs have not properly asserted individual state-law
claims in this matter, they may not present evidence and
pursue those claims at trial” and that “the
opt-in Plaintiffs are limited to Count I of the Fourth
Amended Complaint [#82], i.e., failure to pay minimum wage in
violation of the FLSA.” Order [#253] at 5.
Here, Plaintiffs seek reconsideration of one aspect of the
Court's Order [#253], i.e., “whether Defendants are
judicially estopped from arguing that ‘opt-in'
Plaintiffs have not asserted state law claims.”
Motion [#254] at 1.
A
motion for reconsideration “is an extreme remedy to be
granted in rare circumstances.” Brumark Corp. v.
Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995). It
is well-established in the Tenth Circuit that grounds for a
motion to reconsider are limited to the following: “(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) (citing Brumark, 57 F.3d at 948).
Therefore, a motion to reconsider is “appropriate
[only] where the court has misapprehended the facts, a
party's position, or the controlling law.”
Id. Plaintiffs invoke the third exception, i.e., the
need to correct clear error, in the present Motion.
“Courts
may invoke judicial estoppel to prevent a party from
asserting a claim in a legal proceeding that is inconsistent
with a claim taken by that party in a previous
proceeding.” First W. Capital Mgmt. Co. v.
Malamed, 874 F.3d 1136, 1146-47 (10th Cir. 2017) (citing
New Hampshire v. Maine, 532 U.S. 742, 749-50
(2001)). “[T]he circumstances in which courts apply
this doctrine vary, ” but “three factors
typically inform this decision . . . .”
Malamed, 874 F.3d at 1147. First, “a
party's subsequent position must be clearly inconsistent
with its former position.” Id. Second, the
“party succeeded in persuading a court to accept that
party's former position, so that judicial acceptance of
an inconsistent position in a later proceeding would create
the perception that either the first or the second court was
misled.” Id. Third, the party “would
gain an unfair advantage in the litigation if not
estopped.” Id.
The
extent of Plaintiffs' argument regarding judicial
estoppel in their Response was that “Defendants are
judicially estopped from raising this argument as the
position is contrary to their prior position and would unduly
prejudice 40 opt-in Plaintiffs who have litigated this far
with the understanding they were asserting state law
claims.” Response [#251] at 2. Although
Plaintiffs incorporated by reference argument made in the
Response [#231] to Defendants' Motion to Bifurcate
[#227], see Response [#251] at 1-2, Plaintiffs did
not clearly discuss the factors to be considered by the Court
when determining whether judicial estoppel applies. See
Response [#231] at 4-6.
Regarding
the first factor, “a party's subsequent position
must be clearly inconsistent with its former position.”
Malamed, 874 F.3d at 1147. Plaintiffs direct the
Court's attention to two statements made by Defendants in
the Motion to Decertify Collective Action: (1) “And if
Plaintiffs were permitted to prosecute their state-law claims
as a class, then a series of over 50 mini-trials would need
to be conducted just to determine their damages, ” and
(2) “These variations counsel strongly against
attempting to manage 50-plus Plaintiffs' individual
claims as the FLSA collecti[ve]-action claims in the same
case.” [#201] at 17, 19. The Court notes that
Defendants' “former position” here consists
of statements made in the course of arguing: first, that the
Rule 23 “superiority” requirement for class
action certification was not met and, second, that the Court
should decline supplemental jurisdiction over all state law
claims because state law issues would substantially
predominate over the FLSA claims. See Id. Neither of
these stances are “clearly inconsistent” with
Defendants' current position that the opt-in Plaintiffs
have not adequately asserted state-law claims in this
litigation.
The
second factor is that the “party succeeded in
persuading a court to accept that party's former
position, so that judicial acceptance of an inconsistent
position in a later proceeding would create the perception
that either the first or the second court was misled.”
Malamed, 874 F.3d at 1147. The Court did not
previously determine whether Plaintiffs' state-law claims
should be decertified, because the Court held that Plaintiffs
never properly certified such claims in the first place.
Order [#215] at 1-2. The Court also
rejected Defendants' argument regarding
supplemental jurisdiction, determining instead that it would
continue to exercise supplemental jurisdiction over
Plaintiffs' state-law claims. Order [#244] at 4.
No. decision was made at that time regarding the scope of
those claims or regarding which Plaintiffs had asserted which
claims. See generally Id. Thus, the Court did not
materially “accept” any argument or statement
previously made by Defendants and has no perception of having
been misled.
The
third factor is that the party “would gain an unfair
advantage in the litigation if not estopped.”
Malamed, 874 F.3d at 1147. Given that, based on the
first two factors, the Court has found that Defendants'
previous legal arguments do not amount to a statement of a
position which may form the basis for judicial estoppel, it
need not determine the issue of “unfair
advantage.”
Judicial
estoppel is “a discretionary remedy courts may invoke
to prevent improper use of judicial machinery.”
Johnson v. Lindon City Corp., 405 F.3d 1065, 1069
(10th Cir. 2005) (internal quotation marks omitted) (quoting
New Hampshire, 532 U.S. at 750). It is applied only
“in the narrowest of circumstances.”
Johnson, 405 F.3d at 1069 (quoting Lowery v.
Stovall, 92 F.3d 219, 224 (4th Cir. 1996)). In light of
the Court's discussion above, those circumstances are
simply not present here. Thus, although the Court clarifies
its prior Order [#254] to the extent stated herein, its prior
decision regarding judicial estoppel stands. Accordingly, IT
IS HEREBY ORDERED that the Motion [#254] is
DENIED.
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Notes:
[1] “[#254]” is an example of
the convention the Court uses to identify the docket number
assigned to a specific paper by the Court's case
management and electronic case filing system (CM/ECF). This
...