United States District Court, D. Colorado
JAMIE LEE DOWLING, individually, as surviving mother of Landyn Scott Dowling, Plaintiff,
v.
GENERAL MOTORS LLC, and KEY SAFETY SYSTEMS, INC., Defendants. SHAWN COOK, Plaintiff-Intervenor,
ORDER
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Plaintiff's Motion
to Alter/Amend March 30, 2018 Order and Judgment
[#62][1] (the “Motion”).
Plaintiff-Intervenor filed a Response [#70] in opposition to
the Motion and Plaintiff filed a Reply [#74]. Plaintiff
represents that both Defendants do not oppose the Motion.
Motion [#62] at 1. The Court has reviewed the
Motion, the Response, the Reply, the exhibits thereto, the
case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Motion [#62] is GRANTED in part and DENIED in
part.
I.
Introduction
The
most significant dispute at issue in the Motion [#62] is
about Plaintiff's attorneys' fees. Despite multiple
opportunities, counsel failed to adequately address the issue
both prior to and at a two-day hearing on the merits of the
underlying dispute. Now, after subsequent entry of judgment
by the Court, Plaintiff essentially seeks a
“do-over” regarding attorneys' fees.
Counsel's only previous references to the issue were
citation to an inapplicable case in Plaintiff's hearing
brief and belated submission of a purported stipulated
document showing the alleged amount of fees incurred. As
discussed in more detail below, Plaintiff's current
efforts to address the omission are too little too late. In
the absence of admissible evidence, stipulated evidence
and/or applicable legal authority, the Court cannot amend the
judgment to award the fees requested.
II.
Background
This
wrongful death action arises from the tragic deaths of Jamie
Lee Dowling's (“Plaintiff”) two young
children in a car accident that occurred on March 9, 2013.
Plaintiff filed the lawsuit in this Court on March 3, 2015,
seeking to recover pursuant to the Colorado Wrongful Death
Act, Colo. Rev. Stat. § 13-21-201(1)(c). Compl.
[#1]. The Complaint [#1] alleges that Plaintiff's car, a
2008 Chevrolet Cobalt, was defective in its design and
manufacture, which resulted in loss of control and subsequent
failure of the air bags to deploy. The matter was transferred
to the Southern District of New York on March 16, 2015,
see [#6], and thereafter was remanded to this Court
on March 10, 2017, for purposes of approval and distribution
of settlement proceeds. See [#8-2]. On April 27,
2017, all settlement proceeds with respect to Plaintiff's
daughter, Raylee Kay Dowling (“Raylee”), were
allocated to Plaintiff by the Court. Minute Order
[#17].
On
August 10, 2017, Plaintiff filed a Motion to Allocate
Settlement Proceeds [#19] (the “Motion to
Allocate”) with respect to her son, Landyn Scott
Dowling. Shawn Willis Cook
(“Plaintiff-Intervenor”), who is Landyn's
biological father, was permitted to intervene in this case on
November 3, 2017. He thereafter filed a Response [#26] and
Exhibits [#27] seeking 50% of the settlement proceeds. The
Court scheduled an evidentiary hearing, which was held on
January 9-10, 2018, regarding apportionment of the settlement
proceeds. See [#49, #50]. On March 30, 2018, the
Court issued a Final Order and Judgment [#58] (the
“Final Order”) that allocated sixty-five percent
of the gross settlement proceeds to Plaintiff Dowling, and
thirty-five percent of the gross settlement proceeds to
Plaintiff-Intervenor Cook. The Court explicitly denied
Plaintiff's request that the Court allocate the
settlement proceeds after deduction for Plaintiff's
attorneys' fees and costs. Final Order [#58] at
13-14. Pursuant to Fed.R.Civ.P. 58(a) and the Final Order,
the Clerk of the Court issued the Final Judgment [#59] which,
as relevant here, entered final judgment in favor of
Plaintiff and Plaintiff-Intervenor against Defendants and
ordered that Plaintiff and Plaintiff-Intervenor file bills of
costs within 14 days of entry of the judgment.
On
April 27, 2018, Plaintiff filed the instant Motion [#62]
seeking to amend the Final Order and Final Judgment. The
Motion [#62] does not seek modification of the percentage
allocation of settlement proceeds. [#62] at 1. Instead,
Plaintiff seeks to modify the Final Order and Final Judgment
as follows:
(1) withdraw the final judgment and amend the Order to
clarify that it is not a final judgment, that the case is not
closed, and that no costs are awarded; (2) amend the Order to
make clear that it does not preclude deduction from each
beneficiary's share of the gross settlement proceeds as
may be required by the Orders of the MDL Court or by the
settlement agreement; and (3) amend the Order to provide that
Plaintiff's counsel's attorney fees and costs of
obtaining the settlement with the Defendants . . . will be
paid to Plaintiff's counsel during disbursement of
settlement proceeds, and that the proceeds net of those fees
and costs, and net of MDL and settlement costs, will be
distributed to Plaintiff Dowling and Plaintiff-Intervenor
Cook in accordance with the percentage allocations determined
by the Court in the Order.
Id. at 19.
After
Plaintiff filed the Motion, Plaintiff-Intervenor filed his
Motion for Attorneys' Fees and Costs Pursuant to
Fed.R.Civ.P. 54(d) [#67] (the “Fee Motion”) on
May 4, 2018. Subsequently, the parties filed the Stipulated
Motion and Notice to Dismiss Claims Against Defendants Only
[#79] (the “Stipulation”) on August 21, 2018.
Pursuant to that Stipulation, and concurrently with this
Order, Defendants were dismissed from the case with
prejudice. Minute Order [#81].
III.
Legal Standard
The
Court must first determine the applicable legal standard. The
Motion [#62] states that it is filed pursuant to Fed.R.Civ.P.
59(e) “and other authorities cited herein[.]”
[#62] at 1. The Motion [#62] states that it is “also
timely as it seeks attorney fees” pursuant to
Fed.R.Civ.P. 54(d)(2).[2] Id. at 14. While the Response
[#70] also applies the Rule 59(e) standard, Plaintiff's
Reply [#74] then contends that “the heightened standard
for consideration of a Rule 59 motion should not apply”
because the Order should be considered a ruling on a motion,
not a final judgment. Reply [#74] at 4. Plaintiff
then advocates that the Court should simply “review
this Motion [#62] as it would any motion for
reconsideration.”[3] Id. In ascertaining what legal
standard to apply, the Court will not pre-judge the merits of
Plaintiff's arguments. Thus, because final judgment has
entered in this case, the Court applies the standard set
forth in Rule 59(e). See Trotter v. Regents of Univ. of
N.M., 219 F.3d 1179, 1183 (10th Cir. 2000)
(“Regardless of how it is styled, courts consider a
motion filed within [28] days of the entry of judgment that
questions the correctness of the judgment to be a Rule 59(e)
motion.”).[4] Moreover, a motion asking the Court to
vacate the judgement is recognized as a Rule 59(e) motion.
Miller v. Leavenworth-Jefferson Elec. Co-op., Inc.,
653 F.2d 1378, 1380 (10th Cir. 1981) (collecting cases);
see Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
Cir. 1997) (“[A] motion will be considered under Rule
59(e) when it involves reconsideration of matters properly
encompassed in a decision on the merits.” (quotations
omitted)).
“‘Rule
59(e) allows a party to direct the district court's
attention to newly discovered material evidence or a manifest
error of law or fact, and enables the court to correct its
own errors and thus avoid unnecessary appellate
procedures.'” Etherton v. Owners Ins. Co.,
No. 10-cv-00892-PAB-KLM, 2013 WL 5443068, at *1 (D. Colo.
Sept. 30, 2013), aff'd, 829 F.3d 1209 (10th Cir.
2016) (quoting Moro v. Shell Oil Co., 91 F.3d 872,
876 (7th Cir. 1996)). “Grounds for granting a Rule
59(e) motion 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.'” Somerlott v. Cherokee Nation
Distributors, Inc., 686 F.3d 1144, 1153 (10th Cir. 2012)
(quoting Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000)); see also Barber ex rel.
Barber v. Colo. Dep't of Revenue, 562 F.3d 1222,
1228 (10th Cir. 2009) (Rule 59(e) relief is appropriate where
“the court has misapprehended the facts, a party's
position, or the controlling law.”). “Clear error
is ‘(1) error, (2) that is plain, which (3) affects
substantial rights, and which (4) seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.'” Etherton, 2013 WL 5443068,
at *1 (quoting United States v. Farr, 701 F.3d 1274,
1286 (10th Cir. 2012)). “An error is
‘manifest' if it is ‘plain and indisputable,
and that amounts to a complete disregard of the controlling
law or the credible evidence in the record.'”
Id. (quoting Black's Law Dictionary 582 (8th ed.
2004)).
However,
“[Rule 59(e)] ‘may not be used to relitigate old
matters, or to raise arguments or present evidence that could
have been raised prior to the entry of judgment.'”
Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5
(2008) (quoting Wright & Miller, Federal Practice and
Procedure § 2810.1, 127-28 (2d ed. 1995)).
Additionally, “Rule 59 ‘does not provide a
vehicle for a party to undo its own procedural failures, and
it certainly does not allow a party to introduce new evidence
or advance arguments that could and should have been
presented to the district court prior to the
judgment.'” Etherton, 2013 WL 5443068, at
*2 (quoting Moro, 91 F.3d at 876); see also
Servants of Paraclete, 204 F.3d at 1012 (Filing a motion
pursuant to Rule 59 is not appropriate “to revisit
issues already addressed or advance arguments that could have
been raised in prior briefing.”). Ultimately,
“[t]he decision to grant or deny a Rule 59 motion is
committed to the Court's discretion.” Id.
(citing Phelps, 122 F.3d at 1324).
IV.
Analysis
As an
initial matter, Plaintiff-Intervenor argues that the Motion
[#62] should be summarily denied because it seeks to
introduce new evidence into the record and assert new
arguments that could have been, but were not, presented to
the Court during the months of litigation preceding the entry
of the Final Order [#58] and Final Judgment [#59].
Response [#70] at 2, 5-7. The Court agrees with
Plaintiff-Intervenor to an extent, as discussed in Sections B
and C of this Order, with respect to two of the three
modifications of the Final Order sought by Plaintiff.
However, as to Plaintiff's procedural objections to
specific language found in the Final Order and Final
Judgment, the Court finds that consideration of these
objections is appropriate given that they are not based on
arguments that could have been previously raised. With this
understanding, the Court proceeds to address the three
modifications to the Final Order and Final Judgment that
Plaintiff seeks in the Motion.
A.
Whether the Final Judgment must be vacated and whether the
Final Order must be amended to clarify that it is not a
“Final” Order.
Plaintiff
contends that the Final Judgment [#59] must be vacated and
that the Court's Final Order [#58] must be amended to
reflect that it is not in fact a “final” order.
Motion [#62] at 3-7. First, Plaintiff argues that
the Final Order [#58] does not resolve all claims among all
parties and therefore is not a “final judgment”
pursuant to Fed.R.Civ.P. 54(b). Id. at 4. Second,
Plaintiff advises the Court for the first time that the
settlement agreement reached with Defendant General Motors
(the “GM Settlement”) requires, among other
things, that a stipulation of dismissal be filed in this
matter before the funds can be disbursed by the Settlement
Administrator. Id. at 6. Therefore, according to
Plaintiff, the Final Order [#58] “made a legal error in
sua sponte ending this entire case” and “must be
amended to: delete the words ‘Final' and
‘Judgment' from the title of the order; delete the
instruction on the last page of the order that
‘judgment shall enter accordingly'; and delete the
last page's direction to the clerk ‘to close this
case.'” Id. at 5-6. Additionally,
Plaintiff states that the Court must vacate the Clerk of the
Court's Final Judgment [#59]. Id. at 6.
1.
Vacating the Final Judgment
First
addressing Plaintiff's argument that the Final Judgment
[#59] must be vacated, Rule 54 defines “judgment”
as “any order from which an appeal lies, ”
Fed.R.Civ.P. 54(a), and further states:
When an action presents more than one claim for relief . . .
or when multiple parties are involved, the court may direct
entry of a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly determines
that there is no just reason for delay. Otherwise, any order
or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the
parties' rights and liabilities.
Fed. R. Civ. P. 54(b). The Court's Final Order [#58]
neither invoked Rule 54(b) nor expressly determined that
there was no just reason for delay. However, based on the
allocation determination, the Court ordered that
“judgment shall enter accordingly” and directed
the Clerk of the Court to close this case. Final
Order [#58] at 14. Following the Final Order, the Clerk
of the Court entered the Final Judgment which ordered, among
other things, “that final judgment is hereby entered in
favor of Plaintiff, Jamie Lee Dowling, Plaintiff-Intervenor,
Shawn Cook and against Defendants, General Motors, Key Safety
Systems, Inc.” [#59] at 1. As stated above, the Final
Judgment further ordered that “the plaintiff and
intervenor may have their costs by filing a bill of costs
within 14 days of entry of judgment.” Id. at
2.
Plaintiff's
point that the Final Order “did not adjudicate the
rights and liabilities of Defendants in this case” is
well-taken. See Motion [#62] at 5. While it is true,
as Plaintiff-Intervenor argues, that the only issue for
adjudication before the Court was the percentage allocation
of the settlement proceeds between the two parents, the
entirety of the Court's role in this matter is broader.
Response [#70] at 15. Although the Court resolved
the issue of allocation of the proceeds between Plaintiff and
Plaintiff-Intervenor, the issue of the rights and liabilities
between Plaintiff and Defendants was apparently not fully
resolved at the time the Court issued its Final Order.
Notably, the Suggestion of Remand [#8-1] filed by the
Southern District of New York states:
The parties have agreed that it would be appropriate to
remand the case in its entirety for the purpose of
allowing the transferor court (in this case, the United
States District Court for the District of Colorado) to
oversee approval of the settlement and distribution of the
settlement in accordance with Colorado's wrongful death
statute.
(emphasis
added). Plaintiff-Intervenor asserts that “the only
logical interpretation of the Final Order and Judgment as
applicable to the Defendants is that the Defendants must
abide by the Court's allocation determination, which they
have already agreed to do in the GM Settlement.”
Response [#70] at 16 n.4. While the Court agrees
with this interpretation to the extent that it applies to the
Final Order, it remains true that Plaintiff's
claims against Defendants were not, and have not been,
adjudicated on the merits. Thus, the Court finds that it was
a clerical error for the Final Judgment to state
that judgment had been entered in favor of Plaintiff and
Plaintiff-Intervenor against Defendants.
However,
given that the claims against Defendants have now been
dismissed and are no longer pending, see Minute
Order [#81], the Court finds that it need not vacate the
Final Judgment in its entirety. Rather, to simply reflect the
fact that all claims in the case have been resolved and
correct the clerical error regarding entry of judgment
against Defendants, the Court directs the Clerk of the Court
to enter an Amended Final Judgment which deletes the
following language from the Final Judgment [#59]:
It is FURTHER ORDERED that final judgment is hereby entered
in favor of Plaintiff, Jamie Lee Dowling,
Plaintiff-Intervenor, Shawn Cook and against Defendants,
...