Dowling v. General Motors, LLC

          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, ...