United States District Court, D. Colorado
ANTHONY J. SMITH, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.
KATHLEEN M. TAFOYA, UNITED STATES MAGISTRATE JUDGE
matter is before the court on Defendant's “Motion
for Reconsideration” [Doc. No. 82]
(“Mot.”), filed August 15, 2019. Defendant seeks
reconsideration of this court's Order dated June 12, 2019
[Doc. No. 73] (“SJ Order”). Defendant points to
several errors it claims this court made in its
twenty-nine-page SJ Order and seeks reconsideration of the
court's denial of the Defendant's motion for summary
judgment [Doc. No. 69]. Plaintiff filed a Response to the
Motion for Reconsideration on September 4, 2019 [Doc. No.
88], and Defendant filed a Reply on October 1, 2019 [Doc. NO.
facts of the case are well known to the parties and are
stated in substantial detail in the SJ Order and therefore
will not be unnecessarily repeated here. District courts have
broad discretion to reconsider their interlocutory rulings
before the entry of judgment. See Rimbert v. Eli Lilly
& Co., 647 F.3d 1247, 1251 (10th Cir. 2011)
(“[D]istrict courts generally remain free to reconsider
their earlier interlocutory orders.”). Thus, a court
can alter its interlocutory orders even where the more
stringent requirements applicable to a motion to alter or
amend a final judgment under Rule 59(e) or a motion for
relief from judgment brought pursuant to Rule 60(b) are not
satisfied. See Laird v. Stilwill, 982 F.Supp. 1345,
1353-54 (N.D. Iowa 1997). As a practical matter, however,
“to succeed in a motion to reconsider, a party must set
forth facts or law of a strongly convincing nature to induce
the court to reverse its prior decision.” National
Bus. Brokers, Ltd. v. Jim Williamson Prods., Inc., 115
F.Supp.2d 1250, 1256 (D. Colo. 2000). Even under this lower
standard, “[a] motion to reconsider should be denied
unless it clearly demonstrates manifest error of law or fact
or presents newly discovered evidence.” Id.
bases for granting reconsideration are extremely limited and
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.
Gabriel v. Colorado Mountain Med., P.C., No.
13-CV-02261-REB-CBS, 2014 WL 7336789, at *1 (D. Colo. Dec.
23, 2014), aff'd, 628 Fed.Appx. 598 (10th Cir.
2015); Servants of the Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000) (citations omitted). Thus, a
motion for reconsideration may be appropriate where the court
has misapprehended the facts, a party's position, or the
controlling law. Id.
the district court's broad discretion to alter its
interlocutory orders, the motion to reconsider ‘is not
at the disposal of parties who want to rehash old
arguments.' ” Auraria Student Hous. at Regency,
LLC v. Campus Vill. Apartments, LLC, No.
10-CV-02516-WJM-KLM, 2014 WL 4947325, at *1 (D. Colo. Oct. 1,
2014). The Tenth Circuit has made it abundantly clear that a
motion for reconsideration is not a vehicle for a losing
party to revisit issues already addressed. Does, 204
F.3d at 1012. Absent extraordinary circumstances, arguments
that could have been raised in the original briefing on the
dispute in question may not be made in a motion for
reconsideration. Id. Because the conditions that
justify granting a motion to reconsider are rarely present,
such motions are disfavored and should be equally rare.
Skyline Potato Co. v. Rogers Bros. Farms, No.
10-CV-02353-WJM-KLM, 2011 WL 5992788, at *1 (D. Colo. Nov.
30, 2011) (as amended Dec. 1, 2011) (citing Bank of
Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185,
1191 (7th Cir. 1990)).
Re-visitation of Issues Already Addressed
court finds that Defendant's arguments B, C, F and
(Mot. at 1-2) are merely a rehash of arguments made in the
summary judgment briefing. This court understands that
Defendant disagrees with the court's findings and
conclusions on these issues, but there is no support for an
argument that the court misapprehended the facts, the
Defendant's position, or the controlling law. The court
has carefully analyzed Defendant's Motion, the SJ Order
and the briefing on the underlying Motion for Summary
Judgment. Based on that analysis, the court concludes that
its SJ Order was not legally erroneous nor was there clear
error on arguments B, C, F and G. Because Defendant has not
shown that there was an intervening change in the law, newly
discovered evidence, or the need to correct clear error or
manifest injustice, Defendant's Motion is denied with
respect to those issues.
Retaliatory Motive (Mot. Issue A)
points to one sentence in the SJ Order concerning
“retaliatory motive” (emphasis in
original) to argue that this court legally erred by failing
to require Plaintiff prove that retaliatory animus and
intentional retaliation prompted by Plaintiff's
engagement in protected activity were required. In spite of
the sentence cherry picked from the SJ Order and read in
isolation, this is simply incorrect. The court spent many
pages of the order outlining the correct legal standard to
which Plaintiff would be held.
court began its analysis by quoting from FRSA and setting
forth the elements of the claim that 1) Plaintiff engaged in
protected activity; 2) BNSF knew about the protected
activity; 3) BNSF subjected Plaintiff to an unfavorable
personnel action; and 4) the protected activity was a
“contributing factor” in the unfavorable
personnel action. (SJ Order at 7, citing BNSF Ry. Co.v.
United States DOL, 816 F.3d 628, 638 (10th Cir. 2016);
Kuduk v. BNSF Ry. Co., 768 F.3d 786, 789 (8th Cir.
2014).) The court then addressed each of the elements in
order, applying facts to the legal requirements. Eight pages
after the elements had been set forth-four pages into the
detailed analysis about the meaning of and application of
“contributing factor” in the instant case -the
court stated, “[i]t is not necessary in an FRSA
retaliation case that the plaintiff show that the
decisionmaker had a retaliatory motive, ”
citing to the decision in Kuduk v. BNSF Ry. Co., 980
F.Supp.2d 1092, 1100-01 (D. Minn. 2013), which was affirmed
by the Eighth Circuit in the citation above. Defendant argues
now, that because of this inclusion, the court did not follow
controlling precedent from the Tenth Circuit in Lincoln
v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018), which
held that “[t]he district court correctly focused on
the decisionmaker's knowledge and motive when analyzing
Appellants' FRSA retaliation claims.” Id.
at 1212. However, the totality of the SJ Order does not
support this argument.
the SJ Order and in Kuduk, the point being made by
the courts under the facts in each of the cases, was that an
employer does not have to have a willful, singular, specific
intent to cause the plaintiff to be terminated based on the
employee's engaging in protected activity in order to
satisfy the contributing factor test in a FRSA case. As the
court stated in Kuduk, “[t]he
‘contributing factor' standard does not require a
plaintiff to prove the protected activity was the sole or
predominant factor.” Kuduk, 980 F.Supp.2d
at 1100-01 (emphasis added; internal citation omitted).
this court agrees that the isolated sentence could have been
more artfully drafted to express this concept, the overall
analysis of the order focused on the correct legal standard
and did not eliminate the requirement that Plaintiff is
required to prove that he engaged in protected activity, that
BNSF knew that he engaged in the protected activity, and that
engaging in the protected activity was a “contributing
factor” in or to an unfavorable personnel action.
Therefore, the Motion to Reconsider is denied on this basis.
Summary Judgment Standard and FELA Standard of Care ...