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Smith v. BNSF Railway Co.

United States District Court, D. Colorado

October 11, 2019

ANTHONY J. SMITH, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.



         This 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. 91].

         The 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.

         The 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.

         “Notwithstanding 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)).


         I. Re-visitation of Issues Already Addressed

         The court finds that Defendant's arguments B, C, F and G[1] (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.

         II. Retaliatory Motive (Mot. Issue A)

         Plaintiff 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.

         The 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.

         In both 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).

         While 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.

         III. Summary Judgment Standard and FELA Standard of Care ...

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