United States District Court, D. Colorado
BEYER LASER CENTER, LLC, and CRAIG F. BEYER, Plaintiffs/Counterclaim Defendants,
MATEJ POLOMSKY, Defendant/Counter Claimant.
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE
the Court is Defendant's Motion for Reconsideration (ECF
196) in which Defendant requests the Court reconsider its
previous ruling on Defendant's Amended Motion for Summary
Judgment. In particular, Defendant requests the Court
reconsider his argument that claim preclusion bars
Plaintiffs' claims in this case. For the reasons that
follow, the Motion is denied.
December 6, 2017, Defendant filed his Amended Motion for
Summary Judgment. ECF 71. Defendant argued for summary
judgment in his favor on all of Plaintiffs' claims for
two reasons: first, that he was entitled to statutory
immunity under Colorado state law, and, second, that
Plaintiffs' case was barred by claim preclusion. On
January 23, 2018, this Court issued its Order denying
Defendant's Motion for Summary Judgment. ECF 78. On
September 20, 2019, a year and nine months later, the
Defendant filed the present Motion for Reconsideration of
that Order. At the time this Motion was filed,
Plaintiffs' Motion for Summary and Defendant's Second
Motion for Summary Judgment, ECF 150 and ECF 151, were both
pending before the Court.
Court's January 23, 2018 Order rejected both of
Defendant's arguments for summary judgment. First, as to
Defendant's statutory immunity argument, this Court found
that Plaintiffs demonstrated a disputed issue of fact
regarding whether Defendant filed his ethics complaint about
Plaintiff Dr. Craig Beyer in good faith. Order on Def.'s
Mot. Summ. J. 8, 13, ECF 78. Because the Court previously
held that an individual filing an informal complaint with the
Colorado Board of Medical Examiners receives immunity if he
does so in good faith, Order on Def.'s Mot. to Dismiss
8-14, ECF 29, a dispute of fact regarding Defendant's
intentions precluded the grant of summary judgment based on
statutory immunity. Defendant's second argument in his
Amended Motion for Summary Judgment was that Plaintiffs'
claims in this case were or could have been brought in a
prior lawsuit Plaintiffs filed in June 2015 against Dr.
Richard Stewart, another doctor who had worked at Plaintiff
Beyer Laser Center, LLC. This Court disagreed and held that
Defendant had failed to carry his burden as to two of the
four elements of claim preclusion under Colorado law. ECF 78
at 14 (“Dr. Polomsky has not met his burden of showing
that the prior and current proceedings involve identical
subject matter and parties in privity.”).
present Motion for Reconsideration “requests that the
Court reconsider its previous ruling on claim
preclusion.” Mot. at 16, ECF 196. Despite Defendant
seeking this relief, he devotes less than one page on his
argument as to why this Court should reconsider its Order on
his claim preclusion argument. This page largely consists of
a recitation of the elements of claim preclusion under
Colorado law, followed by the single statement that
“the injury alleged in the Conspiracy claim in both
Beyer I and Beyer II is identical.”
Id. at 13. Defendant proceeds to spend the
remainder, and majority, of the Motion affirmatively arguing
for summary judgment on his abuse of process claim which has
been the subject of its own round of briefing and additional
limited oral argument. The Order for which Defendant seeks
reconsideration did not address Defendant's abuse of
process claim at all, as the Amended Motion for Summary
Judgment sought summary judgment in Defendant's favor
only for all of Plaintiffs' claims based on the
statutory immunity and claim preclusion theories.
Federal Rules of Civil Procedure do not specifically provide
for motions for reconsideration.” Menocal v. Geo
Grp., Inc., No. 14-cv-02887-JLK, 2015 WL 13614120, at *1
(D. Colo. Aug. 26, 2015) (citing Hatfield v. Bd. of Cnty.
Comm'rs for Converse Cnty., 52 F.3d 858, 861 (10th
Cir. 1995). The authorization for such a motion is implied by
Rule 54(b), which states in part that “any order...that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties...may be revised at
any time before the entry of a judgment.” Fed.R.Civ.P.
54(b). Motions for reconsideration, thus, “fall within
a court's plenary power to revisit and amend
interlocutory orders as justice requires.” Spring
Creek Expl. & Prod. Co., LLC v. Hess Bakken Inv. II,
LLC, No. 14-cv-00134-PAB-KMT, 2015 WL 3542699, at *2 (D.
Colo. June 5, 2015). In order to avoid the inefficiency of
repeatedly re-adjudicating interlocutory orders, generally
judges in this district have imposed limits on the broad
discretion to revisit interlocutory orders. Id.
“A motion for reconsideration is an extreme remedy to
be granted in rare circumstances.” Menocal,
2015 WL 13614120, at *1 (quotation omitted).
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.” Seabron v. Am.
Family Mut. Ins. Co., No. 11-cv-01096-WJM-KMT, 2012 WL
3028224, at *1 (D. Colo. July 24, 2012). “Motions to
reconsider are generally an inappropriate vehicle to advance
‘new arguments, or supporting facts which were
available at the time of the original motion.'”
Spring Creek Expl. & Prod. Co., LLC, 2015 WL
3542699, at *2 (quoting Servants of the Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000)).
“Arguments raised for the first time in a motion for
reconsideration are not properly before the court and
generally need not be addressed.” Madison v.
Volunteers of Am., No. 12-cv-00333-REB-KMT, 2012 WL
1604683, at *1 (D. Colo. May 8, 2012) (quotation omitted).
grounds warranting a motion to reconsider 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.”
Servants of the Paraclete, 204 F.3d at 1012
(citation omitted). “In determining whether to revisit
an interlocutory order, courts generally consider whether new
evidence or legal authority has emerged or whether the prior
ruling was clearly in error.” Hubbard v.
Nestor, No. 16-cv-00444-CMA-STV, 2019 WL 1331981, at *2
(D. Colo. Mar. 25, 2019) (quotation omitted). “Thus, a
motion for reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the
controlling law.” Roe v. Catholic Health
Initiatives Colorado, No. 11-cv-02179-WYD-KMT, 2012 WL
1394523, at *1 (D. Colo. Apr. 23, 2012) (quotation omitted).
“A motion to reconsider...should be denied unless it
clearly demonstrates manifest error of law or fact or
presents newly discovered evidence.” Nat'l Bus.
Brokers, Ltd. v. Jim Williamson Products, Inc., 115
F.Supp.2d 1250, 1256 (D. Colo. 2000) (quotation omitted).
present Motion, Defendant fails to assert any of the grounds
warranting the Court to reconsider its ruling on
Defendant's claim preclusion argument; thus,
Defendant's Motion fails. See Servants of the
Paraclete, 204 F.3d at 1012.
Defendant makes no claims that the controlling law has
changed since the Court issued its Order in January 2018. Not
only has the law and legal authority on the argument remained
the same, the Defendant's recitation of the law of claim
preclusion in this Motion even quotes from the Court's
discussion of the law of claim preclusion in the Order which
Defendant now seeks to be reconsidered. Id.
Defendant makes no argument that the Court's detailed
analysis of Defendant's claim preclusion argument in its
Order is subject to clear error or manifestly unjust. As
noted above, after a brief recitation of the elements of
claim preclusion under Colorado law, Defendant makes a single
statement for his argument: “[h]ere, the injury alleged
in the Conspiracy claim in both Beyer I and
Beyer II is identical.” Mot. at 13. This
“argument” is made in reference to the third of
the four elements necessary for claim preclusion under
Colorado law, that the two cases involve the same claims for
relief. See Foster v. Plock, 394 P.3d 1119, 1123
(Colo. 2017). The Court denied Defendant's first motion
for summary judgment based on claim preclusion because
“Dr. Polomsky has not met his burden of showing that
the prior and current proceedings involve identical
subject matter and parties in privity.”
Order on Def.'s Mot. Summ. J. 14, ECF 78 (emphasis
added). While the Court found dispositive to the denial of
Defendant's claim preclusion ...