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Pierce v. Atlantic Specialty Insurance Co.

United States District Court, D. New Mexico

September 1, 2017

MARK PIERCE, WILLIAM C. ENLOE, and JILL COOK, TRINITY CAPITAL CORPORATION and LOS ALAMOS NATIONAL BANK, Plaintiffs,
v.
ATLANTIC SPECIALTY INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, and CONTINENTAL CASUALTY COMPANY, Defendants.

          MEMORANDUM OPINION AND ORDER

         On July 26, 2017, this Court entered a MEMORANDUM OPINION AND ORDER (Doc. No. 279) (July 26, 2017 Order), concluding that this proceeding should be remanded to the First Judicial District Court in Los Alamos County after the Court rules on the Plaintiffs' requests for attorney's fees and costs against both Defendants Atlantic Specialty Insurance Company (ASIC) and Continental Casualty Company (Continental). On August 10, 2017, Continental filed DEFENDANT CONTINENTAL CASUALTY COMPANY'S MOTION FOR RECONSIDERATION OF FEE AWARD PURSUANT TO 28 U.S.C. §1447(C) (Doc. No. 284) (Continental's Motion for Reconsideration). Continental states that it does not seek reconsideration of the Court's remand decision, but rather, asks the Court to reconsider its finding that Continental is liable for the Plaintiffs' attorney's fees and costs. Continental's Motion for Reconsideration at 1.

         On August 15, 2017, Plaintiffs Trinity Capital Corporation and Los Alamos National Bank, N.A. (collectively, LANB) filed a RESPONSE OF [LANB] TO [CONTINENTAL'S] MOTION FOR RECONSIDERATION OF FEE AWARD PURSUANT TO 28 U.S.C. §1447(C) [Doc. 284] (Doc. No. 285) (LANB's Response). Plaintiffs Mark Pierce, William C. Enloe, and Jill Cook each joined in LANB's Response (Doc. Nos. 286, 287, and 289). LANB's Response argues, in part, that Continental's Motion for Reconsideration should be denied because it contains nothing more than a “rehash of arguments” that the Court already considered and rejected. LANB's Response at 7. In addition, LANB states that Continental's Motion for Reconsideration is premature because the Court has not yet ruled on the amount of attorney's fees and costs to be awarded or how those amounts should be apportioned between ASIC and Continental. Id.

         On August 23, 2017, Continental filed DEFENDANT [CONTINENTAL'S] REPLY IN SUPPORT OF ITS MOTION FOR RECONSIDERATION OF FEE AWARD PURSUANT TO 28 U.S.C. §1447(C) (Doc. No. 291) (Continental's Reply). Continental primarily contends that neither the Court nor LANB's Response addressed Continental's argument that it could not have reasonably ascertained a basis for realignment of the parties, along with a basis to assert that more than $75, 000 was in controversy as to Continental, until Continental received various state court pleadings, which it did not receive until about July 21, 2016. See Continental's Reply at 1- 2. Thus, according to Continental, its August 19, 2016 Notice of Removal (Doc. No. 232) was filed within 30 days of July 21, 2016, and, therefore, Continental had an objectively reasonable basis to believe it had timely removed the case.

         Also on August 23, 2017, ASIC filed DEFENDANT ATLANTIC SPECIALTY INSURANCE COMPANY'S MOTION FOR RECONSIDERATION OF FEE AWARD (Doc. No. 293) (ASIC's Motion for Reconsideration). On August 31, 2017, LANB filed RESPONSE OF TRINITY CAPITAL CORPORATION AND [LANB] TO [ASIC'S] MOTION FOR RECONSIDERATION OF FEE AWARD [Doc. 293] (LANB's Response) (Doc. No. 298). There is no need for a reply.

         Motion to Reconsider

         I. LEGAL STANDARD

         The Federal Rules of Civil Procedure do not expressly authorize a motion for reconsideration. However, as a general rule, a court will grant a motion for reconsideration when there is: “(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 v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion for reconsideration “is appropriate where the court has misapprehended the facts, a party's position, or the controlling law.” Id. A motion for reconsideration is not an opportunity to advance arguments that the Court has already addressed and rejected, nor is a motion to reconsider an avenue to raise arguments that a party failed to present earlier. United States v. Christy, 739 F.3d 534, 539 (10th Cir.), cert. denied, 135 S.Ct. 104 (2014); Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991), cert. denied, 506 U.S. 828 (1992). A decision on a motion to reconsider generally is committed to the Court's sound discretion. Hayes Family Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1004-05 (10th Cir. 2017).

         II. DISCUSSION

         A. Continental's Motion to Reconsider

         1. Background

         On May 31, 2016, Mr. Enloe filed a First Amended Complaint against various Defendants and, for the first time, named Continental as one of the Defendants. On June 6, 2016, Continental was served with Mr. Enloe's May 31, 2016 First Amended Complaint. See Doc. No. 156. On August 19, 2016, Continental attempted to remove this case on the basis of diversity jurisdiction, more than thirty days after service of Mr. Enloe's amended pleading. DEFENDANT [CONTINENTAL'S] NOTICE OF ADDITIONAL GROUNDS FOR REMOVAL (Doc. No. 232) (Continental's Notice of Removal). Continental stated that while none of the Plaintiff-Insureds had set out the amount in controversy in the pleadings, Continental had a reasonable belief that the amount in controversy exceeded the sum of $75, 000. Continental's Notice of Removal at 4. Continental also noted that its insurance policy was an excess policy that attached above a five million dollar policy issued by ASIC and a five million dollar policy issued by St. Paul. Id. at 5.

         Continental represented that while ASIC had removed the underlying consolidated state court proceeding on July 18, 2016, on the basis of a federal question, ASIC did not file pleadings from the consolidated state court proceeding into the federal court docket until July 21, 2016. According to Continental, only upon reviewing the pleadings filed July 21, 2016 was it able to ascertain that the matter in controversy likely exceeded $75, 000. Id. at 6. Thus, Continental argues that its August 19, 2016 Notice of Removal was filed within 30 days of July 21, 2016, and was timely. See July 26, 2017 Order (discussion of procedural background in more detail).

         In its July 26, 2017 Order, the Court held that Continental's notice of removal was untimely. In reaching this conclusion, the Court examined when Continental was first able to intelligently ascertain that the underlying consolidated state court proceeding was removable on the basis of diversity jurisdiction. July 26, 2017 Order at 29.

         The Court acknowledged but rejected Continental's position that it could not have determined the amount in controversy from Mr. Enloe's May 31, 2016 First Amended Complaint since Mr. Enloe did not set forth a specific amount in controversy. Id. at 29-31. The Court reasoned, in part, that the May 31, 2016 First Amended Complaint should have alerted Continental that the jurisdictional amount for diversity jurisdiction could have been met based on the allegation that Mr. Enloe was forced to retain his own legal counsel “and spend hundreds of thousands of dollars to defend himself” in the pertinent proceedings. See Id. at 32. The Court also noted Mr. Enloe's claims for awards of compensatory and punitive damages, treble damages under the Unfair ...


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