United States District Court, D. New Mexico
MARK PIERCE, WILLIAM C. ENLOE, and JILL COOK, TRINITY CAPITAL CORPORATION and LOS ALAMOS NATIONAL BANK, Plaintiffs,
ATLANTIC SPECIALTY INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, and CONTINENTAL CASUALTY COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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.
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).
Continental's Motion to Reconsider
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.
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
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.
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 ...