Maehr v. USA

Filing 20

ORDER denying 18 Petitioners Motion for Reconsideration by Magistrate Judge Kristen L. Mix on 05/12/2009.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 08-cv-02274-LTB-KLM JEFFREY T. MAEHR Petitioner, v. UNITED STATES OF AMERICA, Respondent. _____________________________________________________________________ ORDER DENYING RECONSIDERATION _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on Petitioner's Motion for Reconsideration [Docket No. 18; Filed May 8, 2009] (the "Motion"). Petitioner seeks reconsideration of the Court's recommendation that the United States' Motion for Summary Denial of Petition to Quash be granted. [Docket No. 17]. A motion for reconsideration "is an extreme remedy to be granted in rare circumstances." Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995). It is well established in the Tenth Circuit that grounds for 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 Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citing Brumark, 57 F.3d at 948). Therefore, a motion to reconsider is "appropriate [only] where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already

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addressed or advance arguments that could have been raised in prior briefing." Id. The Court construes the present Motion as an attempt to take a second bite at the apple. The Motion does not set forth new evidence previously unavailable to Petitioner, and it does not cite a change in the law. Moreover, considering that the Court's denial of Petitioner's underlying motion was not the result of a misapprehension of Petitioner's position, the facts, or the law, but rather a discretionary decision based on the sufficiency of the underlying motion, I find that Petitioner has failed to articulate clear error or manifest injustice. To the extent that Petitioner attempts to refine his arguments or assert facts which pre-existed the previous motion, the Court is unpersuaded that Petitioner has satisfied his burden to obtain reconsideration. See id. Accordingly, IT IS HEREBY ORDERED that the Motion is DENIED.

Dated: May 12, 2009 BY THE COURT:

s/ Kristen L. Mix U.S. Magistrate Judge

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