Continental Materials Corporation v. Affiliated FM Insurance Company

Filing 52

ORDER granting in part and denying in part 45 Motion for Reconsideration re 44 Order on Motion to Modify Discovery Deadlines; The Minute Order dated January 22, 2012 44 is amended to add that no further extensions of time will be granted absent extraordinary circumstances. In all other respects, the Motion is DENIED, by Magistrate Judge Kristen L. Mix on 3/8/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02900-JLK-KLM
CONTINENTAL MATERIALS CORPORATION,
Plaintiff,
v.
AFFILIATED FM INSURANCE COMPANY,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Reconsider and Modify
Discovery Deadlines [Docket No. 45; Filed January 31, 2012] (the “Motion to
Reconsider”). On February 3, 2012, Defendant filed a Response [#46]. On February 6,
2012, Defendant filed a Reply [#47]. The Motion to Reconsider is thus ripe for review.
This matter pertains to Plaintiff’s insurance claim for property damage sustained in
connection with a landslide at its limestone quarry in Colorado Springs. See Am. Compl.
[#18]. On January 19, 2012, Defendant filed an opposed Motion to Modify Deadlines Set
Forth in the Stipulated Scheduling and Discovery Order [#42] (the “Motion to Amend”). In
that motion, Defendant timely requested a three-month extension of the remaining
deadlines and settings in this case. For good cause shown, the Court granted the motion
on January 22, 2012. Minute Order [#44].
Plaintiff here seeks reconsideration of the Court’s Minute Order granting Defendant’s

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Motion to Amend. Motion to Reconsider [#45]. Plaintiff “does not oppose a short extension
of [Defendant’s] expert disclosure deadline,” but it does not agree that the requested threemonth extension is warranted and particularly opposes a delay of the final pre-trial
conference.” Id. at 6. Plaintiff further seeks clarification of the Minute Order to reflect that,
absent extraordinary circumstances, further extensions of time will not be permitted. In its
instant Motion, Plaintiff argues that Defendant provided no appropriate reasons for
extending the deadlines in this matter: 1) Plaintiff “did not present new theories in its expert
reports;” 2) Defendant “was not diligent in obtaining its expert analysis;” 3) other
laboratories were available for Defendant to use to retest its samples; 4) Defendant “had
sufficient time to review documents produced by” Plaintiff; and 5) Defendant “never
attempted to take a deposition.” See id. at 2-6.
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 are limited
to the following: “(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.” Id.
First, Plaintiff presents no argument in either its Motion to Reconsider [#45] or its
Reply [#47] regarding “an intervening change in the controlling law.” Brumark Corp. 57
F.3d at 944. Second, Plaintiff provides some evidence that Defendant could have been
more diligent in its discovery conduct, but this evidence does not demonstrate that the
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Court erred in granting Defendant’s request to extend deadlines set in this matter. See id.;
see also Ex. A to Reply [#47-1] (Pazdera Letter, dated Jan. 6, 2009); Ex. B to Reply [#47-2]
(B. Slayter Letter, dated Feb. 9, 2009). Third, Plaintiff has shown neither that the Court has
made a “clear error” nor that the Court’s previous Minute Order must be modified to
“prevent manifest injustice.”

Brumark Corp. 57 F.3d at 944; see also Reply [#47]

(generically arguing that Plaintiff will be prejudiced by extending the deadlines in this matter
without providing any specific ways in which Plaintiff would actually be prejudiced).
Finally, Plaintiff seeks clarification of the Minute Order to reflect that further
extensions of time will not be permitted absent extraordinary circumstances. This request
is reasonable under the circumstances. Accordingly,
IT IS HEREBY ORDERED that the Motion is GRANTED in part and DENIED in
part. The Minute Order dated January 22, 2012 [#44] is amended to add that no further
extensions of time will be granted absent extraordinary circumstances.
respects, the Motion is DENIED.

Dated: March 8, 2012

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In all other