Barwick v. Behnke, et al

Filing 48

MINUTE ORDER denying 46 Plaintiff's Response Magistrate Judge Kristen L. Mix's Order Dated March 7th 2012 and His Motion for Reconsideration. By Magistrate Judge Kristen L. Mix on 3/19/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00355-PAB-KLM
DARWYNN L. BARWICK,
Plaintiff,
v.
JEFFREY BEHNKE, D.P.O. No. 96003, and
MICHEAL MAY, D.P.O. No. 00045,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s “Response Magistrate Judge Kristen
L. Mix’s Order Dated March 7th 2012 and His Motion for Reconsideration . . .” [Docket
No. 46; Filed March 16, 2012] (the “Motion”). Plaintiff asks the Court to reconsider the
Order issued March 7, 2012 [#45], which denied Plaintiff’s request to submit to a written
deposition, as opposed to an oral deposition. The Court explicitly limited Plaintiff’s oral
deposition to no more than seven hours, and instructed the parties to be mindful of
Plaintiff’s asserted disability and to schedule the timing and location of the deposition in
consideration of such disability. [#45] at 4.
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
ordinarily 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). Thus, a motion to reconsider is typically “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 addressed or advance arguments that could
have been raised in prior briefing.” Id.
Plaintiff fails to identify a change in the law or present new evidence dictating
reconsideration of the Court’s March 7, 2012 Order in his Motion. Further, the Court
perceives no need to correct error or prevent injustice based on the content of Plaintiff’s
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Motion. Simply put, Plaintiff does not satisfy the requisite standard for the Court to
reconsider its March 7, 2012 Order. As stated in the March 7, 2012 Order, Plaintiff has not
met his burden of making a specific and documented factual showing that an oral
deposition will be dangerous to his health, and Plaintiff again fails to meet that burden in
the Motion at issue.
Moreover, Defendants are entitled to obtain Plaintiff’s testimony about this lawsuit
through discovery. Depositions are preferable to written questions because the credibility
of the witness can be better observed at a deposition. Nothing in the Federal or Local
Rules entitles Plaintiff to bring a lawsuit seeking six million dollars in damages yet escape
the responsibility of providing his sworn testimony orally. Accordingly,
IT IS HEREBY ORDERED that the Motion is DENIED. Plaintiff must cooperate with
counsel for Defendants in scheduling his deposition to take place before the close of
discovery, which is presently set as April 20, 2012. [#32]. As stated in the March 7, 2012
Order, Plaintiff must appear for one oral deposition to last no more than seven hours, total.
The parties are directed to be mindful of Plaintiff’s asserted disability and to schedule the
timing and location of the deposition in consideration of such disability. In the event that
Plaintiff fails to cooperate with the scheduling of his deposition, the Court will recommend
that his case be dismissed pursuant to Fed. R. Civ. P. 41(b).
Dated: March 19, 2012

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