State Farm Mutual Auto Insurance Company v. Lowther, et al

Filing 12

ORDER denying 8 Plaintiffs Response and Objection to Court Order and Recommendation of United States Magistrate Judge; granting 9 Amended Motion for Order; Thus, IT IS FURTHER ORDERED that the Order and Recommendation of United States Magistrate Judge Docket No. 7 ; Filed May 17, 2012, is VACATED. IT IS FURTHER ORDERED that Plaintiff shall file the necessary returns of service on the docket no later than May 31, 2012, by Magistrate Judge Kristen L. Mix on 5/22/2012.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00542-WJM-KLM
STATE FARM MUTUAL AUTO INSURANCE COMPANY,
Plaintiff,
v.
MICHAEL LOWTHER,
JESTUS C. WADE, and
ENERGY SERVICES, LLC,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Response and Objection to Court
Order and Recommendation of United States Magistrate Judge [Docket No. 8; Filed
May 17, 2012] (the “Initial Motion”) and on Plaintiff’s Amended Response and Objection
to Court Order and Recommendation of United States Magistrate Judge [Docket No.
9; Filed May 18, 2012] (the “Amended Motion”). On May 21, 2012, the District Judge
entered an Order [#10] construing Plaintiff’s filings as motions for reconsideration as
opposed to objections addressed to the District Judge. Subsequently, the Motions were
referred to the undersigned [#11]. In the Motions, Plaintiff asks the Court to reconsider its
recommendation of dismissal and for an extension of time in which to serve all Defendants.
On May 1, 2012, the Court issued an Order to Show Cause [#6] directing Plaintiff
to show cause as to why this Court should not recommend that the case against all three

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Defendants be dismissed for failure to timely serve Defendants in compliance with the
Referral Order entered by the District Judge on March 5, 2012. Pursuant to District Judge
Martínez’ Order entered March 5, 2012 [#4], Plaintiff had been directed to effect service of
the summons and complaint no later than 30 days from the date of the Order, which was
April 4, 2012. As of May 17, 2012, Plaintiff had not responded to the Order to Show Cause,
nor was there any indication on the docket that service had been effected. On that date,
the Court issued an Order and Recommendation [#7], recommending that the case be
dismissed for failure to comply with the District Judge’s Order and for failure to prosecute.
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 the Motion regarding “an intervening
change in the controlling law,” “new evidence previously unavailable,” or “clear error” on
the part of the Court. Brumark Corp., 57 F.3d at 944. Rather, Plaintiff, in essence, seeks
to have the Court’s Order and Recommendation modified to “prevent manifest injustice.”
Brumark Corp., 57 F.3d at 944. In support, Plaintiff states that, due to an intra-office
clerical error, its counsel never received either the District Judge’s March 5, 2012 Order
setting a service deadline or the Court’s May 1, 2012 Order to Show Cause. Plaintiff
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apologizes profusely to the Court and pleads that it would “never intentionally ignore or
waste the time of the Court regarding a matter.” Initial Motion [#8] at 1. It also states that
“[e]fforts are being made within [counsel’s] firm to remedy this undiscovered glitch so that
it will not happen again.” Ex. A to Initial Motion, Aff. of Marc R. Levy [#8-1] at 2. Finally,
Plaintiff outlines the steps it has so far taken to serve Defendants within the timing
restrictions of Fed. R. Civ. P. 4.
Although there is no excuse for failing to take note of multiple Orders issued over
the course of two months, the Court finds that it would serve no purpose for the case to be
dismissed without prejudice and to have Plaintiff re-file a new lawsuit, as it states that it will
if the Recommendation is adopted. See Initial Motion [#8] at 3. Further, such an outcome
would not promote “the just, speedy, and inexpensive determination” of this action. Fed.
R. Civ. P. 1. With these considerations in mind, therefore, the Court grants Plaintiff’s
request for reconsideration in the interest of preventing injustice. See Brumark Corp., 57
F.3d at 944. However, the Court further advises counsel for Plaintiff that failure to comply
with future deadlines set in this matter, absent good cause, will not be taken lightly by the
Court.
Accordingly,
IT IS HEREBY ORDERED that the Initial Motion [#8] is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Amended Motion [#9] is GRANTED. Thus,
IT IS FURTHER ORDERED that the Order and Recommendation of United States
Magistrate Judge [Docket No. 7; Filed May 17, 2012] is VACATED.
IT IS FURTHER ORDERED that Plaintiff shall file the necessary returns of service

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on the docket no later than May 31, 2012.

Dated: May 22, 2012

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