Walker v. Health International Corporation, et al

Filing 187

ORDER denying 183 Motion for Reconsideration of Order Granting Defendants' Motion for Dismissal. By Judge William J. Martinez on 2/6/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-3256-WJM-KLM
ANDRE WALKER,
Plaintiff,
v.
HEALTH INTERNATIONAL CORPORATION, a Florida corporation,
HSN, INC., a Delaware corporation, and
HSN INTERACTIVE LLC, a Delaware corporation,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION

This matter is before the Court on Plaintiff Andre L. Walker’s (“Plaintiff”) Request
for Reconsideration of Order Granting Defendants’ Motion for Dismissal (“Motion”).
(ECF No. 183.) Plaintiff asks the Court to reconsider its finding that Plaintiff had acted
vexatiously and unnecessarily multiplied the proceedings, and its consequential award
of attorneys’ fees to Defendants Health International Corp., HSN, Inc., and HSN
Interactive LLC (collectively “Defendants”). (Id.) For the reasons set forth below,
Plaintiff’s Motion is denied.
I. BACKGROUND
The relevant factual and procedural history was recited in the Court’s August 4,
2014 Order Granting Defendants’ Motion for Dismissal (“Dismissal Order”), and is
incorporated herein. (ECF No. 180 at 1-4.) In the Dismissal Order, the Court found that
the parties had entered into a settlement agreement (“Agreement”) on May 6, 2014, that
resolved all claims between them, and therefore granted Defendants’ Motion for

Dismissal. (Id. at 4-5.) The Court also granted Defendants’ request for an award of
attorneys’ fees, finding that Plaintiff’s litigation conduct after entering into the Agreement
was vexatious and had unnecessarily multiplied the proceedings. (Id. at 5-6.)
On August 14, 2014, Plaintiff filed the instant Motion seeking reconsideration of
the Dismissal Order. (ECF No. 183.) Defendants filed a Response (ECF No. 185), and
Plaintiff filed a Reply (ECF No. 186).
II. DISCUSSION
“A motion for reconsideration is appropriate where the court has
misapprehended the facts, a party’s position, or the controlling law.” Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A Court m ay amend a final
order in its discretion where there has been an intervening change in the controlling
law, new evidence that was previously unavailable has come to light, or the Court sees
a need to correct clear error or prevent manifest injustice. Id. However, motions for
reconsideration “are regarded with disfavor. . . [and are] ‘not appropriate to revisit
issues already addressed or advance arguments that could have been raised in prior
briefing.’” Kerber v. Qwest Group Life Ins. Plan, 727 F. Supp. 2d 1076, 1076 (D. Colo.
2010) (quoting Servants of the Paraclete, 204 F.3d at 1012).
Plaintiff argues that the Court erred in awarding attorneys’ fees to Defendants for
two reasons: (1) the Court, not Plaintiff, unnecessarily prolonged the action because
under Federal Rule of Civil Procedure 41(a)(1)(A)(ii) the case should have, or could
have, been dismissed when the Agreement was first filed; and (2) Plaintiff’s actions
were not vexatious. (ECF No. 183.) Plaintiff makes no argument that there has been a

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change in law or that new evidence has become available; thus, the Court must find
clear error or manifest injustice in order to grant Plaintiff’s Motion. See Servants of the
Paraclete, 204 F.3d at 1012.
The Court has little difficulty rejecting Plaintiff’s Rule 41 argument. Defendants
filed the Agreement for the Court’s review on May 12, 2014, because Plaintiff had
opposed extending the deadlines in the Scheduling Order, arguing that “there are
significant issues that remain to be resolved, and which may require the filing of an
amended complaint.” (ECF No. 141.) Plaintiff now argues that, because the
Agreement contains language indicating that “by joint stipulation the parties to this
agreement shall dismiss all claims between them with prejudice”, the Agreement itself
acts as a stipulation for dismissal that was automatically effective under Rule
41(a)(1)(A)(ii). (ECF No. 183 at 3, 10-11.) However, on review of the Agreement, the
Court notes that the language Plaintiff cites is preceded by a predicate condition:
“Upon payment of the $200,000.00 plaintiff will deliver a release to [Defendants], and by
joint stipulation the parties to this agreement shall dismiss all claims between them with
prejudice.” (ECF No. 145 at 1.) This sentence makes clear that the parties’ joint
stipulation was to be a separate filing that would follow the delivery of payment and a
release, and thus the Agreement itself does not act as a stipulation for dismissal under
Rule 41(a)(1)(A)(ii).
As for Plaintiff’s second argument, the Court reviewed the parties’ briefing and
Plaintiff’s arguments in the Dismissal Order, and declines to repeat that exercise here.
The Court has carefully analyzed the Motion, the Dismissal Order, and the parties’
briefing since the date of the Agreement. Based on that analysis, the Court concludes
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that the Dismissal Order was not clearly erroneous and did not result in manifest
injustice. Plaintiff’s newest post hoc justifications of its post-mediation behavior are
largely implausible, and do not alter the Court’s analysis. To the extent that Plaintiff’s
Reply in support of the Motion raises additional arguments to which Defendants have
been unable to respond, such arguments are waived. See D.C.COLO.LCivR 7.1D
(providing for a response, but not a sur-reply, by the non-moving party); United States
v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (arguments raised for the first time in a
reply brief generally are deemed waived).
Instead of demonstrating any manifest injustice or clear error, Plaintiff’s Motion
merely “revisit[s] issues already addressed . . . [and] advance[s] arguments that could
have been raised in prior briefing.” Servants of the Paraclete, 204 F.3d at 1012.
Accordingly, the Court finds that Plaintiff has failed to establish that reconsideration is
appropriate, and the Motion must be denied.
III. CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff’s Request for
Reconsideration of Order Granting Defendants’ Motion for Dismissal (ECF No. 183) is
DENIED.
Dated this 6th day of February, 2015.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge
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