TCR Sports Broadcasting Holding, LLP v. Cable Audit Associates, Inc.
ORDER denying 60 Motion to Alter or Amend Judgment Pursuant to F.R.C.P. 59(e). By Judge Christine M. Arguello on 03/25/2016. (athom, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-01803-CMA-CBS
TCR SPORTS BROADCASTING HOLDING, LLP
d/b/a MID-ATLANTIC SPORTS NETWORK,
CABLE AUDIT ASSOCIATES, INC.
d/b/a MEDIA AUDITS INTERNATIONAL,
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO
This matter is before the Court on Plaintiff’s “Motion to Alter or Amend Judgment
Pursuant to F.R.C.P. 59(e).” (Doc. # 60.) Because Plaintiff failed to demonstrate
exceptional circumstances warranting relief, the motion is denied.
On June 30, 2015, the Court granted Defendant’s Motion for Summary Judgment
(Doc. # 56.) The facts and background of this case are set forth in detail in this Court’s
Order, which is incorporated herein by reference.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure do not explicitly authorize a motion to alter
or amend a judgment. However, a litigant subject to an adverse judgment may file a
motion to alter or amend pursuant to Rule 59(e) or a motion to reconsider pursuant to
Rule 60(b). Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991);
Figueroa v. Am. Bankers Ins. Co. of Fla., 517 F. Supp. 2d 1266, 1270 (D. Colo. 2006)
(citing Hatfield v. Bd. of County Comm’rs for Converse Cnty., 52 F.3d 858, 861 (10th
Although Plaintiff requested relief under Rule 59(e), the motion is properly
construed under Rule 60(b). If filed within ten days of an underlying order, a request for
relief should be construed as a motion to alter or amend pursuant to Rule 59(e).
Figueroa, 517 F. Supp. 2d at 1270. Where a litigant files after ten days, however, the
motion is construed pursuant to Rule 60(b). Id. This Court issued its Order granting
summary judgment to Defendant on June 30, 2015 (Doc. # 56) and Plaintiff filed its
request for relief twenty-seven days later, on July 27, 2015 (Doc. # 60). Because
Plaintiff’s motion was filed more than ten days after the issuance of the underlying
order, the request for relief will be construed pursuant to Rule 60(b). See Figueroa, 517
F. Supp. 2d at 1270.
Requests for reconsideration pursuant to Rule 60(b) require an extreme showing,
relative even to the lofty standard required under Rule 59(e). Figueroa is instructive on
the distinction between the rules:
Relief under Rule 59(e) should only be granted due to an intervening
change in the controlling law, new evidence previously unavailable, or the
need to correct clear error or prevent manifest injustice. Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Adams v.
Reliance Standard Life Ins. Co., 225 F.3d 1179, 1186 n. 5 (10th Cir.
2000). Such a motion is appropriate where the Court has allegedly
misapprehended the facts, a party's position, or the controlling law. Id.
Relief under Rule 60(b) is within the Court's discretion, and should be
granted only in exceptional circumstances. Van Skiver, 952 F.2d at 1243.
The party seeking relief may show such exceptional circumstances by
demonstrating one of the grounds set forth in the rule, such as mistake or
excusable neglect, newly discovered evidence, or other reasons
warranting relief from the order or judgment. Id. at 1243-44; Allender, 439
F.3d 1236, 1242 (10th Cir. 2006). Rule 60(b) is not a proper vehicle to reargue matters presented in earlier briefing, or the [sic] challenge the
correctness of the Court's factual or legal conclusions; Rule 59(e) is the
only vehicle for such arguments. Van Skiver, 952 F.2d at 1244.
Plaintiff argues that the exceptional circumstance warranting reconsideration is
this Court’s “manifest error of law” in granting Defendant’s Motion for Summary
Judgment. (Doc. # 68 at 6.)
As an initial matter, this Court notes Plaintiff’s prayer for reconsideration
inappropriately revisits issues that were previously addressed and advances arguments
that were raised in prior briefing. Still, this Court has conducted another comprehensive
review of the record, including the underlying motion for summary judgment, the order
granting summary judgment, and all relevant pleadings. This Court concludes Plaintiff,
in merely revisiting arguments already considered by this Court, failed to show the
exceptional circumstances that would warrant relief.
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The facts are to be viewed in the light most
favorable to the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir.
1997). Although Plaintiff is correct in pointing out that factual issues can only be
resolved by a finder of fact, those issues must be reasonably capable of resolution in
favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Based
on the arguments again set forth by the parties, the Court’s grant of summary judgment
stands, as there are no genuine disputes as to any material facts and Defendant is
entitled to a judgment as a matter of law.
In Colorado, contract interpretation is a question of law, not of fact. Copper
Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692, 696 (Colo. 2009). A court should seek
to determine the reasonable expectations of the parties at the time of signing. Id. at
697. If a contract’s terms are ambiguous, a court may look to extrinsic evidence.
E. Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co., 109 P.3d 969, 974 (Colo.
2005). This Court conditionally considered extrinsic evidence—the Affiliate
Agreements—to determine whether the term “MASN Service” was ambiguous in the
Audit Agreements that underlie this case. (Doc. # 56 at 6.) The Court found that the
Affiliate Agreements—which Plaintiff provided to Defendant—clearly defined “MASN
Service” to include MASN1 and MASN2. (Id.) Based on this straightforward definition,
the Court determined “MASN Service” to be unambiguous in the Audit Agreements.
(Doc. # 55 at 6.) In fact, both parties agree that this is the meaning of “MASN Service”
in the Audit Agreements. (Doc. ## 60 at 3, 65 at 2.) However, there is disagreement
between the parties as to whether Defendant’s audit of only MASN1 constituted a
Plaintiff claims the scope of the Audit Agreements and whether Defendant
complied with the terms and obligations are matters of legitimate dispute, such that
summary judgment was inappropriate. (Doc. # 60 at 2.) It is clear that the scope of the
work required Defendant to verify the subscribers of the “MASN Service.” See, e.g.,
(Doc. ## 33-3 at 2, 33-8 at 2.) Plaintiff concedes that “[n]o affiliate is permitted to carry
one channel without the other or to provide only a portion of the MASN Service.” (Doc.
# 36 at 25.) Based on this information alone, and as a matter of logic, there was no
need for Defendant to audit subscribers who received only MASN2 because no such
subscribers should have existed. In other words, because Plaintiff led Defendant to
believe that the universe of subscribers receiving MASN1 was necessarily coextensive
with the universe of customers receiving the “MASN Service,” Defendant cannot be in
breach for verifying the “MASN Service” by auditing recipients of MASN1. The fact that
certain third-party affiliates eventually breached their agreements with Plaintiff by
providing MASN2 but not MASN1 is of no consequence to this action. 1
Plaintiff asserts Defendant was hired to determine whether third-party affiliates
were in compliance with their contracts, which would have required Defendant to audit
Additionally, Plaintiff argues that the interpretation of “MASN Service” as including only
those who received both channels is incorrect because it would mean that affiliates
could disregard their respective agreements with MASN, only provide subscribers with
either MASN1 or MASN2 (and not both), and avoid paying license fees to Plaintiff.
(Doc. # 60 at 10.) Plaintiff is correct in stating that this would be a breach of the
affiliates’ agreements, but that fact does not affect the meaning of the agreement
between Plaintiff and Defendant.
both MASN1 and MASN2. (Doc. # 60 at 5, 9.) There is simply no language in the Audit
Agreements, however, that charged Defendant with determining whether the third-party
affiliates were in compliance. (See Doc. ## 33-3—33-8.) “Conclusory statements
based merely on conjecture, speculati[on], or subjective belief do not constitute
competent summary judgment evidence.” (Doc. # 65 at 5) (citing Bones v. Honeywell
Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004)). Plaintiff cannot unilaterally declare the
meaning of its contract with Defendant without reference to any language that would
support its characterization.
Finally, Plaintiff makes much of the fact that Defendant did not demand additional
payment for its re-audits and calculation of the Shortfall Variance. (Doc. # 60 at 12.)
Although Defendant may have subsequently agreed to perform additional services for
Plaintiff, at the time the contracts were formed, the intent of the parties was that
Defendant audit subscribers of the “MASN Service.” As such, this argument is also
Plaintiff has not demonstrated exceptional circumstances warranting relief
pursuant to Rule 60(b). In fact, Plaintiff’s prayer for relief merely revisits arguments that
were already considered by this Court. Accordingly, it is ORDERED that Plaintiff’s
“Motion to Alter or Amend Judgment Pursuant to F.R.C.P. 59(e)” (Doc. # 60) is
DATED: March 25, 2016
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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