Sladek et al v. Bank of America, N.A. et al

Filing 162

ORDER. ORDERED that plaintiffs Diana Sladek and Dennis Sladek's Motion forReconsideration of Order Remanding Action to State Court 149 isDENIED. ORDERED that plaintiffs Diana Sladek and Dennis Sladek's Motion forReconsideration of Order Dismissing Case 151 is DENIED. ORDERED that plaintiffs Diana Sladek and Dennis Sladek's Renewed Motion forReconsideration of Order Dismissing Case 157 is DENIED. Entered by Judge Philip A. Brimmer on 08/25/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03094-PAB-MEH
DIANA SLADEK and
DENNIS SLADEK,
Plaintiffs,
v.
BANK OF AMERICA, N.A.,
ARONOWITZ & MECKLENBURG,
THOMAS MOWLE,
MERS, a division of MERSCORP, and
ROBERT ARONOWITZ, individually,
Defendants.

ORDER

This matter is before the Court on three motions for reconsideration filed by
plaintiffs Diana and Dennis Sladek: (1) plaintiffs’ Motion for Reconsideration of Order
Remanding Action to State Court [Docket No. 149], (2) plaintif fs’ Motion for
Reconsideration of Order Dismissing Case [Docket No. 151], and (3) plaintiffs’
Renewed Motion for Reconsideration of Order Dismissing Case [Docket No. 157]. In
light of plaintiffs’ pro se status, the Court construes their filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.
1991).
The relevant factual background in this matter is set forth in detail in several
Recommendations of United States Magistrate Judge Michael E. Hegarty, see Docket
Nos. 94, 109, 135, and will not be recited here.

I. ANALYSIS
Plaintiffs move for reconsideration of (1) the Court’s January 28, 2015 Order
granting defendant Bank of America, N.A.’s Motion for Order Remanding Action to
State Court (Docket No. 143) and (2) the Court’s March 10, 2015 Order g ranting
defendants’ motion to dismiss (Docket No. 147).
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d
858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s
plenary power to revisit and amend interlocutory orders as justice requires. See
Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.
1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would attend the repeated
re-adjudication of interlocutory orders, judges in this district have imposed limits on their
broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (a pplying Rule
60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v.
McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or supporting facts which were

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available at the time of the original motion.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000).
A. Remand Order
On January 28, 2015, the Court remanded two cases that originated in the
District Court for the County of El Paso, Colorado, for which plaintiffs filed a Notice of
Removal and sought to consolidate with this action. Docket No. 143 at 3. The Court
remanded the actions on the grounds that plaintiffs’ notice of removal failed to provide a
“short and plain statement of the grounds for removal” as required by 28 U.S.C.
§ 1446(a), and that 28 U.S.C. § 1441(b)(2) prohibits plaintif fs, who admitted that they
are residents of the state of Colorado, from removing an action brought against them in
a Colorado state court. Docket No. 143 at 2-3.
With respect to the Order’s second finding, that plaintiffs are barred from
removing an action brought against them in state court in Colorado, plaintiffs state that
removal is proper pursuant to 28 U.S.C. § 1441(e). The Court finds that 28 U.S.C.
§ 1441(e) is inapplicable. That section involves actions that could have been brought
under 28 U.S.C. § 1369, which confers federal jurisdiction over civil actions that “arise[]
from a single accident, where at least 75 natural persons have died in the accident at a
discrete location.” 28 U.S.C. § 1369(a). This provision is plainly inapplicable to the two
cases that plaintiffs seek to remove, which involve an unlawful detainer action initiated
by the defendants in this case. Because plaintiffs have not shown any error in the
Court’s holding, the Court will deny their motion for reconsideration.

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B. Order Granting Dismissal
Plaintiffs ask the Court to reconsider its order granting defendants’ Motion to
Dismiss on the grounds that newly-discovered evidence shows that defendant Bank of
America no longer had an interest in plaintiffs’ property at the time that defendant
Aronowitz & Mecklenburg brought unlawful detainer actions on Bank of America’s
behalf. Docket No. 151 at 2. Plaintiffs’ renewed motion seeks the same relief but
recites different purportedly newly-discovered evidence. See Docket No. 157 at 1-3.
The Court finds that, in each motion, the purportedly “new” information was
available to plaintiffs at the time that plaintiffs responded to the original motion to
dismiss. In their first motion for reconsideration, plaintiffs state that the new evidence
includes records from the Securities and Exchange Commission, documents from
Moody’s Investors Service, and an order from the El Paso County District Court that
dismissed an action brought by Bank of America on the grounds that U.S. Bank was the
owner of the property at issue. Docket No. 151 at 1-2. In their renewed motion,
plaintiffs state that the new evidence includes records from the El Paso County
Assessor’s office concerning property taxes paid in 2011 and 2012, an Ownership and
Encumbrance report showing a transfer from Bank of America to U.S. Bank dated
February 16, 2012, and a letter from a representative of Bank of America to plaintiffs
dated June 23, 2011, in which Bank of America represents that it was unable to identify
a mortgage account in connection with the information that plaintiffs provided. See
Docket No. 157 at 4-11. In each motion, plaintiffs fail to explain how this information –
each piece of which appears to have been available to plaintiffs no later than 2012 –
was unavailable when plaintiffs responded to defendants’ motion to dismiss in June
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2014. In the absence of any showing that these records were not available to plaintiffs
when defendants filed their motion to dismiss, the Court will not reconsider its prior
order.
II. CONCLUSION
For the foregoing reasons, it is
ORDERED that plaintiffs Diana Sladek and Dennis Sladek’s Motion for
Reconsideration of Order Remanding Action to State Court [Docket No. 149] is
DENIED. It is further
ORDERED that plaintiffs Diana Sladek and Dennis Sladek’s Motion for
Reconsideration of Order Dismissing Case [Docket No. 151] is DENIED. It is further
ORDERED that plaintiffs Diana Sladek and Dennis Sladek’s Renewed Motion for
Reconsideration of Order Dismissing Case [Docket No. 157] is DENIED.

DATED August 25, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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