Gabriel v. El Paso County Criminal Justice Center et al

Filing 66

ORDER re 55 Motion for Reconsideration. After a review of the motion and Plaintiff's related brief, the court finds no justification warranting reconsideration of its previous order. Therefore, Plaintiff's motion is DENIED. By Magistrate Judge Craig B. Shaffer on 10/26/2015. (cbslc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01491-REB-CBS
Vincent Gabriel,
Plaintiff,
v.
EL PASO COUNTY CRIMINAL JUSTICE CENTER,
THERESA PEDLEY COOPER,
CORRECT CARE SOLUTIONS,
CORRECTIONAL HEALTHCARE COMPANIES, and
In Theresa Pedley’s and her male counterpart’s individual capacity as employees of El Paso CJC,
Defendants.

ORDER REGARDING PLAINTIFF’S MOTION FOR RECONSIDERATION

Magistrate Judge Shaffer
This matter comes before the court on Plaintiff’s Motion for Reconsideration (Docs. 55 &
56) filed on October 21, 2015. Pursuant to the Order of Reference dated October 21, 2015, this
matter was referred to the Magistrate Judge. (See Doc. 57). This court has carefully considered
the motion and related briefing, as well as the entire case file. For the following reasons, the
court DENIES Plaintiff’s Motion for Reconsideration.
Plaintiff requests that the court reconsider its October 9, 2015 minute order (Doc. 50)
granting Defendant Theresa Pedely Cooper’s (“Defendant Cooper”) “Motion for Extension of
Time Out of Time in Which to File Responsive Pleading.” (Doc. 46). “A district court has
discretion to revise interlocutory orders prior to entry of final judgment.” Trujillo v. Bd. of Educ.
of Albuquerque Pub. Sch., 212 F. App’x 760, 765 (10th Cir. 2007) (citing Price v. Philpot, 420
F.3d 1158, 1167 n. 9 (10th Cir. 2005)); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,
1

460 U.S. 1, 12 (1983) (“[E]very order short of a final decree is subject to reopening at the
discretion of the district judge.”). In a motion to reconsider, the movant must do two things:
First, he must “demonstrate some reason why the court should reconsider its prior decision.”
Second, he “must set forth facts or law of a strongly convincing nature to induce the court to
reverse its prior decision.” Shields v. Shetler, 120 F.R.D. 123, 126 (D. Colo. 1988).
Grounds warranting a motion to reconsider include (1) intervening changes in the
controlling law; (2) previously unavailable evidence; (3) the need to correct clear error or prevent
manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). “A
motion to reconsider should be denied unless it clearly demonstrates manifest error of law or fact
or presents newly discovered evidence.” National Business Brokers, Ltd. V. Jim Williamson
Products Inc., 115 F.Supp. 2d 1250, 1256 (D. Colo. 2000).
Although it is somewhat difficult to follow, Plaintiff’s primary argument seems to be that
defense counsel, Andrew Ringel and Jacob Massee, mislead the court in stating that they had
only recently been retained to defend Defendant Cooper. Plaintiff also seems to contend that Mr.
Ringel and Mr. Massee knew that Defendant Cooper had been served, but willfully chose not to
enter an appearance or file an answer on her behalf.1 However, none of Plaintiff’s submitted
evidence supports these assertions, and the court is not persuaded by Plaintiff’s conclusory
arguments to the contrary.
Further, Plaintiff has failed to identify any prejudice resulting from the extension of time.
Plaintiff alleges that the Defendants’ joint request for stay (Doc. 12) was based on the fact that
Defendant Cooper had not been served with the complaint. This mischaracterizes the
Defendants’ motion. In the motion for stay, Defendants did note that — according to their
1

Somewhat incongruously, Plaintiff also argues that it is no excuse that Mr. Ringel and Mr.
Massee were only just retained to represent Defendant Cooper.

2

understanding — Defendant Cooper had not been served. However, the main crux of their
argument was based on the fact that each defendant had filed a motion to dismiss that could
potentially alter the number of defendants and/or dispose of some of the issues. This, in turn,
would have a significant impact on the necessary discovery. Therefore, they argued, staying the
case would prevent needless expenditures for the parties. (See Doc. 12 at 4-5). And they argued
that staying the case could avoid a waste of judicial resources because it would prevent the court
from dealing with issues that could ultimately be dismissed. It was on these bases that the court
issued a stay. Thus, Plaintiff’s argument in this regard does not demonstrate prejudice.
In addition, the court notes that if Defendant Cooper was served on July 10, 2015, her
answer or response would have been due by July 31, 2015. See Fed. R. Civ. P. 12 (a)(1)(A)(i) (A
defendant must serve an answer within 21 days after being served with the summons and
complaint). Thus, Plaintiff could have filed for default on August 1, 2015; however, Plaintiff did
not file his motion until October 9, 2015, over two months later. Indeed, Plaintiff filed for the
entry of default on the same day that Defendant Cooper requested permission to file an answer
out of time. This delay also weighs against any prejudice to Plaintiff.
Finally, and perhaps most importantly, “[t]he preferred disposition of any case is upon its
merits and not by default judgment.” Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970).
Here, Defendant Cooper has filed a response to Plaintiff’s complaint; thus, the court cannot say
that Defendant Cooper is an unresponsive party, that the adversary process has been halted, or
that Plaintiff faces an interminable delay because of Defendant Cooper’s actions. Rather, because
Defendant Cooper has manifested an intent to defend herself, and because the court has a strong
preference for resolving cases on their merits rather than by procedural default, the court finds no

3

considerations that justify reconsideration of its previous order. Nor does it find any justification
for the entry of default against Defendant Cooper.
For the foregoing reasons, Plaintiff’s Motion for Reconsideration (Doc. 55) is DENIED.
DATED at Denver, Colorado, this 26th day of October, 2015.
BY THE COURT:
s/Craig B. Shaffer__________
United States Magistrate Judge

4