Severine v. Anthem Blue Cross Life and Health Insurance Company

Filing 139

ORDER That Defendant's Objection (ECF No. [137)], which the Court construes as a motion, is GRANTED; That Plaintiff's Notice of Supplemental Authority (ECF No. 134 ) is STRICKEN; and That Plaintiff's Motion for Leave to File a Response (ECF No. 138 ) is DENIED, by Judge Raymond P. Moore on 1/8/2021.(evana, )

Case 1:19-cv-03301-RM-MEH Document 139 Filed 01/08/21 USDC Colorado Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 19-cv-03301-RM-MEH
BRIANA SEVERINE,
Plaintiff,
v.
ANTHEM BLUE CROSS LIFE AND HEALTH INSURANCE COMPANY,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on the following matters: (1) Plaintiff’s Notice of
Supplemental Authority (the “Notice”) (ECF No. 134); (2) Defendant’s Objections to Plaintiff’s
Notice (the “Objection”)1 (ECF No. 137); and (3) Plaintiff’s Motion for Leave to file a Response
to Defendant’s Objection (ECF No. 138). The Court finds no further briefing is required to
resolve the issues at hand. See D.C.COLO.LCivR 7.1(d).
On December 13, 2019, Defendant filed its Motion to Dismiss; at that time the case was
assigned to Magistrate Judge Hegarty. Thereafter, on December 16, 2019, due to non-consent by
at least one party, the case was reassigned to the undersigned. After the case was reassigned, this
Court referred the Motion to Dismiss to the Magistrate Judge for a recommendation. The
Magistrate Judge recommended the denial of the Motion to Dismiss, to which Defendant filed an
objection. Thereafter, Plaintiff requested leave to amend. The Magistrate Judge ordered the
motion to amend be granted and recommended the Motion to Dismiss be denied as moot.
Defendant filed an objection to that order and recommendation. These matters are all pending.
1

Because the Objection seeks relief, the Court will construe it as a motion in this instance.

Case 1:19-cv-03301-RM-MEH Document 139 Filed 01/08/21 USDC Colorado Page 2 of 3

Recently, on December 18, 2020, Plaintiff filed a notice of supplemental authority,
notifying the Court of its Civil Practice Standards (the “Standards”) which require the parties to
confer prior to filing a motion to dismiss. Specifically, the Standards require conferral about
whether the claimed deficiency in the complaint can be corrected by amendment. Plaintiff now
argues that Defendant failed to confer prior to filing its Motion to Dismiss, in violation of the
Standards, and that this alleged failure is relevant to the pending matters. Defendant’s Objection
followed, asking the Court to strike Plaintiff’s Notice. Defendant argues the Court’s Standards
are not “supplemental authority”; that its Motion to Dismiss was filed before this case was
reassigned to the undersigned; and that it did nonetheless confer about the faults with Plaintiff’s
complaint prior to filing the Motion to Dismiss. Plaintiff now seeks leave to respond to
Defendant’s Objection, raising a number of arguments. The Court has considered Plaintiff’s
arguments, finds it needs no further briefing on these arguments, and rejects such arguments.
First, the Court finds whether Defendant conferred as required under the Standards is
irrelevant. On the date that Defendant filed the Motion to Dismiss, this case had not been
reassigned to the undersigned.2 Therefore, the Standards were inapplicable.3 For this reason
alone, Plaintiff’s Notice is rejected.
Next, the Standards allow parties to notify the Court of any relevant “supplemental
authority” and to provide a copy of such authority. Plaintiff’s Notice, however, does not notify
the Court of any “supplemental authority” within the contemplation of the Standard cited. This
Standard is analogous to Fed. R. App. P. 28(j), the purpose of which, as relevant here, is to
advise the Court of new relevant authorities a party has learned of after briefing is completed,

2

There is no contention that the Motion to Dismiss violated any standards of Magistrate Judge Hegarty to whom the
case had been assigned on that date.
3
That is not to say, however, that the Court, upon any reassignment, may not order parties to refile motions to
comply with its Standards.
2

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and to provide copies of the same. See Niemi v. Lasshofer, 728 F.3d 1252, 1262 (10th Cir. 2013).
Plaintiff’s Notice does nothing more than point to – and provide a copy of – the Court’s own
Standards.
In summary, the Court agrees with Defendant. It is therefore ORDERED
(1) That Defendant’s Objection (ECF No. 137), which the Court construes as a motion, is
GRANTED;
(2) That Plaintiff’s Notice of Supplemental Authority (ECF No. 134) is STRICKEN; and
(3) That Plaintiff’s Motion for Leave to File a Response (ECF No. 138) is DENIED.
DATED this 8th day of January, 2021.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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