Consumer Crusade, Inc. v. Internet Payphone Corporation

Full title: CONSUMER CRUSADE, INC., a Colorado corporation, Plaintiff, v. INTERNET…

Court: United States District Court, D. Colorado

Date published: Aug 8, 2007

Civil Action No. 05-cv-00212-MSK-BNB (D. Colo. Aug. 8, 2007)

Opinion

Civil Action No. 05-cv-00212-MSK-BNB.

August 8, 2007

OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION

MARCIA KRIEGER, District Judge

THIS MATTER comes before the Court pursuant the Plaintiff's Motion for Reconsideration (# 13) of the Court's February 13, 2007 Opinion and Order Dismissing Action (# 12). Familiarity with the contents of the Court's underlying order is assumed.

The Plaintiff requests reconsideration of the dismissal of this action on two grounds: (i) that it intends to seek rehearing en banc in the 10^th Circuit of U.S. Fax Law Center, Inc. v. iHire, Inc., 476 F.3d 1112 (10^th Cir. 2007); and (ii) that it intends to amend its complaint to comply with the iHire decision. With regard to the first argument, the Court notes that the 10^th Circuit denied rehearing en banc in the iHire case on April 30, 2007, and that Mandate issued on the case on May 8, 2007. Thus, for all practical purposes, the iHire case is final.

With regard to the second argument, the Court is somewhat confused. On the one hand, the Plaintiff states that it believes "regardless of the disposition of the pending petitions [for rehearing in the 10^th Circuit]," it "anticipates filing motions to amend its complaints" to conform to the burdens imposed by iHire. On the other hand, it states "Nevertheless, should the appellate panel deny plaintiff's petitions for rehearing or hearing en banc, plaintiff shall seek clarification of the iHire opinion." Thus, it is not clear whether the Plaintiff seeks to amend its Complaint here, or whether it intends to first seek "clarification" of the iHire opinion, presumably in the 10^th Circuit.

Assuming the Plaintiff believes that it can amend its Complaint, the Court notes that, although the Plaintiff "anticipates filing motions to amend its complaints," more than five months have passed since the filing of the instant motion, and the Plaintiff has not moved to amend its Complaint. The Court assumes that the Plaintiff has abandoned this alternative. Assuming the Plaintiff intended to first seek clarification in the 10^th Circuit, the Court notes that three months have passed since the Mandate in iHire, and no request for clarification has been filed.

Accordingly, the Motion for Reconsideration (# 13) is DENIED.