Opinion
Civil Case No. 11-cv-00490-REB-BNB.
August 17, 2011
ORDER
This matter arises on the Motion for Reconsideration of Court's Denial of Plaintiff's Motion for Order Allowing Plaintiff to Obtain Discovery Helpful In Responding to Defendants' Motions to Dismiss "With Particularity of What Discovery is Needed and Why" [Doc. # 193, filed 8/3/2011] (the "Motion to Reconsider"), which is DENIED.
I.
The plaintiff has sued numerous law enforcement officers, law enforcement agencies, governmental entities, and others for damages resulting from injuries sustained "in a sting operation" designed to facilitate the plaintiff's arrest. Second Amended Complaint [Doc. # 149, filed 6/28/2011] at ¶ 68. According to the allegations of the Second Amended Complaint:
68. In the evening of January 3, 2007, the Arvada Police Department; Colorado State Troopers; Denver Police officers, including the Denver Metro Auto Theft Team; Lone Tree police officers; and a Mountain View police officer; and/or other agencies; and the named Defendants herein, attempted to capture a person in a sting operation by luring him to a location where said DEFENDANT police officers were waiting for him heavily armed.
69. When Plaintiff DARRELL HAVENS drove to the sting location in Denver, the car he was driving was immediately rammed by several undercover police vehicles while the vehicle that Plaintiff DARRELL HAVENS was driving was still moving and while it was still in gear and without legal justification, wrongfully and willfully shot DARRELL HAVENS rendering him a quadriplegic.
70. Upon information and belief, On [sic] January 3, 2007, Darrell Havens was rammed, without warning, by a white K2500 Chevy pickup truck, purportedly occupied by Defendant SANDY and Defendant JOHNSON, and a black Yukon, purportedly occupied by Defendant HERNANDEZ and DEA agent Mark Lee who engaged in intentional acts and omissions as factually alleged herein, including using a government vehicle to ram the vehicle driven by Darrell Havens, without justification, thereby resulting in unlawful, unreasonable shooting of Darrell Havens.
71. Finally, Officer HERNANDEZ'S and Agent Mark Lee's actions in ramming the Audi driven by DARRELL HAVENS pushed the Audi into a blue Blazer purportedly occupied by Defendant MAYFIELD and Defendant BICKMORE. The vehicle driven by DARRELL HAVENS was then immediately hit by multiple gunshots and at least three passed through the vehicle and struck DARRELL HAVENS in the chest, neck, and mouth, purportedly fired by Defendant Johnson, which instantly paralyzed DARRELL HAVENS and rendered him a quadriplegic at the scene of the shooting.Id.
By an Order [Doc. # 147] entered on June 24, 2011, I stayed discovery pending a determination of the issue of qualified immunity, Eleventh Amendment immunity, and sovereign immunity. Order [Doc. # 147] at ¶ 4. In opposing the stay of discovery, the plaintiff argued that he may need discovery to respond to the defendants' motions to dismiss. In response to that assertion, I noted that "on an adequate showing after the motions are filed that discovery is needed and the particularity of what discovery is needed and why, I will consider allowing so much discovery as is necessary to respond to any dispositive motion." Recording of Proceedings, June 24, 2011, at 2:28:35 through 2:29:38 p.m.
On July 15, 2011, the plaintiff filed a Motion for Order Allowing Discovery [Doc. # 180] (the "Motion for Discovery"). I denied that motion, finding that the plaintiff had made no showing whatsoever that discovery is needed and had failed to describe the particular discovery which he claims to require and why he needs it to respond to the defendants' motions to dismiss. Order [Doc. # 192] at p. 5.
II.
First, the plaintiff asks that I reconsider my Order [Doc. # 192] denying the Motion for Discovery. Motions to Reconsider serve specific purposes and are not a means merely to reargue, potentially interminably, matters previously presented and decided. "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (internal citations omitted). "It is inappropriate for the movant to advance new arguments or supporting facts which were otherwise available for presentation when the original . . . motion was briefed." Pizza Management, Inc. v. Pizza Hut, Inc., 1989 WL 89937 *1 (D. Kan. July 19, 1989) (internal quotations and citations omitted).
The Motion to Reconsider at issue here is an inappropriate reargument of issues already decided. It does not allege manifest errors or law or fact, nor does it present newly discovered evidence not available to the plaintiff when he filed the Motion for Discovery. Instead, the Motion to Reconsider merely advances additional arguments that were available to and fully known by the plaintiff at the time the Motion for Discovery was filed, and could have been made then, but were not.
III.
Regardless of the impropriety of the Motion to Reconsider, it again fails to specify what discovery the plaintiff needs and why he needs it to respond to the pending motions to dismiss. Although the plaintiff has now identified seven categories of discovery requested, he has made no meaningful effort to explain why it is required to respond to a pending motion to dismiss.
Some of the motions to dismiss are, in their entirety, based on Fed.R.Civ.P. 12(b)(6), arguing a failure to state a claim upon which relief can be granted. As to arguments based on Rule 12(b)(6), the court must accept the plaintiff's well-pleaded allegations as true and must construe all reasonable inferences in favor of the plaintiff. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986); Mitchell v. King, 537 F.2d 385, 386 (10th Cir. 1976). The plaintiff fails to address why he needs any discovery to respond to the arguments subject to this standard of review.
Some of the defendants assert, in whole or in part, Eleventh Amendment and sovereign immunity as the bases for their motions to dismiss. Those arguments are brought pursuant to Fed.R.Civ.P. 12(b)(1), and the applicable standard of review has been described as follows:
[A] party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995) (citations omitted).
Although it is possible that the plaintiff might need discovery to respond to a motion to dismiss under Rule 12(b)(1), he has failed to offer any specific explanation as to how any of the requested discovery relates to and is necessary for him to respond to any pending motion to dismiss. Instead, he offers wholly conclusory explanations such as the discovery is "pertinent to the issues raised by Defendants in their various motions to dismiss," Motion to Reconsider [Doc. # 193] at p. 3, and "is pertinent given that Defendants have, in their motions to dismiss, raised issues regarding the location of various individuals." Id. at p. 4. These conclusory arguments do not convince me that the plaintiff requires the requested discovery in order to respond to the motions to dismiss.
IV.
IT IS ORDERED that the Motion to Reconsider [Doc. # 193] is DENIED.
Dated August 16, 2011.