IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:15-cv-02129-MSK-NYW BERNHARD ENGL, individually and on behalf of others similarly situated, Plaintiff, vs. NATURAL GROCERS BY VITAMIN COTTAGE, INC., a Delaware corporation, and VITAMIN COTTAGE NATURAL FOOD MARKETS, INC., a Colorado corporation Defendants. MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION TO REOPEN CASE PURSUANT TO RULE 59(e) OR, ALTERNATIVELY, TO CLARIFY THE COURT’S ORDER Defendants Natural Grocers by Vitamin Cottage, Inc. and Vitamin Cottage Natural Food Markets, Inc. (collectively, “Natural Grocers”) respectfully submit the following Memorandum in Opposition to the Plaintiff’s Motion to Reopen Case Pursuant to Rule 59(e) or, Alternatively, to Clarify the Court’s Order [Dkt. No. 123] (the “Motion”) filed by Plaintiff Bernhard Engl (“Plaintiff”). ARGUMENT The Motion fails to show how or why Plaintiff is entitled to relief under Rule 59(e). Plaintiff asks the Court to amend its Final Judgment so he can seek leave to amend the First Amended Complaint. But the Motion does not specify how Plaintiff would amend the First Amended Complaint, and Plaintiff refused to provide any details to Natural Grocers’ counsel Case 1:15-cv-02129-MSK-NYW Document 129 Filed 10/11/16 USDC Colorado Page 1 of 6 -2- when asked, as required under D.C.Colo.LCivR 7.1 (a). Plaintiff argues that he is entitled to Rule 59(e) relief because the Final Judgment is “without prejudice” and thus not “a final order,” and because he would like to “rectify the pleading deficiencies identified by this Court.” See Mot. ¶ 13 [Dkt. No. 123]. These arguments are not persuasive, particularly because Plaintiff cannot plausibly amend his First Amended Complaint to demonstrate that he has legal standing to sue Natural Grocers based on the facts in the original Complaint and the First Amended Complaint. I. CONTRARY TO PLAINTIFF’S ARGUMENT, THE FINAL JUDGMENT IS A “FINAL ORDER” Plaintiff’s argument that the Final Judgment is not a final decision because it is without prejudice is incorrect and mischaracterizes the Court’s ruling on Natural Grocers’ Motion to Dismiss. See Washington v. Colorado State University, 433 Fed.Appx. 699 (10th Cir. 2007). Plaintiff selectively cites Washington for the proposition that “[a] dismissal without prejudice is usually not a final decision.” See Mot. ¶ 5 (citing Washington, 433 Fed.Appx. at 700). But Plaintiff ignores the following guidance from Washington: Though where the dismissal finally disposes of the case so that it is not subject to further proceedings in federal courts, the dismissal is final and appealable. The critical determination as to whether an order is final is whether plaintiff has been effectively excluded from federal court under the present circumstances. In this circuit, we have generally distinguished between dismissal of a complaint and dismissal of an action: a dismissal of the complaint is ordinarily a non-final, nonappelable order (since amendment would generally be available), while a dismissal of the entire action is ordinarily final. Washington, 433 Fed.Appx. at 700 (citations omitted) (emphasis added). Applying these principles, the Tenth Circuit held, “the fact that the district court’s order is based on Federal Rule of Civil Procedure 8 convinces us that the intent was simply to dismiss the complaint to allow Washington an opportunity to save his suit by refiling a complaint based Case 1:15-cv-02129-MSK-NYW Document 129 Filed 10/11/16 USDC Colorado Page 2 of 6 -3- on the same claims stated with greater particularity.” Id. at 701. Here, by contrast, the Court held that “the claims in this action are dismissed without prejudice for lack of subject matter jurisdiction.” See Dismissal Order at 15 [Dkt. No. 121]; Final Judgment [Dkt. No. 122] (same). In other words, the Court dismissed Plaintiff’s entire case, not the First Amended Complaint. Moreover, Plaintiff’s case was not dismissed “without prejudice” because of some curable defect in Plaintiff’s First Amended Complaint. The dismissal is “without prejudice” because “‘Article III deprives federal courts of the power to dismiss a case with prejudice where federal subject matter jurisdiction does not exist.’” Strozier v. Potter, 71 F.App’x 802, 804 (10th Cir. 2013) (quoting Hernandez v. Conriv Realty Assoc., 182 F.3d 121, 123-24 (2d Cir. 1999)). Thus, contrary to Plaintiff’s argument, the applicable precedent and rulings in this case make clear that the Final Judgment is a “final order” and no further “clarification” is needed. II. PLAINTIFF IS NOT ENTITLED TO RULE 59(E) RELIEF TO REASSERT THE SAME ARGUMENTS THAT THE COURT HAS ALREADY REJECTED Plaintiff has not presented a valid reason for amending the Final Judgment under Rule 59(e) and his reliance on Stender is misplaced. See Mot. ¶¶ 7-9, 12 (citing Stender v. Cardlwell, No. 07-cv-02503-REB-MJW, 2009 WL 3158134, at *1 (D.Colo. Sept. 28, 2009)). Plaintiff cites Stender in support of his conclusory assertion that it would be “clear error” resulting in “manifest injustice” not to amend the Final Judgment to allow him to file a Second Amended Complaint. See Mot. ¶¶ 8-9; see also, Stender, 2009 WL 3158134, at *1 (noting that the bases warranting Rule 59(e) relief are limited and include “the need to correct clear error or prevent manifest Case 1:15-cv-02129-MSK-NYW Document 129 Filed 10/11/16 USDC Colorado Page 3 of 6 -4- injustice”).1 This argument fails because Plaintiff has not provided a single reason for leave to amend his First Amended Complaint. Also, Stender is inapposite because the defect in the complaint in that case was curable - plaintiffs sought to amend the complaint to plead claims with the requisite particularity. See Stender, 2009 WL 3158134, at *4 (“despite plaintiffs’ impression and ambiguity,” the complaint could plausibly plead a claim and thus dismissal would be without prejudice since plaintiffs “may be able to correct the referenced pleading defects”); see id, at *5 n.10 (instructing plaintiff on how to cure ambiguous claims). Unlike this case, Stender did not involve an incurable defect where the Court does not have subject matter jurisdiction because Plaintiff does not have standing. Moreover, unlike here, the plaintiffs in Stender filed a copy of the proposed amended complaint so that the court and parties could analyze the proposed amendments. See id. The court in Stender expressly noted that the plaintiff could obtain leave to amend partly “because this is plaintiffs’ first attempt to amend the complaint.” Id. In contrast, here, Plaintiff is not eligible for Rule 59(e) relief because he already obtained leave to amend his original Complaint to address the very deficiencies resulting in dismissal of the case.2 Plaintiff is not entitled to another “bite at the apple.” As this Court has repeatedly held, “Rule 59(e) is not an appropriate means for a party to re-argue previously-asserted and rejected positions, nor does it grant a party an opportunity to present arguments that could have been made earlier but were not.” Heineman v. American Home Products Corp., No. 13-cv-02070- MSK-CBS, 2015 WL 1186777, at *1 (D. Colo. Mar. 12, 2015) (citations omitted); see also, 1 See also, Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (same). 2 See Dkt. No. 50 (recommending denial of Defendant’s First Motion to Dismiss and Plaintiff’s Motion for Leave to Amend based on parties’ agreement that Plaintiff could file his First Amended Complaint to cure jurisdictional deficiencies); Pl’s First Am. Compl. [Dkt. No. 47]. Case 1:15-cv-02129-MSK-NYW Document 129 Filed 10/11/16 USDC Colorado Page 4 of 6 -5- Howell v. Centric Group, LLC, No. 09-cv-02299-MSK-CBS, 2012 WL 1044317, at *1 (D.Colo. Mar. 28, 2012) (Rule 59(e) “is not an appropriate vehicle to advance arguments that could have been raised in prior briefing”); see also, McCormick v. City of McAlester, No. Civ-11-166- RAW, 2012 WL 4580695, at *3 n.4 (E.D. Okla. Oct. 1, 2012) (“a motion for reconsideration pursuant to Rule 59(e) or Rule 60(b)is not proper to allow a plaintiff to assert new arguments or supporting facts that were available to him throughout the life of his action”). Rule 59(e) does not require the Court to grant Plaintiff leave to assert new theories of damages that he could have raised in his original and First Amended Complaint. CONCLUSION For the foregoing reasons, Natural Grocers respectfully requests that the Court deny Plaintiff’s Rule 59(e) Motion. DATED October 11, 2016. Respectfully submitted, /s/ Romaine Marshall Romaine Marshall (Utah Bar No. 9654) Engels Tejeda (Utah Bar No. 11427) HOLLAND & HART LLP 222 S. Main Street, Suite 2200 Salt Lake City, UT 84101 Phone: (801) 799-5922 RCMarshall@hollandhart.com EJTejeda@hollandhart.com Counsel for Natural Grocers Case 1:15-cv-02129-MSK-NYW Document 129 Filed 10/11/16 USDC Colorado Page 5 of 6 -6- CERTIFICATE OF SERVICE I hereby certify that on October 11, 2016, I have caused to be electronically filed the foregoing with the Clerk of Court using CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard L. Miller, II: rmiller@siprut.com Cornelius P. Dukelow: cdukelow@abingtonlaw.com Michael Obernesser: mobernesser@gmail.com Joseph J. Siprut: jsiprut@siprut.com Richard Steven Wilson: rwilson@siprut.com Counsel for Plaintiff Bernhard Engl /s/ Lourdes C. Paul 9174500_2.docx Case 1:15-cv-02129-MSK-NYW Document 129 Filed 10/11/16 USDC Colorado Page 6 of 6
