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FRESQUEZ v. NATIONAL RAILROAD PASSENGER CORPORATION

June 3, 2004.

SAM FRESQUEZ, Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION, dba AMTRAK, Defendant.



The opinion of the court was delivered by: BRIAN TED STEWART, District Judge

ORDER DENYING DEFENDANT'S MOTION TO RECONSIDER

This matter is before the court on Amtrak's Motion to Reconsider this court's February 25, 2004, Memorandum Order Denying Remainder of Defendant's Cross-motion for Summary Judgment; Denying Defendant's Request to File a Substitute Memorandum; and Granting Plaintiff's Motion for Partial Summary Judgment on Liability (the February 25, 2004, Order). In that February 25, 2004, Order, the court denied Defendant's Motion to Substitute Memorandum, because that Motion sought to submit on an untimely basis what Defendant characterized as a new position that the statutes and regulation at issue were not applicable to the "unique facts" of this case. Defendant seeks reconsideration of the denial of its request to file its Substitute Brief in opposition to Plaintiff's Motion for Partial Summary Judgment. Defendant concedes that the arguments it sought to advance by that Substitute Memorandum "could have and should have been raised earlier," yet argues that they should be considered now in the interest of justice. Def.s' Mem. in Support of Reconsideration, at 6. In support of its Motion to Reconsider, Defendant submits a photograph and argument about the facts that were not included in either its original briefing on Plaintiff's Motion for Partial Summary Judgment or in its Supplemental Memorandum. Id. at 7.

A motion to reconsider is brought pursuant to Fed.R.Civ.P. 59(e).

 
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. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).
Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations partially omitted).

  The court finds that Defendant's argument that its Substitute Memorandum should be allowed in the interest of justice is merely a rehash of its prior argument that, because it chose to withdraw its prior argument after briefing was closed, it should be allowed to subsequently file a new argument. This rehash is not grounds for reconsideration.

  Further, the court finds that the arguments Defendant attempts to raise in its Motion to Reconsider are merely more detailed and sophisticated re-arguments of its previously advanced arguments. Those arguments are as follows: (1) Congress did not intend for the statutes and Rule*fn1 to apply in a "unique case" like this where the Railroad's violation of the safety rule was allegedly the result of Plaintiff's own conduct; and (2) the federal rule that was violated was not intended to apply in a case like this because it is not in a section pertaining to the control of trains. The first argument is a revisiting of the argument that Plaintiff's injury is caused by his sole liability.*fn2 The second is a revisiting of the argument that the statute and rules do not apply — this time on the alternative grounds that the court should consider the intent of those enacting the statutes and regulation rather than their plain language. As noted in Paraclete, supra, it is not appropriate to use a Motion to Reconsider to "revisit issues already addressed or advance arguments that could have been raised in prior briefing."

  Further, the rejected Substitute Memorandum did not attempt to show that there is an issue of fact on engineer McMillen's violation of an operational rule. The lack of a material issue of fact on the violation of the rule by the railroad — acting through McMillen — was the basis for the court's grant of partial summary judgment to Plaintiff on liability. February 25, 2004, Order, at 5. Thus, the basis of the grant of partial summary judgment would not be affected by consideration of that Substitute Memorandum.

  Accordingly, Defendant having failed to state grounds for reconsideration, it is therefore ORDERED that Amtrak's ...


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