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