Morrison et al v. American Economy Insurance Company

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-00360-SKC-CYC
ELIZABETH MORRISON and
COLE MORRISON,
Plaintiffs,
v.
AMERICAN ECONOMY INSURANCE COMPANY,
Defendants.
ORDER OVERRULING DEFENDANT’S OBJECTION (DKT. 67) TO ORDER
OF UNITED STATES MAGISTRATE JUDGE (DKT. 64)
The above-referenced Objection (Dkt. 67) to Magistrate Judge Cyrus Y.
Chung’s February 24, 2025 discovery order (Dkt. 64)1 is now before the Court.
Because Judge Chung’s discovery order is neither clearly erroneous nor contrary to
law, the Objection is overruled.
BACKGROUND
On December 30, 2021, Plaintiffs’ home was damaged by heat, smoke, and ash
from the Marshall Fire. After Plaintiffs made a claim on their insurance policy with
Defendant, Defendant subsequently paid more than $260,000 in insurance benefits
1 The discovery order mis-identifies Defendant as “Safeco Insurance Company of
America.”
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 1 of 8

2
and $57,00 for alternate housing to Plaintiffs during their claim. Plaintiffs, however,
claim their losses total $472,563.03. They sued Defendant for breach of contract and
statutory and common law bad faith to recover the full amount of their claimed losses.
The Court entered a Scheduling Order on March 20, 2023, and the parties
engaged in discovery for 14 months with the close of discovery occurring on May 13,
2024. Defendant filed a timely motion for summary judgment in June 2024. On
January 9, 2025, Plaintiffs filed a motion to reopen discovery, which the undersigned
referred to the magistrate judge. Dkts. 60, 61. The basis of the motion to reopen
discovery was alleged new information Plaintiffs discovered that “toxic levels of
dioxins and furans [in or around the home] create a health risk to Plaintiffs’ family
(two minor children) and that the only appropriate measure would be demolition and
rebuild of the subject home.” Dkt. 60, ¶7.
In ruling on the motion to reopen discovery, Judge Chung weighed each of the
factors noted in Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987),
specifically: (1) whether trial is imminent, (2) whether the request is opposed, (3)
whether the non-moving party would be prejudiced, (4) whether the moving party
was diligent in obtaining discovery within the deadlines contained in the Scheduling
Order, (5) the foreseeability of any need for additional discovery, and (6) whether the
requested discovery is likely to lead to relevant evidence. Dk.t 64, pp1-2. He found
the first, fifth and sixth factors favored reopening discovery, while the second, third,
and fourth factors did not. Id. at pp.2-7. Exercising his discretion, he granted the
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 2 of 8

3
motion in part, allowing Plaintiffs to disclose: (a) Dr. Nieusma as an affirmative
expert, (b) a Total Home Inspection Services LLC report, and (c) an Enthalpy
Analytical report. He also ordered a deadline for Defendant to file a notice identifying
the discovery it needs to investigate and rebut Dr. Nieusma’s opinions and the newly
disclosed reports.
Defendant objects. It claims the magistrate judge’s “application of the six
factors enumerated by the Tenth Circuit was erroneous, contrary to established
precedent, and is highly prejudicial.” Defendant explains that “[a]lthough the Order
contemplates a narrow reopening of discovery, it fails to consider that Plaintiffs’
expert report introduces entirely new factual and legal issues to be litigated, and an
entirely new damages model, requiring American Economy to engage in significant
new discovery to defend itself.”
STANDARD OF REVIEW
Upon a timely objection, a district judge may modify or set aside a magistrate
judge’s order on a non-dispositive matter to the extent the order is “clearly erroneous
or contrary to law.” Fed. R. Civ. P. 72(a). This standard requires affirmance unless
the district judge is left with the “definite and firm conviction” that a mistake was
made. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988)
(cleaned up). This is a high bar. Box Elder Kids, LLC v. Anadarko E & P Onshore,
LLC, No. 20-cv-2352-WJM-JPO, 2024 WL 3963505, at *5 (D. Colo. Aug. 16, 2024). It
leaves no room for modifying or setting aside a magistrate judge’s non-dispositive
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 3 of 8

4
order simply because the district judge might have ruled differently in deciding the
matter in the first instance. Id.
ANALYSIS
Defendant argues the Smith factors do not favor reopening discovery. Dkt. 6,
pp.6-10. But it argued the same thing in its response opposing Plaintiff’s motion to
reopen discovery. Compare id. with Dkt. 62, pp.6-15. This includes making the same
argument in its responsive pleading that it now makes in its Objection that the newly
discovered information introduces an entirely new damages model to Plaintiffs’
breach of contract claim. See, e.g., Dkt. 62, p.9 (“Plaintiffs admit that their claim the
home needs demolished and rebuilt adds an entirely new component of damages to
their breach of contract claim.”).
A party can’t simply raise the same arguments that the magistrate judge
considered and expect the reviewing court to treat the filing seriously. Rosado–Lebron
v. Comm’r of Soc. Sec., 193 F. Supp. 2d 415, 418 (D.P.R. 2002). It “is improper for an
objecting party to attempt to relitigate the entire content of the hearing before the
Magistrate Judge by submitting papers to a district court which are nothing more
than a rehashing of the same arguments and positions taken in the original papers
submitted to the Magistrate Judge.” In re Blue Cross Blue Shield Antitrust Litig., No.
2:13-CV-20000-RDP, 2017 WL 11539508, at *2 (N.D. Ala. Jan. 20, 2017) (cleaned up).
See also MedEnvios Healthcare, Inc. v. United States Dep’t of Health & Hum. Servs.,
No. 23-20068-Civ-Scola, 2024 WL 551837, at *2 (S.D. Fla. Feb. 12, 2024) (parties are
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 4 of 8

5
not to be afforded a second bite at the apple when they file objections); Wheeler v.
BMW of N. Am. LLC, No. 3:20-cv-36-RJC-DSC, 2022 WL 301537, at *2–3 (W.D.N.C.
Feb. 1, 2022) (“Defendant’s Objection largely makes, and relies on, the same
arguments already presented to and rejected by the Magistrate Judge rather than
sufficiently presenting to the Court the reasons that the Magistrate Judge’s Order is
clearly erroneous or contrary to law.”).
The arguments presented in Defendant’s Objection appear to be the same
arguments presented to, and considered by, Judge Chung. See Guiden v. Leatt Corp.,
No. 5:10-CV-00175, 2013 WL 4500319, at *6 (W.D. Ky. Aug. 21, 2013) (“The
arguments now advanced . . . appear to be the exact same arguments previously
considered and rejected by the Magistrate Judge.”). While this Court does not
disagree with Defendant that the discovery order has a significant resultant impact
on the course of this litigation, Judge Chung attentively weighed each Smith factor
and issued a discovery order more limited than what Plaintiff prayed for. See
Howards v. Reichle, No. 06-cv-01964-CMA-CBS, 2008 WL 11363652, at *2 (D. Colo.
Nov. 25, 2008) (“This is exactly what the Magistrate Judge should have done to
determine whether good cause existed under the facts of this case and this Court
cannot nitpick at his application of the balancing test.”)
And in this Court’s review, none of Defendant’s arguments or citations in
support of their request for this Court to re-weigh the Smith factors in their favor
demonstrate that Judge Chung committed clear error or that his conclusions were
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 5 of 8

6
contrary to law. See, e.g., J.D. Heiskell Holdings, LLC v. Willard Dairy, LLC, 750 F.
Supp. 3d 1289, 1298 (D.N.M. 2024) (“[I]n its objections, Tiverton disagrees with the
way in which the magistrate judge evaluated and balanced each of the factors. . . . In
this Court’s estimation, the cases Tiverton cites merely show that the application of
the five-factor case is highly fact-specific, and that good jurists exercising their
judgment in good faith can reach different conclusions[.]”).
Further, the soul of this case is a coverage dispute for damage to Plaintiffs
home from the Marshall Fire. Plaintiffs’ newly discovered evidence is materially
relevant to the claims in this case, further demonstrating a lack of clear error by the
magistrate judge. Notably, the magistrate judge explained the evidence supporting
his finding that Plaintiffs “had affirmative reason not to investigate the interior of
their home until they received the new October 2024 information.” Dkt. 64, p.3. And
while this Court does not discount Defendant’s concerns regarding additional motions
practice, time, and expense associated with reopening discovery, the Court does not
find these additional burdens to be so “highly prejudicial” as Defendant contends;
rather, these added burdens are not unusual to the way in which the litigation-cookie
sometimes crumbles when materially relevant evidence is unearthed post-discovery.
See, e.g., Baldwin v. United States, No. 11-cv-02033-MSK-KLM, 2011 WL 5177698,
at *2 (D. Colo. Nov. 1, 2011) (the “ordinary burdens associated with litigating a case
do not constitute undue burden.”); Webb v. Brandon Exp. Inc., No. 09-cv-00792-WYD-
BNB, 2009 WL 4061827, at *2 (D. Colo. Nov. 20, 2009) (“Parties always are burdened
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 6 of 8

7
by discovery and the other requirements for the preparation of a case. That is a
consequence of our judicial system and the rules of civil procedure. There is no special
burden here.”); Titus-Phillips v. Brit. Airways PLC, No. 20-CV-5100-EK-SJB, 2022
WL 1177306, at *3 (E.D.N.Y. Apr. 20, 2022) (“There will inevitably be additional
discovery burdens on British Airways . . . but that is true in every situation where
amendment is permitted.”); Poly-Med, Inc. v. Novus Sci. Pte Ltd., No. 8:15-cv-01964-
JMC, 2017 WL 2874715, at *4 (D.S.C. July 6, 2017) (“[T]he court does not find any
resulting prejudice to the opponent, as the mere addition of claims, though it will
likely add to the burdens of discovery, is not, without more, prejudicial to the opposing
party.”).
* 	* 	*
For the reasons shared above, the Court finds nothing in the Objection meets
Defendant’s high burden of demonstrating Judge Chung’s discovery order is clearly
erroneous or contrary to law. And this Court is not left with a definite and firm
conviction that a mistake has been made. Ocelot Oil Corp. v. Sparrow Indus., 847
F.2d 1458, 1464 (10th Cir. 1988).
The Objection (Dkt. 67) is OVERRULED and the discovery order (Dkt. 64) is
AFFIRMED.
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 7 of 8

8
DATED: April 18, 2025
BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge
Case No. 1:23-cv-00360-SKC-CYC Document 71 filed 04/18/25 USDC Colorado
pg 8 of 8