Equal Employment Opportunity Commission v. A&A Appliance, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-02456-DDD-CYC
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
A&A APPLIANCE, INC.,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
Cyrus Y. Chung, United States Magistrate Judge
This matter is before the Court on Defendant’s Emergency Motion for Reconsideration
and Expedited Consideration Based on the EEOC’s Violation of This Court’s Prior Order. ECF
No. 114.
Upon review of the response, reply, and the entire docket, it is clear to the Court that
there is no love lost between the parties. The Court, therefore, takes this opportunity to remind
the parties that it expects them to treat each other civilly and that includes how the parties
approach each other to confer about issues that arise in this case. See D.C.COLO.MJ I.1.
The Court agrees with the plaintiff that the defendant’s attempts to confer regarding the
motion were insufficient. See ECF No. 118-2. As the parties as aware, D.C.COLO.LCivR 7.1(a)
requires counsel to confer or “make reasonable good faith efforts to confer with opposing
counsel” before filing a motion. The email correspondence shows that the defendant’s counsel
sent an email to the plaintiff’s counsel on Saturday, February 1, 2025 at 7:00 p.m. with another
sent on Monday, February 3, 2025 at 12:53 p.m. that first alerted the plaintiff that the defendant
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was intending to file the instant motion. ECF No. 114-2 at 3-5. The plaintiff’s counsel responded
at 1:28 p.m. asking for the basis for the motion and defense counsel responded at 2:05 p.m. that it
was “the EEOC’s submission of new evidence” and then filed the motion at 3:27 p.m. Id. This
does not meet the requirements of D.C.COLO.LCivR 7.1(a). Lyall v. City of Denver, No. 16-cv-
02155-WJM-CBS, 2016 WL 7176716, at *2 (D. Colo. Sept. 28, 2016); Hoelzel v. First Select
Corp., 214 F.R.D. 634, 636 (D. Colo. 2003) (“The rule is not satisfied by one party sending a
single e-mail to another party, and particularly not where, as here, the e-mail merely indicates an
intention to file a motion to compel and does not suggest any negotiation or compromise.”); see
D.C.COLO.MJ V.1. And the defendant’s failure to comply with Rule 7.1(a) is alone a proper
basis for denial of the motion. Hoelzel, 214 F.R.D. at 636. While this provides proper grounds
for denial, the Court addresses the substance of the defendant’s request for relief below.
In the motion, the defendant asks the Court to reconsider Judge Hegarty’s December 9,
2024 Order, ECF No. 100, granting the plaintiff’s request to extend the dispositive motions
deadline from December 11, 2024 to February 7, 2025, ECF No. 97, and denying the defendant’s
motion seeking to extend the dispositive motions deadline based on a decision on a pending
motion, ECF No. 98. The result of the December 9, 2024 Order is that the dispositive motions
deadline in this case is February 7, 2025. The defendant argues that reconsideration of the
December 9, 2024 Order is appropriate because the plaintiff “created a new January 31, 2025
affidavit” of an expert. ECF No. 114 at 1. The defendant’s request invokes the Court’s plenary
power to revisit interlocutory orders as justice requires. Armata v. Certain Underwriters at
Lloyd’s London – Syndicate 1861, No. 21-cv-00160-NYW-STV, 2023 WL 5310175, at *3 (D.
Colo. Aug. 15, 2023). The Court may grant the defendant’s motion for reconsideration where
there is “(1) an intervening change in the controlling law, (2) new evidence previously
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unavailable, [or] (3) the need to correct clear error or prevent manifest injustice.” Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Here, the defendant relies on the second enumerated basis for reconsideration. ECF No.
114 at 5-6. The defendant argues that the January 31, 2025 Affidavit From Dr. Ochs, ECF No.
108-2, is new evidence. ECF No. 114 at 5. However, as the plaintiff points out, ECF No. 118 at
7, in the motion the defendant never points the Court to any specific information contained in the
affidavit that is new. See generally ECF No. 114. The defendant’s reply brief does little to
remedy this deficiency. For example, while the defendant states that “[t]he Court need only
compare Dr. Ochs’ June Affidavit and October Affidavit with the January Affidavit to see that
the EEOC is improperly attempting to use this second supplemental affidavit to support its
theory of the disability in this case,” ECF No 119 at 6, the defendant does not point the Court to
any specific information in the January 31, 2025 affidavit, ECF No. 108-2, that is “new
evidence.” Instead, the defendant simply points to the response brief and baldly states that there
is new evidence. The defendant’s assertion that the affidavit contains new evidence is not
sufficient to meet the standard for reconsideration. And it is not the Court’s role to compare the
various affidavits to determine if there is “new evidence” contained in the January 31, 2025
affidavit. Rocky Mountain Wild, Inc. v. United States Forest Service, 56 F.4th 913, 927 (10th Cir.
2022) (noting that it is up to the parties, not courts, to “articulate the record evidence considered
material to each legal theory” and explaining that the court “will not scour the record to
determine whether evidence exists” (citations omitted)).
For these reasons, the Court concludes that it must DENY the motion, ECF No. 114.
However, the Court is also mindful that the dispositive motions deadline is February 7, 2025, and
Fed. R. Civ. P. 1 instructs the Court to administer the Federal Rules of Civil Procedure “to secure
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the just, speedy, and inexpensive determination of every action and proceeding.” Accordingly,
the Court sua sponte extends the dispositive motions deadline pursuant to Fed. R. Civ. P.
16(b)(4), finding good cause for a short extension to allow the parties to finalize their dispositive
motions given that they have been occupied with briefing of the instant motion.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s Emergency Motion for
Reconsideration and Expedited Consideration Based on the EEOC’s Violation of This Court’s
Prior Order, ECF No. 114.
However, pursuant to Fed. R. Civ. P. 1 and 16(b)(4), the Court sua sponte extends the
dispositive motions deadline from February 7, 2025 to February 21, 2025.
Entered this 6th day of February, 2025, at Denver, Colorado.
BY THE COURT:
____________________________________
Cyrus Y. Chung
United States Magistrate Judge
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