JENNIFER A. DORSEY, District Judge.
After the termination of his medical-staff membership and privileges at the University Medical Center of Southern Nevada (UMC), James S. Tate, Jr., MD., sued UMC and multiple other defendants under 42 USC § 1983 and Nevada state law. This case was transferred to me after two rounds of dismissals, two rounds of summary judgment, and an appeal to the Ninth Circuit. Tate moves for reconsideration of both summary-judgment orders and for leave to file a third-amended complaint. Defendants oppose each of Tate's motions and move for attorney's fees under 28 USC § 1927.
Tate sues county hospital UMC; seven UMC Board of Trustee Members (the Trustees) in their official capacity; the Medical and Dental Staff of UMC, UMC's association of private physicians (the Association); Former Chief of the Association Dr. John Ellerton, M.D.; and current Chief of the Association Dr. Dale Carrison, M.D., for unlawfully terminating his Association membership and privileges.
Defendants then moved to dismiss Tate's first-amended complaint.
Defendants next moved for summary judgment on all of Tate's claims,
On July 15, 2015, the Ninth Circuit panel affirmed in part, reversed in part, and remanded the case to the district court for further proceedings.
On remand, defendants moved for summary judgment on Tate's revived claims against UMC and the Trustees (the only remaining defendants), arguing that those defendants are immune from monetary damages.
On the heels of that summary-judgment order, Tate filed a motion for recusal of the district judge,
Tate requests reconsideration of the portion of the court's original 2013 summary-judgment order granting judgment in favor of defendant Ellerton based on qualified immunity in light of the Ninth Circuit's mandate.
Because Tate's motion was filed more than 28 days after entry of the judgment, his motion is governed by FRCP 60(b). Rule 60(b) allows the district court to grant relief from a final judgment if "it is based on an earlier judgment that has been reversed or vacated,"
I decline to reconsider the court's 2013 entry of summary judgment for defendant Ellerton based on qualified immunity because I find that Tate's motion was not filed within a reasonable time. Tate waited more than four months after the Ninth Circuit mandate that purportedly forms the basis for his motion to move for reconsideration, and he did so only after the district court ruled on defendants' second summary-judgment motion and dismissed multiple other defendants. Tate states that he "realizes the late nature of [his] [m]otion" and he explains that he did not bring it sooner because "he was just trying to get to trial and did not want to do anything that would delay that goal."
Tate made a strategic decision not to request reconsideration of defendant Ellerton's dismissal, both after the summary-judgment order issued in 2013 and within a reasonable time after the Ninth Circuit's 2015 mandate, so that he could expedite trial. I decline to reconsider the court's order at this belated date simply because Tate's chosen strategy did not pan out the way that he anticipated.
Even if I were to consider Tate's motion on its merits, I would deny it. The Ninth Circuit mandate does not warrant reconsideration of defendant Ellerton's dismissal. Assuming that defendant Ellerton is not entitled to qualified immunity because Tate had a legitimate, clearly established property interest, defendant Ellerton is still entitled to summary judgment in his favor because Tate sued him in his official capacity as the former chief of the Association only. Official-capacity suits are treated as suits against the entity of which the officer is an agent, not against the official personally, because the real party in interest is the entity.
Tate also moves to strike the court's second summary-judgment order, issued after remand, that dismissed all claims against the Trustees and the Association, leaving UMC as the only remaining defendant. Tate argues that the order should be stricken because the presiding judge was biased and should have recused himself from the case.
Reconsideration under Rule 59(e) is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) there is an intervening change in controlling law.
To show bias, Tate focuses on a single statement made at the October 29, 2015, status conference. At that hearing, the presiding judge indicated that the trial would not proceed on November 16, 2015, as planned, and that if the parties were willing to stipulate to try the case in front of a magistrate judge, the new trial date would be January 19th.
Tate's counsel asked why the presiding judge could not hear the case on November 16th as planned; the judge responded that he "helped raise" Bradley Ballard, counsel of record for defendant UMC.
Tate's counsel responded by again assuring the presiding judge that he was not concerned about the potential conflict: "Your Honor, I mean he's a witness in a jury trial. You're not judging his credibility. You'd only be ruling on objections,"
Rather than accept defense counsel's twice-offered stipulation to authentication of the Ballard documents, Tate's counsel instead elected to waive any objection to the potential conflict: "[w]e—we would just like to keep the date and . . . we would waive any objection . . . now that you've made a disclosure that you know him. I don't think that we—we don't have a problem with that."
The next day, the presiding judge issued an order granting in part and denying in part defendants' motion for summary judgment,
Second, the judge explained that the parties' representations at the status conference caused him to further question whether his relationship with Ballard required recusal. Tate's representation that Ballard's testimony would be limited to authenticating documents appeared to be incredulous given that Tate twice refused to accept the defendants' offer to stipulate to the authentication of the documents in lieu of calling Ballard as a witness.
I do not find that the challenged order is manifestly unjust or that any other circumstances in this case warrant reconsideration. As soon as the parties' filings indicated that Ballard may become more involved in the case, the judge brought the potential conflict to the parties' attention at the status conference. Tate's counsel then repeatedly knowingly and intentionally waived any objection to the judge continuing to preside over the case despite the potential conflict.
Tate does not identify any other basis for reconsideration. Tate has not presented newly discovered evidence or shown that the challenged order is clearly erroneous or subject to an intervening change in controlling law. Nowhere in Tate's five-page motion does he explain what portions of the order he believes are wrong, let alone explain why he believes those findings and conclusions are incorrect. He simply asserts that the entire order must be stricken based on the judge's alleged bias—an argument he expressly and repeatedly waived at the status conference. Accordingly, Tate's motion to strike is also denied.
Following the unfavorable summary-judgment ruling, Tate also filed a motion for leave to amend his complaint a third time. Tate seeks to add personal-capacity claims against the individual defendants, including a claim for punitive damages, and a Monell claim against UMC.
Rule 15(a)(2) of the Federal Rules of Civil Procedure directs that "[t]he court should freely give leave when justice so requires." In deciding whether to grant leave to amend, courts consider the presence or absence of undue delay, bad faith, or dilatory motive on the part of the movant, any undue prejudice to the opposing party, and the futility of the amendment.
The deadline to amend pleadings in this case was October 24, 2011, and discovery closed in 2012.
Granting Tate's request would also unduly prejudice the defendants, several of whom have been completely dismissed from this case. Discovery has been closed for more than three years, and allowing Tate to add personal-capacity and Monell claims would likely require discovery to be reopened, further prolonging the life of this six-year-old case. Permitting Tate to file a third-amended complaint would also unfairly cause the defendants to incur the expense of litigating a third motion to dismiss and a third motion for summary judgment and would be a waste of judicial resources.
Because Tate has not shown good cause or excusable neglect, I decline to reopen the amendment period to permit Tate to file a third-amended complaint at this belated date. I also find that Tate's inexcusable delay and the resulting undue prejudice to defendants heavily favor denial of Tate's request. Accordingly, Tate's motion for leave to amend is denied.
In response to Tate's flurry of filings, defendants move for attorney's fees under 28 USC § 1927. Tate's counsel responds that he stands by his filings, that "virtually every order [that] has come from this Court in this case is riddled with factual inaccuracies," and that he "is being prevented from having due process."
Section 1927 provides that "[a]ny attorney or other person . . . who so multiplies the proceedings in any case unreasonably and vexatiously" may be required to pay attorney's fees and other costs reasonably incurred as a result. "[T]h[is] section authorizes sanctions only for the multiplication of proceedings, it applies only to unnecessary filings and tactics once a lawsuit has begun."
Defendants argue that Tate's counsel has engaged in excessive, frivolous motion practice, including filing two fugitive letters
Accordingly, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Tate's
IT IS FURTHER ORDERED that defendants'
IT IS FURTHER ORDERED that