August 16, 2013
Kini M. Seawright; et al., Plaintiff,
State of Arizona; et al., Defendants.
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Plaintiffs' Rule 60(B)(1) Motion to Set Aside two Orders of the Court (Doc. 94). Defendants have filed a Response (Doc. 105) and Plaintiffs have filed a Reply (Doc. 111). The Court denies Plaintiffs' motion for the following reasons.
Plaintiffs are the Estate of Dana Seawright and Dana Seawright's mother, Kini Seawright. On July 3, 2010, Dana was an inmate at the Arizona State Prison Complex Lewis ("ASPC-Lewis"). Dana was attacked in his cell by fellow inmates. Correctional Officers found him in his cell bleeding from multiple stab wounds. Four days later Dana died from injuries suffered in the attack. Plaintiffs filed a civil suit against Defendants and ultimately filed a Second Amended Complaint making a federal claim under 42 U.S.C. § 1983 and various state law claims. (Doc. 53). Plaintiffs' state law claims include a claim for gross negligence against Defendant the State of Arizona. ( Id. at 19).
In their pending motion, Plaintiffs request that the Court set aside two prior Orders under Federal Rule of Civil Procedure 60(b)(1). (Doc. 94). First, Plaintiffs ask the Court to re-open discovery, and second, Plaintiffs ask the Court to set aside the Order (Doc. 73) dismissing Defendant Charles L. Ryan from this lawsuit.
On July 11, 2012, the Court entered an Order on amended stipulation to continue dates (Doc. 59), which imposed the following deadlines: Plaintiffs' expert disclosure and expert reports were due October 15, 2012; Defendants' rebuttal experts and reports were due October 15, 2012; the parties' rebuttal experts were due on November 15, 2012; and the Court ordered that discovery shall be completed by November 15, 2012. Plaintiffs did not and to this date have not disclosed an expert witness. Under Arizona law, an expert witness is required to establish the standard of care for the finder of fact in a gross negligence claim involving a correctional facility like ASPC-Lewis. See Porter v. Ariz. Dep't of Corr., 2:09-CV-2479-HRH, 2012 WL 7180482, at *3-*5 (D. Ariz. Sept. 17, 2012).
Approximately three months after discovery closed, in February 2013, Defendants filed a motion for summary judgment seeking dismissal of the gross negligence claim because of Plaintiffs' failure to disclose the requisite expert witness. (Doc. 83 at 16-20). Plaintiffs concede that Arizona law requires an expert witness to establish a standard of care for Plaintiffs' gross negligence claim. (Doc. 97 at 25). Now Plaintiffs request that the Court suspend ruling on Defendants' pending motion for summary judgment (Doc. 83). Plaintiffs argue that the Court should set aside the order setting a deadline for discovery (Doc. 59) and re-open discovery for an additional ninety days to allow Plaintiffs the opportunity to find and disclose an expert witness in this case and allow Defendants time for depositions if needed. (Doc. 94 at 2).
In February 2013, this Court also entered an order dismissing Defendant Charles L. Ryan from this case because Plaintiffs' failed to state a claim upon which relief can be granted in their Second Amended Complaint. (Doc. 73 at 5-13). Plaintiffs now request that this Court set aside this order dismissing Mr. Ryan from this lawsuit and allow Plaintiffs to further engage in discovery to prove their dismissed claims against Mr. Ryan. (Doc. 94 at 5).
As an initial matter, Plaintiffs have filed their motion to set aside under Federal Rule of Civil Procedure 60(b)(1). "Rule 60(b) provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances." Engleson v. Burlington N. R. Co., 972 F.2d 1038, 1044 (9th Cir. 1992) (quoting Ben Sager Chemicals Int'l, Inc. v. E. Targosz & Co., 560 F.2d 805, 809 (7th Cir. 1977)). Rule 60(b)(1) is also inapplicable to Plaintiffs' requests. Rule 60(b) is entitled "Grounds for Relief from a Final Judgment, Order, or Proceeding." Rule 60(b)'s "Advisory Committee Notes clarify that the adjective final' applies not only to judgment, ' but to order' and proceeding' as well. Rule 60(b) does not apply to non-final orders." Connors v. Iquique U.S.L.L.C., C05-334JLR, 2005 WL 3007127, at *7 (W.D. Wash. Nov. 9, 2005) (citing Santa Monica BayKeeper, 254 F.3d 882, 886-87 (9th Cir. 2001)).
This case is still pending. No final judgment, final order, or final proceeding has been entered nor occurred in this case. The order setting the discovery deadline (Doc. 59) and the order dismissing Mr. Ryan from the case (Doc. 73) were interlocutory orders. Accordingly, Rule 60(b)(1) does not apply.
Plaintiffs' sole argument for the Court to set aside its prior orders is based on a finding of excusable neglect. Plaintiffs explain that this case was initially assigned to an associate, Amy Wallace, at Gillespie, Shields, and Durrant (the "Gillespie firm")-the law firm representing Plaintiffs. Ms. Wallace was hired by the Gillespie firm in 2011 after twenty years of practice in California and an "A" rating from Martindale Hubble. Further, Ms. Wallace was a partner at the firm she left. Plaintiffs' counsel states that Ms. Wallace "had substantial experience representing clients in 1983' cases and other matters involving claims by inmates or former prison inmates." (Doc. 94 at 3). When Plaintiffs' hired the Gillespie firm, this case was immediately assigned to Ms. Wallace.
Plaintiffs' argue that excusable neglect is shown because Ms. Wallace continued to work on cases from her previous firm to the detriment of cases that she was assigned by the Gillespie firm. Apparently, in late December 2012, the Gillespie firm became aware of Ms. Wallace's conduct, she was fired, and her case load was shared by the remaining attorneys at the firm. It was not until other lawyers began to review this case that they discovered Ms. Wallace had neglected this case as well and allowed the discovery and disclosure period to expire without retaining an expert and doing necessary discovery. ( Id. at 4). Plaintiffs concede that hiring an expert and doing basic discovery regarding Mr. Ryan's practices and procedures were fundamental in dealing with "the Motion regarding Mr. Ryan" and in having expert testimony to establish standard of care in their gross negligence claim. ( Id. ). Plaintiffs argue that this establishes "excusable neglect" sufficient to set aside "the prior order regarding Mr. Ryan and to extend the discovery/disclosure period." ( Id. at 4-5). Further, Plaintiffs state that "[w]ith respect to the order dismissing Charles L. Ryan, Ms. Wallace failed to conduct sufficient discovery to show that Mr. Ryan knew of the substantial risk of harm to inmates in Lewis Prison..., " and "Ms. Wallace failed to make any reasonable attempt to engage in discovery that would provide evidence of Mr. Ryan's deliberate indifference." ( Id. at 5).
The Court will deny Plaintiffs' motion for myriad reasons. First, the order dismissing Mr. Ryan (Doc. 73) was entered upon Defendants' motion to dismiss (Doc. 63). Thus, the Court's Order, Defendants' motion, and Plaintiffs' Response (Doc. 68) were all made without regard to any discovery and were all solely based on Plaintiffs' Second Amended Complaint. Mr. Ryan was dismissed from this case under Federal Rule of Civil Procedure 12(b)(6) and the federal pleading standard established in Twombly  and Iqbal  because Plaintiffs' failed to plead sufficient facts alleged under a cognizable legal theory in their Second Amended Complaint. (Doc. 73 at 5-13). Extending discovery per Plaintiffs' request would do nothing to remedy the deficiencies in Plaintiffs' Second Amended Complaint which was filed before discovery ever began.
Second, as discussed above in this section, Rule 60(b)(1) does not apply to Plaintiffs' request because neither of the orders at issue were final orders and any argument prefaced on excusable neglect is irrelevant. However, even if the Court were to analyze the merits of Plaintiffs' argument, the Court would still not find that Plaintiffs have established excusable neglect under these circumstances nor that they are entitled to relief under Rule 60(b)(1).
"[P]arties are bound by the actions of their lawyers, and alleged attorney malpractice does not usually provide a basis to set aside a judgment pursuant to Rule 60(b)(1)." Casey v. Alberston's, Inc., 362 F.3d 1254, 1260 (9th Cir. 2004). Even if the allegations against Ms. Wallace are true it would not establish grounds to set aside under Rule 60(b)(1). See Latshaw v. Trainer Wortham & Co., 452 F.3d 1097, 1101 (9th Cir. 2006) (no relief under Rule 60(b)(1) based on an attorney's innocent, careless, or negligent mistakes, or even based on an attorney's intentional misconduct). Where a party is aggrieved by his or her attorney's negligence, such claim is addressed through a malpractice claim as opposed to relief under Rule 60(b). Latshaw, 452 F.3d at 1101 (attorney's errors are "more appropriately addressed through malpractice claims" and not a Rule 60(b)(1) motion).
Third, the Court would still not grant Plaintiffs' motion even if Plaintiffs' requests were analyzed under the proper standard. Plaintiffs' motion is effectively a motion for reconsideration.
The Federal Rules of Civil Procedure do not recognize a "motion to reconsider." A litigant subject to an adverse judgment may file either a motion to alter or amend the judgment under Rule 59(e) or a motion seeking relief from the judgment pursuant to Rule 60(b). Fed.R.Civ.P. 59(e), 60(b). However, these rules only provide relief from judgments that are "final, appealable orders." United States v. Martin, 226 F.3d 1042, 1048 n. 8 (9th Cir. 2000).
Campbell v. Fernando-Sholes, CV 05-0880-PHX-SMM, 2009 WL 2030561, at *3 (D. Ariz. July 9, 2009). This court has adopted the following standards on which motions for reconsideration will be granted for interlocutory orders:
(1) There are material differences in fact or law from that presented to the Court and, at the time of the Court's decision, the party moving for reconsideration could not have known of the factual or legal differences through reasonable diligence;
(2) There are new material facts that happened after the Court's decision;
(3) There has been a change in the law that was decided or enacted after the Court's decision; or
(4) The movant makes a convincing showing that the Court failed to consider material facts that were presented to the Court before the Court's decision.
No motion for reconsideration shall repeat in any manner any oral or written argument made in support of or in opposition to the original motion.
Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 581, 586 (D. Ariz. 2003). While Plaintiffs have not attempted to meet any of these factors, the Court finds that given the facts that Plaintiffs have proffered there is still nothing that fulfills these factors.
Finally, Pursuant to Local Rule 7.2(g), "[a]bsent good cause shown, any motion for reconsideration shall be filed no later than fourteen (14) days after the filing of the Order that is the subject of the motion." LRCiv 7.2(g)(2) (emphasis added). The Order dismissing Mr. Ryan was filed on February 6, 2013. (Doc. 73). Computing time in accordance with Federal Rule of Civil Procedure 6(a), means that Plaintiffs had until February 20, 2013, to timely file this motion for reconsideration of that Order. However, Plaintiffs filed this motion on May 9, 2013, seventy-eight (78) days after the February 20 deadline and ninety-two (92) days after February 6, 2013 Order which Plaintiffs are seeking to have this Court reconsider. According to Plaintiffs, counsel became aware of Ms. Wallace's neglect in late December 2012-over two months before the Order was entered. Plaintiffs have not included a statement of good cause for the delay in filing their motion for reconsideration. Thus, the Court also finds that this motion is not timely.
With regard to Plaintiffs' motion to set aside the Court's discovery deadline order, the Order was entered on July 11, 2012 (Doc. 59), discovery ended on November 15, 2012, at the latest Plaintiffs were aware of the need for additional discovery in late December 2012 when they discovered Ms. Wallace's neglect. Even if the Court were to disregard how to calculate time under Rule 6(a), Plaintiffs filed their motion to reconsider over four months later.
To be sure, Rule 60(b) allows a longer time frame for reconsideration motions than does LRCiv 7.2. Under the Rule 60(b), reconsideration motions "shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). However, as discussed above, Plaintiffs cannot avail themselves of the longer time frame in which to file such a motion under Rule 60(b) because the orders which they are seeking to have this Court reconsider are interlocutory in that no final judgment has yet been entered in this case. Stated somewhat differently, the Court's discover deadline order and February 6, 2013, Order did not "end[ ] the litigation on the merits and leave [ ] nothing for the court to do but execute the judgment." See Catlin v. United States, 324 U.S. 229, 233 (1945). Quite the contrary, as is evidenced by the Defense's pending summary judgment motion there are a host of issues which the court must resolve before entering a final judgment in this action.
Plaintiffs are essentially asking the Court to allow them to go on a proverbial fishing expedition in order to find facts against Mr. Ryan that would first enable them to plead a proper claim and subsequently allow them to support that claim, and to further allow them to find an expert to establish their state law gross negligence claim. The Court declines to assist Plaintiffs in this endeavor at both the Court's and Defendants' expense after giving Plaintiffs' ample time for discovery already.
Based on the foregoing,
IT IS ORDERED that Plaintiffs' Rule 60(B)(1) Motion to Set Aside (Doc. 94) is denied.