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Epps v. CVS Health Corporation

United States District Court, D. Arizona

October 24, 2019

Vivian Epps, Plaintiff,
v.
CVS Health Corporation, Defendant.

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.

         On May 7, 2019, the Court entered summary judgment in favor of Defendant CVS Health Corporation. Doc. 101. Pro se Plaintiff Vivian Epps appealed. Doc. 104. The Court subsequently denied Ms. Epps's motion to set aside the judgment under Rule 60(b). Doc. 107. Since then, Ms. Epps has filed seven additional motions. See Docs. 109, 114, 115, 118, 120, 123, 125.

         The new motions raise various arguments. Although this case is on appeal, the Court concludes that two of the arguments should be addressed. First, Ms. Epps argues that the summary judgment should be set aside under Rule 60(b) because of newly discovered evidence and fraud on the Court. Second, Ms. Epps argues that the undersigned judge should be removed from this case. The Court will address these issues and deny Ms. Epps's motions.

         I. Newly Discovered Evidence.

         Ms. Epps asserts, in several places in her recent filings, that she has found new evidence that affect the Court's summary judgment ruling. Specifically, Ms. Epps presents evidence that the entity which owns the CVS store where she allegedly was injured, German Dobson CVS, LLC (“German Dobson”), is an Arizona limited liability company whose sole member is CVS Pharmacy, Inc. See Docs. 115 at 15-21, 121 at 7-8. CVS Pharmacy, Inc. is not the Defendant in this case. Ms. Epps has sued an entity known as CVS Health Corporation (“CVS Health”). Ms. Epps asserts, correctly, that CVS Pharmacy, Inc. is a wholly-owned subsidiary of CVS Health. See Doc. 121 at 7. Ms. Epps argues that CVS Health is liable in this case because its wholly-owned subsidiary is the sole member of the LLC that owns the store where she was injured.

         The Ninth Circuit has explained the requirements for relief under Rule 60(b) on the basis of newly discovered evidence:

Relief from judgment on the basis of newly discovered evidence is warranted if (1) the moving party can show that the evidence relied on in fact constitutes “newly discovered evidence” within the meaning of Rule 60(b); (2) the moving party exercised due diligence to discover this evidence; and (3) the newly discovered evidence must be of such magnitude that production of it earlier would have been likely to have changed the disposition of the case.

Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082, 1093 (9th Cir. 2003). Ms. Epps's new evidence satisfies none of these requirements.

         A. The Evidence Is Not Newly Discovered.

         Ms. Epps began this case by suing CVS Health (Doc. 1) (referred to in the complaint as “CVS Health Corporate Headquarters”). Defense counsel responded by informing Ms. Epps that CVS Health did not own the store where she was allegedly injured, and that the store was owned by German Dobson. Ms. Epps was contacted by the claims management service for German Dobson in June of 2017, before her case was filed, and informed her that German Dobson owned the store and that the claims management service would handle her claim. Doc. 11-1 at 6. She refused to deal with the claims manager, stating that German Dobson “is NOT the Headquarter for CVS retail.” Id.

         When Ms. Epps persisted in suing CVS Health, defense counsel filed a motion to dismiss, which was later amended. See Docs. 11, 14. Both of these motions attached a document entitled “Entity Information” which described German Dobson as an Arizona LLC and specifically identified its sole member as CVS Pharmacy, Inc. See Docs. 11-1 at 3, 14-1 at 3. Thus, the fact that CVS Pharmacy, Inc. is the sole member of German Dobson has been known from the outset of this case, and Ms. Epps has asserted on numerous occasions that CVS Pharmacy Inc. is a wholly-owned subsidiary of CVS Health. The evidence relied on in her Rule 60(b) motion is not newly discovered.

         B. Evidence Could Have Been Discovered Through Reasonable Diligence.

         The history of this case is relevant. At the Case Management Conference on September 27, 2018, the Court had an extended discussion with Ms. Epps about the fact that she allegedly had sued the wrong entity. See Doc. 60. Defense counsel had already identified German Dobson as the correct entity, and the claims management company for German Dobson had reached out to Ms. Epps to process her claim. Ms. Epps nonetheless had persisted in her intent to sue CVS Health.

         The Court explained during the conference that it would allow Ms. Epps to conduct discovery concerning the correct identity of the Defendant and then amend her complaint, if she chose to do so. The Court explained that if she sued the wrong entity, summary judgment would be granted and much effort would have been wasted. Ms. Epps declined to accept the Court's information:

THE COURT: . . . Do you want to consider amending your complaint to name the actual owner of the store, or do you want to simply persist in your claim against the parent?
MS. EPPS: All I know is that the parent company is the co-owner and the email preponderance of evidence validated that they do -- they are. It is their CVS store number. She even said Number 2963. ...

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