United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
Newly Discovered Evidence.
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.
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.
The Evidence Is Not Newly Discovered.
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.
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.
Evidence Could Have Been Discovered Through Reasonable
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.
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
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. ...