Smith v. Barrow Neurological Institute et al

Filing 330

ORDER denying 302 Sealed Motion. (See document for further details). Signed by Judge Frederick J Martone on 1/17/13.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Leanna Smith ,
Plaintiff,

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vs.

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Barrow Neurological Institute et al,
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Defendants.
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No. CV 10-01632-PHX-FJM
ORDER

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On July 30, 2012 we granted defendants Banner Health System and Scott Elton,

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M.D.'s motion for summary judgment (doc. 200). We now have before us plaintiff's motion

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for reconsideration, Rule 59 motion, and Rule 60(b) motion (doc. 302), defendants' response

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(doc. 306), and plaintiff's reply (doc. 312).1

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First, any motion for reconsideration must be filed within 14 days of the filing of the

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order that is the subject of the motion. LRCiv 7.2(g)(2). Plaintiff filed her motion over three

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months after our order granting defendants summary judgment. Therefore, plaintiff's motion

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is untimely, and is denied on this basis. No good cause has been shown for the delay.

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Plaintiff's request for relief pursuant to Rule 59(e) and 60(b) is inappropriate because
the court's July 30, 2012 order is not a final judgment or appealable interlocutory order. See
Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466–67 (9th Cir.1989). Moreover,
plaintiff's motion for a new trial under Rule 59(b) is inappropriate because there was no trial
under Rule 59(a). Accordingly, we only consider plaintiff's motion to reconsider pursuant
to Rule 54(b).

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Moreover, a court “will ordinarily deny a motion for reconsideration of an Order

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absent a showing of manifest error or a showing of new facts or legal authority that could not

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have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1).

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Plaintiff has not met her burden. Plaintiff largely restates facts and arguments that were

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presented when we considered the parties' motions for summary judgment. Plaintiff ignores

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LRCiv 7.2(g)(1), under which “[n]o motion for reconsideration of an Order may repeat any

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oral or written argument made by the movant in support of or in opposition to the motion that

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resulted in the Order.” Plaintiff's “[f]ailure to comply with [LRCiv 7.2(g)(1)] may be

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grounds for denial of the motion."

Id.

Nevertheless, we briefly address plaintiff's

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contentions. We did not invite a responsive filing under LRCiv 7.2(g)(2) because the motion

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for reconsideration is without merit.

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Plaintiff argues that we committed clear error in not considering Dr. Newberger's

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opinion that defendants' reports to Child Protective Services ("CPS") were unreasonable. But

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we considered Dr. Newberger's opinion and determined that it would not be admissible at

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trial and therefore could not support plaintiff's allegations. See Order of July 30, 2012 at 6

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(doc. 200). Plaintiff's dissatisfaction is not a proper basis for reconsideration.

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Plaintiff also argues that new evidence overcomes the presumption that defendants

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have not acted with malice. But plaintiff has not demonstrated that with diligence the new

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evidence could not have been brought to the court's attention earlier. Plaintiff argues that

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defendants refused to schedule depositions before they filed their motion for summary

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judgment. But plaintiff failed to file a motion to compel the discovery she needed to

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prosecute her case. Indeed, plaintiff did not file any discovery motion until September 27,

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2012, nearly two months after our order granting defendants' motion for summary judgment.

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We denied the discovery motion noting that plaintiff was given ample time to depose hospital

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employees and to pursue the necessary discovery. See Order of October 10, 2012 (doc. 276).

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Moreover, even if we were to consider the evidence plaintiff relies on, we would affirm our

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original conclusion that plaintiff has not overcome the presumption that defendants acted in

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good faith when reporting their observations to CPS. Malice is not an inference that could
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be drawn from plaintiff's submission.

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Plaintiff next argues that there is sufficient evidence to require a jury to resolve

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plaintiff's conspiracy claim against defendants. But plaintiff did not raise that argument in

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her response to defendants' motion for summary judgment, and has not explained her failure

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to do so. Accordingly, we need not consider it now.

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Plaintiff also suggests that the court erred in deciding that collateral estoppel applies

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to the issue of C.R.'s abuse because the juvenile court orders were not final for issue

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preclusion or collateral estoppel purposes, and the court did not review the actual hearing

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record before determining what was litigated before the juvenile court. Although this

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argument differs from that which plaintiff urged in her response to defendants' motion for

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summary judgment, plaintiff fails to show why she could not have raised it earlier. Indeed,

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none of the cases plaintiff cites were decided after we issued our order. Moreover, the cases

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are not dispositive, and thus we reject plaintiff's contentions.

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Finally, plaintiff argues that a jury must resolve factual disputes before we can

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consider ruling on the issue of qualified immunity. But plaintiff has failed to identify any

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factual disputes that, with reasonable diligence, could not have been brought to this court's

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attention earlier. Therefore, no basis exists for reconsidering the qualified immunity issue.

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Accordingly, IT IS ORDERED DENYING plaintiff's motion for reconsideration,

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Rule 59 motion, and Rule 60(b) motion (doc. 302).
DATED this 17th day of January, 2013.

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