Midyett v. Levy et al

Filing 82

OPINION AND ORDER; IT IS THEREFORE ORDERED that Midyett's objections are OVERRULED. The Magistrate Judge's R&R Doc. 80 is ADOPTED IN ITS ENTIRETY, and the Motion for Rule 60(b) relief Doc. 75 is DENIED. Signed by Honorable Timothy L. Brooks on February 17, 2017. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
F. ALLAN MIDYETT, M.D.
V.

PLAINTIFF
CASE NO. 5:14-CV-05016

ROBERT LEVY, M.D., INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY AS CHAIRMAN,
PROFESSIONAL STANDARDS BOARD VA OF THE OZARKS

DEFENDANT

OPINION AND ORDER

Currently before the Court is the Report and Recommendation (''R&R") (Doc. 80)
filed on January 17, 2017 , by the Honorable Erin L. Setser, United States Magistrate Judge
for the Western District of Arkansas . In the R&R , Judge Setser thoroughly reviews the
rather complex procedural history of this case, and then recommends that the Court deny
Plaintiff F. Allan Midyett, M.D.'s Motion made pursuant to Federal Rule of Civil Procedure
60(b) (Doc. 75) , for relief from a final judgment. Midyett filed Objections to the R&R on
January 27 , 2017. See Doc. 81 . The Court has now reviewed the complete briefing on
the Motion (Docs . 75-78) and has examined all issues de nova in light of Midyett's
objections . Upon review, it is clear that Midyett's objections offer neither law nor fact to
warrant deviating from the Magistrate Judge's well-reasoned recommendation , and
therefore, the R&R will be adopted and the Motion denied.
Rule 60(b) provides that a party may be relieved from an order of the Court under
certain enumerated circumstances, including the existence of "mistake, inadvertence,
surprise, or excusable neglect" or "any other reason that justifies relief." Fed . R. Civ. P.
60(b)(1) and (6). The Rule "provides for extraordinary relief which may be granted only
upon an adequate showing of exceptional circumstances." United States v. Young , 806

F.2d 805 , 806 (8th Cir. 1986). Moreover, Rule 60(c) requires that a motion made under
Rule 60(b) be "made within a reasonable time ... and no more than a year after the entry
of the judgment or order or the date of the proceeding." Fed. R. Civ. P. 60(c)(1 ).
As Judge Setser recounted in her R&R , the claims in this case were originally filed
in Case Number 5:12-CV-05184 ("Midyett/") , and then were essentially re-filed in the
instant case ("Midyett II"). Midyett I, which involved the same parties as in the case at bar,
resulted in a final judgment on the merits. See Doc. 74. The case concerned Midyett's
allegations that he was terminated from the VA hospital where he was employed , in
violation of his rights , and that the administrative hearing related to his termination was
conducted improperly. After Midyett I was dismissed , Midyett II was filed . The Court in its
Order dismissing Midyett II noted that the doctrine of res judicata applied , as Midyett had
"set forth in his Complaint the same operative facts and same allegedly wrongful conduct
by Defendant as were pleaded in Midyett/." (Doc. 73 , p. 3) . Accordingly, the Court found
that Midyett could not '"dress up' his previously dismissed case and pass it off as
something new by citing to new theories of recovery. " Id.
Midyett II was dismissed on July 13, 2015. Midyett filed the instant Rule 60(b)

Motion a little less than a year later, on July 11 , 2016 . The R&R sets forth in detail the
reasons Midyett offers as to why he now seeks relief from the Court's Judgment. In
response , Defendant Robert Levy argues that since the case was dismissed due to res
judicata principles relating back to Midyett I, any Rule 60(b) motion should have been filed

within one year of the Midyett I Judgment. See Doc. 77 , p. 2. Instead , Midyett chose not
to do that, but instead filed a new case, Midyett II. The Court agrees with Levy and the

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Magistrate Judge that the Rule 60(b) Motion is untimely, as it should have been filed with in
one year of final judgment in Midyett I. Instead , Midyett attempted a second bite at the
apple by filing Midyett II, and then , when he did not prevail , he attempted a third bite at the
apple by filing this Rule 60(b) Motion almost a year after Midyett //was dismissed . Despite
the Court's view that the Motion may be dismissed due to untimeliness, the Court has also
reviewed the substance of the Motion and finds , in the alternative , that it should be
dismissed on the merits.
As previously explained , rel ief from final judgment is only appropriate when there
is evidence of mistake, inadvertence, surprise, inexcusable neglect, newly discovered
evidence, or fraud committed by an opposing party. Rather than cite to evidence
supporting any of these bases for relief, Midyett attempts to re-litigate Midyett I and II by:
(1) referencing a non-party's affidavit that was filed of record in both Midyett I and II, and
claiming now that it is false and constitutes "fraud or mistake or both" (Doc. 75 , p. 2) ; (2)
referencing a party's affidavit that was filed of record in both Midyett I and II, and claiming
now that it is "newly discovered evidence ," id.; (3) asserting that Midyett has not yet "been
provided any reasonable opportunity to challenge the veracity of any statement alleged
against him by Defendant, by witness confrontation , by any type of discovery, and make
a defense to these allegations ," id. at p. 1O; and (4) alleging that "new evidence" exists in
the form of a litany of facts that were asserted in Midyett I and //, which allegedly prove that
Midyett was discrim inated against, subjected to a hostile work environment, and then
dismissed in violation of his due process rights , id. at pp . 11-15.
In reviewing Midyett's substantive bases for Rule 60(b) relief, Judge Setser found
that none of them constituted mistake, inadvertence, surprise, inexcusable neglect, newly

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discovered evidence, or fraud-and the Court agrees. The evidence Midyett cites in his
Motion is either not new evidence , or else is evidence that does not clearly and
convincingly show that Levy engaged in fraud or other misconduct that prevented Midyett
from fully and fairly presenting his case . See In re Levaquin Prods. Liab. Litig., 739 F.3d
401 , 404 (8th Cir. 2014) (finding that in order to prevail under Rule 60(b), the evidence
presented must be "clear and convincing "). Midyett's Objections fail to address the R&R's
analysis or conclusions with any specificity, and instead become a platform for revisiting
the claims he asserted against Levy in Midyett I and //. In sum , none of the bases for relief
that Midyett relies on in his Motion constitute an exceptional circumstance justifying relief
from the Judgment. As Judge Setser observed in the R&R, "'[t]he purpose of Rule 60(b)
relief is not to give parties an opportunity to re-argue their case , and it should not be used
as a substitute for a timely appeal. "' (Doc. 80 , p. 7 (quoting Evans v. Hobbs , 2014 WL
1030254, at *1 (W.D . Ark. Mar. 17, 2014))) .
IT IS THEREFORE ORDERED that Midyett's objections are OVERRULED . The
Magistrate Judge's R&R (Doc. 80) is ADOPTED IN ITS ENTIRETY, and the Motion for
Rule 60(b) relief (Doc. 75) is DENIED . ~~

IT IS SO ORDERED on this

_ti day of February, 2017 .

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