Richard B Fox v. HCA Holdings, Inc.

Filing 9

ORDER DENYING MOTION TO RELATE CASE. Signed by Judge Richard Seeborg on 6/23/15. (cl, COURT STAFF) (Filed on 6/23/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICHARD B. FOX,

Case No. 04-cv-00874-RS

United States District Court
Northern District of California

Plaintiff,
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v.

ORDER DENYING MOTION TO
RELATE CASE

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GOOD SAMARITAN HOSPITAL
MEDICAL STAFF, et al.,
Defendants.

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Judgment in this action (Fox I) was entered in defendants’ favor and against plaintiff

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Richard B. Fox in March of 2010. The Ninth Circuit affirmed the judgment in February of 2012,

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and the Supreme Court denied Fox’s petition for a writ of certiorari in October of that year. Fox,

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now a member of the California bar, has filed a new action on his own behalf against defendant

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HCA, Holdings, Inc.— Fox v. HCA Holdings, Inc., C15-2073 HRL (Fox II). In the new action,

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Fox alleges, in essence, that HCA perpetuated a fraud against the Court of Appeal that led to the

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unfavorable appellate ruling against him in Fox I. Pursuant to Civil Local Rule 3-12, HCA has

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filed a motion to relate Fox II to Fox I, arguing that the new case is effectively an attempt to

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continue litigating, or to relitigate, the prior controversy, and that therefore reassignment to the

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undersigned is warranted under the rule. Fox has stipulated to having the case related.

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Notwithstanding the parties’ views, the two cases are not related within the meaning of the
rule. Fox II advances a claim that HCA “exerted improper influence, by as yet undetermined

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means, to cause a non-random panel assignment” of the appeal in Fox I, with the result that an

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allegedly biased judge purportedly influenced the outcome, despite having recused himself prior to

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the time the decision was rendered. The Fox II complaint asserts liability under RICO for the

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alleged “fraud upon the court” and seeks damages, as well as to have the judgment in Fox I

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vacated under Rule 60(d) of the Federal Rules of Civil Procedure.1
Although the parties in Fox II are a subset of those in Fox I, none of the factual or legal

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issues presented in the new action were the subject of the prior case. While Fox’s ultimate

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objective may be to resume the prior litigation, the complaint in Fox II does not reassert the prior

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claims, nor could it, given the existing judgment. The prior claims cannot and will not be
relitigated unless and until Fox were to obtain relief in Fox II setting aside the Fox I judgment.

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United States District Court
Northern District of California

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See Rule 60(d) (“This rule does not limit a court’s power to . . . entertain an independent action to

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relieve a party from a judgment . . . or . . . set aside a judgment for fraud on the court.”) While the

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precise procedure to be followed when such relief is granted is not delineated in the rules, it likely

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would be appropriate to reopen Fox I were Fox to prevail in Fox II. Whether the old claims would

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go forward under the old case number, or under a new third case number, however, the issues

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presently presented in Fox II have no overlap with those litigated in Fox I.

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The claims Fox is now pursuing relate to alleged wrongdoing by HCA in 2011 after

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judgment in Fox I was entered, and involve an alleged attempt to corrupt the judicial system. Fox

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I, in contrast, involved alleged anticompetitive behavior by defendants during the 1990s in

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connection with Fox’s privileges to practice medicine at Good Samaritan Hospital. The mere fact

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that the alleged tampering with the judicial process occurred in the context of the prior appeal does

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not mean that the two actions “concern substantially the same . . . transaction or event” or make it

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“likely that there will be an unduly burdensome duplication of labor and expense or conflicting

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results if the cases are conducted before different Judges.” Rule 3-12. Accordingly, the motion to

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Fox correctly recognizes that he is time-barred from bringing a motion in this action under Rule
60(b)(3) to set aside the judgment for fraud.

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CASE NO.

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04-cv-00874-RS

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relate the cases is denied.

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IT IS SO ORDERED.

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Dated: June 23, 2015
______________________________________
RICHARD SEEBORG
United States District Judge

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United States District Court
Northern District of California

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CASE NO.

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04-cv-00874-RS