Gold Cross EMS, Inc. v. The Children's Hospital of Alabama

Filing 68

ORDER denying Plaintiff Gold Cross EMS, Inc.'s 62 Motion for Reconsideration; and declining Gold Cross's requests for certification to the Georgia Supreme Court or interlocutory review. Signed by Judge J. Randal Hall on 06/01/2015. (jah)

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IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION GOLD CROSS EMS, INC., * * Plaintiff, * * * v. CV 113-081 * THE CHILDREN'S HOSPITAL OF * ALABAMA, * * Defendant. * ORDER Presently before the Court is Plaintiff Gold Cross EMS, ("Gold Cross") Motion for Reconsideration (doc. Court's Order (doc. 61) granting, Defendant The Children's in part, 62) Inc.'s following this Hospital of Alabama's ("CHOA") Motion for Summary Judgment. alternative, Gold Cross asks the Court to either In the certify the question to the Supreme Court of Georgia or certify that the issue warrants immediate Court of Appeals. interlocutory review by the Eleventh Circuit The facts giving rise to this dispute were fully set forth in the Court's Order on the summary judgment motion and so the herein, Court the (doc. 62). does Court not restate DENIES Gold them here. Cross's For Motion the for reasons stated Reconsideration The Court similarly declines to certify the question to the Georgia Supreme Court or the issue for interlocutory review. I. Motion for Reconsideration Pursuant to Federal Rule of Civil Procedure 59(e), a party may seek to alter or amend a judgment in a civil case within twentyeight days after the entry of the judgment. a previous order is %an sparingly.'" Williams N.V. , Supp. 320 omitted) . F. extraordinary v. 2d "[R]econsideration of remedy, to Cruise Catering & 1347, Ships 1358 (S.D. Fla. be employed Serv. 2004) Int'l, (citation In fact, a motion for reconsideration is not an appeal, and thus it is improper on a motion for reconsideration to "ask the Court to rethink what it ha[s] already thought through — rightly or wrongly." Above the Belt, F.R.D. 101 99, Co., No. and (E.D. Va. Vidinliey 5459335, 08-23183, at *1 Inc. v. Carey (N.D. Inc., 1983), quoted in Weitz Co. v. Transp. 2009 WL 1636125, v. Mel Bohannan Roofing, Int'l, Ga. Dec. 15, at *1 Inc., (S.D. No. 2008). A Fla. June 11, l:07-cv-762, 99 Ins. 2009) 2008 WL movant must "set forth facts or law of a strongly convincing nature to induce the court to reverse F.R.D. its prior decision." 294, 294 (M.D. Fla. Although Rule 59(e) district courts in this Cover v. 1993) Wal-Mart Stores, does not set forth the grounds for relief, Circuit have order: identified (1) an controlling law; (2) the availability of new evidence; e.g. , Ctr. an three of correct 148 (citation omitted). reconsideration need to Inc., intervening clear error or prevent manifest for Biological Diversity v. Hamilton, that change and F. in (3) injustice. 385 merit the See, Supp. 2d 1330, 1337 P.A., (N.D. 153 F.R.D. Ga. 689, 2005); 694 Sussman (M.D. Ga. v. Salem, Saxon & Nielsen, 1994). "Motions for reconsideration should not be used to raise legal arguments which could and should have been made before the judgment was issued." Cir. 1998); 1423, 30, No. Lockard v. see also Collins 2:09-cv-093, 2013) ("Motions Equifax, 2013 for v. WL Inc., Int'l 393096, 163 F.3d 1259, at reconsideration *1 (S.D. should (11th Ass'n Longshoremen's 1267 Local Ga. not 2013 be relitigate issues which have already been found lacking." quotations omitted)); Fla., 408 F.3d 757, Rule 59(e) motion Michael Linet, 763 to (11th Cir. relitigate Inc. v. Vill. 2005) old used to (internal of Wellington, ("[A party] matters, Jan. cannot use a raise argument or present evidence that could have been raised prior to the entry of judgment."). Further, Rule 59(e) "is not a vehicle for rehashing arguments already rejected by the court or for refuting the court's prior decision." F.R.D. 680, Gold Wendy's 686 (M.D. Ga. Cross moves Int'l v. Nu-Cape Constr., Inc., 169 1996). for reconsideration based on a need to correct clear error or prevent manifest injustice. "A motion to reconsider error is properly brought to correct a clear court's interpretation of either the facts or the law. in the It should be used in order to prevent manifest injustice, however it is an extreme measure, and substantial discretion rests with the court in granting such a motion." F.R.D. 697, 698 (M.D. Medley v. Ala. 1995) Westpoint Stevens, (internal citations Inc., 162 omitted). "This ordinarily where the Ryland requires interests Grp., of Inc., a showing justice 497 F. (M.D. Fla. 1996)). legal issues are 272 F. Supp. Assurance Co. (11th Cir. ^clear demand Supp. 2007) (quoting Prudential Sec, 417 of Inc. 2d v. 1356, (N.D. Ga. 2003) Inc., Fla. Supp. 415, if the (quoting Am. 763 F.2d 1237, Home 1239 1985)). Gold Cross first argues that a case relied upon by CHOA and the Court, 358 919 F. S.E.2d 468 contrary result. (Ga. However, Ct. App. 1987), Gay v. Piggly Wiggly actually supports In Piggly Wiggly, plaintiff was injured by the driver of a Piggly Wiggly truck. Following that injury, negligent Physical appeal, care from Therapy two a the Piggly Wiggly court addressed both a factually and legally distinguishable issue. at 469. v. United States v. Battle, To support its claim of clear error, S. , (M.D. 'clear and obvious' Glenn Estess & Assocs., v. 1358 error McGuire 1358 Emerson, "An error is not 1354, obvious correction.'" *at least arguable.'" 2d and Id. the plaintiff purportedly received doctors Associates, the and Inc. an individual ("PTA"). which addressed appropriate venue, Id. employed at 470. by The centered on whether the defendants were successive rather than joint tortfeasors. Id. The trial court held that Piggly Wiggly was the original tortfeasor and PTA the the successive. Id. For Piggly Wiggly portion of that the reason, action to the another The appellants argued that the driver and doctors, respective employers, were joint tortfeasors court transferred county. Id. as well as their making the original venue appropriate. between the In addressing tortfeasors, the the Georgia respective Court of relationships Appeals posed the following two options as to their employers: [I]f, under the circumstances of this case, the employees of Piggly Wiggly and PTA can be considered to be classic joint tortfeasors as between each other, then Piggly Wiggly and PTA, as vicarious joint tortfeasors with their respective employees, can be considered to be classic joint tortfeasors as between themselves and venue in Fulton County would be proper. If, on the other hand, the employees cannot be considered to be classic joint tortfeasors as between each other, then neither can Piggly Wiggly and PTA[.] Id. at 471. Gold Cross focuses its attention on this quote and argues that the Court committed conclusion on Factually, this contracted drivers. two the with clear contribution Court an was sets entities square. In straight line: (two of relying issue. The with service employees a on Court single which it for disagrees. hospital then its selected that its bar, hired and employers. To put the the relationship between the Piggly employers the case at CHOA not the Piggly Wiggly court was presented with distinction into visual terms, Wiggly by presented ambulance In contrast, distinct error and their two employees) the relationship Gold Cross and forms a is more akin to a Gold Cross in turn selected its drivers. As options. quoted If above, the amongst each other, the employees Piggly were Wiggly court considered presented joint two tortfeasors then their employers could be vicarious joint tortfeasors. If the employees were not joint tortfeasors amongst each other, then their employers would not be either. The legal significance of these two options, however, is materially impacted by the language that precedes the court's presentation of them: Accordingly, in some legal senses, including the satisfaction of constitutional venue requirements, joint tortfeasors is a somewhat broader concept, embracing more than merely those individuals whose own, separate acts of negligence have allegedly produced a single injury and who have, as among themselves, an independent right of contribution. Joint tortfeasors is not limited to this concept of classic joint tortfeasors, but may extend also to include the concept of vicarious joint tortfeasors. Id. (internal quotation marks omitted) (emphasis added). stated in Piggly Wiggly applies to appropriate venue. court expressly recognized that when addressing venue, may expand vicarious the traditional joint joint tortfeasors. tortfeasor Expanding doctrine the The law Indeed, the the to courts consider definition as it applies to venue makes sense, as the plaintiff's selection of forum will necessarily occur prior to any discovery on the merits of a joint tortfeasor Wiggly court relationship. did not hold that Importantly, "vicarious however, the Piggly joint tortfeasors" liable amongst each other for contribution, as are that issue was not before the court. As Gold Cross relied only quoted the vicariously on a recognizes — and takes limited following liable classic sense, portion language: employer are of " [A] not issue with — this Piggly Wiggly. negligent xjoint The employee tortfeasors' Court Court and his in the in that the employer has committed no separate and distinct act of negligence and the contribution against his employer." employee Id. has no right The Court did not engage in a factual comparison of Piggly Wiggly and the instant case, no such quoted cases comparison the logically exists. above-referenced supporting the sentence Instead, and same proposition. from relationship" given is a natural [CHOA] that based "an person." Gold on ^employee,' (Doc. 62-1 Gold Cross's persuasive. extremely Indeed, Gold does Court number Cross as simply of other contends that as it did "not seek employer/employee virtually by definition, at 5 restrictive Cross a an (citing Dictionary and Merriam-Webster Dictionary).) find the cited this rule is inapplicable to the present facts, contribution of The Court definition not cite Black's any Law does of not employee authority to support the proposition that one company cannot hire another. To the as contrary, people. in See, many e.g. , contexts Nina courts Totenberg, recognize When Did companies Companies Become People? Excavating The Legal Evolution, National Public Radio, July 28, 2014, 014/07/28/3 352883 88/when-did-companies- become-people-excavat ing-the-legal-evolut ion. reasons, the Court Court's application reconsideration on finds of that Gold Piggly Cross Wiggly the contribution Cross directs issue For has not was all shown clear is not Court to of these that error, warranted on the and this basis. Next, sections: Gold (1) the Restatement the (First) of two Restitution Restatement and (2) the Restatement (Second) of Agency. As a preliminary matter, neither of these sections have been adopted or cited by Georgia courts. And although Gold Cross argues that because "[n]othing cited by [CHOA] or the Court demonstrates that these principles have been rejected by Georgia explicit rejection Restatement into courts [,]" does accepted not (doc. 62-1 convert Georgia law, at 7), an such lack of otherwise much less unutilized support an argument that the Court committed clear error by not relying on it. In any event, the Court finds these sections inapplicable to the facts presented. As to the Restatement (First) of Restitution, the cited section provides as follows: Where two persons were liable in tort for the conduct of a third person, and neither of them was at fault or, as between the two, primarily responsible, one of them who has discharged a liability against them created by the tortious conduct of such third person is entitled to contribution from the other of a proportionate share of expenditures properly made in the discharge of such liability. Restatement (First) of Restitution § 99 (193 7) . To clarify the scope of this section, the following two examples are provided: 1. The A and B railroads agree to employ C as station agent at a station maintained by A and B jointly. While in the scope of his joint employment, C negligently injures D. D obtains judgment against A, which A satisfies. A is entitled to contribution from B. 2. A, B and attorney C, to creditors prosecute of D, their unite several in employing claims. In an the course of the proceedings, the attorney is guilty of malicious abuse of process against D, for which the creditors are responsible. D brings an action against C who reasonably defends it after asking A and B to join in the defense. which C A Id. . In satisfies. Mims each must and is entitled to contribution from and from B. of these situations, with and hire another. Cross D obtains a judgment against C C allege that Johnson. characterize the Thus, Gold two or more to apply to the Cross Regardless contract instant case, Gold and the CHOA contracted to how of relationship, entities Gold wishes record Cross now supports a employ conclusion that CHOA contracted with Gold Cross for ambulatory services. evidence shows that CHOA had any part in determining Cross employees would drive the ambulance. is thus services, more for akin to a example. company There, as to No which Gold The present situation that contracts for janitorial here, Company A would contract with Company B, who would then assign the work to one or more of its employees. Thus, Restatement § the present case falls outside the scope of 99. Addressing section states as the Restatement (Second) of Agency, the cited follows: (1) Unless otherwise agreed between them, one of two principals who has made expenditures because of the conduct of a common agent is entitled to (a) contribution from the other principal if, as between the two, each was equally responsible for the agent's conduct, or (b) indemnity from the other principal if the agent's conduct was the result of a breach of duty to the plaintiff by the other principal. Restatement (Second) of Agency § 317A(1) of this above section language; to the present (2) a case (1958) . facts, out of the To support application Gold Court Cross cites (1) of Common Pleas the in Pennsylvania liable for holding the contribution, holding that Eleventh that actions (3) of this one co-employers joint Court's may be Circuit a Court the of are jointly and employee Order and servant Appeals of and other two case thus give rise to clear masters, addressing error subject Georgia between a hospital and its wholly-owned subsidiary. citations severally case and (4) to law an contribution None of these sufficient to support reconsideration. Turning first to the Restatement section quoted above, which again has never been cited with approval by Georgia courts,1 Gold Cross fails to show how it applies to the facts presented. a section out of particular the Restatement, relevance, is without insufficient any argument to support a Quoting as to motion its for reconsideration. Gold Cross proposition that plaintiff Sleasman to v. additionally cites co-employers are the extent Brooks, 32 of Pa. the D. a Pennsylvania case for the jointly and severally liable to joint & employee's C.3d 187, 195 liability. (1984). See Even assuming this case is consistent with Georgia law, Gold Cross again presents no argument as to its application in this case. 1 The First Circuit Court of Appeals cited this Restatement section in discussion, Putnam v. DeRosa, 963 F.2d 480, 485 (1st Cir. 1992); the Seventh Circuit Court of Appeals quoted i t but declined to follow, Chesapeake & Ohio Ry. Co. , 564 F.2d 22, 226 (7th Cir. 1977) ; a district court in Connecticut quoted i t in dictum, Dennler v. Dodge Transfer Corp., 201 F. Supp. 431, 439 (D. Conn. 1962); a district court in Oregon cited i t in a footnote and discussed i t in dictum, Oregon v. Tug Go-Getter, 299 F. Supp. 269, 277 (D. Or. 1969) ; and a district court in Vermont cited and quoted the section but did not follow it, St. Johnsbury & Lamobile CO. R.R. v. Canadian Pac. Ry. Co., 341 F. Supp. 1368, 1372 (D. Vt. 1972). 10 Next, Gold Cross cites case law from Georgia that one may be the servant of two masters. statement of the law, The Court does not disagree with this but Gold Cross already argued this point in its summary judgment briefing. Seeking to relitigate the matter is inappropriate on a motion for reconsideration. Finally, Gold Cross cites a case out of Court of Appeals negligent Cir. for the proposition that multiple employers of employee Healthcare Sys., 2006)(per can Inc. There, be of the both court the hospital. medical Id. as it case tortfeasors. No. The 06-13444, Eleventh where the and a determine was a medical and center. the two in wholly-owned Stated differently, a Reg'1 (11th however, is contribution issue in a for contribution purposes center case, doctors whether Columbus 2006 WL 3406543 Circuit addressed a hospital had to considered one that a joint Beck, curiam). malpractice employees be v. clearly distinguishable medical the Eleventh Circuit nurses Id. at entities light of subsidiary were *1. should the fact of the the issue before the court was "whether the same party is being held liable twice for the same set of acts." between Id. the At no point did the court address the relationship employers and the employees, as the nature of that relationship was undisputed. In sum, Gold Cross's presentation of authority in brief does not demonstrate clear error in the Court's ruling.2 Gold Cross 2 Moreover, the Court is not persuaded that Gold Cross could not have raised these points sooner. "Motions for reconsideration should not be used to raise legal arguments which could and should have been made before the 11 repeatedly states that neither the CHOA nor the Court have proven that the legal theories relied upon are incorrect or that they have been rejected misunderstands upon the the movant supporting 2010 under existing standard to for at *1 the Fla. v. and Stating proven meet in the the herein, reconsideration conclusory legal high fashion theories burden at have for a that been relief. "The Alejo, July 2, Court's opinions are not intended as mere revision Gold extraordinary Prescott (M.D. law.3 reconsideration. establish reconsideration." WL 2670860, Georgia the Court Indeed, rejected is For the all "[t]he subject to pleasure." and is 2:09-cv-791, first drafts, litigant's burden circumstances No. 2010). Cross Id. CHOA have not insufficient reasons to stated the Court DENIES Gold Cross's request for reconsideration. judgment was issued." Lockard, 163 F.3d at 1267. Gold Cross asserts that its argument could not have been made before because CHOA raised the issue for the first time in a reply brief. Following CHOA's reply brief, Gold Cross did not file a notice of intent to file a sur-reply, and instead left CHOA with the last word on this issue. As the late Judge Edenfield explained in Pattee v. Georgia Ports Authority: The proper course [in this district] is to allow new arguments to be raised in reply briefs, placing the burden on opposing counsel to identify those new arguments and notify the Clerk pursuant to Local Rule 7.6 that a sur-reply is forthcoming. This is preferable to refusing to reach valid arguments — many of which will only be raised again during a trial which itself might be avoided if the argument is reached-based on a ham-fisted, ones i z e - f i t s - a l l rule. 477 F. Supp. 2d 1272, 1274-75 3 (S.D. Ga. 2007). Doc. 62-1 at 7 ("Nothing cited by [Defendant] or the Court demonstrates that these principles have been rejected by Georgia courts."); Id. at 9 ("Neither [Defendant] nor the Court has identified any controlling precedent in this State that rejects the principles of contribution described above."); Doc. 65 at 3 ("As [Defendant] cites no to the merits of the motion for authority whatsoever which supports contribution is unavailable."). 12 reconsideration, its theory that II. Certification to the Georgia Supreme Court Alternatively, Gold Cross asks the Court to certify the issue4 to the Georgia Supreme Court. courts to certify questions Court if "there decisions[.]" obligatory, U.S. no however, state the 390-91 law law to controlling § 15-2-9(a). and "[i]ts use of 386, of clear O.C.G.A. sound discretion 416 are Georgia federal in In district the Georgia Supreme precedents in a given case rests Lehman Bros, this regard, v. the the is Certification court." (1974). authorizes not in the Schein, Eleventh Circuit's practice has been to resort to certification "with restraint" upon consideration of the following factors: "The most important [factors] are the closeness of the question and the existence of sufficient sources of state law . . . to allow a principled rather than conjectural conclusion. But also to be considered is the degree to which considerations of comity are relevant .... And we must also take into account practical limitation of the certification process." City of Rome v., 2013) L.P., 549 F. App'x 896, 904 (11th Cir. (quoting Escareno v. Noltina Crucible & Refractory Corp., F.3d 1456, To merely 1461 (11th Cir. support its conjectural, 1998)). contention Gold 139 Cross that relies the on Court's the conclusion same arguments was it presented in support of reconsideration — that the Court improperly applied Piggly Wiggly and that the Restatement provisions dictate a contrary 4 result. Gold Cross maintains that because "[n]either Gold Cross asks the Court to certify the following question: u[W]hether Georgia law permits contribution between two employers or principals persons engaged in a joint venture) who may be vicariously liable for acts or omissions of joint employees or agents." (Doc. 62-1 at 9.) 13 (or the [CHOA] nor the Court has identified any controlling precedent that rejects the principles appropriate. of contribution," (Doc. 62-1 at 9.) certification is However, Gold Cross presents (1) a distinguishable Georgia Court of Appeals case already cited by the Court and (2) Restatement sections and cases that are either factually distinguishable or have not been recognized in Georgia. To base the Court's distinguishable decision authority would on unrecognized result or in precisely factually the conjecture the certification doctrine seeks to avoid. sort Instead, of the Court based its analysis on a principled application of existing Georgia case law. not transformed conclusion Stated differently, from a simply because principled the Court the Court's reasoning is decision chose to not a to conjectural rely on legal theories that have either not been recognized in this state or that do not apply to the facts presented. As such, certification to the Georgia Supreme Court would be inappropriate. III. Interlocutory Review Gold Cross finally asks this Court to include a certification under 28 question U.S.C. of law § 1292 that as which to the order there is "involves a substantial controlling ground for difference of opinion and that immediate appeal from the order may materially advance the ultimate termination of the litigation." enacting this section, sparingly and "only in In Congress clearly intended for it to be used exceptional 14 cases where a decision of the appeal may avoid protracted antitrust and would dispositive be and expensive similar protracted cases, of the litigation, where a litigation is 2434, reprinted interlocutory in review 1958 is U.S.C.C.A.N. not intended where For all of the reasons described above, there 5260. there question as to the correctness of the ruling[.]" and S. Rep. No. 5255, in question which raised serious doubt as to how it should be decided [.]" as is 85- Indeed, exists a "mere Id. both in reference to the motion for reconsideration and the request for certification to the Georgia Supreme Court, the Court finds that interlocutory review under § 1292 is not warranted in this matter. IV, Based on the foregoing, (Doc. 62) requests is for hereby DENIED, certification CONCLUSION Gold Cross's Motion for Reconsideration and the to the Court DECLINES Georgia Gold Supreme Cross's Court or interlocutory review. ORDER ENTERED at Augusta, Georgia, this / day of June, 2015. HONORABBE J. RANDAL HALL UNITED STATES DISTRICT JUDGE DISTRICT 15 OF GEORGIA

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