Adkins v. Advocat, Inc. et al

Filing 24

MEMORANDUM OPINION & ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Reconsider DE 21 be OVERRULED. Signed by Judge Henry R. Wilhoit, Jr on 9/2/15.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
ASHLAND
Civil Action No. 14-152-HRW
GLEN ADKINS, as the Administrator
of the Estate and on behalf of the
Wrongful Death Beneficiaries
of Susan Adkins,
v.

PLAINTIFF,

MEMORANDUM OPINION AND ORDER

ADVOCAT INC.,
DIVERSICARE HEALTH CARE SERVICES, INC.,
DIVERS! CARE LEASING CORP.,
DIVERSICARE MANAGEMENT SERVICES CO.,
NATE CARDER, Administrator of Wurtland
Nursing & Rehabilitation Center
and JOHN DOES 1 through 5,

DEFENDANTS.

This matter is before the Court upon Plaintiffs Motion to Reconsider [Docket No. 21].
Plaintiff asks this Court to reconsider its April 17, 2005 Order overruling his Motion to Amend
and Remand and sustaining Defendants' Motion to Compel Arbitration. The motion has been
fully briefed by the parties [Docket Nos. 22 and 23]. The Court finds that Plaintiff has failed to
assert proper grounds upon which the Court would alter amend its prior Order .
I.

BACKGROUND

Susan Adkins, a former resident of Wurtland Nursing & Rehabilitation Center, passed
away on April24, 2014. On September 10,2014, Mr. Adkins, as Administrator of the Estate of
Susan Adkins, filed this action in Greenup Circuit Court. Defendants removed the case, stating
that this Court had jurisdiction over the matter pursuant to 28 U.S.C. 28 § 1332. Specifically,
Defendants alleged that the parties are citizens from different states and that the amount in

controversy is in excess of $75,000, as required by the statute. This Court sustained the removal.
Thereafter, Defendants filed a Motion to Enforce the Arbitration Agreement
executed by Susan Adkins upon her admission to Wurtland Nursing & Rehabilitation Center.
Plaintiff did not respond to Defendants' motion. Plaintiff then filed a Motion to Amend and
Remand, seeking to amend his Complaint to add Sarah Willis, the current Administrator of
Wurtland Nursing & Rehabilitation Center, as a defendant.
This Comi found Plaintiff's primmy purpose in seeking to amend the Complaint was to
destroy this Court's jurisdiction and, therefore, overruled Plaintiff's motion. In the same Order,
the Court sustained Defendant's motion and directed the Plaintiff to prosecute all of his claims
arising out of Susan Adkins' residency at Wurtland Nursing & Rehabilitation Center in
accordance with the terms of the Arbitration Agreement. Finally, this Court stayed this action,
pending any further proceedings to enforce any award of the arbitrator.
In the instant motion, Plaintiff now asks this Court to reconsider its April 17, 2015 Order
and to permit him to amend his Complaint to add another defendant, identified only as "MJM."

II.

STANDARD OF REVIEW
The standard of review on an FRCP 59(e) Motion to Alter, Vacate, or Amend is well

established and the standards for reconsideration are necessarily high. There are only three
grounds for a district court to amend its judgment: (1) to accommodate an intervening change in
controlling laws; (2) to account for new evidence not available previously; and (3) to correct a
clear error of law or to prevent manifest injustice. Berridge v. Heiser, 993 F. Supp. 1136, 114647 (S.D. Ohio 1997).
"A motion for reconsideration does not serve as 'an oppmiunity to re-argue a case."'

2

Tritent Int'l Corp. v. Kentucky, 395 F. Supp. 2d 521, 523 (E.D. Ky. 2005), quoting Sault Ste.
Marie Tribe ofChippewa Indians v. Engler, 146 F.3d 367,374 (6th Cir.1998). And a party
should not use the motion "to raise arguments which could, and should, have been made before
judgment issued." ld
With regard to Plaintiffs desire to amend his Complaint, federal courts do not typically
grant a motion for leave to amend and add a new party or a new legal theory after summary
judgment has already been granted dismissing a case. Comis are especially inclined to deny a
motion brought under Rule 15 after a judgment has been entered if the moving patiy knew the
facts on which the claim or defense sought to be added were based at the time the original
pleading was filed and there is no excuse for his failure to plead them. As the Seventh Circuit
recently observed:
Although this is a liberal standard, under which "leave to amend
shall be freely granted when justice so requires," ']ustice may
require something less in postjudgment situations than in prejudgment situations.
Doe v. Howe MilitmJ' School, 227 F.3d 981, 989 (7th Cir. 2000) (internal quotes omitted).

III.

ANALYSIS
Significantly, in support of his argument that the Court's April17, 2015 Order should be

reconsidered, Plaintiff merely rehashes prior arguments and raises new arguments regarding
factual inferences that it now claims the Court should have reached, but which were never
previously argued. These are not legitimate grounds for an FRCP 59(e) Motion.
Moreover, by failing to respond to Defendants' Motion to Enforce Arbitration, Plaintiff
has waived any objection to the arbitrability of his wrongful death claim.

3

In his Motion to Reconsider, Plaintiff for the first time seeks leave to amend his
Complaint to assert unsubstantiated allegations of sexual abuse against an individual identified
only as "MJM." Plaintiffs proffer is a little too little, a little too late. Plaintiff insists that
"MJM" is a party without whom complete relief may not be obtained and implies that she is a
key player in the alleged misconduct which forms the basis of this civil action. Despite
Plaintiffs assertion that he is "timely" seeking to amend, the fact remains that he filed this
lawsuit before identifying the party against whom Plaintiff now seeks to assert claims. It cannot
be said, with cetiainty, that the information regarding "MJM" was unavailable to Plaintiff
beforehand. If, as Plaintiff suggests, bureaucratic red-tape prevented Plaintiff from discovering
the identity and relevancy of"MJM", why wait until this late date to say so?
Further, as Plaintiff was ordered to arbitrate all of his claims arising out of Susan Adkins'
residency at Wurtland Nursing & Rehabilitation Center, he may seek to asseti his
claims against "MJM" in arbitration.

IV.

CONCLUSION

A motion to reconsider is not an opportunity to reargue a case or shore up pleading
deficiencies, but that is all that Plaintiff seeks to do. Sault Ste. Marie Tribe of Chippewa Indians
v. Engler, 146 F.3d 367, 1998 WL 288685 (6th Cir. June 5, 1998) (citing FDIC v. World Univ.,
Inc., 978 F.2d 10, 16 (1st Cir. 1992)). His arguments are no more availing now that they were in

the first instance. The arguments set forth in his motion are insufficient for this Court to disturb
its original ruling or to allow Plaintiff to Amend his Complaint.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs Motion to Reconsider [Docket

Signed By:

No. 21] be OVERRULED.
This

Jllc;(

Henrv R. Wilhoit. Jr.

:clay of September, 2015.

United States District Judge
-~

4