Gucwa et al v. Lawley et al

Filing 120

ORDER DENYING 112 Plaintiff's Motion for Rehearing and Reconsideration, to Alter Judgment, and for Relief from Judgment. Signed by District Judge Arthur J. Tarnow. (AChu)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION NANCY GUCWA AND MARK MARUSZA, Case No. 15-10815 Plaintiffs, SENIOR UNITED STATES DISTRICT JUDGE ARTHUR J. TARNOW v. DR. JEFFREY LAWLEY, ET AL., U.S. MAGISTRATE JUDGE ANTHONY P. PATTI Defendants. 1 2 / 3 4 5 6 ORDER DENYING PLAINTIFFS’ MOTION FOR REHEARING AND RECONSIDERATION, TO ALTER JUDGMENT, AND FOR RELIEF FROM JUDGMENT [112] 7 8 9 Plaintiffs Nancy Gucwa and Mark Marusza filed a Motion for Rehearing and Reconsideration, to Alter Judgment, and for Relief from Judgment on February 6, 10 2017 [Dkt. #112]. Plaintiffs move the Court for rehearing and reconsideration of its 11 January 23, 2017 Opinion and Order Granting Defendants’ Motions to Dismiss, 12 Denying Defendant Dr. Rubin’s Motion for Sanctions, and Denying Plaintiffs’ 13 Motion for Leave to File an Amendment to the Second Amended Complaint [110]. 14 Specifically, Plaintiffs ask the Court to rehear, reconsider, and reverse its holdings 15 as to Nancy Gucwa’s RICO Claim (Count I), Mark Marusza’s Claim under the Page 1 of 13 16 Medicare Secondary Payer Act (“MSPA”) (Count II), and Plaintiffs’ Claims of 17 Tortious Interference (Count III). 18 19 20 21 22 23 24 25 26 27 28 For the reasons stated below, Plaintiffs’ Motions are DENIED. LEGAL STANDARDS Local Rule 7.1(h)(3), which governs motions for reconsideration, provides: Generally, and without restricting the court’s discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties and other persons entitled to be heard on the motion have been misled but also show that correcting the defect will result in a different disposition of the case. 29 30 See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th Cir. 31 2003) (A motion for reconsideration is granted only “if the movant demonstrates 32 that the district court and the parties have been misled by a palpable defect, and 33 correcting the defect will result in a different disposition of the case”). “A palpable 34 defect is a defect which is obvious, clear, unmistakable, manifest or plain.” Fleck 35 v. Titan Tire Corp., 177 F. Supp. 2d 605, 624 (E.D. Mich. 2001) (internal citations 36 and quotations omitted). “The decision whether to grant reconsideration lies 37 largely within the discretion of the court.” Yuba Natural Res., Inc. v. United States, 38 904 F.2d 1577, 1583 (Fed. Cir. 1990). Page 2 of 13 39 Plaintiffs also move the Court under Federal Rules of Civil Procedure 59(e) 40 and 60(b) to alter or amend the January 23, 2017 Judgment. Rule 59(e) allows 41 courts to alter the judgment based on “(1) a clear error of law; (2) newly 42 discovered evidence; (3) an intervening change in controlling law; or (4) a need to 43 prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 44 2005). In deciding whether to grant a Rule 59(e) motion, courts must “consider[ ] 45 the competing interest of protecting the finality of judgments and the expeditious 46 termination of litigation.” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). 47 Parties are not permitted to use such motions to re-argue their case. See Davison v. 48 Roadway Express, Inc., 562 F. Supp. 2d 971, 984 (N.D. Ohio 2008) (Rule 59(e) 49 motions are not “designed to give an unhappy litigant an opportunity to relitigate 50 matters already decided[.]”). 51 Similarly, “relief under Rule 60(b) is ‘circumscribed by public policy 52 favoring finality of judgments and termination of litigation.” Blue Diamond Coal 53 Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th Cir. 54 2001) (quoting Waifersong Ltd., Inc. v. Classic Music Vending, 976 F.2d 290, 292 55 (6th Cir. 1992)). Relief under Rule 60(b) may be granted for the following reasons: 56 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(e); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing Page 3 of 13 57 58 59 60 61 62 63 party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. 64 65 Fed. R. Civ. P. 60(b). “Relief under rule 60(b) is extraordinary and may only be 66 granted in exceptional circumstances.” Higgs v. Sanford, 2009 WL 1734467, at *1 67 (W.D. Ky. June 17, 2009) (internal quotations omitted). ANALYSIS 68 69 A. Gucwa’s RICO Claim 70 Plaintiff Gucwa argues that the Court erred when it dismissed her RICO 71 claim for lack of standing. Gucwa highlights the fact that she filed a Form C 72 Application for Mediation or Hearing with the Workers’ Compensation Agency, 73 demonstrating that she continued asserting her “entitlement to be paid for services 74 rendered.” (Dkt. 112 at 12). Further, according to Plaintiffs, Gucwa suffered an 75 injury in that she was not compensated for the services she rendered. 76 Gucwa’s arguments are the same as those presented in response to 77 Defendants’ motions to dismiss. “[T]he proper forum for expressing disagreement 78 with the Court’s substantive reasoning is an appeal on the merits,” and the Court 79 declines to address Plaintiffs’ “allegations of substantive errors” in deciding the 80 instant motion. Doshi v. General Cable Corp., 2015 WL 2229233, at *2 n.2 (E.D. 81 Ky. May 12, 2015). As discussed in the January 23, 2017 Opinion and Order, it Page 4 of 13 82 would not make sense to allow Gucwa to recover where Marusza – the injured 83 party – cannot. Gucwa’s claimed damages are too intimately connected with 84 Marusza’s personal injury underlying his workers’ compensation claim to 85 constitute an injury to business or property that is recoverable under RICO. See 86 Lewis v. Drouillard, 788 F. Supp. 2d 567, 570 (E.D. Mich. 2011); Jackson v. 87 Sedgwick Claims Management Services, 731 F.3d 556, 566 (6th Cir. 2013) (en 88 banc) (explaining that “an award of benefits under a workers’ compensation 89 system and any dispute over those benefits are inextricably intertwined with a 90 personal injury giving rise to the benefits.”) (emphasis added). 91 B. Marusza’s MSPA Claim 92 Plaintiff Marusza alleges, for the first time, that he suffered financial loss 93 because Medicare stepped in to pay $15,000 for medical bills related to his 94 traumatic brain injury when Accident Fund (“AF”) refused to do so. He also claims 95 in an affidavit that he made co-pays which he would not have paid had AF paid the 96 bills. 97 It is well established that “a motion for reconsideration may not be used to 98 raise issues that could have been raised in the previous motion.” Aero-Motive Co. 99 Great Am. Ins., 302 F.Supp. 2d 738, 740 (W.D. Mich. 2003). Plaintiff, perhaps 100 recognizing the futility of raising this new argument at this stage in the Page 5 of 13 101 proceedings, claims that the Court did not ask about financial harm during the 102 December 2, 2016 hearing, nor did it give him the opportunity to amend the 103 complaint to allege financial harm. To the contrary, the Court engaged in a lengthy 104 discussion with Plaintiffs’ counsel regarding Marusza’s MSPA claim. See Tr. 105 35:15-39:9. That Plaintiffs’ counsel chose not to mention Marusza’s financial harm 106 is no fault of the Court’s. Furthermore, in none of the three versions of Plaintiffs’ 107 complaint does Marusza mention the financial harm he suffered, notwithstanding 108 the fact that Plaintiffs amended their complaint twice. See Dkt. 1, 2, 75. 109 Marusza’s affidavit is also unhelpful. It provides, in relevant part: 110 [Marusza] has suffered financial harm because Medicare has paid bills which Accident Fund should have paid for treatment of injuries arising out of his work-related accident. Because Accident Fund refused to pay the bills, he has been required to pay co-pays because Medicare does not pay the entire bill. Whereas under the workers’ compensation system, when Accident Fund pays his bill, he does not have to pay a co-pay. 111 112 113 114 115 116 117 (Dkt. 112-1). 118 119 Plaintiff Marusza does not provide the Court with any information about the 120 amounts of these alleged co-pays or bills, when the payments were made, or the 121 type and extent of medical services that were rendered. He also does not submit 122 any documentary evidence – such as receipts or billing statements – in support of 123 his claims. See Baker v. Gerdenich Realty Co., 2009 WL 997262, at *1 (N.D. Ohio 124 Apr. 14, 2009) (the “self-serving conclusions” in plaintiff’s affidavit, to which he Page 6 of 13 125 cited in support of his motion for reconsideration, were insufficient to “overcome 126 the extrinsic corroborating evidence Defendant supplied in support of its Motion 127 for Summary Judgment.”); Worley v. Perfect Equipment Co., LLC, 2006 WL 128 17333, at *5-6 (M.D. Tenn. Jan. 3, 2006) (on a motion for reconsideration, the 129 plaintiff’s affidavit, which contained “conclusory and unsupported allegations” and 130 was “completely unsubstantiated and not corroborated by any other evidence in the 131 record,” was “insufficient to create a genuine issue of material fact to defeat 132 summary judgment.”). 133 The substance of Plaintiffs’ argument also fails. A private plaintiff may 134 invoke the MSPA if two conditions precedent are met: “[f]irst, Medicare must have 135 actually made payments on the claimant’s behalf . . . second, the primary insurer 136 must be ‘responsible’ for paying the benefits at issue.” Geer v. Amex Assur. Co., 137 2010 WL 2681160, at *4 (E.D. Mich. July 6, 2010). As AF points out, Marusza 138 has not pled specific facts alleging that AF is responsible for the payments to 139 Medicare. In fact, it is the Court’s understanding that Medicare has not issued a 140 final determination letter as to the amount that AF is responsible for. See Tr. at 141 35:11-14; Dkt. 118-7. It is not clear that AF actually owes Medicare anything. 142 Plaintiff cannot simply make conclusory statements when there is no evidence that 143 AF is even required to make any payments on Marusza’s behalf. Page 7 of 13 144 C. Tortious Interference 145 In its January 23, 2017 Opinion and Order, the Court dismissed Plaintiffs’ 146 claims for tortious interference against Doctors Baker, Ager, and Rubin. To 147 succeed on a claim for tortious interference with a contract, Plaintiffs must show 148 “(1) the existence of a contract, (2) a breach of the contract, and (3) an unjustified 149 instigation of the breach by the defendant.” Knight Enterprises v. RPF Oil Co., 829 150 N.W.2d 345, 348 (Mich. Ct. App. 2013). Plaintiffs’ claims were dismissed 151 because: 152 153 154 155 156 AF allegedly had a pre-existing intent to deny workers’ compensation benefits and hired the doctor defendants to effectuate that intent by providing a pretext for the denial. In other words, Plaintiffs have alleged that the doctor defendants did not induce the breach; rather, AF intended to breach the contract all along. 157 158 Dkt. 110 at 14. 159 160 Plaintiffs’ argument with respect to the dismissal of their claims for tortious 161 interference is confusing. The gist of their argument seems to be that the Court 162 impermissibly relied on Count I of the Second Amended Complaint – the RICO 163 cause of action – to support its dismissal of Count III – tortious interference with 164 contract and business expectancy. According to Plaintiffs, 165 166 167 [E]ven if Plaintiffs alleged elsewhere in the [Second Amended Complaint] that the doctors were AF’s puppets – handing over “cut-off” reports like puppets whose strings were pulled – plaintiffs made no such allegations in Page 8 of 13 168 169 Count III. Plaintiffs were free to allege puppet doctors in Count I and not allege puppet doctors in Count III: this is permitted by FRCP 8(d)(3). 170 171 172 (Dkt. 112 at 7-8). Essentially, Plaintiffs argue that they can and have set forth two inconsistent 173 claims pursuant to Federal Rule of Civil Procedure 8(d)(3): first, in Count I, that 174 AF knowingly chose to take part in the fraudulent scheme with the doctor 175 defendants, and second, in Count III, that AF was not part of the conspiracy and in 176 fact, the individual doctor defendants induced AF to deny Marusza benefits. 177 Plaintiffs are incorrect for a number of reasons. First, Plaintiffs have not 178 shown that they could not have previously raised this argument as to pleading 179 inconsistent claims. “[A] motion for reconsideration is not properly used as a 180 vehicle . . . to advance positions that could have been argued earlier but were not.” 181 Smith ex rel. Smith v. Mount Pleasant Public Schools, 298 F. Supp. 2d 636, 637 182 (E.D. Mich. 2003). 183 Plaintiffs’ claims also fail on the merits. “[A] pleader may assert 184 contradictory statements of fact only when legitimately in doubt about the facts in 185 question.” Am. Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1461 (7th Cir. 1996). 186 “A party is not free to plead any and all facts that might entitle it to relief simply 187 because inconsistency of factual allegations is permissible under Rule 8.” Emkey v. Page 9 of 13 188 Sec’y of Health & Human Servs., 2009 WL 3683390, at *15 (Fed. Ct. Cl. Oct. 20, 189 2009). 190 191 192 193 194 195 196 Count I of Plaintiffs’ Second Amended Complaint – the RICO claim – provides: Accident Fund hired the defendant doctors to examine allegedly injured persons, to write dishonest, biased and otherwise fraudulent reports, and if needed to give dishonest testimony based on the reports, all to deceive the Workers’ Compensation Agency, its magistrates, and appellate bodies in the Michigan workers compensation system. 197 198 199 200 201 202 203 204 205 206 207 (Dkt. 75 at 18-19). Count III of Plaintiffs’ Second Amended Complaint – tortious interference with contract or business expectancy – contains the following language:  Plaintiffs incorporate all allegations of this complaint.  The acts of bias, fraud and dishonesty are described in Count I, incorporated herein.  Dr. Lawley’s report that Marusza suffered no pathology or disability . . . was biased, dishonest, fraudulent and contained material and misleading omissions, as described in Count I, the allegations of which are incorporated here. 208 209 (Dkt. 75, ¶¶ 51, 55, 58) (emphasis added). 210 211 Comparing the two counts, it is clear that Plaintiffs themselves recognize 212 that Count III is implicated by Count I, as Count III explicitly states – twice – that 213 it “incorporate[s] all allegations of this complaint.” Page 10 of 13 214 In a similar case, Haber v. Rabin, 2016 WL 3217869, at *3 (N.D. Ohio June 215 10, 2016), the court examined an amended complaint that contained multiple 216 inconsistencies. The plaintiff, relying on Rule 8(d)(3), attempted to plead a 217 Lanham Act claim as an alternative to his breach of contract claim. The court 218 found that the Lanham Act claim was improperly pled because the plaintiff “re- 219 alleges paragraphs 1 through 60 [which centered on state-law breach of contract 220 theories] and incorporates them [into the Lanham Act count] by reference.” Id. 221 (internal quotations omitted). Because the plaintiff incorporated specific 222 allegations from the breach of contract claims into his Lanham Act claim, the two 223 claims – which were “crucial[ly] inconsisten[t]” – were improperly pled and 224 subject to dismissal. Id. at *2, *4. 225 The same thing has occurred here: Plaintiffs’ tortious interference claims 226 against Doctors Baker, Ager, and Rubin expressly “incorporate all allegations of 227 this complaint,” including the RICO claims. (Dkt. 75, ¶ 51). “While Rule 8(d)(3) 228 allows inconsistent claims . . . it does not allow what Plaintiffs are attempting to do 229 here – namely, to make ‘clashing factual assertions . . . in the context of the same 230 claim.” Aaron v. Medtronic, Inc., 209 F. Supp. 3d 994 (S.D. Ohio 2016). 231 Moreover, 232 233 While Federal Rule of Civil Procedure 8(d)(2) permits a party to plead in the alternative and Rule 8(d)(3) permits separate claims regardless of consistency, Page 11 of 13 234 235 236 237 a court “need not feel constrained to accept as truth conflicting pleadings that make no sense, or that would render a claim incoherent, or that are contradicted either by statements in the complaint itself or by documents upon which its pleadings rely.” 238 239 Miles v. Federal Insurance Company, 2017 WL 559582, at *4 (E.D. Ky. Feb. 10, 240 2017) (quoting Williams v. CitiMortgage, Inc., 498 Fed. Appx 532, 536 (6th Cir. 241 2012) (per curiam)). 242 Contrary to what they now argue in their motion for reconsideration, 243 Plaintiffs have consistently maintained that “[a]ll causes of action turn on the 244 existence of a scheme . . . by Accident Fund acting with Drs. Baker, Ager, and 245 Rubin to deny that Marusza suffered TBI and related conditions.” (Dkt. 96 at 1); 246 see also Dkt. 94 at 12 (the allegations that “AF used Baker’s, Ager’s and Rubin’s 247 reports as grounds to deny Gucwa and Marusza payment . . . are at the heart of the 248 RICO claim . . . and the tortious interference claims.”); Dkt. 75 at 62 (Count III of 249 Plaintiffs’ Second Amended Complaint – the tortious interference claims – 250 expressly states: “Plaintiffs incorporate all allegations of this complaint.”). 251 252 253 CONCLUSION Plaintiffs have not met their heavy burden of showing that the Court should reverse its January 23, 2017 Opinion and Order [110]. Accordingly, Page 12 of 13 254 IT IS ORDERED that Plaintiffs’ Motion for Rehearing and 255 Reconsideration, to Alter Judgment, and for Relief from Judgment [112] is 256 DENIED. 257 SO ORDERED. 258 259 260 261 Dated: June 29, 2017 /s/Arthur J. Tarnow__________________ Arthur J. Tarnow Senior United States District Judge 262 Certificate of Service I hereby certify that this Order was electronically filed, and the parties and/or counsel of record were served on June 29, 2017. s/A. Chubb for M. Lang Case Manager 263 264 265 266 267 268 269 Page 13 of 13

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