Elkharwily v. Mayo Health System - Southeast Minnesota Region

Filing 144

ORDER Denying Request re #142 Letter to Request Permission to File Motion to Reconsider filed by Alaa E. Elkharwily (Written Opinion). Signed by Senior Judge David S. Doty on 8/11/2014. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-3062(DSD/JJK)
Alaa E. Elkharwily, M.D.,
Plaintiff,
ORDER

v.
Mayo Holding Company, a corporation,
d/b/a Mayo Health System, d/b/a
Mayo Clinic Health System, d/b/a
Albert Lea Medical Center - Mayo
Health System, Mayo Clinic Health
System - Albert Lea, a corporation,
Mayo Foundation, Mark Ciota, M.D.,
John Grzybowski, M.D., Dieter
Heinz, M.D., Robert E. Nesse, M.D.,
Steve Underdahl, and Stephen Waldhoff,
Defendants.

Richard T. Wylie, Esq., 222 South Ninth Street, Suite
1600, Minneapolis, MN 55402, counsel for plaintiff.
David T. Schultz, Esq., Charles G. Frohman, Esq. and
Maslon, Edelman, Borman & Brand, LLP, 90 South Seventh
Street, Suite 3300, Minneapolis, MN 55402, counsel for
defendants.

This matter is before the court upon the request by plaintiff
Alaa Elkharwily to file a motion to reconsider the court’s July 2,
2013, order granting in part and denying in part defendants’ motion
to dismiss.
Elkharwily’s

See ECF No. 42.
claims

for

In that order, the court dismissed

intentional

infliction

of

emotional

distress, defamation and violations of the Minnesota Vulnerable
Adults Act (MVAA).

See id. at 23-24.

The court also dismissed the

portion of the Emergency Medical Treatment and Labor Act (EMTALA)

claim based on allegations that Elkharwily was terminated for
refusing to transfer a patient.

Id. at 14.

Further, the court

dismissed all individual and entity defendants other than Mayo
Clinic

Health

System

-

Albert

Lea

(MCHSAL).

Id.

at

23-24.

Elkharwily argues that discovery has revealed facts that undermine
the court’s ruling and require revision of the order under Rule
54(b).
Motions to reconsider require the express permission of the
court and will be granted only upon a showing of “compelling
circumstances.” D. Minn. LR 7.1(j). A motion to reconsider should
not be employed to relitigate old issues but rather to “afford an
opportunity for relief in extraordinary circumstances.”

Dale &

Selby Superette & Deli v. U.S. Dep’t of Agric., 838 F. Supp. 1346,
1348 (D. Minn. 1993).

“Where, as here, claims against another

party in the litigation remain unresolved, a Motion to Reconsider
must be addressed under the rubric of Rule 54(b) ....”

Grozdanich

v. Leisure Hills Health Ctr., Inc., 48 F. Supp. 2d 885, 887 (D.
Minn.

1999).

Rule

54(b)

provides

that

“any

order

or

other

decision, however designated, that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties
... may be revised at any time before the entry of judgment
adjudicating
liabilities.”

all

the

claims

and

all

the

parties’

rights

and

Although “questions once decided [should] not be

subject to continued argument, in extraordinary circumstances, a

2

District Court will always retain the authority to revisit its
earlier decisions, under this Rule, before the entry of a final
Judgment, in order to correct manifest error.”

Grozdanich, 48 F.

Supp. 2d at 877-78 (alteration in original) (citation and internal
quotation marks omitted).

Because reconsideration “interrupts the

flow of litigation towards its conclusion,” however, it “should not
serve as a vehicle to identify facts or raise legal arguments which
could have been, but were not, raised or adduced during the
pendency of the motion of which reconsideration was sought.”

Id.

at 878 (citation and internal quotation marks omitted).
Elkharwily first argues that the court should reconsider its
decision to dismiss Mayo Clinic and Mayo Clinic Health System
because

he

has

uncovered

facts

showing

that

those

controlled MCHSAL’s decision to terminate his employment.

entities
Even if

taken as true, the facts cited do not support a finding that Mayo
Clinic and Mayo Clinic Health System “caused Defendant MCHSAL to
discharge [Elkharwily] and later affirm [Elkharwily’s] discharge.”
Second Am. Compl. ¶ 52.

The facts show, at most, that certain Mayo

Clinic executives were aware of Elkharwily’s complaints.

Even if

reconsideration were appropriate, the court is mindful of the
obvious prejudice that would be caused to the dismissed parties if
the claims against them were reopened.
Elkharwily next argues that the court should allow him to
proceed with his failure-to-transfer claim under EMTALA because

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medical

records

produced

during

discovery

corroborate

his

allegations that the patient was unstable when Elkharwily declined
to transfer him.

As noted in the order, however, the allegations

in the complaint contradict Elkharwily’s own sworn and notarized
statement made to the medical board shortly after the incident.
Under these circumstances, the court properly dismissed this aspect
of the EMTALA claim and will not revisit the issue.
Elkharwily also argues that the court erred in dismissing his
claim under the MVAA because he properly alleged compliance with
the MVAA.

Elkharwily has presented no information, however, to

establish that the court’s determination was in error.
Elkharwily lastly argues that the court should reinstate his
defamation

claim.

Elkharwily,

however,

sets

undermining the basis for the court’s decision.

forth

no

facts

In sum, the court

has reviewed the request, MCHSAL’s opposition, and the July 2,
2013, order and finds that no manifest errors have occurred and
that

no

extraordinary

circumstances

exist.

As

a

result,

reconsideration is not warranted.
Accordingly,

IT

IS

HEREBY

ORDERED

that

the

request

for

permission to file a motion to reconsider [ECF No. 142] is denied.
Dated:

August 11, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

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