Chudacoff, MD v. University Medical Center Of Southern Nevada et al

Filing 117

ORDER DISMISSING for lack of jurisdiction 95 MOTION to Consolidate Cases filed by Richard Chudacoff, MD. IT IS FURTHER ORDERED that 97 MOTION for District Judge to Reconsider Order re 75 Order on Motion to Dismiss,, Order on Motion for Summary Judgment filed by Richard Chudacoff, MD is DENIED without prejudice. Signed by Chief Judge Robert C. Jones on 12/7/11. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD M. CHUDACOFF, M.D.,

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Plaintiff,

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v.

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UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA et al.,

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Defendants.

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2:09-cv-1679-RCJ-RJJ
ORDER

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Currently before the Court are a Motion for Consolidation (#95) and a Motion for
Reconsideration (#97). The Court heard oral argument on November 8, 2011.
BACKGROUND

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After Defendants1 allegedly limited his medical privileges and issued a negative report

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to a national data bank, Plaintiff Richard Chudacoff sued multiple defendants alleging

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violations of his due process rights accompanied by several state-law claims. In September

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2010, this Court issued an order granting Dr. J. Dylan Curry’s Motion to Dismiss (#29), Curry’s

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Renewed Motion to Dismiss (#55), and Defendants’ Motion for Summary Judgment (#53).

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(See Order (#75)). In that order, the Court found that, pursuant to the orders in a related case

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The defendants in this case are the University Medical Center of Southern Nevada
(“UMC”), Steve Sisolak, Tom Collins, Larry Brown, Lawrence Weekly, Chris Giunchigliani,
Susan Brager, Rory Reid (collectively “Board of Trustees”), Kathleen Silver (UMC CEO), John
Ellerton, M.D., Frederick J. Lippman, M.D., Jim Christensen, M.D., Charles Bloom, M.D.,
Marietta Nelson, M.D., J. Dylan Curry, M.D., Kshama Daphtary, M.D., John Onyema, M.D.,
Beverly Neyland, M.D., Albert Capanna, M.D., Victor Grigoriev, M.D., Laura Bilodeau, M.D.,
Michael Casey, M.D., and Steven Becker, M.D (collectively the “Medical Staff”). All
defendants except Dr. Curry are collectively referred to as “Defendants.”

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before Judge Reed,2 the doctrine of claim preclusion barred Plaintiff’s due process claims

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against CEO Silver, UMC, the Board of Trustees, and the Medical Staff, and the doctrine of

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issue preclusion barred Plaintiff’s due process claims against the Medical Executive

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Committee and the Doctor Defendants. (Id. at 11). This Court dismissed Plaintiff’s state-law

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claims without prejudice. (Id.). This Court also denied Plaintiff’s motion for reconsideration

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of that order. (Order (#89) at 7). Plaintiff filed a notice of appeal. (Notice of Appeal (#90)).

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This case is presently before the Ninth Circuit.

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In June 2011, the Ninth Circuit affirmed in part and reversed in part Judge Reed’s

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decision in the related case and remanded for further proceedings. (See CM/ECF 2:08-cv-

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863-ECR-RJJ (#255) at 15). The pending motions now follow.
DISCUSSION

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Plaintiff files a motion to consolidate this Court’s case with Judge Reed’s case. (Mot.

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to Consolidate (#95) at 4). In response, Dr. Curry argues that this Court lacks jurisdiction to

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consider Plaintiff’s motion because this case is before the Ninth Circuit. (Opp’n to Mot. to

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Consolidate (#101) at 3).3

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Plaintiff files a motion for reconsideration of this Court’s September 2010 order in light

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of the Ninth Circuit remand in Judge Reed’s case. (Mot. for Recon. (#97) at 5). Plaintiff seeks

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an indicative ruling from this Court that it would grant the motion for reconsideration in order

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to obtain a remand from the Ninth Circuit. (Supp. to Mot. for Recon. (#102-1) at 3). In

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response, Dr. Curry argues that Plaintiff fails to satisfy the requirements of Fed. R. Civ. P.

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62.1. (Opp’n to Mot. for Recon. (#103) at 6). Additionally, Dr. Curry argues that the motion

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for reconsideration is substantively defective because it seeks reconsideration on the sole

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basis that the Ninth Circuit reversed Judge Reed’s order granting summary judgment and that

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this Court relied on it. (Id.). Defendants also filed an opposition. (Opp’n to Mot. for Recon.

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(#105)).

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The case before Judge Reed is Chudacoff v. Univ. Med. Ctr. et al., case no. 2:08-cv863-ECR-RJJ.
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Defendants file a joinder to Dr. Curry’s opposition. (Joinder (#104)).
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The Ninth Circuit has held that “the filing of a notice of appeal divests the district court

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of jurisdiction to dispose of [a] motion after an appeal has been taken, without a remand from

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[the appellate court].” Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984) (internal

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quotations omitted). Federal Rule of Civil Procedure 62.1 provides that when the district court

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lacks authority to grant a motion for relief because of a pending appeal, the district court may

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defer considering the motion, deny the motion, or “state either that it would grant the motion

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if the court of appeals remands for that purpose or that the motion raises a substantial issue.”

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Fed. R. Civ. P. 62.1(a)(1)-(3). If the district court states that it would grant the motion or that

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the motion raises a substantial issue, the movant must notify the circuit clerk and, upon

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remand, the district court “may decide the motion if the court of appeals remands for that

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purpose.” Fed. R. Civ. P. 62.1(b), (c).

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Here, the Court lacks jurisdiction to consider the motion to consolidate because this

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case is before the Ninth Circuit. Therefore, the Court dismisses the Motion for Consolidation

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(#95) for lack of jurisdiction. Additionally, the Court declines to issue an indicative ruling that

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it would grant the motion for reconsideration upon remand from the Ninth Circuit and will wait

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for the Ninth Circuit to issue an opinion in this case. As such, the Court denies the Motion for

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Reconsideration (#97) without prejudice.
CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the Motion for Consolidation (#95) is
DISMISSED for lack of jurisdiction.
IT IS FURTHER ORDERED that the Motion for Reconsideration (#97) is DENIED
without prejudice.

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DATED: This _____ day December, 2011.
7th day of of November, 2011.

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_________________________________
United States District Judge

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