Ervine v. Desert View Regional Medical Center Holdings, LLC et al

Filing 48

ORDER Denying 42 Motion for Leave to Amend. Whereas plaintiff has filed the amended complaint prior to the court's adjudication of this motion, the amended complaint 43 is hereby ordered STRICKEN. Signed by Judge James C. Mahan on 6/28/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:10-CV-1494 JCM (RJJ)

SIE ERVINE,
Plaintiff,
v.
DESERT VIEW REGIONAL
MEDICAL CENTER HOLDINGS
LLC., et al.,
Defendants.

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ORDER

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Presently before the court is plaintiff’s motion for leave to amend pursuant to Federal Rule

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of Civil Procedure 15(a). (Doc. #42). Defendants Georges Tannoury, Malin Kerry, Kerry Malin, and

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Specialty Medical Center have responded (doc. #44), as has defendant Desert View Regional

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Medical Center Holdings, LLC (doc. #45). Plaintiff has replied. (Doc. #46).

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Under Federal Rule of Civil Procedure 15, a plaintiff may, without leave of court, amend his

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complaint once within 21 days of service so long as the defendant has not filed an answer. Here,

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plaintiff filed the complaint on September 1, 2010, (doc. #1), and the defendants have already filed

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an answer (docs. #11, 12, 13). Accordingly, plaintiff properly requested leave to file a first amended

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complaint.

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Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be freely given

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when justice so requires.” The local rules of federal practice in the District of Nevada qualify this

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rule, and require that a plaintiff submit a proposed, amended complaint along with a motion to

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James C. Mahan
U.S. District Judge

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amend. LR 15-1(a).

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Plaintiff has complied with the rule and filed a proposed amended complaint, which adds a

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claim alleging retaliation under the Americans with Disabilities Act (Doc. #43). As grounds for this

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new claim, plaintiff cites a sentence from the defendants’ reply in support of the motion for summary

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judgment (doc. #36), which stated that the plaintiff would be prevented from seeking medical

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services from Specialty Medical Clinic because he had filed a civil rights lawsuit against it.1 Plaintiff

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claims that threatening to refuse services following an attempted enforcement of one’s rights under

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the ADA is per se retaliation.

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Defendants retort that leave to amend should be denied because the amended complaint

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would not withstand a motion to dismiss. (Doc. #44). Plaintiffs were never denied medical care by

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the defendant, nor did Mr. Ervine ever present to Desert View Regional Medical Center for treatment

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of any kind after filing the complaint. Accordingly, there was never an opportunity for the defendant

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to tender a wrongful refusal to support a claim of retaliation, and plaintiff’s allegation in the

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amended complaint that he “has been told that he will be refused medical treatment and or services

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by the Defendants” (doc. #43 at ¶ 68) is simply false.

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The court agrees with defendant. No employee of the defendant is alleged to have made a

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retaliatory statement against the plaintiff, and the statement in the reply brief constitutes mere

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speculation on the part of defendant’s counsel. Moreover, statements made by attorneys during the

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course of judicial proceedings are protected by judicial privilege. See Circus Circus Hotels, Inc. v.

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Witherspoon, 657 P.2d 101, 104 (Nev. 1983) (recounting the common law rule that communications

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expressed in the course of judicial proceedings are absolutely privileged so long as they relate to the

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subject of the controversy).

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The policy rationale behind the rule is that the public’s interest in promoting free speech in

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the judicial context “outweighs the risk that individuals will occasionally abuse the privilege....” Id.

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James C. Mahan
U.S. District Judge

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The paragraph reads: “Moreover, Mr. Ervine would be prevented from seeking medical
treatment from Specialty Medical Center now, as it is doubtful they would provide medical treatment
to a patient who is suing them in a federal civil rights lawsuit as there is an obvious conflict of
interest.” (Doc. #36 at 4:15–18).
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Although this rule was established in the defamation context, the court finds it equally applicable

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to the instant dispute. It is not in the public’s interest to allow plaintiffs to create lawsuits out of

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attorney argument, most notably in light of the fact that this plaintiff has cited no authority

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demonstrating that a statement made by counsel in a legal brief would constitute a viable basis upon

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which he may allege a retaliation claim.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to

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amend (doc. #42) be, and the same hereby is, DENIED. Whereas plaintiff has filed the amended

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complaint prior to the court’s adjudication of this motion, the amended complaint (doc. #43) is

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hereby ordered STRICKEN.
DATED June 28, 2011.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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