Biernacki v. United States of America

Filing 191

ORDER dismissing 181 Motion to Stay; finding as moot 183 Motion for Extension of Time to File Response/Reply ; dismissing 185 Motion to Stay; denying 186 Motion to Amend or Correct; denying 187 Motion. Signed by Hon. H. Kenneth Schroeder, Jr on 4/8/2014. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

HALINA BIERNACKI, Individually and as
Executrix of the Estate of David Street,
Plaintiff,

11-CV-973(Sr)

v.
UNITED STATES OF AMERICA,
Defendant.

DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the
assignment of this case to the undersigned to conduct all proceedings in this case,
including the entry of final judgment. Dkt. #29.

By Decision and Order entered March 6, 2014, the Court granted
defendant’s motion for summary judgment. Dkt. #179.

Currently before the Court is plaintiff’s motion to stay pending notice of
appeal (Dkt. #181); motion to stay (Dkt. #185); motion to alter or amend under FRCP
59(e) (Dkt. #186); and motion for relief under FRCP 60(b)(3) (Dkt. #187), as well as
defendant’s motion for an extension of time to respond. Dkt. #183.

“Most courts . . . including those in this circuit, allow a motion to amend a
grant of summary judgment to be brought under Rule 59(e)” of the Federal Rules of
Civil Procedure. Patel v. Lutheran Med. Ctr., Inc., 775 F. Supp. 592, 596 (E.D.N.Y.

1991). However, “[r]econsideration of a previous order by the Court is an extraordinary
remedy to be employed sparingly in the interests of finality and conservation of scarce
judicial resources.” R.F.M.A.S., Inc. v. Mimi So, 640 F. Supp.2d 506, 509 (S.D.N.Y.
2009). “A motion for reconsideration may not be used to advance new facts, issues or
arguments not previously presented to the Court, nor may it be used as a vehicle for
relitigating issues already decided by the Court.” Id. Grounds for reconsideration
include an intervening change in controlling law, the availability of new evidence and the
need to correct a clear error or prevent manifest injustice. Id. The decision to amend a
judgment is “committed to the sound discretion of the district judge and will not be
overturned on appeal absent an abuse of discretion.” McCarthy v. Manson, 714 F.2d
234, 237 (2d Cir. 1983).

Rule 60(b) of the Federal Rules of Civil Procedure sets forth six grounds
upon which the Court can grant relief from a judgment: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule
59(b); (3) fraud, misrepresentation or misconduct by an opposing party; (4) the
judgement 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. “Rule
60(b) is “a mechanism for ‘extraordinary judicial relief’ invoked only if the moving party
demonstrates ‘exceptional circumstances.’” Ruotolo v. City of New York, 514 F.3d 184,
191 (2d Cir. 2009), quoting Paddington Partners v. Bouchard, 34 F.3d 1132, 1142 (2d

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Cir. 1994). A motion seeking relief pursuant to Rule 60(b) “is addressed to the sound
discretion of the district court.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).

Plaintiff argues that the Court excluded Dr. Bush’s supplemental expert
disclosure. Dkt. #141. While it is true that the Court failed to cite this document in its
Decision and Order, it was not excluded. As with Dr. Bush’s initial expert disclosure, Dr.
Bush’s supplemental expert disclosure opines as to the appropriateness of the medical
care received by plaintiff based upon the assumption that plaintiff was infected with E.
coli 0157:H7. It is clear from Dr. Sellick’s affidavit, however, that the fact that plaintiff’s
stool sample tested gram negative and his blood tested positive for E. coli is insufficient
to establish even a question of fact as to whether plaintiff was infected with E. coli
0157:H7. Dr. Bush’s affidavit explains that additional testing of plaintiff’s stool for that
strain of E. coli was not warranted because plaintiff did not suffer diarrhea following
admission while the blood culture results clearly indicated a bacterial infection
warranting antibiotic treatment.

As the Court finds no basis to reconsider, amend or grant relief from the
award of summary judgment to defendant, plaintiff’s motions are denied.

SO ORDERED.

DATED:

Buffalo, New York
April 8, 2014
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United Streets Magistrate Judge
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