Shelbyville Hospital Corporation d/b/a Heritage Medical Center v. Mosley
Filing
242
MEMORANDUM AND OPINION finding that Shelbyville Hospital fails to meet is burden as the movant for reconsideration under Rule 54(b). Shelbyville Hospitals 235 Motion for Reconsideration [doc. 235] is therefore DENIED. Shelbyville Hospitals 236 Motion for Oral Argument is also DENIED. Signed by District Judge Thomas W Phillips on 1/29/2018. (MDG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
WINCHESTER DIVISION
SHELBYVILLE HOSPITAL
CORPORATION, d/b/a HERITAGE
MEDICAL CENTER,
Plaintiff,
v.
E. WAYNE MOSLEY, M.D.,
Defendant.
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No. 4:13-CV-88
MEMORANDUM OPINION
This matter is before the Court on Plaintiff’s Motion for Reconsideration
[doc. 235], Plaintiff’s Motion for Oral Argument [doc. 236], Defendant’s Response
[doc. 238], and Plaintiff’s Reply [doc. 239]. For the reasons herein, the Court will deny
the motions.
I.
BACKGROUND
In August 2011, Shelbyville Hospital Corporation and E. Wayne Mosley, M.D.
(“Dr. Mosley”) entered into a Recruitment Agreement [doc. 1-1], under which Dr.
Mosley, with financial incentives from Shelbyville Hospital, agreed to establish a
medical practice in Shelbyville, Tennessee, for thirty-six months. [Id. at 1–2]. The parties
agreed that this thirty-six-month period would proceed in two phases: (1) the Cash
Collections Guarantee Period, which would comprise the first eighteen-months of the
Recruitment Agreement,1 and (2) the Cash Collections Continuation Period, which would
comprise the second eighteen months of the Recruitment Agreement.2 [Id. at 1, 3, 12].
During the first eighteen months—the Cash Collections Guarantee Period—Shelbyville
Hospital guaranteed Dr. Mosley’s practice would earn at least $84,416.66 every month.
[Id. at 1, 10]. If Dr. Mosley’s practice failed to realize $84,416.66 in any month,
Shelbyville Hospital would make up the difference by providing Dr. Mosley with
“Guarantee Payment[s],” but those payments could not exceed $1,013,000 in the
aggregate. [Id.].
During the second eighteen months—the Cash Collections Continuation Period—
Shelbyville Hospital would forgive one eighteenth of the total Guarantee Payments for
each month that Dr. Mosley maintained the “Full-Time Private Practice of Medicine.”
[Id. ¶ D.7]. The parties agreed to these terms of forgiveness in paragraph D.7:
During the Cash Collections Continuation Period, which shall begin on the
day following the last day of the Cash Collections Guarantee Period and
continue for the number of months set forth as the Continuation Period on
the Cover Page, Hospital agrees that it will cancel (amortize) one
eighteenth (1/18th) of the Total Cash Collection Guarantee Payments made
by Hospital under this Agreement for each full month Physician remains in
the Full-Time Private Practice of Medicine, in Physician’s Specialty, in the
Community. In the event Physician fails to maintain a Full-Time Private
Practice of Medicine in the Community during the Cash Collections
Continuation Period, Physician shall immediately reimburse to Hospital the
unamortized amount of the Total Cash Collections Guarantee Payments
paid hereunder.
The Cash Collections Guarantee Period was to “begin on the Practice Commencement
Date,” [Recruitment Agreement at 3], which was August 15, 2011, [Mem. Op., doc. 173, at 4].
2
The Cash Collections Continuation Period was to “begin on the day following the last
day of the Cash Collections Guarantee Period,” [Recruitment Agreement at 12], which was on or
about February 15, 2013, [Mem. Op. at 13].
1
2
[Id.]. Paragraph B.1 of the Recruitment Agreement defines “Full-Time Private Practice of
Medicine” as a “minimum average of forty (40) hours per week of direct patient contact
hours and patient care activities directly relating to the establishment of the practice of
Physician’s Specialty in the Community.”
The Recruitment Agreement also binds Dr. Mosley to various “Covenants of
Physician,” [id. ¶¶ B.1–B.18], one of which is the requirement that Dr. Mosley, under
paragraph B.1, must maintain the Full-Time Private Practice of Medicine during the full
thirty-six-month duration of the Recruitment Agreement: “Physician shall . . . during the
Practice Commitment Period, engage in the ‘Full-Time Private Practice of Medicine’ (as
defined herein) in the Community.” [Id. ¶B.1].3 In addition, paragraph B.4 requires Dr.
Mosley to fulfill his contractual obligations “on a regular and continuous basis” during
the first eighteen months specifically:
Physician shall discharge obligations hereunder on a regular and continuous
basis. . . . If Physician fails to render services pursuant to this Agreement
for a period of ten (10) consecutive business days during the Cash
Collections Guarantee Period without Hospital and Physician’s mutual
agreement, Physician shall have failed to carry out Physician’s covenants
herein on a regular and continuous basis.
[Id. ¶ B.4]. The parties also contemplate consequences for Dr. Mosley’s failure to fulfill
his contractual obligations. Under paragraph D.6, they agreed that Dr. Mosley would be
liable for damages if he failed to maintain the Full-Time Private Practice of Medicine
during the first eighteen months:
3
Some of the other Covenants of Physician include the appropriate care and supervision
of patients, participation in education programs, performance of administrative duties, adherence
to policies, reasonable care for the indigent, and provision of services to Medicare and Medicaid
beneficiaries. [Recruitment Agreement ¶ B.7].
3
Should the Physician fail to maintain a Full-Time Private Practice of
Medicine in the Community during the Cash Collections Guarantee Period,
Physician shall immediately reimburse to Hospital the total sum of the
Total Cash Collections Guarantee Payments and/or any other payments
made by Hospital under this Agreement to Physician to date.
[Id. ¶ D.6].
During the thirty-six-month lifespan of the Recruitment Agreement, Shelbyville
Hospital sued Dr. Mosley, alleging breach of contract after Dr. Mosley was absent from
his practice for twenty-four consecutive business days while participating in an African
mission trip in 2012. [Compl., doc. 1, at 8; Mem. Op., doc. 173, at 5, 13]. Shelbyville
Hospital eventually moved for summary judgment on its claim, contending that Dr.
Mosley, while in Africa, breached the Recruitment Agreement during the first eighteen
months by violating paragraph B.4’s “10-day limit.” [Pl.’s Br., doc. 142, at 23]. As
recompense, it requested $1,013,000 in Guarantee Payments under paragraph D.6,
interest, and attorney’s fees. [Id. at 24–25].
The Court concluded that Dr. Mosley breached paragraph B.4 because he “missed
more than ten consecutive days of work in late 2012,” and it awarded summary judgment
to Shelbyville Hospital on the issue of liability only. [Mem. Op. at 30]. It did not make
legal conclusions or factual findings concerning the issue of damages. Instead, it reserved
ruling on damages and scheduled a hearing in which it intended to allow the parties to
present evidence and make arguments. [Id. at 30–31]. It also ordered Shelbyville Hospital
to submit proof of its damages. [Id.].
Leading up to the hearing, Dr. Mosley argued that he is entitled to a setoff or
reduction in damages because, after he completed his mission trip in 2012, he returned to
4
the Full-Time Private Practice of Medicine in Shelbyville and “continued to treat his
patients and perform surgeries as he had before.” [Def.’s Resp., doc. 180, at 4]. He
requested the opportunity “to put on proof” at the hearing to show that he returned to his
practice and is therefore entitled to receive a setoff “based upon partial continued
performance.” [Id. at 2, 7, 15]. As to the exact amount of the setoff, Dr. Mosley proposed
that “[a]ny amount of compensatory damages . . . should be reduced proportionally based
upon the work [he] did provide under the contract.” [Id. at 7].
The Court held the evidentiary hearing and heard evidence and arguments from
the parties. After the hearing, the Court determined that Dr. Mosley was not entitled to
pursue a setoff. The Court concluded that his request for a setoff was contractual in
nature, invoked paragraph D.7, and did not satisfy paragraph’s D.7 requirements. [Mem.
Op. Denying Summ. J., doc. 233, at 28–30]. The Court rejected Shelbyville Hospital’s
request for summary judgment as well, determining that it did not meet its burden as the
movant for damages under paragraph D.6. [Id. at 17–27]. Specifically, the Court ruled
that Shelbyville Hospital failed to establish, beyond any genuine issue of material fact,
that Dr. Mosley did not maintain the Full-Time Private Practice of Medicine during the
initial eighteen months. [Id.]. Under Federal Rule of Civil Procedure 54(b), Shelbyville
Hospital now moves for reconsideration of the Court’s decision and for clarification of
three additional issues.
5
II.
LEGAL STANDARD
Under Rule 54(b), “any order or other decision . . . that adjudicates fewer than all
the claims . . . may be revised at any time before the entry of a judgment adjudicating all
the claims.” Fed. R. Civ. P. 54(b). In short, Rule 54(b) authorizes courts to reconsider
interlocutory orders before an entry of final judgment. A movant, to justify
reconsideration under Rule 54(b), must show “(1) an intervening change of controlling
law; (2) new evidence [is] available; or (3) a need to correct a clear error or prevent
manifest injustice.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x
949, 959 (6th Cir. 2004). “A motion under Rule 54(b), however, may 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.’” Madden v. City of Chattanooga, No. 108-cv-160, 2010 WL 670107, at *2 (E.D.
Tenn. Feb. 19, 2010) (quotation omitted). When considering a motion under Rule 54(b), a
district court “must . . . temper[]” its ability to reconsider prior rulings with “the sound
public policy litigation be decided and then put to an end.” Ind. State Dist. Council of
Laborers & HOD Carriers Pension & Welfare Fund v. Omnicare, Inc., 719 F.3d 498,
(6th Cir. 2013) (Gwin, J., concurring) (quotation omitted).
III. ANALYSIS
The Court begins by reiterating a critical point from its Memorandum Opinion:
Shelbyville Hospital moved for damages under paragraph D.6 and paragraph D.6 alone;4
4
When Shelbyville Hospital moved for summary judgment in late 2015, it plainly stated
that “[u]nder Paragraph D.6, th[e] entire amount became immediately due when Mosley
6
it never moved for damages under some of the broader provisions available to it in other
paragraphs. [Mem. Op. Denying Summ. J. at 27].5 Shelbyville Hospital had to vault two
hurdles to dispatch its burden as the movant for damages under paragraph D.6’s plain
language. First, it had to establish the amount of the Guarantee Payments that it tendered
to Dr. Mosley “to date” of the breach, and second, it had to show that he failed to
maintain the Full-Time Private Practice of Medicine—that is, an average of forty hours
per week, [Recruitment Agreement ¶ B.1]—during the first eighteen months:
Should the Physician fail to maintain a Full-Time Private Practice of
Medicine in the Community during the Cash Collections Guarantee Period,
Physician shall immediately reimburse to Hospital the total sum of the
Total Cash Collections Guarantee Payments and/or any other payments
made by Hospital under this Agreement to Physician to date.
[Recruitment Agreement ¶ D.6].
A. Reconsideration
Shelbyville Hospital, in moving for summary judgment, has already conceded that
it raised no argument or evidence as to the second hurdle under paragraph D.6:
On December 16, 2015, the Hospital moved for summary judgment on its
breach of contract claim under Paragraphs B.4 and D.6 of the Recruitment
Agreement. In its Complaint, the Hospital did plead that Mosley breached
not only Paragraph B.4 but also Paragraph B.1, which required Mosley,
breached the Recruitment Agreement.” [Pl.’s Br. at 24 (emphasis added)]. Later, after the
hearing, it reiterated that it was moving for damages under paragraph D.6, [Pl.’s Post-Hearing
Br., doc. 231, at 2, 7], and it also acknowledged that it had moved for damages under
paragraph D.6 throughout the entirety of the summary judgment proceedings: “The Hospital
briefed the applicability of D.6 in its original summary judgment papers and in the supplemental
briefing [on damages],” [id. at 7–8 (internal citations omitted)].
5
Paragraph E.2, for example, states that Shelbyville Hospital may “recover any
payments” for “[a]ny material breach,” though, to trigger this paragraph, its termination of the
Recruitment Agreement appears to be necessary. [Recruitment Agreement ¶ E.2 (emphasis
added)].
7
among other things, to average 40 hours of direct patient contact every
week for 36 months. However, neither the Hospital nor Mosley moved for
summary judgment on the issue of whether Mosley averaged 40-hours per
week of direct patient contact under Paragraph B.1.
[Pl.’s Post-Hearing Br., doc. 231, at 2 (emphasis added) (citations omitted)]. Shelbyville
Hospital’s arguments for reconsideration are therefore newly conceived arguments.
Under Rule 54(b), the Court cannot consider these arguments and summarily rejects
them. Madden, 2010 WL 670107 at *2.
Although the Court cannot consider these arguments because of the rigid standard
that governs the case at this stage, it does not wish to be dismissive of Shelbyville
Hospital’s concerns either. The Court acknowledges that Shelbyville Hospital requests
reconsideration partly because, in its view, the Court delved into “an issue of contract
interpretation that Mosley did not raise in his papers.” [Pl.’s Mot. Recons. at 3]. That
issue of interpretation dealt with Shelbyville Hospital’s obligation to show, under
paragraph D.6, that Dr. Mosley failed to maintain a minimum average of forty hours per
week. [Mem. Op. Denying Summ. J. at 17-27].6
This showing is—without question—part of paragraph D.6’s plain language. So as
the movant carrying the burden on summary judgment, Shelbyville Hospital had to make
it, and the Court had to address it, irrespective of whether Dr. Mosley failed to broach it
in his response to summary judgment. See Sammons v. Baxter, No. 1:06-cv-137, 2007
WL 325752, at *2 (E.D. Tenn. Jan. 31, 2007) (“[A party’s failure to] oppos[e] . . . a
summary judgment motion does not automatically result in the Court granting the
6
Dr. Mosley did raise this issue at the hearing, and Shelbyville Hospital does not deny
this fact. [Hr’g Tr., doc. 230, at 65:12–14; 66:16–22].
8
motion. Rather, pursuant to well-established precedent, in the context of a summary
judgment motion, the Court must still examine the record and determine whether the
movant has met its burden . . . . Thus . . . a party seeking summary judgment must meet
its burden as movant regardless of whether the nonmovant files a response[.]” (citing
Stough v. Maryville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998); Wilson v. City of
Zanesville, 954 F.2d 349, 351 (6th Cir. 1992); Carver v. Bunch, 946 F.2d 451, 454–55
(6th Cir. 1991))). Simply, Dr. Mosley’s failure to advert to the precise requirements of
paragraph D.6 in his papers does not entitle Shelbyville Hospital to a reprieve from its
burden as to those requirements. The Court held Shelbyville Hospital to its burden.
B. Clarification
Shelbyville Hospital next requests three points of clarification: (1) clarification of
the factual issues that remain now that the Court has ruled that Dr. Mosley is not entitled
to a setoff under paragraph D.7; (2) clarification of an issue as to liability that, according
to Shelbyville Hospital, the Court did not “definitively resolve” in its Memorandum
Opinion from February 2016 [doc. 173]; and (3) clarification of the scope of the
upcoming trial. [Pl.’s Mot. Recons. at 1–13].
1. Paragraph D.7
Shelbyville Hospital asks for clarification concerning the Court’s interpretation of
paragraph D.7, namely concerning whether Court’s interpretation “resolves one of [its]
remaining claims.” [Id. at 2]. Under the Court’s interpretation of paragraph D.7, any
breach of the Recruitment Agreement precludes Dr. Mosley from claiming a setoff under
9
that paragraph. [Mem. Op. Denying Summ. J. at 28–31]. Because Dr. Mosley breached
paragraph B.4, the Court ruled that he cannot rely on paragraph D.7 as a defense to
damages. [Id.]. In light of the Court’s conclusion that he is not entitled to forgiveness of
the Guarantee Payments under paragraph D.7, Shelbyville Hospital now wonders why
that conclusion does not also mean, by an extension of logic, that Dr. Mosley now has to
repay everything—$1,013,000 in its entirety. [Pl.’s Mot. Recons. at 2, 7–10].
Dr. Mosley’s failure to establish his right to depend on paragraph D.7 as a defense
to damages does not mean that Shelbyville Hospital, by that same failure, has staked a
prima facie right to recover damages. This is so because “an affirmative defense raises
matters extraneous to the plaintiff’s prima facie case.” Ford Motor Co. v. Transp. Indem.
Co., 795 F.2d 538, 546 (6th Cir. 1986) (emphasis added) (citation omitted); see Saks v.
Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (“An affirmative defense is
defined as ‘[a] defendant’s assertion raising new facts and arguments that, if true, will
defeat the plaintiff’s . . . claim, even if all allegations in the complaint are true.’”
(emphasis added) (quotation omitted)). After all, Dr. Mosley—not Shelbyville Hospital—
invoked paragraph D.7 and relied on it for relief, [see Pl.’s Post-Hearing Br. at 8
(recognizing that Dr. Mosley “focus[ed] . . . on . . . setoff” at summary judgment)],7
making it a matter that was not dispositive of Shelbyville Hospital’s own claim.
7
In 2015, when Shelbyville Hospital moved for summary judgment, it did mention
paragraph D.7 to characterize the Guarantee Payments as “basically a loan,” but again, it moved
to recover the Guarantee Payments under paragraph D.6 rather than paragraph D.7 or any other
paragraph: “Under Paragraph D.6, that entire amount became immediately due when Mosley
breached the Recruitment Agreement.” [Pl.’s Br. at 5, 24 (emphasis added)].
10
The Court, of course, does not in any way suggest that the element of damages
itself is extraneous to Shelbyville Hospital’s prima facie case for breach of contract. See
ARC LifeMed, Inc. v. AMC-Tennessee, 183 S.W.3d 1, 26 (Tenn. Ct. App. 2005) (referring
to damages as an “essential element[]” of “any breach of contract claim” (quotation
omitted)). Rather, the Court’s point is that Shelbyville Hospital, in arguing in support of
its prima facie case on summary judgment, never expressly moved to recover damages
under paragraph D.7—or for that matter, paragraph D.8, E.2, or any other paragraph in
the Recruitment Agreement except paragraph D.6. In failing to invoke paragraph D.7 as a
prima facie basis for damages,8 it left the Court with only one issue to address under that
paragraph: Dr. Mosley’s right to rely on it as an affirmative defense. The Court addressed
that issue. And again, it is a type of issue that courts treat as “extraneous to the plaintiff’s
prima facie case.” Ford Motor, 795 F.2d at 546 (citation omitted).9
Shelbyville Hospital now bemoans the trial as a needless endeavor and a waste of
the Court’s and the parties’ resources. [Pl.’s Reply at 5 n.2, 6]. As the master of its claim,
Without expressing an opinion as to Shelbyville Hospital’s right to recover damages
under paragraph D.7, the Court notes that this paragraph states: “In the event Physician fails to
maintain a Full-Time Private Practice of Medicine in the Community during the Cash
Collections Continuation Period, Physician shall immediately reimburse to Hospital the
unamortized amount of the Total Cash Collections Guarantee Payments paid hereunder.”
(emphasis added).
9
Shelbyville Hospital also points out that the Court, in 2016, characterized the Guarantee
Payments as a loan, and it argues that the Court departed from this characterization in its latest
ruling. [Pl.’s Reply at 1–5]. Nothing in the Court’s most recent ruling, however, changes its
previous description of the Guarantee Payments as a loan. The Court simply addressed whether
the record evidence supported Shelbyville Hospital’s argument that Dr. Mosley had to repay the
loan under paragraph D.6—the very provision under which Shelbyville Hospital moved for the
repayment of the loan. Shelbyville Hospital, by its own admission, did not meet its burden under
paragraph D.6. [Pl.’s Post-Hearing Br. at 2].
8
11
it must answer for that perception of the trial, not the Court. See Energy Conversion
Devices Liquidation Tr. v. Trina Solar Ltd., 833 F.3d 680, 688 (6th Cir. 2016) (“As the
master of the complaint, the plaintiff may decide what claims to bring and how to prove
them. But it cannot avoid responsibility for dealing with each aspect of the claim at each
phase of the case.”). Shelbyville Hospital moved for damages under paragraph D.6—at
the exclusion of seemingly broader provisions in the Recruitment Agreement that might
have resolved this case at the summary judgment stage—and without any doubt, it failed
to make the necessary showing for summary judgment under that paragraph. Its request
now for clarification is not the proper mechanism by which the Court may disturb its
previous decision. And it is not the proper mechanism by which the Court may consider
newly minted arguments as to Shelbyville Hospital’s right to recover damages under
paragraphs D.7, D.8, E.2, or any other paragraph—even if those arguments may be
logical offshoots of the Court’s reasoning as to previously decided issues.
Still, Shelbyville Hospital rightly points out that the Court “in its discretion,” may
permit it to refile for summary judgment “if good reasons exist,” particularly if “it is in
the interest of judicial economy.” [Pl.’s Reply at 6 n.2 (quotations omitted)]. It now
requests permission to refile for summary judgment on these grounds. [Id.]. But this case
has endured for over four years and is now approaching its fifth year. The Court has a
responsibility not only to operate in the interest of judicial economy but also in the
interest of judicial expediency. See Fed. R. Civ. P. 1 (stating that the Federal Rules of
Civil Procedure “should be construed, administered, and employed by the court and the
parties to secure the just, speedy, and inexpensive determination of every action and
12
proceeding”). The Court cannot realistically accept the view that a fresh batch of motions
under Federal Rule of Civil Procedure 56 will move this case toward a “just, speedy, and
inexpensive” resolution on the merits. Fed. R. Civ. P. 1. Besides, Shelbyville Hospital
now concedes that the issues in this case already “have been fully (and repeatedly)
briefed.” [Pl.’s Reply at 5 n.2].
The Court has poured countless hours into this case, which has taxed the Court’s
resources. Because of the Court’s case load, another round of summary judgment motions
is likely to take months for the Court to resolve. And that timeframe will only increase if
the parties also spring other motions on the Court. Along the way, maybe there will be
motions to reopen discovery, which the Court has dealt with to date. Maybe there will be
new requests for an evidentiary hearing, or multiple hearings. The Court has encountered
those too. Maybe there will be motions for sanctions. The Court has adjudicated more
than one of those. Maybe there will be motions to amend the pleadings or to assert
untimely defenses. The Court has also grappled with those. Maybe Dr. Mosley will have
to deploy overseas in service of his country. The Court has faced that issue too. Or
maybe, for the third time, Dr. Mosley will decide that he wants new counsel. Yes, that
request is not unfamiliar to the Court either. Simply, none of this is beyond the realm of
imagination based on this case’s tortured history. In fact, the Court would even venture at
this point to call it likely.
The upcoming trial is now the most pragmatic hope for an expeditious resolution
to this litigation. Any alternative to trying this case will likely continue to sap the Court’s
resources, cause witnesses’ memories to fade, and possibly undermine public confidence
13
in the judiciary. The Court might have been more sympathetic to Shelbyville Hospital’s
request to reopen summary judgment under different circumstances, but it is unable to
look past the fact that Shelbyville Hospital itself drafted the Recruitment Agreement. It is
intimately familiar with its terms. And it has had the same counsel throughout this
litigation, from day one. It simply had no excuse not to pursue summary judgment under
the Recruitment Agreement’s other damages provisions, and even now, as it swiftly
raises these very provisions in support of its request for clarification and reconsideration,
it does not offer a reason why it did not raise them in the first place. The Court, under
these circumstances, cannot identify any semblance of good cause for a successive
motion for summary judgment.
2. The Court’s Memorandum Opinion from February 2016
Shelbyville Hospital also asks for clarification “on an additional claim that is
related to Paragraph D.7, but the Court’s Orders do not expressly resolve.” [Pl.’s Mot.
Recons. at 10]. Specifically, it notes that when it moved for summary judgment on the
issue of liability in 2015, it argued that Dr. Mosley breached the Recruitment Agreement
during the second eighteen months too. [Id.]. It notes that the Court never addressed this
issue in its Memorandum Opinion from 2016, and it would like to know the Court’s
position on this issue now, [Id. at 10–13]. As part of its request, Shelbyville Hospital
ultimately urges the Court to “amend the February 2016 Order” and “enter judgment for
the entire $1,013,000 plus interest and fees.” [Id. at 13].
14
Shelbyville Hospital’s request is clearly not a request for clarification. The Court
must interpret Shelbyville Hospital’s request to “amend” its ruling from 2016 as one for
reconsideration, not clarification. See Fed. R. Civ. P 59(e) (permitting courts to “amend”
their judgments); see also Fed R. Civ. P. 54(b) (permitting courts to “revise[]” their
judgments). Because Shelbyville Hospital does not identify its request for what it really
is—a request to amend a judgment upon reconsideration—and neither cites nor argues
under the applicable legal standard, the Court must reject it. See McPherson v. Kelsey,
125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the
court to . . . put flesh on its bones.” (quotation omitted)).
3. The Scope of the Trial
Shelbyville Hospital, lastly, requests clarification of the scope of the upcoming
trial, noting that it “pleaded other breaches and theories of liability” that it did not raise at
the summary judgment stage and “[t]hese breaches and theories are separate bases for
repayment of the $1,013,000.” [Pl.’s Mot. Recons. at 1–2].10 The question of whether
these theories of liability will be issues for the jury’s resolution at trial is frankly, at this
point, up to Shelbyville Hospital, which, again, is the master of its complaint. See
Gregory v. Shelby Cty., 220 F.3d 433, 442–43 (6th Cir. 2000) (“[A] party’s failure to
advance a theory of recovery in a pretrial statement constitutes waiver of that theory.”
10
Shelbyville Hospital clearly alleges other grounds for liability. For instance, it pleads
that Dr. Mosley “breach[ed] the Agreement” not only during the first eighteen months but also
the second eighteen months, “from at least February 2013 forward.” [Compl. ¶ 26].
15
(citation omitted)); Permasteelisa CS Corp. v. Airolite Co., No. 2:06-cv-569, 2008 WL
2491747, at *3 (S.D. Ohio June 18, 2008) (“The purpose of a Final Pretrial Order is to
conclusively fix the issues that remain to be litigated. Issues and theories of recovery not
included in the Final Pretrial Order are generally deemed to be waived.” (citations
omitted)); see also [Amended Scheduling Order, doc. 72, at 4 (requiring the parties to file
the final pretrial order at least thirty days before trial)].
IV. CONCLUSION
Shelbyville Hospital fails to meet is burden as the movant for reconsideration under
Rule 54(b). Shelbyville Hospital’s Motion for Reconsideration [doc. 235] is therefore
DENIED. Shelbyville Hospital’s Motion for Oral Argument [doc. 236] is also DENIED.
IT IS SO ORDERED.
ENTER:
s/ Thomas W. Phillips
United States District Judge
16
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