Zisumbo v. Ogden Regional Medical Center

Filing 85

MEMORANDUM DECISION AND ORDERdenying 73 Motion to Alter Judgment. Signed by Judge Ted Stewart on 6/5/13. (ss)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION

RAYMOND L. ZISUMBO,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
RELIEF FROM AN ORDER

v.

OGDEN REGIONAL MEDICAL CENTER,

Case No. 1:10-CV-73 TS

Defendant.

Before the Court is Plaintiff’s Motion for Relief from an Order.1 Through his Motion,
Plaintiff asks the Court to reconsider its Order granting summary judgment in favor of Defendant
on Plaintiff’s claim for the breach of the covenant of good faith and fair dealing. In the
alternative, Plaintiff requests leave to amend his Complaint to add a claim for breach of contract.
For the reasons discussed below, the Court will deny the Motion.
I. MOTION TO RECONSIDER
Plaintiff first asks the Court to reconsider its prior summary judgment Order in favor of
Defendant on Plaintiff’s claim for breach of the covenant of good faith and fair dealing. Plaintiff
1

Docket No. 73.
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contends that the Court must reconsider its Order because the Court misapprehended the
controlling law.
A litigant who is unsatisfied with a court’s judgment may seek relief by filing one of three
motions: a motion seeking relief from an interlocutory order under Rule 54(b), a motion to alter
or amend the judgment pursuant to Fed.R.Civ.P. 59(e), or a motion seeking relief from the
judgment pursuant to Fed.R.Civ.P. 60(b). The determination of which rule applies depends on
the time a motion is served. If a motion is served before final judgment has been entered, it falls
under Rule 54(b).2 “If a motion is served within [twenty-eight] days of the rendition of
judgment, the motion ordinarily will fall under Rule 59(e). If the motion is served after that time
it falls under Rule 60(b).”3
In this case, Plaintiff brought his Motion pursuant to rule 60(b), but because Plaintiff’s
Motion was served prior to final judgment being entered in this matter, it falls under Rule 54(b),
and the Court will construe it as such.
In reviewing a motion to reconsider brought pursuant to Rule 54(b), courts in the Tenth
Circuit apply the standard applicable to a Rule 59(e) motion to alter or amend a judgment.4 The
Tenth Circuit has recognized the following grounds as warranting a motion to reconsider under

2

See Fed.R.Civ.P. 54(b); Azubuko v. Mass. Supreme Judicial Court, 2012 WL 1657350,
at *2 (W.D. Okla. 2012) (Rule 54(b) “permits the Court’s alteration of an interlocutory ruling
prior to final judgment”).
3

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991) (alteration to reflect
change in rule).
4

See Madison v. Volunteers of Am., 2012 WL 1604683, at *1 (D. Colo. 2012) (collecting

cases).
2

Rule 59(e): “(1) an intervening change in the controlling law, (2) new evidence previously
unavailable, and (3) the need to correct clear error or prevent manifest injustice.”5 “Thus, a
motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s
position, or the controlling law. . . . It is not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior briefing.”6
Having reviewed Plaintiff’s Motion, the Court finds that Plaintiff has merely restated the
arguments already presented to and rejected by the Court on summary judgment. It is not
appropriate for the Court to revisit arguments already addressed in a prior order. Furthermore,
Plaintiff has not advanced new arguments showing that the Court’s decision was reached in error
or results in manifest injustice. Therefore, the Motion will be denied to the extent Plaintiff seeks
reconsideration of the Court’s Order on summary judgment.
II. MOTION TO AMEND
In the alternative, Plaintiff seeks leave to amend his Complaint to add a claim for breach
of contract.
Federal Rule of Civil Procedure 15(a)(2) dictates that “a party may amend its pleadings
only with the opposing party’s written consent or the court’s leave.” The Rule specifies that the
“court should freely give leave when justice so requires.”7

5

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2005) (second alteration
to reflect change in Rule 59) (citing Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 948
(10th Cir. 1995)).
6

Id.

7

Fed. R. Civ. P. 15(a).
3

However, the Court may refuse to grant leave to amend where it finds evidence of “undue
delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, [or] futility of amendment.”8 The Tenth Circuit has stated that “‘[l]ateness
does not of itself justify the denial of the amendment.’”9 “However, ‘[a] party who delays in
seeking an amendment is acting contrary to the spirit of the rule and runs the risk of the court
denying permission because of the passage of time.’”10 “The longer the delay, ‘the more likely
the motion to amend will be denied, as protracted delay, with its attendant burdens on the
opponent and the court, is itself a sufficient reason for the court to withhold permission to
amend.’”11
In making this determination, the Court “focuses primarily on the reasons for the delay.”12
The Tenth Circuit has “held that denial of leave to amend is appropriate ‘when the party filing
the motion has no adequate explanation for the delay.’”13 “For example, courts have denied
leave to amend where the moving party was aware of the facts on which the amendment was

8

Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
9

Id. at 1205 (quoting R.E.B., Inc. v. Ralston Purina Co., 525 F.2d 749, 751 (10th Cir.

1975)).
10

Id. (quoting 6 Wright, Miller & Kane, Federal Practice and Procedure § 1488 (2d ed.

11

Id. (quoting Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)).

12

Id. at 1206.

13

Id. (quoting Frank v. U.S. West, 3 F.3d 1357, 1365–66 (10th Cir. 1993)).

1990)).

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based for some time prior to the filing of the motion to amend.”14 “Courts will properly deny a
motion to amend when it appears that the plaintiff is using Rule 15 to make the complaint a
moving target, to salvage a lost case by untimely suggestion of new theories of recovery, to
present theories seriatim in an effort to avoid dismissal, or to knowingly delay . . . raising [an]
issue until the eve of trial.”15
The Court finds that Plaintiff’s undue delay necessitates a denial of his Motion. Plaintiff
filed his Complaint in this matter on May 12, 2010, Defendant moved for summary judgment on
October 1, 2012, and the Court granted summary judgment in favor of Defendant on Plaintiff’s
claim for breach of the covenant of good faith and fair dealing on March 3, 2013. Plaintiff
waited nearly two years after filing this action, six months after Defendant filed for summary
judgment, and after the Court ruled on that motion before seeking to amend his Complaint to add
his breach of contract claim. Furthermore, Plaintiff previously requested leave to amend, but
later withdrew the motion because he believed it would “be most practical to pursue all of his
state law claims in state court.”16
Plaintiff offers no justification for his lateness. Indeed, Plaintiff’s delay appears to be the
result of a failed litigation strategy. Plaintiff was content to pursue his breach of contract claim
in state court so long as he believed he had a viable claim for breach of the covenant of good
faith and fair dealing in this case. Now that the Court has found the fair dealing claim to be

14

Fed. Ins. Co. v. Gates Learjet Corp., 823 F.3d 383, 387 (10th Cir. 1987).

15

Minter, 451 F.3d at 1206 (quotation marks and citations omitted).

16

Docket No. 43, at 1.
5

without merit, he seeks—for the second time—to amend his Complaint to state a claim for
breach of contract.
The Court declines to accept a change in strategy by Plaintiff at this late date. Trial is less
than two months away and Plaintiff has offered no reason to justify his tardiness. Furthermore,
amending the Complaint to include a claim for breach of contract at this juncture of the case
would not leave Defendant sufficient time to have a dispositive motion related to the new claim
determined prior to trial. This prejudice is not acceptable. While Rule 15 states that leave to
amend should be freely given, the Court finds that it is not in the interest of justice to do so here.
III. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion for Relief from an Order (Docket No. 73) is DENIED.
DATED June 5, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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