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Mizrach v. United States

United States District Court, D. Maryland

April 13, 2016

PHILLIP MIZRACH, pro se, as Successor Personal Representative of the Estate of Abraham I. Kurland, Deceased, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. No. AMD-08-2030 (Mizrach I)

MEMORANDUM ORDER

RICHARD D. BENNETT, District Judge.

Plaintiff Phillip Mizrach ("Plaintiff" or "Mizrach"), as successor personal representative of the estate of Abraham I. Kurland ("Kurland"), deceased, has filed two survival actions in this Court, proceeding pro se, against the United States of America ("Defendant" or "the Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq., captioned AMD-08-2030 ( Mizrach I ) and RDB-11-1153 ( Mizrach II ).[1] Both cases are now closed. On November 12, 2015, Judge William D. Quarles[2] of this Court entered a Memorandum Opinion (ECF No. 55) and Order (ECF No. 56), docketed in Mizrach II [3], denying Plaintiff's Motion (1) to allow supplemental pleading to be filed in Mizrach I and for the Complaint in that case to be retroactively amended, pursuant to Rule 15 of the Federal Rules of Civil Procedure; (2) for relief from Judgment in both Mizrach I and Mizrach II, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure; and (3) to reopen and consolidate both cases (ECF No. 44). Plaintiff subsequently filed the presently pending Motion to Alter Judgment (ECF No. 57) and Motion to Correct Clerical Error (ECF No. 65). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below, Plaintiff's Motion to Alter Judgment (ECF No. 57) is DENIED, and Plaintiff's Motion to Correct Clerical Error (ECF No. 65) is also DENIED[4].

BACKGROUND

The background facts of this action have been fully set forth in Judge Quarles' Memorandum Opinion of November 12, 2015 (ECF No. 55), Mizrach v. United States, No. WDQ-11-1153, 2015 WL 7012658, at *1-2 (D. Md. Nov. 12, 2015). Therefore, only a summary is included herein. On April 14, 2003, Abraham I. Kurland ("Kurland") was admitted to the Baltimore Veterans Affairs Medical Center ("VA Hospital") for treatment of a urinary tract infection and gastrointestinal problems. Mizrach, 2015 WL 7012658 at *1. However, the source of Kurland's abdominal problems was neither identified nor treated and, on May 3, 2003, he died. Id.

On May 2, 2005, Kurland's sister, and personal representative of his estate, filed an administrative tort claim with the Department of Veterans Affairs (the "VA"), alleging that Kurland's medical providers had negligently caused his death. Id. On February 7, 2008, the VA issued a final decision denying that claim and informing Kurland's sister of her right to bring a civil suit under the Federal Tort Claims Act ("FTCA") within the next six months. Id. On August 5, 2008, two days before that six month deadline, Kurland's nephew Phillip Mizrach ("Plaintiff" or "Mizrach")[5] filed a survival action in this Court, pro se, against the United States of America ("Defendant" or "the Government"), pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 267, et seq., alleging negligence by the VA Hospital staff in their treatment of Kurland. Id. That case, Mizrach v. United States, AMD-08-2030 ( Mizrach I ), was assigned to Judge Andre M. Davis, formerly of this Court.[6] Id. However, Judge Davis dismissed the case without prejudice on February 17, 2009 for failure to exhaust Maryland state administrative prerequisites[7], and denied Mizrach's subsequent Motion to Alter the Judgment. Id. The United States Court of Appeals for the Fourth Circuit affirmed Judge Davis' ruling in a Judgment that took effect on February 3, 2010, Mizrach v. United States, 334 F.Appx. 571, 572 (4th Cir. 2009) (unpublished) (per curiam). Id.

Mizrach proceeded to fulfill his administrative prerequisites and, on March 2, 2011, Maryland's ADR Office issued an order allowing Mizrach to file his claim in federal court. Id. at 2. Two months later, on May 2, 2011, he filed the present action, Mizrach v. United States, WDQ-11-1153[8] ( Mizrach II ), in this Court, pro se, pursuant to the FTCA, again alleging negligence on the part of VA Hospital medical providers. Id. The Government moved to dismiss this action under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction (ECF No. 10), while Mizrach moved to reopen Mizrach I and consolidate it with Mizrach II (ECF No. 14). Via Order dated February 7, 2012 (ECF No. 29), Mizrach v. United States, No. WDQ-11-1153, 2012 WL 414806 (D. Md. Feb. 7, 2012), Judge Quarles granted the Government's Motion to Dismiss and denied Mizrach's Motion to Reopen and Consolidate. Id. In an accompanying Memorandum Opinion, Judge Quarles concluded that Mizrach's action was untimely because it was filed after the FTCA's six month deadline and that Maryland statutes of limitations, which would have been more favorable to Mizrach, did not apply. See Mizrach, 2012 WL 414806 at *3-4. Judge Quarles further concluded that the FTCA's time limit was jurisdictional but that, even if it was not, Mizrach would not be entitled to equitable relief. Id. at 4-5. Judge Quarles found that Mizrach had failed to exercise due diligence in preserving his legal rights and rejected his contention that the Government had acted improperly by failing to inform him of Maryland's administrative prerequisites in the initial right to sue letter Id. Judge Quarles also denied Mizrach's subsequent Motion to Alter the Judgment (ECF No. 30), Mizrach v. United States, No. WDQ-11-1153, 2012 WL 2861367 (D. Md. July 10, 2012), and the Fourth Circuit affirmed Judge Quarles' ruling in a judgment that took effect on December 11, 2013, Mizrach v. United States, 539 F.Appx. 284 (4th Cir. 2013) (unpublished) (per curiam).

Over a year later, Mizrach filed a Motion (1) to allow supplemental pleading to be filed in Mizrach I and for the Complaint in that case to be retroactively amended pursuant to Rule 15 of the Federal Rules of Civil Procedure; (2) for relief from Judgment in both Mizrach I and Mizrach II, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure; and (3) to reopen and consolidate both cases (ECF No. 44). Judge Quarles denied that Motion, in its entirety, on November 12, 2015. See Order, ECF No. 56; Mizrach, 2015 WL 7012658. Plaintiff now moves this Court to alter Judge Quarles' Order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. See Mot. to Alter, ECF No. 57.

STANDARD OF REVIEW

Rule 59(e) of the Federal Rules of Civil Procedure authorizes a United States District Court to alter, amend, or vacate a prior judgment. Fed.R.Civ.P. 59(e). The United States Court of Appeals for the Fourth Circuit has repeatedly recognized that a judgment may be amended under Rule 59(e) in only three circumstances: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice. See, e.g., Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 241 n. 8 (4th Cir. 2008). Such motions do not authorize a "game of hopscotch, " in which parties switch from one legal theory to another "like a bee in search of honey." Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003). In other words, a Rule 59(e) motion "may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to entry of judgment." Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (quoting 11 Wright, et al., Federal Practice and Procedure § 2810.1, at 127-28 (2d ed. 1995)). Where a party presents newly discovered evidence in support of its Rule 59(e) motion, it "must produce a legitimate justification for not presenting the evidence during the earlier proceeding." Id. (internal citations and quotation marks omitted). "In general, reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." Id. (internal citations and quotation marks omitted).

ANALYSIS

I. Judge Quarles Correctly Denied the Underlying Motion (ECF No. 44), in its Entirety, for the Reasons Set Forth in Mizrach v. United States, No. WDQ-11-1153, 2015 WL 7012658 (D. Md. Nov. 12, 2015)

Via Order dated November 12, 2015 (ECF No. 56), Judge Quarles denied Plaintiff's Motion (1) to allow supplemental pleading to be filed in Mizrach I and for the Complaint in that case to be retroactively amended pursuant to Rule 15 of the Federal Rules of Civil Procedure; (2) for relief from Judgment in both Mizrach I and Mizrach II, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure[9]; and (3) to reopen and consolidate both cases (ECF No. 44). Judge Quarles explained his reasoning in an accompanying Memorandum Opinion (ECF No. 55), Mizrach v. United States, No. WDQ-11-1153, 2015 WL 7012658, at *3-6 (D. Md. Nov. 12, 2015).

The first issue facing Judge Quarles was whether it was even possible for him to grant relief in Mizrach I without first re-opening Mizrach II and vacating his ruling that Plaintiff's action was untimely and that equitable tolling was not warranted. That is, whether vacating the holding in Mizrach II was a necessary prerequisite to granting Plaintiff's additional requests in the underlying motion. The Government argued that, if Plaintiff was "not entitled to Rule 60(b) relief, there [was] no basis to reopen and consolidate the cases or permit a supplemental pleading and amendment in Mizrach I. " Mizrach, 2015 WL 7012658 at *3. Plaintiff objected that "Rule 15 relief is independent from Rule 60(b) relief because [t]he consideration and intent is different under each Rule.'" Id. (citing Pl. Reply, p. 2, ECF No. 54). After considering both arguments, Judge Quarles concluded that this Court could not grant any relief with respect to Mizrach I "unless it vacate[d] its ruling in Mizrach II that equitable tolling was not available under the FTCA, and it lacked subject matter jurisdiction over the suit." Id. Judge Quarles distinguished the present case from Laber v. Harvey, 438 F.3d 404, 427-28 (4th Cir. 2006), Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 470-71 (4th Cir. 2011), and other prior cases discussing Rule 60(b) and Rule 15 relief. Id. at 3, n. 14. While those cases "involved relatively simpler circumstances in which courts dismissed a complaint in one suit, and the plaintiffs then filed a motion to alter the judgment and amend the complaint in that suit, " the Plaintiff in the present case "[sought] to amend the complaint in Mizrach I -a suit that ha[d] not been assigned to or consolidated before this Court." Id. Therefore, "issues of reopening and consolidating the suits before this Court, and amending the complaint in Mizrach I " would only become relevant if Judge Quarles first vacated his ruling that this Court lacked subject matter jurisdiction over Mizrach II. Id. Judge Quarles further explained the situation as follows:

To avoid the FTCA time bar, Mizrach needs this Court to equitably toll the statute of limitations while he complied with Maryland's Health Care Malpractice Claims Act and consolidate the suits. Tolling the statute of limitations is insufficient; when Mizrach filed Mizrach I, he had three days remaining under the FTCA's six-month time bar. See ECF No. 1, Ex. A (VA's February 7, 2008 final claim denial); Mizrach I, ECF No. 1 (complaint filed August 5, 2008). On March 2, 2011, the Maryland ADR Office issued its order transferring the case to federal court. See ECF No. 1, Ex. D. However, Mizrach waited two ...

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