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Washington v. United States

United States District Court, D. Nevada

May 19, 2017

JOHN T. WASHINGTON, Plaintiff(s),
v.
UNITED STATES OF AMERICA, et al., Defendant(s).

          ORDER

         Presently before the court is pro se plaintiff John T. Washington's motion to reconsider, or in the alternative, to modify order. (ECF No. 13). Defendants Eugene P. Libby, D.O. (“Dr. Libby”) and Eugene P. Libby, D.O., a professional corporation (collectively, as “defendants”) filed a non-opposition response. (ECF No. 15).

         I. Background

         This is a medical malpractice action arising from plaintiff's shoulder surgery, which Dr. Libby, a doctor for the Veteran Administration (“VA”), performed on February 28, 2008. (ECF No. 1).

         On March 31, 2008, during a follow-up visit, Dr. Libby noted that plaintiff developed a postoperative wound infection, which Dr. Libby treated with antibiotics. (ECF No. 1 at 5). A subsequent follow-up on April 7, 2008, indicated that the infection was resolving. (ECF No. 1 at 5). On April 15, 2008, Dr. Libby performed a second surgery to remove the sutures in plaintiff's shoulder from the first surgery, which had failed, and to repeat the cuff tear repair. (ECF No. 1 at 5).

         Plaintiff alleges that he began to notice increasing pain in his left shoulder rotator cuff in December 2014 and consulted Dr. Mark Erickson, another doctor for VA, who told plaintiff that he had a methicillin-resistant Staphylococcus aureus (“MSRA”) infection. (ECF No. 5-6). On January 27, 2015, Dr. Erickson surgically removed an abscess containing a piece of suture. (ECF No. 1 at 6).

         Plaintiff further alleges that Dr. Libby used recalled suture materials containing MSRA in plaintiff's surgery and that the allegedly defective suture materials caused an abscess cyst and infection. (ECF No. 1 at 9).

         On January 27, 2017, plaintiff filed the underlying complaint against defendants United States of America, Dr. Libby, and Eugene P. Libby, D.O., a professional corporation, alleging two claims for relief: (1) medical malpractice; and (2) res ipsa loquitur medical negligence. (ECF No. 1).

         On April 3, 2017, defendants filed a motion to dismiss the complaint as time-barred by the statute of limitations and for failure to attach a medical affidavit. (ECF No. 7).

         On April 18, 2017, the court granted defendants' motion to dismiss (ECF No. 7) and dismissed plaintiff's complaint (ECF No. 1) on two grounds: (1) failure to comply with NRS 41A.071's affidavit requirement; and (2) failure to timely respond so as to constitute consent. (ECF No. 9).

         On April 25, 2017, plaintiff filed the instant motion, requesting reconsideration of the court's April 18th order for two reasons: (1) his response (ECF No. 11) to defendants' motion to dismiss (ECF No. 7) was timely filed; and (2) NRS 41A.071's affidavit requirement did not apply pursuant to Szydel v. Markman, 117 P.3d 200 (Nev. 2005). (ECF No. 13). On May 3, 2017, defendants filed a non-opposition response to plaintiff's motion for reconsideration. (ECF No. 15).

         On May 17, 2017, plaintiff filed a notice of appeal. (ECF No. 16).

         II. Notice of Appeal

         Because plaintiff filed a notice of appeal (ECF No. 16) on May 17, 2017, thereby divesting the court of jurisdiction, the court lacks authority to grant plaintiff's instant motion. See Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001); see also Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam). Federal Rule of Civil Procedure 62.1, however, provides that if a motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:

(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion ...

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