United States District Court, D. Nevada
JOHN T. WASHINGTON, Plaintiff(s),
UNITED STATES OF AMERICA, et al., Defendant(s).
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).
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).
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).
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).
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).
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).
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).
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).
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).
17, 2017, plaintiff filed a notice of appeal. (ECF No. 16).
Notice of Appeal
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 ...