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Washington v. United States

United States District Court, D. Nevada

June 16, 2017

JOHN T. WASHINGTON, Plaintiffs,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          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).

         In the instant motion, plaintiff moves for reconsideration of the court's April 18th order. (ECF No. 13).

         II. Legal Standard

         A motion for reconsideration “should not be granted, absent highly unusual circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Fed.R.Civ.P. 60(b). “A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e).

         Rule 59(e) “permits a district court to reconsider and amend a previous order, ” however “the rule offers an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (internal quotations omitted). A motion for reconsideration “may not be used to raise arguments . . . for the first time when they could reasonably have been raised earlier in litigation.” Kona Enters., Inc., 229 F.3d at 890; see also LR 59-1(b) (“Motions for reconsideration are disfavored. A movant must not repeat arguments already presented unless (and only to the extent) necessary to explain controlling, intervening law or to argue new facts. A movant who repeats arguments will be subject to appropriate sanctions.”).

         III. Discussion

         In the instant motion, plaintiff moves for 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 ...


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