United States District Court, D. Nevada
before the court is a motion to reconsider filed by plaintiff
Sie Ervine, who is named in his personal capacity and as
executor of the estate of Charlene Ervine (hereinafter
referred to as “plaintiffs, ” to afford
consistency with the parties' filings). (ECF No. 124).
Defendants Georges Tannoury, M.D. (a corporation) and Doctor
Georges Tannoury (an individual) (collectively,
“defendants”) filed a response (ECF No. 137), to
which plaintiffs replied (ECF No. 146).
September 14, 2010, plaintiffs filed an amended complaint.
(ECF No. 4). Plaintiffs' amended complaint asserts
federal causes of action under Section 504 of the
Rehabilitation Act and Title III of the Americans with
Disabilities Act (“ADA”), and state causes of
action for negligent and intentional infliction of emotional
December 8, 2011, the court dismissed plaintiffs' federal
claims as being filed outside of the relevant statute of
limitations. (ECF No. 64). Plaintiffs timely appealed, and
the Ninth Circuit vacated in part and reversed in part. (ECF
No. 71). The Ninth Circuit decision held that plaintiffs
lacked standing to bring his claims under Title III of the
ADA, and that plaintiffs' Section 504 claims were not
time-barred. Id. Thus, plaintiffs' remaining
federal claims concern only Section 504 of the Rehabilitation
September 27, 2016, the court denied the parties'
cross-motions for summary judgment on plaintiffs' Section
504 claims. (ECF No. 102). As to plaintiffs' state law
claims, the court granted defendant Desert View's motion
for summary judgment in part, thereby limiting the scope of
plaintiffs' allowable claim for negligent infliction of
emotional distress, but otherwise denied cross-motions for
summary judgment. Id.
August 23, 2017, plaintiffs filed the instant motion to
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); see
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).
do not present an adequate ground for reconsideration.
Plaintiffs present no change in controlling law, no showing
of manifest injustice, and no newly discovered evidence.
Further, plaintiffs failed to authenticate their exhibits in
their motion for reconsideration.
motion inappropriately characterizes two cases as
“intervening changes in the controlling case
law.” Plaintiffs first cite Bonner v. Ariz.
Dep't of Corr., 714 F.Supp. 420 (D. Ariz. 1989). A
district court decision from 28 years ago does not qualify as
a change in controlling law for purposes of a motion to
reconsider. Similarly, plaintiffs' citation to the
11th Circuit's decision in Silva v. Baptist Health S.
Fla., Inc., 856 F.3d 824 (11th Cir. 2017) does not
qualify as a change in controlling case law.
motion fails to persuade the court that its prior order (ECF
No. 102) presented clear error or was “manifestly
unjust.” Plaintiffs primarily rely on Bonner
II and Silva to argue that the prior order was
clearly erroneous and manifestly unjust. (See, e.g.,
ECF No. 102 at 13, 18, 24). Therefore, as the court has
already determined that Bonner II and Silva
do not change controlling law, the court holds that
plaintiffs' arguments regarding correcting clear error
and manifest injustice do not present reasons to reconsider
the court's prior order.
also ask this court to reconsider its holding that plaintiffs
were not entitled to judgment as a matter of law on their
deliberate indifference argument. Plaintiffs assert that the
court did not consider the deliberate indifference question
in its initial order. The court considered the deliberate
indifference question. holding that there was a dispute of
fact as to whether the communication between defendants and
decedent was adequate, which precluded summary judgment. (ECF
No. 102) (citing Duval ...