214 F.3d 1175 (10th Cir. 2000), 98-2265, Weitz v. Lovelace Health System

Docket Nº:98-2265
Citation:214 F.3d 1175
Party Name:LORRAINE L. WEITZ, Personal Representative of the Estate of Arlene Gutierrez, Deceased, and Personal Representative of the Estate of Loretta Gutierrez, Deceased, Plaintiff-Appellant, v. LOVELACE HEALTH SYSTEM, INC., doing business as Lovelace Medical Center; LOVELACE MENTAL HEALTH PARTNERSHIP; TIM STROGIN, PH.D.; GENEVIEVE DAVIDGE, LCSW; J. BARRY R
Case Date:May 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1175

214 F.3d 1175 (10th Cir. 2000)

LORRAINE L. WEITZ, Personal Representative of the Estate of Arlene Gutierrez, Deceased, and Personal Representative of the Estate of Loretta Gutierrez, Deceased, Plaintiff-Appellant,

v.

LOVELACE HEALTH SYSTEM, INC., doing business as Lovelace Medical Center; LOVELACE MENTAL HEALTH PARTNERSHIP; TIM STROGIN, PH.D.; GENEVIEVE DAVIDGE, LCSW; J. BARRY RUMBLES, LCSW, Defendants-Appellees,

and

CIGNA CORPORATION; CIGNA HOLDINGS, INC.; CIGNA HEALTH CORPORATION; CIGNA HEALTHCARE INC.; CONNECTICUT GENERAL CORPORATION; UNITED STATES OF AMERICA, Defendants.

No. 98-2265

United States Court of Appeals, Tenth Circuit

May 31, 2000

Appeal from the United States District Court, for the District of New Mexico (D.C. No. CIV 94-1286 MV)

Page 1176

Richard D. Barish, Albuquerque, New Mexico, for Plaintiff-Appellant.

Gary L. Gordon, Albuquerque, New Mexico (Robin A. Goble, with him on the briefs), for Defendants-Appellees.

Before EBEL,HOLLOWAY, and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Lorraine Weitz ("Weitz") filed an action on behalf of her sister, Arlene Gutierrez ("Arlene"), and her niece, Loretta Gutierrez ("Loretta") in federal district court against the United States, Lovelace Health and several of its employees and business affiliates (collectively, "Lovelace") (a mental health provider), and various other defendants.1 Weitz filed suit against the United States pursuant to 28 U.S.C. § 1346(b), the Federal Tort Claims Act, alleging negligence. Weitz also brought claims of negligence against Lovelace pursuant to New Mexico state law. The district court had pendent jurisdiction over the New Mexico state law claims pursuant to 28 U.S.C. § 1367. The district court dismissed the United States as a party pursuant to Federal Rule of Civil Procedure 12(b) and granted summary judgment for Lovelace on the New Mexico state law claims.

Weitz appealed the order of the district court. This court dismissed the United States from this appeal by order entered March 4, 1999. Thus, Lovelace is the only appellee and the New Mexico state law claims are the only claims remaining in this case. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

On January 21, 1992, Edward Gutierrez ("Eddie"), husband of Arlene Gutierrez and father of Loretta, shot Arlene and Loretta and then took his own life. Eddie was an Air Force Staff Sergeant stationed at Kirtland Air Force Base in Albuquerque, New Mexico. Lovelace provided

Page 1177

mental health care services to Air Force personnel and their families at Kirtland.

Eddie and Arlene began having marital problems in the early 1990s. They attended counseling sessions in connection with these problems in December 1991. They were seen jointly on December 4 by J. Barry Rumbles, a psychotherapist employed by Lovelace who referred them to a therapist for counseling. Eddie and Arlene were then seen jointly on December 9 by Dr. Cal Bolinder. Bolinder was apparently employed by Adlerian Therapy Services, not Lovelace. Bolinder saw Eddie individually on December 12 and Arlene individually on December 11 and 20. Bolinder also had telephone conversations with Arlene on a number of occasions. Arlene expressed concern about Eddie's violent tendencies during these conversations. Bolinder told Arlene at the December 20 session and on the phone on December 30 that she should try to keep herself and Loretta away from Eddie.

Eddie asked Arlene to come to his home on December 29 to discuss their marriage and Arlene agreed to go. When Arlene arrived with Loretta, Eddie was drunk. Arlene and Eddie discussed divorce, and Eddie said that he would disown Loretta so that he would not have to pay child support. After Arlene told Eddie she was leaving, Eddie pulled out a handgun. Arlene managed to wrestle the gun away from Eddie. Eddie at that time threatened suicide. Arlene reported the incident the following day to Col. Richard Haupt, Eddie's commanding officer. Haupt made an appointment for Eddie to be evaluated by the mental health clinic. When Eddie told Haupt that he felt an examination was unnecessary, Haupt ordered Eddie to go to the clinic.

Although Eddie had an appointment to see Capt. Sally Kroner, a psychiatrist and Air Force officer, he arrived late for his appointment and could not be seen by Kroner because she had another appointment. Eddie was instead seen by Genevieve Davidge, a licensed clinical social worker employed by Lovelace. Davidge observed that Eddie was anxious and that he was unsure of his ability to handle his emotions should he and Arlene divorce. Davidge concluded that Eddie was not an immediate threat to himself or others but scheduled an appointment for Eddie to return the following day for further examination. Haupt ordered Eddie to go to the December 31 appointment. After meeting with Eddie a second time, Davidge concluded that Eddie was improved. Davidge recommended continued outside counseling, but none was arranged and Eddie never received additional counseling.

During the December 30 meeting between Haupt and Eddie, Haupt asked Eddie if he would be willing to turn over his weapons to Sgt. Keith Yekel. Eddie gave his weapons to Yekel on December 31. Two weeks later, Yekel returned the guns to Eddie after Eddie asked for the guns back so that he could go "plinking," i.e., shooting cans. On January 21, Arlene went to Eddie's home to pick up Loretta, whom he had been babysitting. Eddie shot and killed Arlene and Loretta and then took his own life.

Weitz filed this action against the United States, CIGNA (the parent company of Lovelace), Lovelace, and other individuals. As indicated above, CIGNA was voluntarily dismissed as a party at trial and this court dismissed the United States by an order entered on March 4, 1999, pursuant to a stipulation by the parties. Weitz's remaining claims alleged that Lovelace had acted negligently by: (1) failing to adopt adequate policies for the evaluation of airmen who had threatened suicide or murder; (2) failing to warn the United States that it had inadequate policies in this regard; (3) failing to provide an adequate system for evaluating troubled airmen who threatened suicide or murder; (4) failing to properly train their personnel; (5) failing to provide competent personnel to perform evaluations; (6) failing to adopt adequate policies to supervise personnel; and (7) failing to adequately supervise personnel. The district court

Page 1178

granted Lovelace's motion for summary judgment, holding that: (1) Lovelace had no duty to control Eddie (i.e., prevent Eddie from harming another) because he was merely an outpatient; and (2) Lovelace had no duty to warn Arlene or Loretta because Arlene and Loretta were fully aware of Eddie's violent propensities.

II. Discussion

A. Timeliness

We must first address whether we have jurisdiction to review the district court's summary judgment order, or whether our review is confined to the district court's denial of Appellant's subsequent motion for reconsideration. Because we find that Appellant did not timely file her notice of appeal with respect to the court's summary judgment order, we may only consider whether the district court abused its discretion in denying her motion for reconsideration.

On May 27, 1997, the district court entered its order granting summary judgment and dismissing Weitz's claims with prejudice. On June 10, 1997,2 Weitz filed a Motion for Extension of Time to File Motions Pursuant to Fed. R. Civ. P. 59(e) to Reconsider Judgment Entered May 27, 1997 Dismissing Plaintiff's Claims. That motion requested an extension of time until June 20, 1997. On June 13, 1997, the court entered an order granting this motion and extending Weitz's time until June 20, 1997, to file a Rule 59(e) motion. On June 20, 1997, Weitz filed a Rule 59(e) Motion to Reconsider Order Granting Lovelace Defendant's Motion for Summary Judgment or, in the Alternative, to Certify the Question of Duty to the Supreme Court of New Mexico. On July 31, 1998, the district court denied Weitz's motion. Weitz then filed her notice of appeal on September 28, 1998.

Generally, a party has thirty days from the entry of the district court's order or judgment within which to file a notice of appeal. See Fed. R. App. P. 4(a)(1)(A). When the United States or its officer or agency is a party to the case, the time is extended to sixty days. See Fed. R. App. P. 4(a)(1)(B). The appeal period is tolled, however, when a party timely files either a motion to alter or amend the judgment under Fed. R. Civ. P. 59(e) (filed no later than ten days after entry of judgment), or a motion for relief under Fed. R. Civ. P. 60 (provided that the Rule 60 motion is filed within ten days of entry of the judgment). See Fed. R. App. P. 4(a)(4)(A)(iv), (vi). In the case at bar, it is undisputed that Appellant did not file a notice of appeal until more than a year after the district court entered summary judgment in favor of Appellee. The question before us, therefore, is whether Appellant's post-judgment motion, filed on June 20, 1997, successfully tolled the period for filing a notice of appeal.

We must first examine whether it is proper to view Appellant's post-judgment motion as a Rule 59 motion. Generally, this court will construe a motion to alter or amend or to reconsider the judgment that is served more than ten days after the judgment is entered as a motion for relief under Rule 60(b). See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1992). Appellant filed her Rule 59(e) Motion to Reconsider on June 20, 1997, which was more than ten days after the district court entered its order granting summary judgment. Under most circumstances, we would therefore treat this as a Rule 60(b) motion filed more than ten days after the judgment was entered, which thus failed to toll the time period for...

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