Mizrach v. United States
| Decision Date | 12 November 2015 |
| Docket Number | CIVIL NO.: WDQ-11-1153 |
| Parties | PHILLIP MIZRACH, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
Phillip Mizrach, pro se and as personal representative of the estate of Abraham I. Kurland, sued the United States for medical malpractice.1 Pending is Mizrach's "motion to allow supplemental pleading to be filed in Mizrach I and for the complaint to be amended thereby pursuant to Rule 15, for relief from judgment pursuant to Rule 60(b) in both Mizrach I and II based on new controlling Supreme Court law . . ., [and] to reopen and consolidate both cases." ECF No. 44.2 For the following reasons, Mizrach's motion will be denied.
On April 14, 2003, Kurland was admitted to the Baltimore Veterans Affairs Medical Center (the "VA Hospital") fortreatment of a urinary tract infection and gastrointestinal problems. ECF No. 1 ¶ 12. On May 3, 2003, after "suffering in pain and moaning for hours," Kurland was found dead with a "copious, thin brown/red" discharge in his throat. Id. The source of his abdominal problems was never identified or treated. Id.
On May 2, 2005, Mary Kurland, Kurland's sister and personal representative of his estate, filed an administrative tort claim with the Department of Veterans Affairs (the "VA"), alleging that Kurland's medical providers had negligently caused his death. ECF No. 10, Ex. 1. On February 7, 2008, the VA issued its final decision denying the claim. See ECF No. 1, Ex. A. The notice said:
On August 5, 2008, Kurland's nephew Mizrach3 filed a survival action against the government in this Court, alleging that the VA Hospital staff has been negligent in treating Kurland. See Mizrach I, ECF No. 1. The government moved to dismiss, arguing that Mizrach's lawsuit was premature because he had not presented his claims to Maryland's Health Claims Alternative Dispute Resolution Office (the "Maryland ADR Office"), or filed an expert's certificate that Kurland's medical providers had departed from the standard of care.4 Mizrach I, ECF No. 5-1, at 1-2. On February 17, 2009, then District Judge Andre Davis denied Mizrach's motion to stay the proceedings, and dismissed the case without prejudice because of Mizrach's failure to exhaust his remedies. Mizrach I, ECF Nos. 20-21. On March 11, 2009, Judge Davis denied Mizrach's motion to alter the judgment; the Fourth Circuit affirmed in a judgment that took effect on February 3, 2010.5
On February 25, 2010, Mizrach filed a claim with the Maryland ADR Office. ECF No. 1 ¶ 1. On May 25, 2010, he filed an expert's certificate stating that Kurland's medical providers had failed to comply with the appropriate standard of care. Id., Ex. C ¶ 2.
On March 1, 2011, Mizrach waived arbitration in the state proceeding. Id. ¶ 1. On March 2, 2011, the Maryland ADR Office issued an order allowing Mizrach to file his claim in federal court. Id., Ex. D.6
On May 2, 2011, Mizrach brought this survival action, alleging that Kurland's medical providers were negligent. ECF No. 1. The government moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. ECF No. 10. Mizrach moved to reopen Mizrach I and consolidate it with Mizrach II. ECF No. 14. On February 7, 2012, the Court granted the government's motion and denied Mizrach's motion. ECF No. 29.7 On July 10, 2012, the Court denied Mizrach's motion toalter the judgment; the Fourth Circuit affirmed in a judgment that took effect on December 11, 2013.8
On May 21, 2015, Mizrach filed the instant motion. ECF No. 44.9 On July 14, 2015, the government opposed the motion. ECF No. 49. On September 11, 2015, Mizrach replied. ECF No. 54.
Mizrach seeks (1) to file a supplemental pleading and amend the complaint in Mizrach I under Rule 15(c) and (d),10 (2) for relief from judgment in Mizrach I and Mizrach II under Rule 60(b)11 based on United States v. Kwai Fun Wong, 135 S. Ct. 1625, 191 L. Ed. 2d 533 (2015),12 and (3) to reopen and consolidate Mizrach I and II. ECF No. 44 at 8. The government contends that because Mizrach is not entitled to Rule 60(b) relief, there is no basis to reopen and consolidate the cases or permit a supplemental pleading and amendment in Mizrach I. ECF No. 49 at 1-3. In reply, Mizrach counters that Rule 15 relief is independent from Rule 60(b) relief because "[t]he considerationand intent is different under each Rule." ECF No. 54 at 2. The Court must decide the appropriate standard of review.
When final judgment has been entered, a complaint may only be amended pursuant to a successful Rule 59(e) or 60(b) motion to alter the judgment. See Later v. Harvey, 43 8 F.3d 4 04, 427-28 (4th Cir. 2006). To determine whether vacatur is merited, the Court generally "need not concern itself with either of those rules' legal standards"; rather, the Court "need only ask whether the amendment should be granted" under Rule 15. Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 470-71 (4th Cir. 2011) .13
However, Later, Katyle, and their progeny,14 involved relatively simpler circumstances in which courts dismissed a complaint in one suit, and the plaintiffs then filed a motion to alter the judgment and amend the complaint in that suit. Here, Mizrach seeks to amend the complaint in Mizrach I--a suit that has not been assigned to or consolidated before this Court. This Court cannot grant that relief unless it vacates its rulingin Mizrach II that equitable tolling was not available under the FTCA, and it lacked subject matter jurisdiction over that suit. Only then would issues of reopening and consolidating the suits before this Court, and amending the complaint in Mizrach I, become relevant.15 Accordingly, the Court will first decide whether Mizrach is entitled to Rule 60(b) relief in Mizrach II.
Under Rule 60(b), a party may seek relief from a final judgment or order by showing timeliness, a meritorious claim or defense, and a lack of unfair prejudice to the opposing party. Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011).16 After crossing this "initial threshold," the movant must also establish at least one ground for relief listed in Rule 60(b)'s six subsections: (1) mistake, inadvertence, surprise, orexcusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) a void judgment; (5) satisfaction, release, or discharge; or (6) any other reason justifying relief. Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993). A party seeking relief under Rule 60(b)(6) must demonstrate "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 536, 125 S. Ct. 2641, 2650, 162 L. Ed. 2d 480 (2005). Mizrach seeks relief under subsections (1) and (6). ECF No. 44 at 15. Neither is a basis for relief.
Any Rule 60(b) motion must be made within a "reasonable time," and, for reasons (1) through (3), never more than a year after entry of a judgment or order. Fed. R. Civ. P. 60(c).
As a general rule, the one-year time limit applicable to Rule 60(b)(1) begins to run when the district court issues its judgment. See Lepore v. Ramsey, 149 F.R.D. 90, 91-92 (D. Md. 1993). However, to avoid a conflict between Rule 60(b)(1) and Federal Rule of Appellate Procedure 4(a),17 Rule 60(b)(1) motionsbased upon legal error18 must generally be filed within the time for filing an appeal unless the change in law occurs after the filing of a timely notice of appeal. Id. at 92.19 In that case, the movant may file the Rule 60(b)(1) motion in the district court and ask the appellate court to defer its decision. Id.; see also Fed. R. Civ. P. 62.1 (governing indicative rulings). However, in no instance may a district court grant relief under Rule 60(b)(1) when more than one year has lapsed since it issued its final judgment or order. See, e.g., Home Port Rentals, Inc. v. Ruben, 957 F.2d 126, 132 (4th Cir. 1992) () (internal quotation marks omitted).
Here, the Court issued its final order dismissing the suit on February 7, 2012. ECF No. 29. Mizrach filed the instant motion on May 21, 2015, more than three years later. ECF No.1.20 Accordingly, his motion is untimely under Rule 60(b)(1).
Although Rule 60(b)(6) motions are not subject to the one-year time limitation, they must be made within a "reasonable time." Fed. R. Civ. P. 60(c). Mizrach contends that his motion is timely because it was filed within a reasonable time after the U.S. Supreme Court issued its ruling in Kwai Fun Wong. ECF No. 44 at 15. The government contends that "the length of delay is measured against when the mandate is issued." ECF No. 49 at 6 (citing McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th Cir. 1991). However, the government has misconstrued McLawhorn; there, the movant filed a Rule 60(b) motion three and a half months after the district court granted summary judgment; not, as the government contends, three and a half months after the Fourth Circuit's mandate issued. 924 F.2d at 538. Because a movant...
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