Upky v. Lindsey, CIV 13-0553 JB/GBW
| Decision Date | 07 April 2015 |
| Docket Number | No. CIV 13-0553 JB/GBW,CIV 13-0553 JB/GBW |
| Court | U.S. District Court — District of New Mexico |
| Parties | RUSSELL UPKY, Plaintiff, v. WAYNE LINDSEY, M.D., Defendant. |
THIS MATTER comes before the Court on: (i) the Plaintiff's Motion for Default Judgment and Request for Evidentiary Hearing, filed December 9, 2013 (Doc. 8)("Motion for Default Judgment"); (ii) Defendant Wayne Lindsey, M.D.'s Motion to Set Aside Clerk's Entry of Default, filed February 10, 2014 (Doc. 13)("Motion to Set Aside Clerk's Entry of Default"); and (iii) Defendant Wayne Lindsey, M.D.'s Motion for Extension of Time to File Answer, filed February 10, 2014 (Doc. 12)("Motion for Extension"). The Court held a hearing on July 17, 2014. The primary issues are: (i) whether there is good cause to set aside the entry of default against Defendant Wayne Lindsey, M.D., that is, whether Lindsey willfully defaulted, whether setting aside the entry of default will prejudice Plaintiff Russell Upky, and whether Lindsey has a meritorious defense; and (ii) whether Lindsey has shown excusable neglect in failing to timely answer the Complaint for Medical Negligence Resulting in Personal Injury, filed June 14, 2013(Doc. 1)("Complaint"). The Court will deny the Motion for Default Judgment, grant the Motion to Set Aside Clerk's Entry of Default, and grant the Motion for Extension. The Court concludes that there is good cause to set aside the entry of default, because Lindsey mistakenly believed that his attorneys received the Complaint, and, thus, he did not willfully default. Further, Upky has not established that he will be prejudiced by setting aside the entry of default, and Lindsey has shown that he has a meritorious defense by pointing to facts and evidence that, if a jury believes them, would establish that he was not medically negligent. The Court concludes that Lindsey has also demonstrated excusable neglect in failing to answer the Complaint, because the delay has not prejudiced Upky and will not greatly impact judicial proceedings, and Lindsey acted in good faith when he mistakenly believed that his attorneys also received a copy of the Complaint.
The Court takes the facts from the Complaint. In December, 2008, Upky "was seen at Las Cruces Orthopaedic Associates for an injury to his left shoulder which had resulted in a full thickness rotator cuff tear." Complaint ¶ 4, at 1. Upky was not able to have surgery to repair the tear in December, 2008, because of "unrelated medical problems." Complaint ¶ 4, at 1. In May, 2010, Upky "agreed to undergo surgery at the Las Cruces Surgical Center as an out-patient for the rotator cuff tear and related problems." Complaint ¶ 5, at 1-2. He "was reported to be doing very well" post-operatively and was scheduled to begin physical therapy in June, 2010, but on June 22, 2010, he was "seen and admitted to Mountain View Regional Medical Center in Las Cruces, New Mexico, by Defendant Lindsey," because he had "been suffering increasing problems with the shoulder including recent drainage, pain, swelling and fever." Complaint ¶¶ 5-7, at 2. Upky had "drainage from the surgical site which had tested positive for staphinfection," and a "CT scan of the left shoulder on June 22, 2010[,] confirmed that he had an abscess accompanied with septic joint and suspected osteomyelitis in the shoulder." Complaint ¶¶ 6-7, at 2.
Lindsey "knew or should have known that the condition present on June 22, 2010, required urgent care and treatment[,] including immediate surgical decompression and operation to address the septic infection in his shoulder," and further that Upky "required an infectious disease consultation and management of his left shoulder for the infection." Complaint ¶ 9, at 2. Instead of performing surgery immediately, however, Lindsey waited until June 23, 2010, to perform the "arthroscopic incision and debridement of the left shoulder." Complaint ¶ 10, at 2. Lindsey's "failures constitute medical negligence . . . as a matter of law." Complaint ¶¶ 9-10, at 2.
Upky required follow-up care with Dr. Daniel Romanelli during the following months, during which time Upky "continued to experience severe and debilitating problems given that his shoulder infection had not been timely and appropriately treated." Complaint ¶ 11, at 2-3. "Ultimately the mistreated and untreated shoulder infection required removal of all the medical devices ('hardware') which had been surgically implanted in Mr. Upky's body." Complaint ¶ 12, at 3. Upky "has been left with a full thickness tear of the shoulder and, as a result, suffers and will continue to suffer from a permanently torn and irreparable left rotator cuff." Complaint ¶ 12, at 3.
The Court will describe the procedural background in two parts. First, the Court will describe the relevant timeline of events after Upky filed the Complaint, including thecommunications between the parties' counsel. The Court will then address the parties' arguments regarding the pending motions.
Upky filed the Complaint on June 14, 2013. Upky asserts that the Court has diversity jurisdiction under 28 U.S.C. § 1332, because he is an Oklahoma resident, Lindsey is a New Mexico resident,2 and he asserts that the amount in controversy exceeds $75,000.00. See Complaint ¶¶ 1-3, at 1. Although Upky does not set forth a specific count, it appears that he is asserting a medical negligence claim against Lindsey for Lindsey's treatment of Upky. See Complaint ¶¶ 9-13, at 2-3.
On June 3, 2013, Upky wrote a letter requesting a hearing before the New Mexico Medical Review Commission. See Letter from James P. Lyle to Michael Rueckhaus, Acting Director of the New Mexico Medical Review Commission at 1, dated June 3, 2013, filed February 10, 2014 (Doc. 13-1).3 Hinkle, Hensley, Shanor & Martin, L.L.P. (the "Hinkle firm") represented Lindsey before the Medical Review Commission. See Letter from Terry M. Ortega, Legal Assistant to William P. Slattery, to Michael Rueckhaus, dated June 12, 2013, filed February 24, 2014 (Doc. 15-1); Answer of Wayne C. Lindsey, M.D., Before the New Mexico Medical Review Commission, filed February 24, 2014 (Doc. 15-1 at 2)( "Wayne C. Lindsey, M.D., by and through his attorneys, Hinkle, Hensley, Shanor & Martin, L.L.P.," andsigned by William P. Slattery); Affidavit of Disqualification Before the New Mexico Medical Review Commission, filed February 24, 2014 (Doc. 15-2)(including three affidavits that Zachary T. Taylor, one of the Hinkle firm attorneys representing Lindsey, signed)
The Medical Review Commission conducted a hearing on August 19, 2013. See Motion for Default Judgment ¶ 2, at 1. On the day of the hearing, James P. Lyle, Upky's attorney, asked someone from the Hinkle firm, likely Zachary T. Taylor, if he would accept service of the Complaint on Lindsey's behalf. See Plaintiff's Response to Defendant Wayne Lindsey's Motion to Set Aside Clerk's Entry of Default at 2, filed February 24, 2014 (Doc. 15)("Response").4 Lindsey's attorney "indicated that he would have to check with his client and would notify" Upky's counsel. Response at 2. Mr. Slattery spoke with Mr. Lyle on two occasions after August 19, 2013; Mr. Lyle represents that "Mr. Slattery initially notified counsel for Plaintiff that he was authorized to accept service on behalf of his client," but that he "called back" that same day "and said his client had decided upon personal service," Response at 2, while Mr. Slattery states that, "[o]n both occasions, I advised Mr. Lyle that I was not authorized to accept service of the complaint on behalf of Dr. Lindsey," Affidavit of William P. Slattery, Esq. ¶ 4, at 1, dated March 7, 2014, filed March 7, 2014 (Doc. 16-1)("Slattery Aff.").
The District of New Mexico Clerk of the Court issued the Summons on October 25, 2013. See Summons in a Civil Action at 1, dated October 25, 2013, filed December 9, 2013(Doc. 6)("Summons"). Motion for Default Judgment ¶ 4, at 2. See Certification of James O. Tracy, Sheriff of Utah County, at 2, dated October 31, 2013, filed December 9, 2013 (Doc. 6 at 2)(certifying that he "receiving the within and foregoing Summons and Complaint on 29th day of October, 2013, and that I served the same on: Wayne R. Lindsey MD . . . on: 29th day of October, 2013 at 15:44:00").
Lindsey's answer "was due on or before November 19, 2013." Motion for Default ¶ 5, at 2. Because Lindsey did not file an answer to the Complaint, Upky filed the Praecipe for Clerk's Entry of Default, filed December 9, 2013 (Doc. 7)("Praecipe"), requesting the Clerk of the Court to enter default against Lindsey pursuant to rule 55(a) of the Federal Rules of Civil Procedure, Praecipe at 1. Upky also filed the Motion for Default Judgment, requesting the Court to enter default judgment and for a one-day evidentiary hearing to determine damages. See Motion for Default Judgment ¶¶ 6-7, at 2.
On January 30, 2014, Mr. Lyle and David Lawrenz, another attorney at the Hinkle firm, appeared before the Honorable Carl Butkus, District Judge for the Second Judicial District of the State of New Mexico, in a different matter. See Tr. at 4:9-13 (Slattery); id. at 38:19-20 (Lyle). Mr. Lyle advised Mr. Lawrenz of the Motion for Default and that the Court had set a hearing. See Tr. at 4:14-16 (Slattery); id. at 38:22-39:2 (Lyle)( that he told Mr. Lawrenz that Lindsey had been served, that Lindsey had not answered, and that he had sent a notice of the Motion for Default, but had not heard anything from Lindsey or the Hinkle firm). Eleven days later, on February 10, 2014, Mr. Slattery filed the Motion for Extension of Time and the Motionto Set Aside Clerk's Entry of Default. See Motion for Extension at 1; Motion...
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