United States District Court, D. Hawaii
DAVID E. HENRY, M.D., Plaintiff,
ADVENTIST HEALTH CASTLE MEDICAL CENTER and ALAN CHEUNG, M.D., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION AND MOTION FOR LEAVE TO AMEND THE COMPLAINT,
ECF NO. 73
A. OTAKE UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff David E. Henry, M.D.'s
(“Plaintiff”) Motion for Reconsideration of Order
Granting Motion for Summary Judgment and/or Motion for Leave
to Amend Complaint, ECF No. 73. For the reasons set forth
below, the Motion for Reconsideration and Motion for Leave to
Amend the Complaint are DENIED.
Order Granting Motion for Summary Judgment (“the
Order”) set forth the background in this action,
see Henry v. Adventist Health Castle Med. Ctr., 2019
WL 346701, at *1 (D. Haw. Jan. 28, 2019), and the Court
assumes a familiarity with it.
filed the Complaint pro se on February 2, 2018, alleging one
count of racial discrimination and one count of retaliation
for engaging in protected activities. ECF No. 1. On September
10, 2018, Defendant filed a Motion for Summary Judgment, ECF
No. 37, and a Concise Statement of Facts in support of the
Motion, ECF No. 38. On October 11, 2018, Plaintiff filed his
Opposition, ECF No. 40, and his Responsive Concise Statement
of Facts, ECF No. 41, pro se.
November 29, 2018, the day before the hearing on the Motion
for Summary Judgment was originally scheduled, Plaintiff,
through his local counsel John Winnicki and Dennis King,
filed a Motion to Continue the hearing and simultaneously
filed an Application for Robert Meals to Appear Pro Hac Vice.
ECF Nos. 52, 54. Plaintiff asserted that he retained Winnicki
and King as local counsel the day before, but that he had
previously retained Robert Meals (who had edited his prior
pleadings), an attorney licensed and based on the mainland,
to assist him in this case. ECF No. 52 at PageID #1068.
Plaintiff requested a continuance of sixty days to allow
Meals to appear on his behalf at the hearing. Id. On
November 30, 2018, a hearing was held on the Motion to
Continue. ECF No. 59. The Court granted in part and denied in
part the Motion to Continue and set the hearing on the Motion
for Summary Judgment for December 14, 2018. Id.
Ultimately, Meals withdrew his Application to appear pro hac
vice, ECF No. 63, and Winnicki and King appeared on behalf of
Plaintiff at the hearing. ECF No. 65.
January 28, 2019, the Court issued the Order, ECF No. 70, and
Judgment was entered, ECF No. 71. On February 20, 2019,
Plaintiff filed the instant Motion for Reconsideration of the
Order, with which he submitted a new Declaration. ECF Nos.
73, 73-1. Defendant filed a Memorandum in Opposition on March
6, 2019, ECF No. 75, and Plaintiff filed his Reply on March
20, 2019, ECF No. 76.
Motion for Reconsideration
seeks reconsideration of the Order primarily on the basis
that: (1) “the Court . . . misconstrued the underlying
facts regarding the conditions under which Plaintiff
performed services as a surgeon for Defendant”; and (2)
when the law is applied to the facts (as clarified by
Plaintiff), the Court should find an employment relationship
for the purposes of Title VII. ECF No. 73 at Page ID
#1178-79. The Court is unpersuaded.
Rules of Civil Procedure 59 and 60 govern case-dispositive
orders like the Order. See Local Rule 60.1
(“Motions seeking reconsideration of case-dispositive
orders shall be governed by Fed.R.Civ.P. 59 or 60, as
applicable.”); see also Adon Constr. Inc., et al.
v. Renesola Am. Inc., et al., 2019 WL 1441597, at *1 n.1
(D. Haw. Apr. 1, 2019). “The denial of a motion for
reconsideration under Rule 59(e) is construed as a denial of
relief under Rule 60(b).” McDowell v.
Calderon, 197 F.3d 1253, 1255 n.3 (9th Cir. 1999) (en
banc) (per curiam); see also Fuller v. M.G. Jewelry,
950 F.2d 1437, 1441 (9th Cir. 1991).
59(e) provides that “[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). Such amendment is
“an extraordinary remedy which should be used
sparingly.” McDowell, 197 F.3d at 1255 n.1
(citation omitted); see also Kona Enters., Inc. v. Estate
of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Indeed,
there are only a few bases for amending a judgment:
In general, there are four basic grounds upon which a Rule
59(e) motion may be granted: (1) if such motion is necessary
to correct manifest errors of law or fact upon which the
judgment rests; (2) if such motion is necessary to present
newly discovered or previously unavailable evidence; (3) if
such motion is necessary to prevent manifest injustice; or
(4) if the amendment is justified by an intervening change in
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111
(9th Cir. 2011) (citing McDowell, 197 F.3d at 1255
n.1). Although “[a] court considering a Rule 59(e)
motion is not limited merely to these four situations,
” id., “[a] Rule 59(e) motion may
not be used to raise arguments or present evidence
for the first time when they could reasonably have been
raised earlier in the litigation.” Kona Enters.,
Inc., 229 F.3d at 890.
Rule of Civil Procedure 60(b) provides the following grounds