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explaining that the "mistake" must "change the outcome" (quoting E.D. Mich. LR 7.1(h))
Summary of this case from Good v. Biolife Plasma Servs.Opinion
Case No. 1:22-cv-10645
2022-10-20
Alex MCNEAL, Plaintiff, v. FOUNDATION RADIOLOGY GROUP, PC and Andrea Montgomery Frazier, Personal Representative of the Estate of Robert Walter Frazier, Defendants.
Emily M. Peacock, Olsman MacKenzie & Wallace, P.C., Berkley, MI, for Plaintiff. Ronald S. Lederman, Todd A. McConaghy, Sullivan, Ward, Patton, Gleeson & Felty, P.C., Southfield, MI, for Defendants.
Emily M. Peacock, Olsman MacKenzie & Wallace, P.C., Berkley, MI, for Plaintiff. Ronald S. Lederman, Todd A. McConaghy, Sullivan, Ward, Patton, Gleeson & Felty, P.C., Southfield, MI, for Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION
THOMAS L. LUDINGTON, United States District Judge
Defendants removed this medical-malpractice action from the Isabella County Circuit Court based on diversity jurisdiction. Plaintiff filed the case against Dr. Robert Frazier and his professional corporation Foundation Radiology Group, P.C., on October 7, 2020. Plaintiff also sued MidMichigan and MidMichigan Medical Center as liable for Frazier's negligence "under the doctrine of vicarious liability, respondeat superior and/or Grewe v. Mt. Clemens General Hospital." ECF No. 1-2 at PageID.18. More than a year later, Plaintiff again included both MidMichigan entities in a November 24, 2021 amended complaint. ECF No. 1-4. Then he voluntarily dismissed both MidMichigan entities without explanation on March 11, 2022. ECF No. 1-7.
The docket from the Isabella County Circuit Court for this matter is unavailable to this Court except for the pleadings that the parties attached to the pleadings that they filed with this Court.
Plaintiff filed its motion to remand on April 14, 2022, arguing Defendants untimely removed the case. ECF No. 5. Plaintiff's motion was denied because he did not file a reply brief to rebut Defendants' contention that he maintained the nondiverse Defendants in bad faith. McNeal v. Found. Radiology Grp., P.C., No. 1:22-CV-10645, 2022 WL 3010694, at *1 (E.D. Mich. July 29, 2022).
Plaintiff has filed a motion for reconsideration, arguing Defendants "misled the court." ECF No. 12 at PageID.257.
I.
Motions for reconsideration of nonfinal orders are disfavored and may be granted in only three circumstances: (1) a mistake that changes the outcome of the prior decision, (2) an intervening change in controlling law that warrants a different outcome, or (3) new facts that could not have been previously discovered warrant a different outcome. E.D. Mich. LR 7.1(h)(2).
II.
A.
Plaintiff has not introduced any intervening change in law. See generally ECF No. 12. So the remaining questions are whether Plaintiff has identified any mistakes or previously undiscoverable facts.
Plaintiff does not identify any mistake. Instead, he gratuitously asserts it was an error to determine that he acted in bad faith. See id. at PageID.1. But for purposes of reconsideration, mistakes and outcomes are mutually exclusive. That is, the purported mistake must be some substantive error in the court's legal analysis or factual findings based on the record at the time of the decision—it cannot be the outcome itself. See E.D. Mich. LR 7.1(h)(2) (requiring the "mistake" to "change[ ] the outcome").
Plaintiff also has not identified any previously undiscoverable facts. Granted, he provides a few arguments based on eight new exhibits to corroborate that he "was delayed by an early facilitation requested by counsel for Dr. Frazier and the need [sic] an Amended Complaint to be filed due to Dr. Frazier's death." See ECF No. 12 PageID.257. But all of these facts were available before February 28, 2022. Id. at PageID.335. Yet Plaintiff filed his motion to remand on April 14, 2022, ECF No. 5, and then missed the May 5, 2022 reply deadline, see ECF No. 6 (filed Apr. 28, 2022). Put simply, the evidence Plaintiff relies on was previously discoverable and, therefore, does not warrant reconsideration. If Plaintiff wished otherwise, he could have filed a reply brief. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ("[W]aiver is the 'intentional relinquishment or abandonment of a known right.' " (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938))).
For these reasons, Plaintiffs' Motion for Reconsideration will be denied.
B.
On the merits too, Plaintiff's motion would be denied.
Cases may be removed to federal court more than a year after commencement if "the plaintiff has acted in bad faith in order to prevent a defendant from removing the action." 28 U.S.C. § 1446(c)(1).
Defendants contend that Plaintiff acted in bad faith by fraudulently joining the nondiverse Defendants. ECF No. 6 at PageID.92 ("[I]t is well recognized in this circuit that the bad faith analysis is necessarily broader than the narrow 'colorable claim' analysis applied in 'fraudulent joinder' cases that existed before the 2012 statutory amendment.").
Defendants contend Plaintiff retained the nondiverse MidMichigan entities beyond the one-year removal deadline in bad faith. ECF No. 6 at PageID.91-92 (arguing Plaintiff did not take "any discovery to help support his claim that Dr. Frazier was an actual or apparent agent of MidMichigan").
Plaintiff appears to have kept the nondiverse Defendants in bad faith. A plaintiff acts in bad faith by not dismissing a nondiverse party "to preclude timely removal." Larue v. Volkswagen Grp. of Am., Inc., No. 1:17-CV-00001-GNS, 2017 WL 2312480, at *6 (W.D. Ky. May 26, 2017) (citations omitted). Granted, Plaintiff sent Defendants a request for admission that Frazier "was an employee and/or acting as an agent of" the nondiverse Defendants, which Defendants denied on June 4, 2021. ECF No. 6 at PageID.145-46. But during the next nine months, Plaintiff did not seek any additional discovery related to the issue. Instead, he waited until three months after the one-year removal deadline to dismiss the nondiverse Defendants with no coherent explanation. See id. at PageID.90; ECF No. 1-7 at PageID.48-49. The dismissal is curious given his strong assertions in his initial and amended complaints that the nondiverse Defendants were vicariously liable for Frazier's negligence.
And Plaintiff has yet to offer a sufficient explanation for waiting so long to dismiss the nondiverse Defendants. He first footnotes that he reconsidered the merits of his causes of action against the nondiverse Defendants based upon confirmation that Frazier's medical-malpractice insurance would insure his estate. ECF No. 12 at PageID.259 n.1. But that ground is hollow. The availability of insurance coverage for the physician defendant after his death is unrelated to the merits of the purported claim that the MidMichigan entities were vicariously liable for the conduct of Dr. Frazier. Plaintiff also discusses the parties' efforts to facilitate the case. ECF No. 12 at PageID.257. Indeed, that only addresses what the parties did during the year—not why he maintained the nondiverse defendants past the removal deadline or why he pressed the vicariously liability theory with much enthusiasm and then just dropped the Defendants. Plaintiff continues with no good explanation to rebut the conclusion of bad faith.
For these reasons, Plaintiff acted in bad faith to prevent timely removal. Consequently, Plaintiff's motion for reconsideration will be denied.
III.
Accordingly, it is ORDERED that Plaintiffs' Motion for Reconsideration, ECF No. 12, is DENIED.