1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN ANTOINETTE GONZALES, Case No.: 21-CV-389 JLS (DEB)
12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION
14 GWEN GLEASON ROHRER and (ECF No. 19) DEELA BURNS, 15 Defendants. 16
17 18 Presently before the Court is Plaintiff Susan Antoinette Gonzales’s (“Plaintiff”) 19 Motion for Reconsideration (“Mot.,” ECF No. 19). Having considered Plaintiff’s Motion 20 and the law, the Court DENIES the Motion for the reasons that follow. 21 BACKGROUND 22 Plaintiff initiated this action, asserting medical malpractice claims stemming from 23 events that took place in June 2017, on March 4, 2021. See ECF No. 1 (“Compl.”). On 24 March 25, 2022, the Court set a hearing for April 15, 2022, for dismissal for want of 25 prosecution pursuant to Civil Local Rule 41.1. See ECF No. 5. Plaintiff appeared at the 26 hearing and, upon Plaintiff’s request, the case was not dismissed. See ECF No. 8. That 27 same day, Plaintiff filed proof of service (ECF No. 10) and various Exhibits to her 28 Complaint (ECF No. 11). 1 On May 13, 2022, after reviewing Plaintiff’s Complaint and Exhibits, the Court 2 ordered Plaintiff to show cause why this action should not be dismissed for lack of subject- 3 matter jurisdiction. See ECF No. 14 (the “OSC”). Plaintiff’s Response to the OSC 4 (“Response,” ECF No. 15) did not meaningfully address the jurisdictional issues raised in 5 the OSC. Accordingly, on June 16, 2022, the Court issued its Order Dismissing Case for 6 Lack of Subject-Matter Jurisdiction (the “Order,” ECF No. 16). 7 Plaintiff attempted to file an Amended Complaint on June 27, 2022. See ECF No. 8 17. However, per a June 28, 2022 Notice of Document Discrepancies and Order Thereon, 9 the Court rejected the document on the basis that the case was closed and the amended 10 pleading failed to “set forth adequate additional jurisdictional facts per 6/16/2022 Order.” 11 See ECF No. 18. On July 8, 2022, Plaintiff filed the instant Motion. See Mot. Per a July 12 11, 2022 Notice of Document Discrepancies and Order Thereon, the Court accepted the 13 Motion despite its failure to comply with Civil Local Rule 5.1 and despite the case’s 14 dismissal. See ECF No. 20. 15 LEGAL STANDARD 16 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 17 amend its judgment. “A district court may grant a Rule 59(e) motion if it ‘is presented 18 with newly discovered evidence, committed clear error, or if there is an intervening change 19 in the controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal 20 quotation marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 21 1999) (en banc)) (emphasis in original). In the Southern District of California, a party may 22 apply for reconsideration “[w]henever any motion or any application or petition for any 23 order or other relief has been made to any judge and has been refused in whole or in part.” 24 Civ. L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, 25 “what new or different facts and circumstances are claimed to exist which did not exist, or 26 were not shown, upon such prior application.” Id. 27 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 28 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 1 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for 2 reconsideration is in the “sound discretion” of the district court. Navajo Nation v. Norris, 3 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may 4 not raise new arguments or present new evidence if it could have reasonably raised them 5 earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 6 656, 665 (9th Cir. 1999)). 7 ANALYSIS 8 Plaintiff’s Motion respectfully asks the Court “to reexamine [her] case,” Mot. at 3, 9 noting that “[she] ha[s] new evidence it may or may not help,” id. at 1. The Motion does 10 not appear to argue that the Court clearly erred in dismissing Plaintiff’s case for lack of 11 subject-matter jurisdiction or that an intervening change in controlling law necessitates the 12 relief Plaintiff requests, see generally id.; accordingly, the Court construes Plaintiff’s 13 Motion as seeking reconsideration based on newly discovered evidence. 14 In the Ninth Circuit, 15 [t]o justify reconsideration based on “newly discovered evidence,” [a] plaintiff must show “that (1) the evidence was 16 discovered after [the judgment], (2) the exercise of due diligence 17 would not have resulted in the evidence being discovered at an earlier stage and (3) the newly discovered evidence is of such 18 magnitude that production of it earlier would likely have changed 19 the outcome of the case.”
20 Goodworth Holdings Inc. v. Suh, 239 F. Supp. 2d 947, 966 (N.D. Cal. 2002) (quoting 21 Defenders of Wildlife v. Bernal, 204 F.3d 920, 928–29 (9th Cir. 2000)), aff’d, 99 F. App’x 22 806 (9th Cir. 2004). 23 The Exhibit to Plaintiff’s Motion (ECF No. 19-1) includes, inter alia, an e-mail 24 message dated October 29, 2020, from Plaintiff to the e-mail address 25 FTCAClaim@epa.gov asking “if [she] can make a claim for personal injury, from a Dr. 26 This occurred in the year June 9, 2017 to discovery in June 17, 2017.” Id. at 3. Plaintiff 27 also indicates that she fell in November 2019 and August 2020 and was incapacitated each 28 time. Mot. at 1. Plaintiff also includes some medical records pertaining to each of these 1 || incidents, see, e.g., Ex. at 16-17, and a “Claim Against the City of San Diego” premised 2 ||on the August 24, 2020 incident, see id. at 22—23. 3 Given that these documents predate the Court’s dismissal of this action and were 4 within Plaintiff's personal knowledge and possession, they do not qualify as “newly 5 || discovered evidence.” Even were that not the case, however, the evidence Plaintiff submits 6 || would not permit the Court to grant Plaintiff reconsideration of the dismissal of her case. 7 || To the extent Plaintiff provides her e-mail to FTCAClaim@epa.gov to establish exhaustion 8 her administrative remedies, the Court notes that the Environmental Protection Agency, 9 EPA, is not the appropriate federal agency for a medical malpractice claim brought 10 || pursuant to the Federal Tort Claims Act (“FTCA”); rather, the Department of Health and 11 |}Human Services handles such claims. See U.S. Department of Health and Human Services 12 Health Resources and Services Administration, Federal Tort Claims Act Health Center 13 || Policy Manual, available at https://ophc.hrsa.gov/sites/default/files/bphc/compliance/ 14 || ftcahc-policy-manual.pdf#:~:text=Under%20FTCA%2C%20parties%o20claiming%20to 15 || %20be%20injured%20by,of%20FTCA%20claims%200r%20litigation%20is%20availabl 16 e%20in (updated July 21, 2014). Even had Plaintiff sent her e-mail to the correct address, 17 || however, she did so more than two years after claim accrual; thus, her claim is barred by 18 || the 28 U.S.C. § 2401(b) statute of limitations.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SUSAN ANTOINETTE GONZALES, Case No.: 21-CV-389 JLS (DEB)
12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION
14 GWEN GLEASON ROHRER and (ECF No. 19) DEELA BURNS, 15 Defendants. 16
17 18 Presently before the Court is Plaintiff Susan Antoinette Gonzales’s (“Plaintiff”) 19 Motion for Reconsideration (“Mot.,” ECF No. 19). Having considered Plaintiff’s Motion 20 and the law, the Court DENIES the Motion for the reasons that follow. 21 BACKGROUND 22 Plaintiff initiated this action, asserting medical malpractice claims stemming from 23 events that took place in June 2017, on March 4, 2021. See ECF No. 1 (“Compl.”). On 24 March 25, 2022, the Court set a hearing for April 15, 2022, for dismissal for want of 25 prosecution pursuant to Civil Local Rule 41.1. See ECF No. 5. Plaintiff appeared at the 26 hearing and, upon Plaintiff’s request, the case was not dismissed. See ECF No. 8. That 27 same day, Plaintiff filed proof of service (ECF No. 10) and various Exhibits to her 28 Complaint (ECF No. 11). 1 On May 13, 2022, after reviewing Plaintiff’s Complaint and Exhibits, the Court 2 ordered Plaintiff to show cause why this action should not be dismissed for lack of subject- 3 matter jurisdiction. See ECF No. 14 (the “OSC”). Plaintiff’s Response to the OSC 4 (“Response,” ECF No. 15) did not meaningfully address the jurisdictional issues raised in 5 the OSC. Accordingly, on June 16, 2022, the Court issued its Order Dismissing Case for 6 Lack of Subject-Matter Jurisdiction (the “Order,” ECF No. 16). 7 Plaintiff attempted to file an Amended Complaint on June 27, 2022. See ECF No. 8 17. However, per a June 28, 2022 Notice of Document Discrepancies and Order Thereon, 9 the Court rejected the document on the basis that the case was closed and the amended 10 pleading failed to “set forth adequate additional jurisdictional facts per 6/16/2022 Order.” 11 See ECF No. 18. On July 8, 2022, Plaintiff filed the instant Motion. See Mot. Per a July 12 11, 2022 Notice of Document Discrepancies and Order Thereon, the Court accepted the 13 Motion despite its failure to comply with Civil Local Rule 5.1 and despite the case’s 14 dismissal. See ECF No. 20. 15 LEGAL STANDARD 16 Federal Rule of Civil Procedure 59(e) permits a party to move a court to alter or 17 amend its judgment. “A district court may grant a Rule 59(e) motion if it ‘is presented 18 with newly discovered evidence, committed clear error, or if there is an intervening change 19 in the controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal 20 quotation marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 21 1999) (en banc)) (emphasis in original). In the Southern District of California, a party may 22 apply for reconsideration “[w]henever any motion or any application or petition for any 23 order or other relief has been made to any judge and has been refused in whole or in part.” 24 Civ. L.R. 7.1(i)(1). The moving party must provide an affidavit setting forth, inter alia, 25 “what new or different facts and circumstances are claimed to exist which did not exist, or 26 were not shown, upon such prior application.” Id. 27 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 28 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 1 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for 2 reconsideration is in the “sound discretion” of the district court. Navajo Nation v. Norris, 3 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may 4 not raise new arguments or present new evidence if it could have reasonably raised them 5 earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 6 656, 665 (9th Cir. 1999)). 7 ANALYSIS 8 Plaintiff’s Motion respectfully asks the Court “to reexamine [her] case,” Mot. at 3, 9 noting that “[she] ha[s] new evidence it may or may not help,” id. at 1. The Motion does 10 not appear to argue that the Court clearly erred in dismissing Plaintiff’s case for lack of 11 subject-matter jurisdiction or that an intervening change in controlling law necessitates the 12 relief Plaintiff requests, see generally id.; accordingly, the Court construes Plaintiff’s 13 Motion as seeking reconsideration based on newly discovered evidence. 14 In the Ninth Circuit, 15 [t]o justify reconsideration based on “newly discovered evidence,” [a] plaintiff must show “that (1) the evidence was 16 discovered after [the judgment], (2) the exercise of due diligence 17 would not have resulted in the evidence being discovered at an earlier stage and (3) the newly discovered evidence is of such 18 magnitude that production of it earlier would likely have changed 19 the outcome of the case.”
20 Goodworth Holdings Inc. v. Suh, 239 F. Supp. 2d 947, 966 (N.D. Cal. 2002) (quoting 21 Defenders of Wildlife v. Bernal, 204 F.3d 920, 928–29 (9th Cir. 2000)), aff’d, 99 F. App’x 22 806 (9th Cir. 2004). 23 The Exhibit to Plaintiff’s Motion (ECF No. 19-1) includes, inter alia, an e-mail 24 message dated October 29, 2020, from Plaintiff to the e-mail address 25 FTCAClaim@epa.gov asking “if [she] can make a claim for personal injury, from a Dr. 26 This occurred in the year June 9, 2017 to discovery in June 17, 2017.” Id. at 3. Plaintiff 27 also indicates that she fell in November 2019 and August 2020 and was incapacitated each 28 time. Mot. at 1. Plaintiff also includes some medical records pertaining to each of these 1 || incidents, see, e.g., Ex. at 16-17, and a “Claim Against the City of San Diego” premised 2 ||on the August 24, 2020 incident, see id. at 22—23. 3 Given that these documents predate the Court’s dismissal of this action and were 4 within Plaintiff's personal knowledge and possession, they do not qualify as “newly 5 || discovered evidence.” Even were that not the case, however, the evidence Plaintiff submits 6 || would not permit the Court to grant Plaintiff reconsideration of the dismissal of her case. 7 || To the extent Plaintiff provides her e-mail to FTCAClaim@epa.gov to establish exhaustion 8 her administrative remedies, the Court notes that the Environmental Protection Agency, 9 EPA, is not the appropriate federal agency for a medical malpractice claim brought 10 || pursuant to the Federal Tort Claims Act (“FTCA”); rather, the Department of Health and 11 |}Human Services handles such claims. See U.S. Department of Health and Human Services 12 Health Resources and Services Administration, Federal Tort Claims Act Health Center 13 || Policy Manual, available at https://ophc.hrsa.gov/sites/default/files/bphc/compliance/ 14 || ftcahc-policy-manual.pdf#:~:text=Under%20FTCA%2C%20parties%o20claiming%20to 15 || %20be%20injured%20by,of%20FTCA%20claims%200r%20litigation%20is%20availabl 16 e%20in (updated July 21, 2014). Even had Plaintiff sent her e-mail to the correct address, 17 || however, she did so more than two years after claim accrual; thus, her claim is barred by 18 || the 28 U.S.C. § 2401(b) statute of limitations. 19 In short, because Plaintiff fails to establish any of the grounds justifying 20 || reconsideration, her Motion must be denied. 21 CONCLUSION 22 In light of the foregoing, the Court DENIES Plaintiff's Motion for Reconsideration 23 ||(ECF No. 19). This case shall remain closed, and the Court will entertain no further filings. 24 IT IS SO ORDERED. 25 Dated: July 28, 2022 jae L. Lo memeaite- %6 on. Janis L. Sammartino 57 United States District Judge 28