Hewitt v. Mccrary

387 F. Supp. 3d 761
CourtDistrict Court, E.D. Michigan
DecidedFebruary 7, 2019
DocketCase No. 17-cv-10917
StatusPublished
Cited by2 cases

This text of 387 F. Supp. 3d 761 (Hewitt v. Mccrary) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hewitt v. Mccrary, 387 F. Supp. 3d 761 (E.D. Mich. 2019).

Opinion

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

Defendant Allure Medical Spa, PLLC ("Allure") has filed a Motion for Recusal or *763Disqualification of Judge (the "Recusal Motion"). (See ECF #45.) For the reasons explained below, the motion is DENIED .

I

A

In this diversity action, Plaintiff Victoria Hewitt alleges that she suffered serious injuries as a result of medical malpractice committed by Defendant Ruthie McCrary, M.D. (See Compl., ECF #1.) Hewitt further alleges that at the time of Dr. McCrary's alleged negligence, Dr. McCrary was an agent or employee of Allure and that Allure is therefore vicariously liable for Dr. McCrary's malpractice.1 (See id. )

B

In June of 2018, Hewitt settled with Dr. McCrary but not with Allure. On or about June 29, 2018, Hewitt and Dr. McCrary submitted a proposed stipulated order dismissing with prejudice Hewitt's claim against Dr. McCrary. The Court then entered that stipulated order (the "Stipulated Dismissal Order") and dismissed the claim against Dr. McCrary with prejudice. (See ECF #28.)

C

On July 23, 2018, Allure filed a motion for summary judgment. (See Mot. for Summ. J., ECF #30.) Allure argued that the dismissal with prejudice of Hewitt's claim against Dr. McCrary compelled the dismissal of Hewitt's vicarious liability claim against Allure. (See id. ) Allure relied upon the Michigan Supreme Court's decision in Al-Shimmari v. Detroit Medical Center , 477 Mich. 280, 731 N.W.2d 29, 36-38 (2007). In that case, the state court held that an order dismissing a plaintiff's claim against an agent with prejudice precludes the plaintiff from pursuing a vicarious liability claim against the agent's principal. See Al-Shimmari , 731 N.W.2d at 36-38.

D

On August 20, 2018, Hewitt filed a response to Allure's motion for summary judgment (See Resp. to Mot. for Summ. J., ECF #32) and a motion under Rule 60(b)(1) of the Federal Rules of Civil Procedure to set aside the Stipulated Dismissal Order (see Mot. for Relief, ECF #33). In Hewitt's response to the motion for summary judgment, she acknowledged that if the Stipulated Dismissal Order remained in place, she could not continue to litigate her vicarious liability claim against Allure. (See Resp. to Mot. for Summ. J. at ¶4, ECF #32 at Pg. ID 510.) In the Rule 60(b)(1) motion, Hewitt urged the Court to vacate the Stipulated Dismissal Order. (See Mot. for Relief, ECF #33.)

Hewitt argued that she was entitled to relief from the Stipulated Dismissal Order under Rule 60(b)(1) because a "mistake[ ]" led to the entry of that order. (See id. at ¶6, ECF #33 at Pg. ID 531.) Hewitt contended that her attorney made an error when he agreed to dismiss her claim against Dr. McCrary with prejudice rather than insisting upon a dismissal without prejudice - which would not have barred *764Hewitt from proceeding against Allure. See Grimmer v. Lee , 310 Mich.App. 95, 872 N.W.2d 725, 729 (2015) (explaining that "a dismissal without prejudice is not a dismissal on the merits" that precludes "a further action based on the same facts"). Hewitt insisted that she and her attorney had consistently expressed her desire to continue litigating against Allure after settling with Dr. McCrary and that her attorney never would have agreed to the Stipulated Dismissal Order if he had understood that the entry of that order would extinguish her claim against Allure. (See Mot. for Relief, ECF #33 at Pg. ID 540-42.)

As support for Hewitt's claim that her counsel made a mistake in agreeing to the Stipulated Dismissal Order, Hewitt directed the Court to settlement correspondence between her counsel and Dr. McCrary's counsel. In that correspondence, Hewitt's attorney asked Dr. McCrary's attorney if "a covenant not to sue" Dr. McCrary - as opposed to a release of claims against the doctor - would be "acceptable so that [Hewitt] can continue against Allure ."2 (Email dated June 4, 2018, ECF #33-4 at Pg. ID 558; emphasis added.) Dr. McCrary's counsel responded: "yes." (Response email dated June 4, 2018, ECF #33-4 at Pg. ID 557.)

As further support for Hewitt's claim that her attorney erred in approving the Stipulated Dismissal Order, Hewitt attached to her motion the Covenant Not to Sue that she executed to resolve her claim against Dr. McCrary. (See ECF #33-2.) The Covenant Not to Sue provided that (1) the parties' settlement resolved "only" Hewitt's claim against Dr. McCrary and (2) Hewitt intended to "preserve" her claim against Allure:

WHEREAS, Victoria Hewitt, and Ruthie McCrary, M.D., only, have reached an amicable compromise of their differences and desire to resolve and put to rest their differences; and
WHEREAS, Victoria Hewitt wishes to reserve all rights, claims, and causes of action she may have against Allure Medical Spa, PLLC, a Michigan corporation, and all agents, and/or employees thereof, including the right to proceed to trial and possible judgment against those individuals and their respective corporations.

(Id. at Pg. ID 551.)

Dr. McCrary did not file a response opposing Hewitt's motion to vacate the Stipulated Dismissal Order within the time period allowed under the Court's Local Rules. But the Court did not feel comfortable ruling upon the motion without hearing from Dr. McCrary. Accordingly, the Court ordered Dr. McCrary to file a written response to the motion. (See Order, ECF #36.)

In Dr. McCrary's response, she "[a]mit[ted] that Plaintiff intended to continue [her] case against Defendant Allure." (Dr. McCrary's Response, ECF #37 at Pg. ID 608.) She insisted, however, that the entry of the Stipulated Dismissal Order was "not a mistake" because Hewitt's counsel agreed to the entry of the order after reviewing it. (Id. ) She further argued that she would suffer prejudice if the *765Court vacated the Stipulated Dismissal Order. (See Id. )

Allure also responded to Hewitt's motion to vacate the Stipulated Dismissal Order. (See

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387 F. Supp. 3d 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hewitt-v-mccrary-mied-2019.