United States District Court, D. Alaska
John D. Zipperer, Jr., M.D., Plaintiff,
v.
Premera Blue Cross Blue Shield of Alaska, Defendant.
ORDER [RE: MOTION AT DOCKET 143]
JOHN
W. SEDWICK, UNITED STATES DISTRICT COURT SENIOR JUDGE
At
docket 143, plaintiff John D. Zipperer, Jr., M.D.
(“Zipperer”) filed a motion for relief from final
judgment pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. He argues that reconsideration of the judgment is
warranted because of the court's errors of fact and law
in its ruling at docket 137 and because of dishonest conduct
on the part of Defendant Premera Blue Cross Blue Shield of
Alaska (“Premera”). Premera filed a response at
docket 144. Zipperer did not reply. Oral argument was not
requested and would not be of assistance to the court.
It is
not entirely clear to the court why Zipperer's motion was
filed under Rule 60(b) rather than Rule 59(e), as the request
was made within 28 days of the entry of
judgment.[1] Either Rule 60(b) or Rule 59(e), however,
can be a proper vehicle for requesting reconsideration of a
court's order granting judgment.[2]
Under
Rule 59(e) amendment of a judgment requires that there be
newly discovered evidence, a clear error on the part of the
court, or an intervening change in controlling
law.[3]
The use of Rule 59(e) to change a judgment is an
“extraordinary remedy, to be used sparingly in the
interest of finality and conservation of judicial
resources.”[4] Given the heightened standard, setting
aside a judgment based on the court's clear error
requires more than just a possibility the court committed an
error; the court must have a “definite and firm
conviction” that it made a mistake.[5] Furthermore, such
a motion cannot be used to raise arguments or submit evidence
that could reasonably have been presented earlier in the
litigation.[6] “If the court erred, it must be
demonstrated based on the matters properly presented in
reaching the result, not on a modified set of
facts.”[7]
Under
Rule 60(b) a court “may relieve a party . . . from a
final judgment” under certain defined
circumstances.[8] Rule 60(b)(1) provides for relief based on
a showing of “mistake, inadvertence, surprise, or
excusable neglect.”[9] Under Ninth Circuit law, Rule 60(b)(1)
permits a party to request relief based on the court's
inadvertence, mistakes of fact, or mistakes of law, as long
as the request is made within a reasonable time not to exceed
the time for appeal.[10] As with Rule 59(e), reconsideration
under Rule 60(b)(1) is generally appropriate when new
evidence comes to light, the court has committed clear error,
or there has been an intervening change of controlling
law.[11]Like Rule 59, a Rule 60(b)(1) motion is
not readily granted but rather is subject to restrictive
standards. It is not a vehicle for getting a second chance to
make arguments and present evidence. It should not be used to
rehash old arguments.[12]
Zipperer
presents a seven-page argument as to why the court committed
error in its order at docket 137 when it granted Premera
summary judgment on his remaining claim, and he includes over
90 pages of supporting documents. The court notes that
Zipperer's initial response to Premera's motion for
summary judgment was only three pages and included no
supporting materials or citations to the
record.[13] Under Rule 56, a party must in fact
support his position with citations to particular parts of
materials in the record or otherwise show that the materials
the other party cited do not establish the presence or
absence of a genuine dispute, [14] and a party's failure to
comply with summary judgment rules results in a lack of
evidentiary support to withstand summary
judgment.[15] His attempt to now file evidence that
could have been cited in his initial response is not
appropriate under either Rule 59(e) or Rule 60(b). That is to
say, he cannot argue that the court failed to consider facts
that were never presented in his opposition. The time for
Zipperer to make clear and supported arguments demonstrating
disputed facts for trial has passed. Moreover, upon review of
the supporting documents now filed with the court, most are
simply materials already filed on the record or copies of
Alaska statutes. As for any newly included material, even if
the court were obligated to consider it at this late time, it
remains unclear as to how the new material attached to his
motion, but not cited to with any particularity, shows any
error in fact or would change the outcome of the case.
Despite
the clear lack of basis for the motion, the court will
nonetheless attempt to identify Zipperer's arguments in
favor of relief from judgment. He first argues that
Premera's motion for summary judgment was late. The court
already addressed and rejected that argument.[16] The basis for
the court's decision rested on the fact that there were
outstanding discovery issues that had not been resolved as
evidenced by Premera's motion at docket 126 for
sanctions.[17] Premera's motion at docket 126 was
supported by a declaration and copies of the communications
between the parties. In rejecting Zipperer's timeliness
argument, the court described Premera's documented
efforts to obtain the necessary responses from Zipperer.
Based on that evidence, it concluded that Premera had been
diligent in attempting to finalize discovery and meet the
court's deadlines. It therefore found good cause to allow
the motion for summary judgment to proceed.
Zipperer
now argues that there were no outstanding discovery issues to
justify a late filing “as shown by the declaration and
exhibits submitted at docket 125.”[18] Docket 125,
which is Zipperer's certification that he is ready for
trial, does not prove any error on the court's part. The
certification is dated November 30, 2017, and attached to it
is another document dated three days earlier that purports to
finally provide his responses to Premera's discovery
requests. Aside from whether that attached document
adequately responds to the outstanding requests, it was not
provided to Premera much before he filed it with the court;
at the bottom of the document he indicated that he mailed it
to Premera on November 27, 2017, meaning Premera would have
received it less than a week before Premera filed its request
for summary judgment. Thus, docket 125 does not show that the
court overlooked documents that would change its conclusion
that-because of the ongoing discovery disputes during the
fall of 2017 and Premera's documented diligence in trying
to get Zipperer to adequately respond to its requests-there
was good cause to consider the late summary judgment motion.
Zipperer
also argues that, as to the merits of the motion, the court
ignored evidence and mistakenly found Premera's
declaration from Christine Seifert, manager of the
Premera's Special Investigations Unit, credible. To
recap, the court's order at docket 137 generally
concluded as follows:
• Zipperer had been on prepayment review status in 2014
for reasons unrelated to Box 32 of the HCFA 1500 form- there
was a concern about whether he was misrepresenting services
performed.
• Premera took him off of prepayment review on January
28, 2015, and he resubmitted claims. There is no evidence to
show the specific date on which he resubmitted those claims.
• Based on prior court rulings, the HCFA 1500 forms for
Zipperer's laboratory claims had the wrong facility
location listed in Box 32 and therefore were not “clean
claims” that had to be paid within 30 days pursuant to
Alaska's prompt pay statute.
• As for the notice requirement in Alaska's prompt
pay statute, the only evidence on the record was
Seifert's declaration stating that as a matter of course,
Zipperer would have received an Explanation of Payment (EOP)
within 30 days of Premera's receipt of a claim form.
• Based on Premera's declaration and the absence of
any supporting evidence filed by Zipperer, the court could
not conclude Zipperer failed to receive the ...