United States District Court, S.D. Indiana, Indianapolis Division
ANTHONY MIMMS, M.D., and MIMMS FUNCTIONAL REHABILITATION, P.C., Plaintiffs,
CVS PHARMACY, INC., a Rhode Island corporation, Defendant. INDIANA ATTORNEY GENERAL, Medicaid Fraud Control Unit, Interested Parties.
ENTRY ON MOTION FOR PARTIAL RECONSIDERATION
WALTON PRATT, JUDGE
matter is before the Court on a Motion for Reconsideration of
Order on Parties' Motions for Summary Judgment
(“Motion for Partial Reconsideration”) (Filing
No. 150), filed pursuant to Federal Rule of Civil Procedure
59(e) by Defendant CVS Pharmacy, Inc. (“CVS”). On
May 20, 2015, Plaintiff Anthony Mimms (“Dr.
Mimms”) filed a Complaint alleging defamation, tortious
interference with contractual relationships and tortious
interference with business relationships. (Filing No. 1-2 at
7-13.) On January 3, 2017, following cross-motions for
summary judgment, the Court granted in part and denied in
part CVS's Motion for Summary Judgment, and granted in
part and denied in part Dr. Mimms' Motion for Partial
Summary Judgment (“Order”). (Filing No. 143.)
Thereafter, on January 24, 2017, CVS filed this Motion for
Partial Reconsideration, asserting the Court erred in
applying incorrect legal standards. (Filing No. 150.)
Thereafter, CVS filed a Request for Summary Ruling on its
Motion for Partial Reconsideration of the Court's Order
on the Parties' Motions for Summary Judgment (Filing No.
157), noting that Dr. Mimms did not respond to CVS's
Motion. For the following reasons, the Court grants CVS's
Motion for Summary Ruling and grants in part and denies in
part CVS's Motion for Partial Reconsideration.
dispute in this matter surrounds Dr. Mimms' claims that
CVS employees at numerous Indiana locations uttered false and
defamatory statements to his patients, causing him to suffer
embarrassment, damage to himself and his practice, and loss
of clients from his pain management practice. The facts of
this case are set forth in detail in the Entry on Pending
Motions (Filing No. 143) and will therefore only be
summarized as needed in this Entry.
20, 2015, Dr. Mimms filed this action against CVS in Marion
Superior Court on behalf of himself and Mimms Functional
Rehabilitation, P.C. (“MFR”), asserting
defamation, tortious interference with contractual
relationships, and tortious interference with a business
relationship. (Filing No. 1-2.) On June 19, 2015, CVS removed
the case to federal court. CVS disputes that its employees
made any actionable defamatory statements, and contends that
if the employees did make defamatory statements, they are
protected by qualified privilege.
parties moved for summary judgment and, on January 3, 2017,
the Court granted in part and denied in part CVS's Motion
for Summary Judgment and granted in part and denied in part
Dr. Mimms' Motion for Partial Summary Judgment. (Filing
No. 143.) CVS's Motion for Summary Judgment was granted
with respect to MFR's defamation claim. Id. at
10-11. With respect to Dr. Mimms' defamation claims, the
Court specifically concluded, among other things, the
statement to David Seeman that “Dr. Mimms' license
has been suspended or revoked” was defamatory per
se. In addition, the Court found that the statements to
Jerame Smith, Judith Mason, Cynthia Miller, and William
Miller that “Dr. Mimms is under DEA investigation,
” the statement to Terry McIntosh that “CVS
doesn't fill Dr. Mimms' prescriptions or
prescriptions for any other pill mills, ” the statement
to Kim Petro that “CVS no longer fills prescriptions
for Dr. Mimms because Dr. Mimms has been to jail, ” and
the statement to Deborah Doyle-Blanton that “Dr. Mimms
has been arrested, and if he hasn't been, he soon would
be” were defamatory; however, a genuine issue of
material fact remained regarding whether any of the
defamatory statements were made with actual malice. The Court
also denied CVS's qualified privilege claim.
asks the Court to reconsider its judgment asserting that the
Court misapprehended the applicable law relating to malice
and qualified privilege. (Filing No. 150.)
purpose of a motion to alter or amend judgment under Rule
59(e) is to ask the court to reconsider matters properly
encompassed in a decision on the merits. Osterneck v.
Ernst & Whinney, 489 U.S. 169, 174 (1989). A Rule
59(e) motion will be successful only where the movant clearly
establishes: (1) that the court committed a manifest error of
law or fact, or (2) that newly discovered evidence precluded
entry of judgment. Cincinnati Life Ins. Co. v.
Beyrer, 722 F.3d 939, 954 (7th Cir. 2013); United
States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010).
Relief pursuant to a Rule 59(e) motion to alter or amend is
an “extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008). In this regard, a manifest error is not
demonstrated by merely presenting “the disappointment
of the losing party.” Oto v. Metro. Life Ins.
Co., 224 F.3d 601, 606 (7th Cir. 2000) (a manifest error
is “the wholesale disregard, misapplication, or failure
to recognize controlling precedent.”). Further, a
motion to alter or amend a judgment is not an opportunity to
“relitigate motions or present arguments, issues, or
facts that could and should have been presented
earlier.” Brownstone Publ'g, LLC v.
AT&T, Inc., No. 1:07-CV-1630-SEB, 2009 WL
799546, at *3 (S.D. Ind. Mar. 24, 2009). See also
Sigsworth v. City of Aurora, Ill., 487 F.3d 506, 512
(7th Cir. 2007).
asks the Court to reconsider its Entry, because the Court
applied the incorrect legal standard for actual malice and
improperly found that Dr. Mimms presented legally sufficient
evidence relating to the testimonies of David Seeman, Jerame
Smith, Danny Smith and Cynthia Miller and William Miller. CVS
also argues that the Court erred in concluding that qualified
privilege does not apply to its pharmacy technicians. As an
initial matter, the Court notes that Dr. Mimms did not
respond to CVS's Motion, accordingly, pursuant to Local
Rule 7-1(c)(4), the Court now summarily rules on CVS's
pending Motion, and CVS's Request for Summary Ruling
(Filing No. 157) is granted.
Indiana's Actual Malice Standard.
argues persuasively that the Court erred in its application
of Indiana's “actual malice” standard.
Specifically, CVS asserts that the Court incorrectly
[u]nder Indiana law, ‘actual malice' means a
defendant knew that a defamatory statement was false or was
recklessly indifferent to whether it was true or
false… ‘Reckless indifference' denotes 
knowledge by the defendant that there was a high risk of harm
to the plaintiff coupled with a failure to take any feasible
measure to counter the risk, either by investigating further