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Mimms v. CVS Pharmacy, Inc.

United States District Court, S.D. Indiana, Indianapolis Division

March 15, 2017

ANTHONY MIMMS, M.D., and MIMMS FUNCTIONAL REHABILITATION, P.C., Plaintiffs,
v.
CVS PHARMACY, INC. a Rhode Island corporation, Defendant. INDIANA ATTORNEY GENERAL, MEDICAID FRAUD CONTROL UNIT, Interested Parties.

          ORDER ON DEFENDANT'S SECOND MOTION FOR PARTIAL RECONSIDERATION AND PLAINTIFF'S MOTION FOR RECONSIDERATION OF ENTRY ON MOTION FOR PARTIAL RECONSIDERATION

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on a second Motion for Partial Reconsideration filed by Defendant CVS Pharmacy, Inc. (“CVS”) (Filing No. 220), as well as Plaintiff Anthony Mimms' (“Dr. Mimms”) Motion for Reconsideration of Entry on Motion for Partial Reconsideration (Dkt. 211) (Filing No. 248.) Dr. Mimms filed this action against CVS 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 each of the parties' motions. (Filing No. 143.) On January 24, 2017, CVS filed a Motion for Partial Reconsideration, which the Court granted in part and denied in part (Filing No. 211) (the “Order”). CVS now asks the Court to reconsider its Order, asserting the Court made a mistake of fact when it reconsidered CVS's motion with respect to only some of Dr. Mimms' witnesses. Thereafter, Dr. Mimms filed a motion asking the Court to reconsider that same Order. For reasons stated below, the Court DENIES both parties' motions for reconsideration.

         I. BACKGROUND

         The 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 order.

         Following cross motions for summary judgment, the Court ruled as follows. CVS's motion for summary judgment was granted with respect to Mimms Functional Rehabilitation's defamation claim. (Filing No. 143 at 10-11.) With respect to Dr. Mimms' defamation claims, the Court specifically concluded, among other things, that the statement to David Seeman that “Dr. Mimms' license has been suspended or revoked” was defamatory per se and actual malice existed. In addition, the Court found that the statements to Jerame Smith, Judith Mason, Cynthia 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.

         CVS then asked the Court to reconsider its Summary Judgment Entry asserting that the Court misapprehended the applicable law relating to actual malice and qualified privilege. (Filing No. 150.) Dr. Mimms did not file a response and the Court granted in part and denied in part CVS's motion for partial reconsideration. (Filing No. 211.) The Court vacated its Summary Judgment Entry with respect to its finding that Dr. Mimms had not proven actual malice regarding the statements made to Cynthia Miller, William Miller, David Seeman, and Jerame Smith. The Court, however, denied CVS's qualified privilege claim. Id. The Court held that the issues remaining for trial were the defamation claim with respect to Terry McIntosh's, Judith Mason's, Kim Petro's and Deborah Doyle-Blanton's respective testimonies that a CVS employee stated: 1) “CVS doesn't fill Dr. Mimms' prescriptions or prescriptions for any other pill mills”; 2) “Dr. Mimms is under DEA investigation”; 3) “Dr. Mimms went to jail”; and 4) “Dr. Mimms has been…or will be arrested” and whether the defamatory statements were made with malice, as well as Dr. Mimms' claims for damages. Id. at 10.

         CVS now asks the Court to reconsider its Order, contending the Court made a mistake of fact when it incorrectly stated that CVS sought reconsideration regarding only the statements to David Seeman, Jerame Smith, Danny Smith, Cynthia Miller and William Miller when, in fact, CVS sought reconsideration regarding the statements to all of Dr. Mimms' witnesses. (Filing No. 220.) And, Dr. Mimms asks the Court to reconsider it Order, asserting that he presented sufficient evidence to establish that CVS acted with actual malice. (Filing No. 248.)

         II. LEGAL STANDARD

         The 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).

         III. DISCUSSION

         CVS asks the Court to reconsider its Order, contending the Court made a mistake of fact when incorrectly stating that CVS sought reconsideration of the Court's “actual malice” application regarding only the statements to David Seeman, Jerame Smith, Danny Smith, Cynthia Miller and William Miller. CVS argues that it, in fact, sought reconsideration regarding statements to all of Dr. Mimms' witnesses. In response, Dr. Mimms asks that the Court to deny CVS's request, moves the Court to partially reconsider and, further, requests that the Court reinstate its original summary judgment findings.

         A. Dr. Mimms' Motion to Reinstate Summary Judgment Entry

         As an initial matter, in his belated motion for partial reconsideration (Filing No. 248), and in his response (Filing No. 227), Dr. Mimms contends that he presented sufficient evidence to establish that CVS acted with actual malice. He asserts that he designated evidence of CVS's repeated failures to investigate prior to making defamatory statements, as well as depositions and emails. Dr. Mimms argues the Court should reinstate its finding that: the statement to David Seeman that “Dr. Mimms' license has been suspended or revoked” was defamatory per se and made with actual malice, the statements to Jerame Smith, Judith Mason, Cynthia 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 remains regarding whether any of the defamatory statements were made with actual malice.

         CVS argues the Court should disregard Dr. Mimms' attempt to seek reconsideration of the Order because Dr. Mimms did not respond to CVS's initial Motion for Reconsideration, nor did he file a motion to reconsider. CVS is correct that Dr. Mimms' failure to respond to the initial motion for reconsideration and his belated motion to reconsider are cause to disregard ...


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