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Title: Sim Hoffman, et al. v. Zenith Insurance Company

May 12, 2011

TITLE: SIM HOFFMAN, ET AL.
v.
ZENITH INSURANCE COMPANY, ET AL.



The opinion of the court was delivered by: The Honorable David O. Carter, Judge

CIVIL MINUTES - GENERAL

Julie Barrera Not Present Courtroom Clerk Court Reporter

ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS: NONE PRESENT NONE PRESENT

PROCEEDING (IN CHAMBERS): ORDER DENYING PLAINTIFF'S MOTION TO ALTER OR AMEND THE JUDGMENT (FRCP 59(e)) AND DENYING MOTION FOR RELIEF FROM JUDGMENT (FRCP 60(b))

Before the Court are two, nearly-identical Motions filed by Plaintiff Sim Hoffman, M.D. ("Plaintiff") in the above-captioned case. The first is a Motion to Alter or Amend the Judgment (FRCP 59(e)) ("Motion to Amend") (Docket 43 and 47) and the second is a Motion for Relief from Judgment (FRCP 60(b)) ("Motion for Relief") (Docket 62). The Court has considered the moving, opposing, and replying papers and DENIES both Motions.

I. Background

This case was closed on February 15, 2011 (Docket 38) following the summary judgment hearing on February 7, 2011 and the Court's Order Granting Defendants' Motion for Summary Judgment on February 10, 2011 (Docket 37). In that Order the Court held that "[n]o reasonable jury could find a RICO violation based on the minimal evidence Plaintiff has presented . . . ." Order Granting Defendants' Motion for Summary Judgment ("MSJ Order").

Plaintiffs, who service injured workers under workers' compensation insurance policies, had alleged that Defendant Zenith Insurance Company ("Zenith" or "Defendant") objected in bad faith to bills for services purportedly rendered by Plaintiffs. Plaintiffs argued that Zenith committed numerous predicate acts of mail fraud by sending Explanation of Payment letters to Plaintiffs after receiving their bills, and then refused to make payments as part of a conspiracy to destroy Plaintiffs' business. They further averred that Zenith had instructed its adjustors to systematically deny requests for reimbursement, and exploited the workers' compensation appeals system to litigate Plaintiff to death and destroy Plaintiff financially. Plaintiffs' case was filed following Zenith's state court action accusing Plaintiffs of fraudulently seeking reimbursement for medical services that were never actually

The MSJ Orderfound a complete lack of causation present; Plaintiffs could not show that Defendant's actions led to any detriment. Instead, "the minimal supporting evidence offered by Plaintiffs only bolster[ed] the idea that all that Plaintiffs relied upon was their own decision to assume that Defendants acted in good faith."The declarations offered by Plaintiffs "[fell] short of establishing that Defendants actually did mislead Plaintiffs about their good faith intent in objecting to the bills . . . there were no objective, affirmative representations of such by Defendants . . . ." Furthermore, "Plaintiffs [did] not apply evidence indicating what exactly Defendants assured them or any specific promises made by Defendants that led to their detrimental reliance."

Despite the Court's granting of summary judgment and formal closure of the case, Plaintiff filed its Motion to Amend on March 14, 2011 without meeting and conferring with Defendants. Before the Court had issued its ruling on that Motion, however, Plaintiffs filed what they admit is essentially the same motion, the Motion for Relief, in the event that the Court refused to consider the merits of the Motion to Amend because of the failure to meet and confer. Motion for Relief, 2. Thus, because Plaintiffs concede that the Motion for Relief is essentially a duplicative motion, the Court considers the two motions together.*fn1

II. Legal Standard

A. Rule 59(e)

Under Federal Rule of Civil Procedure 59(e), reconsideration is appropriate if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). A party must file to alter or amend a judgment no later than 28 days after the entry of the judgment.Fed. R. Civ. Pro. 59(e).

For evidence to classify as "newly discovered" it must "be discovered after the judgment" and "could not be discovered earlier through due diligence" and must be "of such a magnitude that had the court known of it earlier, the outcome would like have been different." Dixon v. Wallowa County, 336 F.3d 1013, 1022 n.17 (9th Cir. 2003) (affirming a district court's denial of a Rule 59(e) motion because it was not ...


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