The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
The plaintiffs in this negligence action against the United States of America (the "Government") have moved, pursuant to Fed. R. Civ. P. 60(b), to set aside the order granting summary judgment and the judgment entered in favor of the Government on December 15, 2006 [Doc. 16]. The plaintiffs have also moved, pursuant to Fed. R. Civ. P. 59(e), to alter or amend the judgment "to correct what Plaintiffs believe to be clear legal error." [Doc. 18]. The Government has responded [Docs. 17 and 25]. The plaintiffs have also moved, assuming a grant of their Rule 59 and/or 60 motions, to extend the time for them to conduct additional discovery before the Court rules on the Government's motion for summary judgment. These motions will be denied.
The plaintiffs filed their complaint on January 3, 2006, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, 2671 et seq., alleging negligence of the Government related to medical care received by the plaintiff, Jimmy W. Hudson, at the Department of Veterans Affairs (the "VA") medical facility at Mountain Home, Tennessee, and seeking damages for alleged personal injury [Doc. 1]. The VA operates hospitals and medical centers at which it provides medical services through its own employees and medical staff, as well as certain "contract physicians." [Doc. 1, ¶ 5].
Plaintiff, Jimmy W. Hudson, received medical care at the VA facility at Mountain Home during 2002-2003 and alleges that his injuries were proximately caused by acts of malpractice committed by Dr. Steven Hamel and Dr. Brannon Thomas, neurosurgeons employed full time by Appalachian Neurological Clinic, PC, ("ANC") with which the VA had contracted to provide neurological services to veterans. The VA did not control or supervise the day-to-day operations of the neurological services provided by ANC or its physicans. ANC was an independent contractor of the Government. (See generally Doc. 21, Plaintiffs' Response To Defendant's Statement Of Material Facts).
On March 24, 2006, the Government filed an answer to the plaintiffs' complaint. [Doc. 6]. Among the affirmative defenses asserted in the Government's answer was the Court's lack of subject matter jurisdiction under the FTCA. More specifically, the Government alleged that it is immune from civil suit based on the alleged negligence of an independent contractor of the Government and, to the extent plaintiff alleges that the Government improperly selected independent contractors to provide medical services or negligently monitored or supervised such contractors, it is protected by the discretionary function exception of the FTCA, 28 U.S.C. § 2680(a).
On August 16, 2006, the parties jointly filed a report of their Fed. R. Civ. P. 26 planning meeting and "discovery and litigation plan." The discovery plan identified subject matter jurisdiction as an issue upon which discovery was needed and contained the parties' agreement that discovery on jurisdictional issues would be completed by November 15, 2006, the deadline set by the Court for the filing of dispositive motions. [Doc. 9]. On November 15, 2006, the Government filed a motion to dismiss and/or for summary judgment on the ground of lack of subject matter jurisdiction, along with a statement of material facts, supporting memorandum and exhibits. [Doc. 10] Plaintiffs did not timely respond to the motion for summary judgment nor seek an extension of time to do so. On December 15, 2006, the Court granted the Government's motion for summary judgment, holding that the Court lacked subject matter jurisdiction over the claims of alleged medical negligence by Drs. Hamel and Thomas, who are not employees of the Government, but rather employees of an independent contractor. Additionally, the Court held that claims against the Government for alleged negligence in the selection of these neurosurgeons could not be maintained because such decisions fell within the discretionary function exception of the FTCA and the Government was immune from suit on these claims. [Doc. 13].*fn1 The plaintiffs filed their Rule 60 motion on December 18, 2006, and their Rule 59 motion on December 22, 2006. These motions have now been fully briefed by the parties and the motions are ripe for disposition.
II. Analysis and Discussion
Rule 60(b), Fed. R. Civ. P., provides, in relevant part:
(B) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake; inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. . .
Of the numerous grounds for relief from an order stated in Rule 60, plaintiffs in their motion suggest no basis for setting aside the December order other than to generally allege that the court erred legally in its conclusions. Plaintiffs do suggest another basis -- excusable neglect --in one of their later pleadings. (See Doc. 23, p. 4). The claimed excusable neglect appears to be based on the affidavit of D. Bruce Shine, one of the three attorneys representing the plaintiffs in this case, filed in support of plaintiffs' Rule 60 motion. Mr. Shine acknowledges receipt of the Government's motion for summary judgment on November 15, 2006, but states that he was away from his office from November 20 through December 14, 2006, except for December 4 -- 8. During the week of December 4, Mr. Shine was advised by plaintiffs' co-counsel, Thomas H. Torbett, that agreement had been reached with counsel for the Government to extend plaintiffs' time for response to January 22, 2007. On the afternoon of December 15, 2006, Mr. Shine began to work on plaintiffs' response to the Government's motion and, in reviewing his file, noticed that the oral agreement had never been reduced to writing or submitted to the Court for approval. Late in the afternoon of December 15, Mr. Shine received an e-mail copy of the Court's opinion and judgment dismissing plaintiffs' complaint. After the receipt of the opinion and judgment, Mr. Shine filed a motion to extend the time to respond. [Doc. 15]. Mr. Shine's affidavit also states that plaintiffs' co-counsel and Mr. Shine's law partner, Donald F. Mason, Jr., was out of the office from September 1 through December 18 as the result of an automobile accident.
As set forth above, Rule 60(b)(1) permits a district court to relieve a party or a party's legal representative from a final judgment for mistake, inadvertence, surprise, or excusable neglect. As noted, plaintiffs premise their claim here on the neglect of their attorneys. Neglect, in the context of Rule 60(b)(1), is given its ordinary meaning which includes "late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control." Jinks v. Allied Signal, Inc., 250 F.3d 381, 386 (6th Cir. 2001) (quoting Pioneer Inv. Servs. Co. v. Brunswick Associates, 507 U.S. 380 (1993)). It appears quite clearly that the attorneys for the plaintiffs were neglectful in failing to timely respond to the Government's motion for summary judgment and/or in failing to ask the Court to approve the parties' agreement for an extension of time within which to file the response.
Of course, neglect alone is not sufficient to establish a right to relief under Rule 60(b)(1); the neglect must be excusable . The failure to file a response or to request an extension of time to file is inexcusable neglect. Kendall v. Hoover Co., 751 F.2d 171, 175 (6th Cir. 1984). That is precisely what happened here in that it would have been a simple matter for plaintiffs' attorneys to file a motion for an extension of time to respond. While Mr. Shine's failure to do so is explained somewhat by his absence from his office, no explanation is given as to why Mr. Torbett could not have filed the motion. There was obviously a misunderstanding or miscommunication of some sort between plaintiffs' attorneys here; however, the facts in this case do not establish excusable neglect justifying relief under Rule 60(b)(1).
If relief is available to the plaintiffs under Rule 60(b), it is under the "catchall" provision of Rule 60(b)(6), which permits relief from a judgment for "any other reason [beyond those found in 60(b)(1)--(5)] justifying relief from the operation of the judgment." However, relief under Rule 60(b)(6) is rare and applies only in exceptional or extraordinary circumstances which are not addressed by the first five numbered clauses of the Rule. Consequently, relief under Rule 60(b)(6) is available in only unusual and extreme situations where principles of equity mandate relief. See Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249 F.3d 513, 524 (6th Cir. 2001). Other than their assertion of legal error, plaintiffs have offered no exceptional or extraordinary circumstances which would justify relief under Rule 60(b)(6). As more fully set forth below, there is no legal error in the Court's summary judgment holding, and, therefore no extraordinary or exceptional circumstances to vacate the judgment.
A district court may grant a Rule 59(e) motion to alter or amend judgment only if there is "(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice." Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). Plaintiffs allege a clear error of law in this case. For the reasons set forth below, however, the record in this case does not establish any clear legal error in the Court's prior order on the Government's motion for summary judgment and the Rule 59(e) motion is without merit.
Since the plaintiffs have now fully responded to the Government's motion for summary judgment (See Docs. 19 and 21), this Court will consider the legal issues raised by this case more fully than it did in its original opinion on the Government's motion for summary judgment and in the context of plaintiff's response.
3. Sovereign Immunity and The Federal Tort Claims Act
The doctrine of sovereign immunity prohibits suits against the United States unless Congress has consented to the Government being sued. See Montez v. United States, 359 F.3d 392, 395 (6th Cir. 2004) (citing United States v. Orleans, 425 U.S. 807, 814 (1976). Through its enactment of the FTCA, ...