Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DAVID W. RUSH, Plaintiff, v. CORRECTIONAL MEDICAL SYSTEMS, et al., Defendants. : : : : : : : : : :

C.A. No. 07-514 SLR

DEFENDANT CORRECTIONAL MEDICAL SERVICES, INC.'S OPPOSITION TO PLAINTIFF'S MOTION FOR RELIEF FROM JUDGMENT Defendant Correctional Medical Services, Inc. ("CMS") by and through its undersigned counsel of record, hereby responds to Plaintiff's Motion for Relief from Judgment, and states as follows: 1. On September 12, 2007, Plaintiff filed his Motion for Temporary Restraining

Order/Preliminary Injunction ("Motion for TRO/PI"). (D.I. 7) CMS and the Department of Justice of Delaware timely filed their respective Responses. (D.I. 19, 17). On September 28, 2007, Plaintiff filed his Motion for Extension of Time to File Response/Reply. (D.I. 24). On October 16, 2007, the Court entered its Memorandum Order denying the Motion for TRO/PI, thus mooting the Motion for Extension of Time to File Response/Reply. (D.I. 25). On October 19, 2007, Plaintiff filed his Reply to Defendant's Opposition to Plaintiff's Motion for TRO/PI. (D.I. 27). Plaintiff now moves for relief from the Court's Memorandum Order. (D.I. 32) This Motion should be denied. 2. Plaintiff moves pursuant to Federal Rule of Civil Procedure Rule 60(b) "and any

applicable Delaware Local Rule", arguing that the Court erred through "misapprehensions of fact" and "misapplications of the controlling legal standard". (D.I. 32 at 2)

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3.

Fed.R.Civ.P. 60(b) provides, in relevant part: 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. . . . Id.

4.

Plaintiff has not specified which subsection of Rule 60(b) supports the relief requested,

and so it appears that his Motion is for reconsideration of the Court's decision. This Court has ruled that: Motions for reconsideration are the `functional equivalent' of motions to alter or amend judgment under Federal Rule of Civil Procedure 59(e). (citing Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1352 (3d Cir.1990)). The standard for obtaining relief under Rule 59(e) is difficult for a movant to meet, and motions for reconsideration or reargument "shall be sparingly granted," D. Del. LR 7.1.5 (effective June 30, 2007). The purpose of such motions is to `correct manifest errors of law or fact or to present newly discovered evidence.' Max's Seafood Café ex rel. Lou Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999). Accordingly, a court may only alter or amend its judgment if the movant demonstrates at least one of the following: (1) a change in the controlling law; (2) the availability of new evidence; or (3) a need to correct a clear error of law or fact or to prevent manifest injustice. See id. Samuel v. Carroll, --- F.Supp.2d ----, 2007 WL 2422815 at *2 (D.Del.) (Exhibit "A") 5. Plaintiff's Motion does not urge reconsideration based on any change in the controlling

law or the availability of new evidence. Although Plaintiff's Motion refers to a reply in support

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of his Motion for TRO/PI, and an addendum to that reply, and quotes extensively from those documents and his medical records, those documents offer nothing new. A motion for

reconsideration should not be used to reargue the same facts, nor should it be used "as a means to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided," Samuel, 2007 WL 2422815 at * 2 (quoting Brambles USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D.Del.1990)). Accordingly, to prevail on his instant Motion, Plaintiff must show there is a need to correct a clear error of law or fact or to prevent manifest injustice. A motion for reconsideration is not properly grounded on a request that a court rethink a decision already made. Williamson v. Correctional Medical Services, et al., C.A. No. 06-379 SLR (D.Del. October 19, 2007) (Exhibit "B") (citing Glendon Energy Co. v. Borough of Glendon, 836 F. Supp. 1109, 1122 E.D. Pa. 1993)). 6. Plaintiff here incorrectly argues the Court misapprehended relevant facts and misapplied The Court's Memorandum Opinion takes into account the

the relevant legal standard.

allegations of the Plaintiff's Motion for TRO/PI, and CMS's response, and contains no misstatement of fact or law. (D.I. 25) Plaintiff's Motion for Relief from Judgment should be denied. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Correctional Medical Services, Inc., Date: October 31, 2007

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 31st day of October 2007, the foregoing Defendant Correctional Medical Services, Inc.'s Opposition to Plaintiff's Motion for Relief from Judgment was filed via CM/ECF and served First Class Mail upon the following:

David R. Rush SBI # 173418 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ James E. Drnec James E. Drnec, Esquire (#3789)