Donna Hoffman v. Kent Tonnemacher ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA HOFFMAN, 
Plaintiff-Appellant,
v. No. 08-16166
KENT TONNEMACHER, M.D.; D.C. No.
UNKNOWN PHYSICIANS,  CV-04-05714-AWI-
Defendants, DLB
and OPINION
MEMORIAL MEDICAL CENTER,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Argued and Submitted
December 8, 2009—San Francisco, California
Filed January 21, 2010
Before: A. Wallace Tashima, Susan P. Graber, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Graber
1281
HOFFMAN v. TONNEMACHER 1283
COUNSEL
Kevin G. Little, Fresno, California, for the plaintiff-appellant.
1284 HOFFMAN v. TONNEMACHER
Lara M. Krieger, Greines, Martin, Stein & Richland LLP, Los
Angeles, California, for the defendant-appellee.
OPINION
GRABER, Circuit Judge:
Plaintiff Donna Hoffman sued Defendant Memorial Medi-
cal Center under the Emergency Medical Treatment and
Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd(a), after
an emergency room physician failed to diagnose her bacterial
infection. The district court granted in part and denied in part
Defendant’s pretrial motion for summary judgment, and the
surviving claim went to trial. The jury deadlocked, and the
district court declared a mistrial. Subsequently, the district
court allowed Defendant to file another summary judgment
motion which, this time, the court granted. On appeal, Plain-
tiff challenges the propriety of allowing this successive sum-
mary judgment motion. We hold that the district court has
discretion to entertain successive motions for summary judg-
ment and that the district court did not abuse its discretion in
this instance.1
Plaintiff went to Defendant’s emergency room by ambu-
lance at about 11 p.m. on May 22, 2003, complaining of
fever, chills, hyperventilation, cough, congestion, pain, numb-
ness in her hands, nausea, and vomiting. Dr. Kent Tonnem-
acher, who worked in the emergency room, examined her and
found that she had a fever of 102.3 degrees. Plaintiff reported
that her temperature had been 106 degrees earlier in the day.
1
Plaintiff also appeals the grant of summary judgment, two modifica-
tions of the pretrial order to allow the addition of a new expert witness and
the later substitution of a different witness, and two evidentiary rulings.
We address those issues separately in a memorandum disposition filed this
date, reversing the grant of summary judgment and one evidentiary ruling
and affirming as to the other issues.
HOFFMAN v. TONNEMACHER 1285
Plaintiff informed Dr. Tonnemacher of her medical history,
which included a splenectomy and a heart murmur. Dr. Ton-
nemacher ordered chest X-rays and a urinalysis, both of
which were negative, but he did not order other tests such as
a blood culture or a complete blood count. Dr. Tonnemacher
diagnosed fever and viral bronchitis with a differential diag-
nosis of possible pneumonia. He discharged Plaintiff with a
prescription for an oral antibiotic.
The following afternoon, Plaintiff returned to the emer-
gency room in much worse condition. The emergency room
doctor diagnosed bacterial sepsis and immediately hospital-
ized Plaintiff. Plaintiff’s sepsis progressed to systemic inflam-
matory response syndrome, and she developed serious
complications. Plaintiff survived, but doctors had to amputate
six of her toes. Plaintiff was discharged after two months in
the hospital.
Plaintiff sued Defendant for violation of EMTALA and
both Defendant and Dr. Tonnemacher2 for medical malprac-
tice. Defendant filed a motion for partial summary judgment,
which the district court denied under Federal Rule of Civil
Procedure 56(f). After further discovery, Defendant moved
again for summary judgment, which the district court granted
in part and denied in part. Plaintiff’s surviving claim alleged
that Dr. Tonnemacher’s screening examination constituted
disparate treatment in violation of EMTALA because it failed
to comply with Defendant’s EMTALA policy.
At trial, Defendant moved for judgment as a matter of law
at the close of the evidence. The district court denied the
motion. The jury deadlocked, and the district court declared
a mistrial. After the mistrial, Defendant moved for modifica-
tion of the pretrial order. The district court modified the order
to allow Defendant to add a new expert witness and to file
2
Dr. Tonnemacher settled with Plaintiff shortly before trial, and he is
not a party to this appeal.
1286 HOFFMAN v. TONNEMACHER
another summary judgment motion. The district court then
granted Defendant’s summary judgment motion on the
ground that Plaintiff could not show a genuine issue of mate-
rial fact with respect to causation. Plaintiff timely appeals.
[1] We have held, relying on Supreme Court guidance in
the realm of qualified immunity, that a district court may per-
mit successive motions for summary judgment on qualified
immunity. Knox v. Sw. Airlines, 124 F.3d 1103, 1106 (9th Cir.
1997). We have also assumed the propriety of successive
motions for summary judgment outside the context of quali-
fied immunity. See Cable & Computer Tech. Inc. v. Lockheed
Sanders, Inc., 214 F.3d 1030, 1038 (9th Cir. 2000) (analyzing
grant of summary judgment on promissory estoppel claim
after district court granted earlier summary judgment motion
on contract claim); Preaseau v. Prudential Ins. Co. of Am.,
591 F.2d 74, 79-80 (9th Cir. 1979) (holding that, after
removal of diversity case to federal court, the federal court
may grant summary judgment notwithstanding earlier denial
of summary judgment motion by state court). Many of our
sister circuits have held that district courts may permit succes-
sive motions for summary judgment. Narducci v. Moore, 572
F.3d 313, 324 (7th Cir. 2009); Lexicon, Inc. v. Safeco Ins. Co.
of Am., Inc., 436 F.3d 662, 670 n.6 (6th Cir. 2006); Sira v.
Morton, 380 F.3d 57, 68 (2d Cir. 2004); Fenney v. Dakota,
Minn. & E. R.R. Co., 327 F.3d 707, 718 (8th Cir. 2003);
Enlow v. Tishomingo County, 962 F.2d 501, 506-07 (5th Cir.
1992). Joining those circuits, we now hold explicitly that dis-
trict courts have discretion to entertain successive motions for
summary judgment, independent of whether the motions
involve qualified immunity.
[2] Federal Rule of Civil Procedure 56 does not limit the
number of motions that may be filed. Indeed, the version of
Rule 56 that was in effect when the district court modified the
pretrial order stated that a motion for summary judgment
could be filed “at any time” after certain events. Fed. R. Civ.
P. 56(a), (b) (2007). Rule 56 was amended in December 2009
HOFFMAN v. TONNEMACHER 1287
expressly to allow a district court to control the timing of
motions for summary judgment. It now states that its default
limits on the timing of such motions “apply unless . . . the
court orders otherwise.” Fed. R. Civ. P. 56(c). And the Advi-
sory Committee Notes on the amendment observe that
“[s]cheduling orders tailored to the needs of the specific case,
perhaps adjusted as it progresses, are likely to work better
than default rules.” Rule 56, then, does not bar successive
motions.
[3] Furthermore, we have held that, in effect, the possibility
of summary judgment remains on the table even after a dis-
trict court has denied a summary judgment motion because
that order is “subject to reconsideration by the court at any
time.” Dessar v. Bank of Am. Nat’l Trust & Sav. Ass’n, 353
F.2d 468, 470 (9th Cir. 1965). Thus, the denial of summary
judgment does not preclude a contrary later grant of summary
judgment. Consequently, allowing a party to file a second
motion for summary judgment is logical, and it fosters the
“just, speedy, and inexpensive” resolution of suits. Fed. R.
Civ. P. 1. Nevertheless, we are conscious of the potential for
abuse of the procedure and reiterate here that district courts
retain discretion to “weed out frivolous or simply repetitive
motions.” Knox, 124 F.3d at 1106.
[4] In holding that district courts have discretion to permit
successive motions for summary judgment, we join at least
five of our sister circuits. Narducci, 572 F.3d at 324; Lexicon,
Inc., 436 F.3d at 670 n.6; Sira, 380 F.3d at 68; Fenney, 327
F.3d at 718; Enlow, 962 F.2d at 506-07; see also Fernandez
v. Bankers Nat’l Life Ins. Co., 906 F.2d 559, 569 (11th Cir.
1990) (“Two motions for summary judgment may be ruled
upon in the same case . . . .”); Williamsburg Wax Museum,
Inc. v. Historic Figures, Inc., 810 F.2d 243, 251 (D.C. Cir.
1987) (“A subsequent motion for summary judgment based
on an expanded record is always permissible.”). We adopt the
sound view, expressed by several of those circuits, that a suc-
cessive motion for summary judgment is particularly appro-
1288 HOFFMAN v. TONNEMACHER
priate on an expanded factual record. See, e.g., Kovacevich v.
Kent State Univ., 224 F.3d 806, 835 (6th Cir. 2000) (“District
courts may in their discretion permit renewed or successive
motions for summary judgment, particularly when the moving
party has expanded the factual record on which summary
judgment is sought.”); Whitford v. Boglino, 63 F.3d 527, 530
(7th Cir. 1995) (per curiam) (“A renewed or successive sum-
mary judgment motion is appropriate especially if . . . [there
is] the availability of new evidence or an expanded factual
record . . . .” (internal quotation marks omitted)).
[5] We review for abuse of discretion a district court’s deci-
sion to permit a successive summary judgment motion. In this
case, the district court did not abuse its discretion by allowing
Defendant to file another summary judgment motion after the
mistrial. The deposition of an expert witness after the deadline
for pretrial summary judgment motions, the testimony at trial,
and the addition of a new expert witness after the mistrial
expanded the factual record beyond what it had been at the
time of the pretrial summary judgment motion.
Plaintiff argues, however, that the final summary judgment
motion relied on a factual record identical to that underlying
Defendant’s unsuccessful motion for judgment as a matter of
law. Because the standard for summary judgment “mirrors”
that for judgment as a matter of law, Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986), Plaintiff invites us to
consider the motion for judgment as a matter of law to be
equivalent to a motion for summary judgment.
We need not and do not decide whether a motion for judg-
ment as a matter of law should be generally deemed a sum-
mary judgment motion for purposes of determining whether
a subsequent summary judgment motion is permissible.3 The
3
We note, however, that we have elsewhere stated that “Rule 50(a)(2)
is not intended as an alternative mechanism for obtaining summary judg-
ment.” McSherry v. City of Long Beach, 423 F.3d 1015, 1020 (9th Cir.
HOFFMAN v. TONNEMACHER 1289
district court modified the pretrial order after the mistrial to
allow Defendant to add a new expert witness. The new wit-
ness’ testimony expanded the factual record, even though that
testimony was not, as it turned out, critical to the summary
judgment motion.
[6] Furthermore, even if the motion for judgment as a mat-
ter of law were equivalent to a summary judgment motion,
Plaintiff has not demonstrated that entertaining the successive
summary judgment motion was an abuse of the district court’s
discretion. Allowing a successive summary judgment motion
potentially can save all concerned the far greater expenses of
a trial. We decide, in the related memorandum disposition
filed this date, that the district court’s grant of summary judg-
ment was erroneous in this case, but the denial of a summary
judgment motion does not necessarily prove that the district
court should have refused to allow Defendant to file it in the
first place.
[7] Nor was the grant of summary judgment for Defendant
—erroneous though it was—legally incompatible with the
denial of Defendant’s motion for judgment as a matter of law.
A district court that denies a motion for judgment as a matter
of law is deemed to have reserved the legal questions raised
by the motion. Fed. R. Civ. P. 50(b). Whether there is suffi-
cient evidence to create an issue for the jury is a question of
law. Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th
Cir. 2003). Thus, the district court’s denial of Defendant’s
motion for judgment as a matter of law did not constitute a
decision as a matter of law that a genuine issue of material
fact existed.
2005). Of course, under Plaintiff’s theory, in a case like this one in which
a pretrial motion for summary judgment has been made, a motion for
judgment as a matter of law would, itself, constitute a successive summary
judgment motion. But whether it does or not is also a question we need
not decide.
1290 HOFFMAN v. TONNEMACHER
[8] The district court’s decision to allow Defendant to file
another motion for summary judgment after the mistrial
required the district court first to modify the pretrial order.
We review for abuse of discretion a district court’s modifica-
tion of a pretrial order. Polar Bear Prods., Inc. v. Timex
Corp., 384 F.3d 700, 719 (9th Cir. 2004). A district court may
modify a pretrial order “only to prevent manifest injustice.”
Fed. R. Civ. P. 16(e). If the district court concluded that sum-
mary judgment might be appropriate, the court could properly
find that it would be a manifest injustice to require a party to
defend itself in a second trial without the opportunity to move
first for summary judgment. See Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986) (noting “due regard . . . for the rights of
persons . . . to demonstrate in the manner provided by [Rule
56], prior to trial, that the claims and defenses have no factual
basis”).
[9] For the foregoing reasons, we hold that the district court
did not abuse its discretion by modifying the pretrial order to
allow Defendant to file a summary judgment motion after the
mistrial.
AFFIRMED in part; REVERSED in part; REMANDED
for further proceedings.4 The parties shall bear their own costs
on appeal.
4
In a separate memorandum disposition filed this date, we reverse the
district court’s grant of summary judgment and one evidentiary issue and
affirm on certain other issues.