United States District Court, D. New Mexico
TANYA HALLUM, Personal Representative of the Estate of Charlie Hallum, TANYA HALLUM, Individually, and JESSE HALLUM, Individually, Plaintiffs
FOUR CORNERS OB-GYN, A PROFESSIONAL LLP, and DR. MARECA PALLISTER, Individually, Defendants.
MEMORANDUM OPINION AND ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiffs' Motion for
Relief from Judgment Pursuant to Fed.R.Civ.P. 60(b)(6) from
Order to Dismiss Defendant Dr. Pallister for Lack of
Jurisdiction and Motion to Transfer Jurisdiction to Federal
District Court of Colorado pursuant to 28 U.S.C. § 1631
[Doc. 140]. The Court, having considered the motion and
relevant law, finds that the motion is well-taken in part and
will be granted in part.
Tanya Hallum and Jesse Hallum are residents of San Juan
County. Doc. 1 (Complaint) at ¶¶ 3-5. Ms. Hallum is
the Personal Representative of Charlie Hallum's estate.
Id. at ¶ 4. On or about September 1, 2014, Ms.
Hallum learned she was pregnant with Charlie Hallum and
became a patient of Defendants Four Corners OB/GYN
(“FC”) and Dr. Mareca Pallister. Id. at
¶ 16. FC is a professional LLP in a Colorado
corporation. Id. at ¶ 7. Dr. Pallister was a
member of FC and employed as a gynecologist at FC.
Id. at ¶ 9. Dr. Pallister classified Ms.
Hallum's pregnancy as high risk. Id. at ¶
18. Ms. Hallum followed her gynecologist's
recommendations and consistently went in for pre-natal
examinations. Id. at ¶ 17.
about January 6, 2015, Ms. Hallum visited FC's Aztec, New
Mexico office for an unscheduled examination due to pain in
her reproductive system and was seen by Nancy Rhien. Doc. 1
at ¶¶ 20-21. Ms. Rhien is an employee of
Id. at ¶ 21. Ms. Rhien checked Ms. Hallum's
vital signs but did not examine her to determine the cause of
her pain, nor did she refer her to a doctor for further
investigation of the pain. Id. at ¶¶
21-23. Instead, Ms. Rhien informed Ms. Hallum that everything
was fine. Id. at ¶ 24.
Hallum's symptoms continued and she visited FC's
Durango, Colorado office on January 8, 2015. Id. at
¶ 26. Ms. Rhien again checked Ms. Hallum's vital
signs but did not examine her or refer her to a doctor for
further care. Id. at ¶¶ 27-29. Ms. Hallum
was again told that everything was fine with her pregnancy,
and that she did not need to take any precautions.
Id. at ¶ 30. On or about January 11, 2015, Ms.
Hallum gave birth to Charlie Hallum, who was born
approximately four months premature and “lived for a
short duration.” Id. at ¶ 32.
point thereafter, Dr. Pallister counseled Ms. Hallum to
receive an Essure birth control device. Id. at
¶ 33. Ms. Hallum consented and underwent a procedure, on
or about March 19, 2015, to implant the Essure birth device.
Id. at ¶¶ 34-36. However, on or about May
6, 2015, Ms. Hallum was informed that Dr. Pallister had
implanted three Essure birth devices, which had to be
removed. Id. at ¶ 37. As a result of the
implantation of the three devices, Ms. Hallum underwent an
unwanted hysterectomy. Id.
on these allegations, Plaintiffs commenced the instant action
on January 5, 2017. The Complaint alleges medical malpractice
(Count I); negligent failure to publish safety protocols
(Count II); wrongful death/loss of chance of life (Count
III); loss of consortium (Count IV); unfair trade practices
(Count V); medical negligence (Count VI); physician battery
(Count VII); negligent infliction of emotional distress
(Count VIII); negligent hiring, retention, and
training/supervision of Dr. Pallister (Count IX); and
negligent hiring, retention, and training/supervision of
Nancy Rhien (Count X). Plaintiffs seek punitive damages
(Count XI). Except for Count VII directed towards Dr.
Pallister specifically, and Counts VII, IX, and X referring
only to a singular defendant, each count appears to be
alleged against both Dr. Pallister and FC.
March 17, 2017, Dr. Pallister filed a motion to dismiss for
lack of personal jurisdiction pursuant to Rule 12(b)(2) of
the Federal Rules of Civil Procedure [Doc. 20], and a motion
in the alternative for partial dismissal of Plaintiffs'
claims for failure to state a claim pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure [Doc. 21]. In her
Rule 12(b)(6) motion, Dr. Pallister sought dismissal of all
but two of Plaintiffs' claims as against her,
specifically stating that Plaintiffs' claims for medical
malpractice (Count I) and physician battery (Count VII) were
“viable” claims against Dr. Pallister,
“based on the sterilization procedure.” Doc. 21
at 4. On the same day, FC filed a motion for partial
dismissal of Plaintiffs' claims pursuant to Rule 12(b)(6)
[Doc. 19]. In its motion, FC sought dismissal of all but one
of Plaintiffs' claims as against it, namely,
Plaintiffs' medical malpractice claim arising out of Ms.
Rhien's prenatal care of Ms. Hallum (Count I). Doc. 19 at
Memorandum Opinion and Order entered on September 28, 2018,
the Court granted Dr. Pallister's motion to dismiss for
lack of personal jurisdiction (“September 2018
Opinion”) [Doc. 132]. Specifically, the Court found
that, because Plaintiffs failed to establish either general
or specific jurisdiction over Dr. Pallister in New Mexico,
Dr. Pallister did not have the minimum contacts with the
forum state constitutionally required for this Court to
exercise personal jurisdiction over Dr. Pallister. Doc. 132
at 6-10. Based on this finding, the Court granted Dr.
Pallister's motion and dismissed the action as against
her. Id. at 10. The Court did not consider, as an
alternative to dismissal, transferring this case to the
proper venue. The Court's disposition of Dr.
Pallister's Rule 12(b)(2) motion rendered moot Dr.
Pallister's alternative Rule 12(b)(6) motion.
Memorandum Opinion and Order entered on March 18, 2019, the
Court granted in part FC's partial motion to dismiss
(“March 2019 Opinion”) [Doc. 143]. Specifically,
the Court held as follows: Plaintiffs' medical
malpractice claim (Count I) remains viable to the extent that
it alleges claims against FC by Ms. Hallum based on the
allegedly negligent care provided by Ms. Rhien;
Plaintiffs' claims for negligent failure to publish
safety protocols (Count II) and medical negligence claim
(Count VI) remain viable to the extent that they are not
based on the independent medical judgment of Dr. Pallister;
Plaintiffs' wrongful death claim (Count III) remains
viable; Plaintiffs' loss of consortium claim (Count IV)
remains viable only as it applies to Ms. Hallum personally
and Jesse Hallum; Plaintiffs' unfair trade practices
claim (Count V) is dismissed, as New Mexico law cannot give
rise to a claim for relief; to the extent that Plaintiffs
intended to bring their physician battery claim (Count VII)
against FC in addition to Dr. Pallister, that claim is
dismissed as to FC under the corporate practice of medicine
doctrine; Plaintiffs' negligent infliction of emotional
distress claim (Count VIII) was withdrawn by Plaintiffs;
Plaintiffs' negligent hiring, retention, and
training/supervision claims (Counts IX and X) are dismissed;
and Plaintiffs' claim for punitive damages (Count XI) is
stricken, as it does not set forth a separate claim for
relief. Doc. 143.
Plaintiffs filed the instant motion seeking reconsideration
of the September 2018 Opinion. Plaintiffs do not disagree
with the Court's finding that New Mexico lacks
jurisdiction over Dr. Pallister but argue that the Court
invoked the wrong remedy by dismissing this action as to Dr.
Pallister rather than transferring Plaintiffs' claims
against Dr. Pallister to the proper venue. Dr. Pallister and
FC both oppose the motion.
characterize their motion as one for relief from judgment
pursuant to Rule 60(b)(6) of the Federal Rules of Civil
Procedure, a catch-all provision stating that, “[o]n
motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding for . . . any  reason that justifies
relief.” Fed.R.Civ.P. 60(b)(6). As there has been no
final judgment entered in this case, the Court instead
construes Plaintiffs' motion as one invoking the
Court's “discretion, ” pursuant to Rule
54(b), “to revise interlocutory orders prior to entry
of final judgment.” Trujillo v. Bd of Educ. of Alb.
Pub. Schs., 212 Fed.Appx. 760, 765 (10th Cir. 2007);
see also Price v. Philpot, 420 F.3d 1158, 1167 n. 9
(10th Cir. 1988) (“[E]very order short of a final
decree is subject to reopening at the discretion of the
district judge.”). Rule 54(b) provides that “any
order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any
of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims
and all the parties' rights and liabilities.”
Fed.R.Civ.P. 54(b). Under Rule 54(b), “a district court
can freely reconsider its prior rulings, ” and there is
“no limit or governing standard on the district
court's ability to do so, other than that it must do so
‘before entry of judgment.”' Lujan v.
City of Santa Fe, 122 F.Supp.3d 1215, 1238 (D.N.M.
2015). Further, “[t]he Tenth Circuit has not cabined