Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ashby v. Mortimer

United States District Court, D. Idaho

April 9, 2019

SALLY ASHBY, an individual, and HOWARD FOWLER, an individual, Plaintiffs,
v.
GERALD MORTIMER, M.D., and OBTESTRICS AND GYNECOLOGY ASSOCIATES OF IDAHO FALLS, P.A., an Idaho professional corporation, Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID C. NYE, CHIEF U.S. DISTRICT COURT JUDGE

         I. INTRODUCTION

         Before the Court is Defendant Dr. Gerald Mortimer's Motion to Reconsider (Dkt. 45) the Court's Order granting Plaintiffs' Motion to Compel a Paternity Test (Dkt. 44). Having reviewed the parties' briefs and the record, the Court finds good cause to DENY Dr. Mortimer's Motion.

         II. BACKGROUND[1]

         Plaintiffs Sally Ashby and Howard Fowler are a formerly married couple who became patients of Dr. Mortimer when they struggled to conceive. Plaintiffs claim Dr. Mortimer inseminated Ashby with his own sperm, without their knowledge or consent, and that they have since learned, through Ancestry.com, that Dr. Mortimer is likely the biological father of their daughter, Kelli Rowlette. While initially denying Plaintiffs' allegations, Dr. Mortimer refused Plaintiffs' request that he submit to a paternity test to prove or disprove his paternity of Rowlette. Plaintiffs thereafter filed a Motion to Compel Dr. Mortimer's submission to a buccal (cheek) swab DNA test.

         Under Federal Rule of Civil Procedure 35, the Court granted the Motion to Compel after finding Dr. Mortimer had placed the issue of his paternity “in controversy” and that there was good cause for ordering a DNA test. Dkt. 44, at 4-9. The Court determined Dr. Mortimer had placed the issue of paternity “in controversy” by denying he had inseminated Ashby and fathered Rowlette in his Answer to Plaintiffs' Complaint and Answers to Plaintiffs' First Requests for Admission. The Court also determined good cause supported ordering a DNA test because Plaintiffs cannot conclusively establish Dr. Mortimer is Rowlette's biological father through other means, including the Ancestry.com results which first notified Plaintiffs of Rowlette's parent-child relationship with Dr. Mortimer. Id., at 6-9.

         Dr. Mortimer seeks reconsideration of the Court's Order granting the Motion to Compel based on “new evidence” in the form of Dr. Mortimer's subsequent admission under oath that he is Rowlette's biological father. Dkt. 45-1, at 2. Dr. Mortimer's admission “came through both his amended answers to Plaintiffs' requests for admission and at his deposition on December 11, 2018, ” after the Motion to Compel had been briefed but before the Court entered its Order compelling Dr. Mortimer to submit to a DNA test. Dkt. 48, p. 2. Having reviewed the parties' briefing and considering the legal argument cited therein, the Court denies Dr. Mortimer's request for reconsideration.

         III. LEGAL STANDARD

         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.” Sch. Dist. No. 1J, Multnomah Cty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). To support a motion for reconsideration based on newly discovered evidence, the movant must show not only that the evidence was newly discovered or unknown to it prior to filing its opposition to the Motion to Compel, but also that it could not with reasonable diligence have discovered and produced such evidence prior to filing its opposition. Id.; see also Frederick S. Wyle Prof'l Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985). A motion for reconsideration should not be granted “absent highly unusual circumstances[.]” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999).

         IV. ANALYSIS

         Dr. Mortimer seeks reconsideration due to “new evidence on the issue of Rowlette's paternity.” Dkt. 45-1, at 2. Specifically, although he previously denied inseminating Ashby with his own sperm, and denied that he is Rowlette's biological father, Dr. Mortimer contends “after further reflection concerning the events of 1980, ” he now admits his paternal relationship to Rowlette. Id., at 2-3. Dr. Mortimer contends he made such admission through his Amended Responses to Plaintiffs' Request for Admission and in his deposition testimony. Dr. Mortimer argues “[t]his admission makes the DNA testing previously ordered by the Court unnecessary, and therefore lacking in the requisite good cause under Rule 35 of the Federal Rules of Civil Procedure.” Id., at 2. Even assuming Dr. Mortimer's recent revelation could be considered “newly discovered evidence, ” his admission does not conclusively establish paternity, and does not support reconsideration of this Court's Order compelling Dr. Mortimer to submit to a paternity test.

         Dr. Mortimer's purported “admission” of paternity in his Amended Responses to Plaintiffs' First Requests for Admission, is far from definitive. Specifically, in Request for Admission No. 16, Plaintiffs asked Dr. Mortimer to admit or deny he inseminated Ashby with his own sperm. Dkt. 47-4, at 4. In Request for Admission No. 23, Plaintiffs asked Dr. Mortimer to admit or deny he fathered the children of more than one of his patients. Id., at 6.

         Although Dr. Mortimer denied both allegations in his initial Responses, the day before his deposition, Dr. Mortimer filed Amended Responses to Plaintiffs' First Set of Requests for Admission. Dr. Mortimer amended his response to Request for Admission No. 16 to state:

Dr. Mortimer does not have specific recall about inseminating Ms. Ashby, or any other particular patient, with his own sperm. Dr. Mortimer recalls generally, however, that on occasion he would donate his own sperm when no other sperm donors were available to inseminate his patients who presented to his office and were ovulating and the patients had requested an anonymous donor. He did so for the sole purpose of helping his patients ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.