United States District Court, D. Idaho
SALLY ASHBY, an individual, and HOWARD FOWLER, an individual, Plaintiffs,
GERALD MORTIMER, M.D., and OBTESTRICS AND GYNECOLOGY ASSOCIATES OF IDAHO FALLS, P.A., an Idaho professional corporation, Defendants.
MEMORANDUM DECISION AND ORDER
C. NYE, CHIEF U.S. DISTRICT COURT JUDGE
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.
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.
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.
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.
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).
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
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.
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 ...