                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0151n.06
                            Filed: March 17, 2008

                                            NO. 07-5678

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


BENNIE JOE POTEET, II;                            )
EVELYN POTEET,                                    )
                                                  )
               Plaintiffs-Appellants,             )   APPEAL FROM THE DISTRICT
                                                  )   COURT FOR THE EASTERN
       v.                                         )   DISTRICT OF TENNESSEE
                                                  )
POLK COUNTY, TENNESSEE, et al.,                   )
                                                  )
               Defendants-Appellees.              )


BEFORE: DAUGHTREY and SUTTON, Circuit Judges; and POLSTER, District Judge.*

       Dan Aaron Polster, District Judge.

                                       I. INTRODUCTION

               This appeal is but one part of a much larger case in which Plaintiff Bennie Poteet

entered the Polk County, Tennessee jail on a charge of driving under the influence of alcohol, but

emerged from the Cleveland Community Hospital several days later having suffered a stroke that

left him permanently paralyzed.1 The underlying factual background in this case takes second chair

to the facts surrounding discovery, missed deadlines, and the district court’s rulings on a motion for

       *
        The Honorable Dan Aaron Polster, United States District Judge for the Northern District
of Ohio, sitting by designation.
       1
         While in the county jail, Poteet allegedly suffered unnecessary force and other
constitutional violations at the hands of his custodians. These allegations are addressed in
federal § 1983 and § 1988 claims that have been fully settled and are not the subject of the
instant appeal.
partial summary judgment, a motion for extension of time to respond to that motion, and a motion

to amend, reconsider, or set aside the grant of partial summary judgment in CCH’s favor.

                                        II. BACKGROUND

A. Factual Background

                 The underlying facts are, in summation, that Poteet suffered a seizure while still in

the jail, at which point he was transferred to Defendant Cleveland Community Hospital (“CCH”),

also located in Polk County, Tennessee. Poteet, as part of his larger suit alleging federal claims

against other defendants, also alleged that he suffered permanent injuries due to his inadequate

treatment at CCH. Poteet brought claims for medical malpractice against Dr. Adam Fall,2 and for

negligence, on a few different theories, against CCH. The instant appeal involves some of these

allegations of medical malpractice and negligence arising under Tennessee law.

B. Procedural Background

                 On February 12, 2007, pursuant to a deadline established in the scheduling order,

CCH moved for partial summary judgment on some – but not all3 – of the state law medical

malpractice and negligence claims.        In accordance with Tennessee law governing medical

malpractice claims, CCH supported its motion for partial summary judgment with affidavits from

two expert witnesses, Dawn Haynes, R.N., and John Hyde, Ph.D. CCH’s counsel did not, as he

conceded at oral arguments, comply with Federal Rule of Civil Procedure 56(e) by attaching sworn

copies of the documents Haynes and Hyde reviewed and cited in their respective affidavits.



       2
           Poteet was under Dr. Fall’s care while he was at CCH.
       3
        CCH did not move for summary judgment on the claim that CCH is vicariously liable for
the negligence of its employee, Dr. Fall.

                                                   2
               On March 5, 2007, the deadline for filing the response brief, Poteet filed the following

three documents: (1) a Rule 56(f) motion for an extension of time to respond, in which Poteet

explained that he needed additional time for discovery to be able to more fully respond to CCH’s

motion for partial summary judgment; (2) his brief in response to CCH’s motion for partial summary

judgment, supported by excerpts of deposition testimony from Dr. Salzman (Poteet’s expert witness),

Dr. Fall, and Dr. Sharon Farber,4 as well as Dr. Salzman’s affidavit which was previously filed in

opposition to Dr. Fall’s motion for summary judgment; and (3) a motion to strike the Haynes and

Hyde affidavits as insufficient under Rule 56(e).

               On the same day, CCH’s counsel agreed to make a Rule 30(b)(6) corporate

representative available for deposition on March 7, 2007 – two days after Poteet’s responsive

deadline. Poteet deposed CCH’s Rule 30(b)(6) representative, Susan Lewis, on March 7, 2007.

Although the district court denied Poteet’s Rule 56(f) motion on March 8, 2007, additional discovery

was taken by agreement of counsel (and submitted) after the March 5 deadline and the court’s March

8 order.

               On March 9, 2007, Poteet filed a motion to alter or amend the court’s denial of the

Rule 56(f) motion. The court denied the motion in an order dated March 14, 2007. Also on March

14, CCH manually filed supplemental affidavits from Haynes and Hyde that were in compliance

with Rule 56(e), by virtue of having attached certified copies of the documents Haynes and Hyde

consulted and referenced in their affidavits. These affidavits purportedly replaced or amended the

affidavits filed on the February 12, 2007 dispositive motions deadline. For his part, Poteet filed what



       4
        Dr. Farber is a Chattanooga, Tennessee-based neurologist who examined Poteet during
his hospitalization at CCH.

                                                  3
we will term his “after-acquired evidence” on March 13, 2007, March 22, 2007, and April 5, 2007.

Poteet also deposed CCH’s expert witnesses at some point after March 5.5

               On April 11, 2007, the district court denied Poteet’s motion to strike, and granted

CCH’s motion for partial summary judgment. In doing so, the district court purported to rely only

on the evidence contained in the record as of the March 5, 2007 response deadline, although the

court also considered the later-filed (i.e. procedurally sufficient) Haynes and Hyde affidavits. The

district court refused to consider any of Poteet’s after-acquired evidence; in a lengthy footnote at the

start of its order granting partial summary judgment, the court asserted that it would “not consider

any briefs or evidence filed after the applicable deadline, March 5, 2007.” (J.A. at 79.)

               Poteet soon thereafter filed a motion under Rule 59(e) or Rule 60(b) to reconsider,

alter, or amend the order granting partial summary judgment, along with a 25-page brief in support.

The district court denied the motion in an order dated April 26, 2007. On the same day, the district

court entered an order declining to exercise discretionary supplemental jurisdiction over the

“remaining state law claims,” and dismissing those claims without prejudice. (See J.A. at 115.)

               The court’s order denying Poteet’s Rule 59(e)/Rule 60(b) motion contains the

following footnote: “Plaintiff also notes the parties have recently settled all federal claims, and only

state law claims remain for trial. Plaintiff argues that if the Court chooses not to exercise its

discretionary supplemental jurisdiction over the remaining state law claims, it should vacate its

previous order [granting partial summary judgment]. This argument has no merit as the state court

may reconsider any rulings of this Court.” (J.A. at 111 (emphasis added).)


       5
         From what we can gather, Poteet deposed Nurse Haynes on April 10, 2007. (See J.A. at
350.) It is unclear exactly when Poteet deposed Dr. Hyde, though logic dictates that the Hyde
deposition took place after March 7, 2007.

                                                   4
                Poteet timely appealed, arguing that the district court erred by denying his Rule 56(f)

motion, by granting partial summary judgment, and by denying his Rule 59(e)/Rule 60(b) motion.

                                           III. ANALYSIS

                Most of the parties’ briefs focus on the district court’s decision not to consider

Poteet’s after-acquired evidence. We learned at oral argument, however, that all of the state law

claims originally alleged in the instant case have been refiled in Tennessee state court. According

to counsel, the case is going forward to trial in approximately two months. We also learned that the

state court judge rejected CCH’s argument that the district court’s partial summary judgment

decision should have collateral estoppel effect, and consequently the trial will include all of Poteet’s

claims against CCH.

                It seems likely that the state court judge correctly interpreted the district judge’s April

26, 2007 order. It also seems likely that by stating “the state court may reconsider any rulings of this

Court,” the district court meant to vacate its prior orders and send all of Poteet’s state claims to state

court, not just the claims against Dr. Fall and against CCH for vicarious negligence. Out of

deference to the district court, however, we are remanding the case. If we are correct in our

assumption, then the district court should do explicitly what we believe it did tacitly, and vacate its

previous order granting CCH’s motion for partial summary judgment.

                                         IV. CONCLUSION

                For the reasons stated above, we hereby REMAND this case to the district court.




                                                    5
