NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 7 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALAA ELKHARWILY, No. 17-35009

Plaintiff-Appellant, D.C. No. 3:15-cv-05579-RJB

v.

MEMORANDUM*

FRANCISCAN HEALTH SYSTEM, a Washington non-profit corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding

ALAA ELKHARWILY, No. 18-35090

Plaintiff-Appellant, D.C. No. 3:17-cv-05838-RBL

v.

FRANCISCAN HEALTH SYSTEM, a Washington non-profit corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted June 5, 2019**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

In No. 17-35009 (“Elkharwily I”), Alaa Elkharwily, M.D., appeals the

district court’s judgment after a jury trial his action against Franciscan Health

System (“FHS”), alleging defamation and disability discrimination. In No. 18-

35090 (“Elkharwily II”), Dr. Elkharwily appeals the district court’s dismissal of a

second action that he brought against FHS. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm the district court’s judgments in both actions.

I. Elkharwily I

The district court properly granted summary judgment on Dr. Elkharwily’s

defamation claim because he did not establish a genuine issue of material fact as to

whether FHS’s report to the National Practitioner Data Bank was an unprivileged

communication under Washington law. See Campidoglio LLC v. Wells Fargo &

Co., 870 F.3d 963, 973 (9th Cir. 2017) (a grant of summary judgment is reviewed

de novo); McNamara v. Koehler, 429 P.3d 6, 11 (Wash. Ct. App. 2018) (setting

forth elements of defamation). FHS’s report was demonstrably a privileged

communication.

The district court properly exercised its discretion in denying Dr.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 Elkharwily’s motion for a new trial on his claim of disability discrimination under

the Washington Law Against Discrimination. See Fed. R. Civ. P. 59(a)(1)(A);

Flores v. City of Westminster, 873 F.3d 739, 748 (9th Cir. 2017) (standard of

review); Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493,

510 n.15 (9th Cir. 2000) (standard for granting new trial motion). The verdict was

not against the clear weight of the evidence because there was evidence in the

record from which the jury could have found that Dr. Elkharwily’s disability was

not a substantial factor in FHS’s denial of his application for hospital privileges

and whether he could perform the essential functions of the job of a nocturnist.

See See Crowley v. Epicept Corp., 883 F.3d 739, 751 (9th Cir. 2018) (explaining

that there must be an absence of evidence to support the verdict); Flores, 873 F.3d

at 748 (holding that a new trial will be granted “only if the verdict is against the

clear weight of the evidence, and not simply because the evidence might have led

[the court] to arrive at a different verdict”); Stewart v. Snohomish Cty. PUC No. 1,

262 F. Supp. 3d 1089, 1106 (W.D. Wash. 2017) (setting forth elements of claim),

aff’d 752 Fed. Appx. 449 (9th Cir. 2018).

Dr. Elkharwily’s claims of fabricated evidence, false testimony, and “an

unconscionable plan [by defense counsel] to defraud the court” are not supported

by the record. In an order denying his motion for a new trial, the court rejected

these allegations, saying

3 None of what Plaintiff presents in support of this motion rises to the level of a proven lie – or lies – that would justify a new trial. Differences in recollection or opinion do not justify a new trial. There are sharp differences in the evidence in many, if not most, trials, and those differences can usually be attributed to memory differences occurring in good faith rather than to intentional lies.

There is no justification in Plaintiff’s moving papers or in the events of the trial that would justify a conclusion that the verdict resulted from intentionally false evidence by Defendant’s witnesses.

Not satisfied with the court’s ruling, Dr. Elkharwily filed an unsuccessful

motion for reconsideration. The court said, “First, the court is not reasonably well

satisfied that the testimony given by one or more material witnesses was false.

Second, although Plaintiff and Plaintiff’s counsel may have been taken by surprise

at trial when testimony was different than expected, they had ample opportunity at

trial to meet unexpected testimony.” (Emphasis in original).

In an order denying his motion for relief from judgment pursuant Rule 60,

the court examined these allegation for a third time and determined that Dr.

Elkharwily had not shown either intrinsic or extrinsic fraud, misrepresentation, or

misconduct by an opposing party, citing Fed. R. Civ. Pro. 60(b)(2)(3). The court

also concluded that “none of defense counsel’s statements [to the jury] amounted

to fraud, misrepresentation, or misconduct.” [Id.] As to Dr. Elkharwily’s

assertions against witnesses, the court said, “The issues about the accuracy and

consistency of the testimony of various witnesses over seven days of trial were of

the usual kind commonly seen in trials, and there is no showing of any fraud,

4 misrepresentation, or misconduct.” [Id.] See Shimko v. Guenther, 505 F.3d 987,

993 (9th Cir. 2007).

Upon reviewing the record, we find no error in the court’s determinations

with respect to counsel’s allegations of fraud.

Accordingly, the district court properly exercised its discretion in denying

Dr. Elkharwily’s motions for a new trial and for relief from judgment under

Federal Rule of Civil Procedure 60(b). See United States v. Chapman, 642 F.3d

1236, 1240 (9th Cir. 2011) (standard of review). Dr. Elkharwily did not present

new evidence that could not, with reasonable diligence, have been discovered

earlier. See Jones v. Aero/Chem Corp., 921 F.3d 875, 878 (9th Cir. 1990). Nor did

Dr. Elkharwily show that FHS presented fraudulent evidence regarding the

availability of other nocturnists to proctor him. See De Saracho v. Custom Food

Machinery, Inc., 206 F.3d 874, 880 (9th Cir. 2000).

II. Elkharwily II

The district court did not err in dismissing, as barred by res judicata, Dr.

Elkharwily’s claim under Rule 60(d)(3) of fraud on the court allegedly committed

by FHS in Elkharwily I. See Ruiz v. Snohomish Cty. Pub. Util. Dist. No. 1, 824

F.3d 1161, 1164 (9th Cir. 2016) (stating requirements for res judicata). The court

correctly concluded that there was (1) identity of parties, (2) a final judgment on

the merits of the fraud allegations under Rule 60(b) in Elkharwily I, and (3)

5 identity of claims because Dr. Elkharwily’s amended complaint in Elkharwily II

repeated his allegations of fraud by FHS’s counsel.

The district court properly exercised its discretion in imposing a sanction

under Rule 11 because Dr. Elkharwily’s claim was plainly barred by res judicata

and therefore baseless. See Edgerly v. City & Cty. of S.F., 599 F.3d 946, 962-63

(9th Cir. 2010); Holgate v. Baldwin, 425 F.3d 671, 675 (9th Cir. 2005).

AFFIRMED.

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