2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-22-2010

Subir Ray v. Pinnacle Health Hosp

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4508

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Recommended Citation

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NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________________

NOS. 09-4508 and 10-3571

___________________

SUBIR RAY,

 Appellant

v.

PINNACLE HEALTH HOSPITALS, INC.;

RAYMOND KOSTIN; DANA KELLIS; ROGER LOGENDERFER

_________________

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil No. 1-07-cv-00715)

District Judge: Hon. Sylvia H. Rambo

__________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 2, 2010

BEFORE: SCIRICA, STAPLETON and ROTH, Circuit Judges

(Opinion Filed: November 22, 2010)

__________________
2

STAPLETON, Circuit Judge:

In this appeal, plaintiff-appellant Dr. Subir Ray challenges the District Court’s 

grant of summary judgment to defendants Pinnacle Health Hospitals, Inc., Dr. Raymond 

Kostin, Dr. Dana Kellis, and Dr. Roger Longenderfer on Ray’s claims of racial 

discrimination and retaliation under 42 U.S.C. § 1981. The issues on appeal are: (1) 

whether the District Court erred in granting summary judgment for defendants on Ray’s 

retaliation claims; (2) whether the District Court erred in granting summary judgment on 

some of Ray’s racial discrimination claims; and (3) whether the District Court abused its 

discretion in denying Ray’s motion under Fed. R. Civ. P. 62.1. Because Ray waived his 

retaliation claims in the District Court and did not tender evidence that would allow a 

jury to reject Pinnacle’s legitimate non-discriminatory reason for the allegedly 

discriminatory actions addressed in Ray’s brief, we will affirm the grant of summary 

judgment. The Court did not abuse its discretion in making its Rule 62.1 ruling. 

I. Background1

Plaintiff-appellant Subir Ray is a general surgeon of Asian-Indian race. 

Defendant-appellee Pinnacle Health Hospitals is a Pennsylvania non-profit hospital 

providing acute care, including surgical services. Dr. Raymond Kostin is Pinnacle’s 

Chairman of the Department of Surgery and Interim Director of the General Surgery 

Residency Program. Dr. Dana Kellis is Senior Vice President of Medical Affairs at 

A.

 1 Because we write only for the parties, and to protect the privacy of the patients, doctors, 

and the hospital, we do not include details of the disputed patient case histories. 
3

Pinnacle. Dr. Roger Longenfender was Pinnacle’s President and Chief Executive Officer 

at the time of the dispute. 

From 1992 through July 2007, Ray was a member of the Medical Staff at Pinnacle 

and enjoyed surgical privileges there but was not employed by the hospital. Until 

January 2007, Ray’s surgical privileges were regularly renewed for a period of two years. 

Medical staff members must undergo a reappointment process at regular intervals of not 

more than every two years. Although his privileges were regularly renewed, Ray was 

never invited to join the faculty of the hospital’s residency program, despite his periodic 

requests. He was, however, occasionally assigned residents who would assist him and 

cover for him in the emergency room. Faculty membership would have assured him 

continuous access to residents in return for his training them in surgical procedures and 

giving them surgical experience. 

The surgical privilege reappointment process requires a review of a member’s 

credentials by a Credentials Committee, which makes recommendations to a Medical 

Staff Executive Committee (MEC). The MEC, which represents and acts for the medical 

staff, makes recommendations to the hospital’s board of directors regarding physician 

applications for reappointment to the medical staff. If the medical staff recommends that 

a physician’s application for reappointment be denied, the medical staff must provide for 

a fair hearing and an appeals process. 

In 1999, Ray was the subject of a quality assurance (QA) review by a fair hearing 

committee (FHC) because of reported problems with various patient outcomes. The 

FHC, headed by then-chair of surgery Stephen Weiss, recommended (and the Board of 
4

Directors adopted) corrective action, including a “100% quality assurance review” of 

Ray’s patient caseload for one year and Ray’s participation in no less than 75% of the 

Surgery Department’s continuing education programs. In 2002, the Surgical Faculty 

discussed adding Ray to the faculty but decided not to because of unresolved QA issues. 

They did, however, continue to renew Ray’s surgical privileges for periods of two years 

through December 2006.

On January 31, 2007, Pinnacle notified Ray that it would renew his surgical 

privileges only for six months due to an on-going QA investigation into several of Ray’s 

patient case histories, which had been triggered by complaints from various hospital 

departments, including nursing and anesthesiology. On April 17, 2007, Ray filed a 

complaint in District Court claiming racial discrimination and conspiracy under 42 

U.S.C. §§ 1981 and 1985.2

 2 Ray does not contest the District Court’s dismissal of his § 1985 claim.

Dr. Kostin, who had become Chairman of the Department of Surgery and Interim 

Director of the General Surgery Residency Program at Pinnacle, reviewed Ray’s patient 

histories. On April 18, 2007, Kostin recommended to a Pinnacle Credentials Committee 

that it deny Ray’s application for reappointment. The Credentials Committee, comprised 

of ten doctors, voted unanimously to accept Kostin’s recommendation. The MEC - 24 

doctors from various departments of the Medical Staff - reviewed and unanimously 

approved the Credentials Committee recommendation on April 24, 2007. Defendants Dr. 

Kostin and Dr. Kellis abstained from voting. 
5

On Ray’s request, a fair hearing was conducted on July 16 and 17, 2007, for 

approximately seven hours. The hearing was scheduled around Ray’s planned two-week 

vacation in early July. Prior to the hearing, Ray agreed to the number of members and 

the particular physicians on the FHC. In addition, Ray objected to and succeeded in 

having replaced one of the physicians originally suggested as a member of the FHC. The 

panel consisted of three physicians (rather than the customary five) and an attorney, who 

served as presiding officer. Both sides were represented by counsel, presented briefs and 

documentary evidence, examined and cross-examined witness, and presented oral 

arguments. 

On July 19, the FHC deliberated for over two hours and found that most of the 

MEC’s findings had a factual basis, were reasonable, and were not arbitrary or 

capricious. However, the FHC also found that several of the MEC’s findings were 

unreasonable or unsupported by the record, including all of its findings regarding one of 

the patients in question. The FHC unanimously recommended denying Ray’s 

reappointment application. The reason for the recommendation was exercise of poor 

clinical judgment in pre-operative, inter-operative, and post-operative patient care 

rendering patient care below accepted standards of medical practice. 

Although four of the six patients the MEC reviewed died after surgery, the FHC 

did not conclude that Ray’s actions caused these deaths. The FHC also strongly 

recommended procedural improvements to the MEC that the FHC believed would 

improve the credibility of the review process. However, the Committee determined that 
6

the perceived shortcomings of the MEC review of Ray’s patient histories did not affect 

the ultimate outcome. 

On August 29, 2007, an Appellate Review Committee, comprised of three 

members of Pinnacle’s Board of Directors, unanimously confirmed the FHC’s 

recommendation that the hospital deny Ray’s reappointment to the surgical staff. The 

appeals committee reviewed the full records including Fair Hearing transcripts, written 

statements of the parties, oral arguments and response to questions. Committee members

unanimously concluded that Ray did not show that the charges of the MEC lacked a 

factual basis. They noted that the clinical concerns regarding Ray had been reviewed by 

the Surgical Quality Assurance Committee, Chairman of the Department of Surgery, 

Credentials Committee, Medical Executive Committee, and Fair Hearing Committee. 

The Appeals Committee found that Ray’s suggestion that he had not had a fair hearing 

was not supported by the record, noting that the three surgeons on the FHC had reviewed 

the full original medical records of each case available, heard extensive testimony from 

Ray and from Ray’s expert, Dr. Holman, and adopted Ray’s position on a number of 

factual issues. On September 24, 2007, the full board of directors voted to deny 

reappointment to Ray. 

In the meantime, on July 31, 2007, another area hospital requested information 

from Pinnacle in response to Ray’s application for surgical privileges at the other 

hospital. Pinnacle promptly supplied the requested information. On November 12, 2007, 

the other hospital requested additional information. Pinnacle did not respond to the 

second request because it had provided an Adverse Action Report to the National 
7

Practitioner’s Data Bank regarding the denial of Ray’s reappointment application. 

Hospitals are required to query this data bank for information. 

B.

Ray filed suit against Pinnacle in the Middle District of Pennsylvania on April 17, 

2007. He alleged claims under 42 U.S.C. § 1981 for discrimination based on race. 

Thereafter, Ray amended his complaint to allege retaliation claims based on the filing of 

this suit. The District Court granted summary judgment to the defendants on all claims. 

Ray filed a timely notice of appeal. Subsequently, Ray filed a Fed. R. Civ. P. 62.1 

Indicative Ruling Motion with the District Court. Ray sought to have the District Court 

rule that if this Court were to remand the case, the District Court would grant a Fed. R.

Civ. P. 60 motion to amend its judgment, on the theory that the defendants’ failure to 

move for summary judgment on Ray’s retaliation claims left those claims outstanding 

and that summary judgment should not have been granted on those claims. The District 

Court denied the motion stating that it could not represent that it would grant Ray’s 

motion if the case were remanded to it and could not say that Ray’s motion raised a 

substantial issue. The appeal from summary judgment and the appeal from the denial of 

the Rule 62.1 motion to alter judgment are now joined before this Court.3

 3 The District Court had federal question jurisdiction over this action under 42 U.S.C. § 

1981 and 42 U.S.C. § 1985. We have jurisdiction over the District Court’s final orders 

under 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment de 

novo. Hahnemann Univ. v. All Shore, Inc., 514 F.3d 300, 305 (3d Cir. 2008). Although 

we have not previously decided the standard of review for a district court’s denial of a 

Rule 62.1 motion, we will review for abuse of discretion as Rule 62.1 was designed to 

adopt the practice most trial courts follow when a party makes a Rule 60(b) motion. Fed. 

R. Civ. P. 62.1 cmt. We review a district court's denial of a Rule 60(b) motion for abuse 
8

II. Waiver of the Retaliation Claims

Ray’s Second Amended Complaint complained in Count I of the denial of 

permission to participate in the Surgical Residency Teaching Program; in Count II of his 

reappointment as a member of the Medical Staff for only six months in January of 2007; 

in Counts III and IV of the failure to renew his staff privileges; and in Count V of the 

failure to respond to the inquiries of the Carlisle Hospital. The actions of the defendants 

addressed in all counts were alleged to be “discriminatory.” The actions of the 

defendants addressed in Counts II, III, IV and V were alleged to be “discriminatory and 

retaliatory.” The District Court granted summary judgment to the defendants on all of 

Ray’s claims.4

Defendants’ motion for summary judgment unmistakably sought summary 

judgment on each count of the amended complaint. Similarly, their brief in support of 

their motion addressed each of those counts. With respect to the claims stated in Counts 

III and IV regarding the failure to renew staff privileges, the defendants’ brief addressed 

the claims that surgical privileges were denied in retaliation for the bringing of this 

action. It argued that Ray could not show causation because the process that resulted in 

the denial of his privileges was initiated well before the suit was filed. With respect to 

 

of discretion. Brown v. Philadelphia Housing Authority, 350 F.3d 338, 342 ( 3d Cir. 

2003).

4 Ray suggests, to the contrary, that the order appealed from is not a final order and that 

we, accordingly, have no jurisdiction. He is in error. The District Court’s order directs 

that “Defendants’ motion for summary judgment . . . is GRANTED. The clerk of court is 

directed to enter judgment for Defendants against Plaintiff and to close the case.” App. at 

24. The clerk did so.
9

Count II, the defendants insisted that Ray could not establish liability because the six 

month limited extension of privileges resulted solely from the initiation and continuation 

of that process.5

“It is a well settled rule that a party opposing a summary judgment motion must 

inform the trial judge of the reasons, legal or factual, why summary judgment should not 

be entered. If it does not do so, and loses the motion, it cannot raise such reasons on 

appeal.” Liberles v. County of Cook, 709 F.2d 1122, 1126 (7th Cir. 1983); accord 

Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary 

Judgment addressed his Count III and IV claims in an argument which makes no 

reference to retaliation and which is captioned as follows:

The Defendant Failed to Meet its Burden of Proof to 

Demonstrate the Plaintiff Cannot Establish a Prima Facie

Case of Discrimination on the Decision Not to Reappoint the 

Plaintiff.

There is no argument in the entire brief explaining how Ray was going to be able to 

establish that he is entitled to recover on any of his retaliation claims. The sole reference 

to retaliation is in the following isolated passage from the section addressing Count V:

The Plaintiff asserts the decision not to respond [to the 

Carlisle Hospital] was retaliatory and discriminatory. In 

short, the Plaintiff argues the Section 1981 violation which 

resulted in the revocation of medical staff privileges at 

Pinnacle, was extended and exacerbated by the discriminatory 

act of refusing to respond to Carlisle Hospital’s request for 

information.

Id. at 17-18.

 5 Defendants’ brief contended that Count V did not state a claim under § 1981 because it 

identified no existing or proposed contractual relationship that had been impaired and 

because it was barred by limitations.
10

Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (“If a party fails to 

assert a legal reason why summary judgment should not be granted, that ground is 

waived and cannot be considered or raised on appeal.”) (internal citation omitted).

We cannot fault the District Court for failing to address retaliation claims which 

Ray had waived, and we may not permit him to press them for the first time on appeal.6

Section 1981 guarantees the right of all persons in the United States “to make and 

enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all 

laws and proceedings for the security of persons and property.” 42 U.S.C. § 1981; Estate 

of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788, 797 (3d Cir. 2010). The 

substantive elements of a § 1981 claim are generally identical to the elements of an 

employment discrimination claim under Title VII and are analyzed pursuant to the 

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 802 (1973). See Brown v. J. Kaz, Inc., 581 F.3d 175, 181-182 (3d Cir. 2009). The 

plaintiff must first establish a prima facie case of discrimination. St. Mary's Honor Ctr. 

v. Hicks, 509 U.S. 502, 506 (1993). The burden then shifts to the employer to "articulate 

some legitimate, nondiscriminatory reason for the employee's [termination]." McDonnell 

III. Failure to Tender Sufficient Evidence of Pretext

 6 We will also not consider additional evidence of retaliation Ray attempts to introduce on 

appeal. As an appellate court, we do not “take testimony, hear evidence or determine 

disputed facts in the first instance. Instead, we rely upon a record developed in those fora 

that do take evidence and find facts.” In re Capital Cities/ABC, Inc.'s Application for 

Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990) (internal citation omitted). 

We do not consider material on appeal that is outside of the district court record. Webb v. 

City of Philadelphia, 562 F.3d 256, 261 n.4 (3d Cir. 2009). 
11

Douglas, 411 U.S. at 802. Finally, the plaintiff must prove by a preponderance of the 

evidence “that the employer's proffered reasons were merely a pretext for discrimination, 

and not the real motivation for the unfavorable job action.” Sarullo v. U.S. Postal Serv.,

352 F.3d 789, 797 (3d Cir. 2003) (quoting Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 

U.S. 248, 255 (1981)). 

In a summary judgment context, this means that once the employer articulates a 

legitimate, non-discriminatory reason, “the plaintiff must point to some evidence, direct 

or circumstantial, from which a fact finder could reasonably either (1) disbelieve the 

employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory 

reason was more likely than not a motivating or determinative cause of the employer's 

action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). 

A. Failure to Renew Staff Privileges

For present purposes, we may assume that Ray presented a prima facie case of 

discrimination.7

 7 As a result, we need not address Ray’s contention that the District Court employed the 

wrong standard in concluding that he did not present a prima facie case.

 In response, defendants represented that the failure to renew Ray’s 

privilege was the result of an extensive review of his professional performance. In 

support of this position, defendants tendered evidence that the review consisted of a preexisting, multi-level process involving at least 37 different staff members drawn from 

across Pinnacle’s 800 member staff that represented at least 46 different countries. In 

addition, defendants presented the facts and supporting documents behind six separate 

incidents, in some cases quite serious, where Ray’s professional expertise or judgment 
12

were called into question. The complaints which occasioned the quality assurance review 

of these incidents originated in several different departments.

In light of this evidence the question is whether Ray tendered enough evidence of 

pretext to support a jury finding that his race was a motivating factor in the decision not 

to renew his privileges. As the District Court correctly concluded, he tendered very little 

in addition to his own general assertion that the whole review process was tainted by 

racial animus. Ray does not claim race was discussed by any of the participants in the 

process at any time. Nor does he contest the facts which occasioned the QA review or 

the unanimity of the decision makers.

Ray relies primarily upon evidence which he insists shows that similarly situated 

Caucasian physicians were treated differently, that the process was unfair, and that his 

professional expertise and judgment are good. Given the totality of the summary 

judgment record, however, Ray’s evidence would not support a judgment in his favor.

Pinnacle produced in discovery more than six thousand pages of quality assurance 

information. These documents were comprised of quality assurance reviews for the six 

year period beginning January 1, 2000, and involved 152 physicians in the Department of 

Surgery. From these documents, Ray found two Caucasian physicians whom he contends 

had worse records but were better treated. One went through the same multistep review 

process as Ray and was required to take a leave of absence for additional training. The 

other had his privileges renewed.

While it does appear that neither of these comparators had been the subject of 

concerns giving rise to two separate quality assurance reviews as Ray had, the summary 
13

judgment record concerning them is not sufficiently detailed to permit a reliable analysis 

of whether their performances were equal to or worse than Ray’s. But even assuming 

that both were similarly situated to Ray, he cannot show pretext by picking out one or 

two surgeons who might have been treated differently.

While identification of one or two comparators may be sufficient at the prima 

facie stage of analysis, it is not sufficient at the pretext phase. See Simpson v. Kay 

Jewelers, 142 F.3d, 639, 645-46 (3d Cir. 1998) (evidence of more favorable treatment of 

a single member of a non-protected group may create an inference of discrimination at 

the prima facie phase, “but not necessarily at the pretext phase where the factual inquiry 

into the alleged motives of the employer has risen to a new level of specificity.”). 

Ray has also not tendered evidence raising an inference that the review process 

was designed to discriminate against him. The lengthy transcript of the FHC indicates 

that the panel of doctors carefully considered all of the case histories over the course of 

two evenings, agreed with Ray regarding some of the findings of the MEC, and then 

deliberated for two hours on a third evening before rendering its decision that Ray’s 

actions in the disputed cases fell below the standards of acceptable medical practice.

Ray’s contention that the composition of the FHC is evidence of pretext also fails. 

Ray argues that the FHC should have been comprised of five rather than three physicians 

to be in compliance with Pinnacle by-laws, and that he was prejudiced by having a direct 

competitor on the panel. Ray argued that he was forced to accept the three-member panel 

and the specific doctors because of time constraints, but he supported this contention 

before the District Court with an unsworn “Declaration.” That “Declaration,” however, 
14

is at odds with Ray’s deposition testimony and other evidence that he had no idea how 

many people should be on the committee, that he agreed to the number of people and the 

individuals on the panel without objection, that the hearings were scheduled around 

Ray’s summer vacation plans, that he waived the time requirements in the bylaws, and 

that he successfully objected to and had replaced a proposed committee member.8

 

Because it conflicts with his more reliable deposition testimony, given under oath 

and subject to cross examination, as well as with other evidence in the record, Ray’s 

“Declaration” does not raise a genuine issue of material fact. To the limited extent his 

statement addresses having a competitor on the panel, it is corroborated by his deposition 

testimony. However, there is no testimony or record support for his contention that time 

constraints forced his decision making. Ray’s burden is to show racial animus, not 

competitive prejudice. Even if he contends the decision making of the FHC was 

somehow wrong, this alone is not sufficient to create an inference of animus. 

 8 The District Court refused to consider the statement because it was unsworn. Unsworn 

declarations may substitute for sworn affidavits where they are made under penalty of 

perjury and otherwise comply with the requirements of 28 U.S.C. § 1746. However, 

statements which conflict with an individual’s deposition testimony do not raise a 

genuine issue of material fact and can properly be disregarded where the conflict is 

unexplained or unsupported by other record evidence. See Jimenez v. All American 

Rathskeller, 503 F.3d 247, 253-54 (3d Cir. 2007)(sham affidavit cannot raise a genuine 

issue of material fact when it contradicts earlier deposition testimony; deposition 

testimony is more reliable because subject to cross examination); see also Byrne v. 

Monmouth Cnty. Dept. of Health Care Facilities, 372 Fed. Appx. 232, 233-234 (3d Cir. 

2010) (unsworn certification not supported by any documentation or factual testimony is 

insufficient to defeat summary judgment); Williams v. Borough of West Chester, 891 

F.2d 458, 460 (3d Cir.1989) (nonmoving party cannot simply assert factually 

unsupported allegations to meet burden at summary judgment).
15

Finally, Ray relies upon the deposition testimony of Dr. Holman, who was director 

of Pinnacle’s residents’ training program from 2002 to 2006. Holman testified that he 

considered Ray to be the best laparoscopic surgeon at Pinnacle, and that Holman’s review 

of Ray’s patient records never led him to believe Ray did not qualify to be a surgical 

faculty member. One surgeon’s opinion that Ray was a good doctor is insufficient to 

suggest that race motivated the decisions of four separate review panels, comprised of 

over 37 physicians and Pinnacle’s board of directors, all of whom reviewed Ray’s patient 

records. Dr. Holman testified at the FHC on behalf of Dr. Ray, and his opinion was duly 

considered by the FHC and the Appeals Committee. 

It is not enough for Ray to show that there was a difference of professional 

opinion between Holman and the decision makers or that Pinnacle’s decision making 

may have been wrong or mistaken. See, e.g., Fuentes, 32 F.3d at 765 (factual dispute is 

whether “discriminatory animus motivated the employer, not whether the employer is 

wise, shrewd, prudent, or competent.” ). The plaintiff “must show, not merely that the 

employer’s proffered reason was wrong, but that it was so plainly wrong that it cannot 

have been the employer’s real reason.” Keller v. Orix Credit Alliance, 130 F.3d 1101, 

1109 (3d Cir. 1997). 

B. Renewal of Staff Privileges for Six Months Only

Ray’s staff privileges were renewed in January of 2007 for a six month period 

rather than the usual two year period because of the pendency of a QA proceeding. 

During the period from 2005 through 2007, there were four other physicians whose 

appointment periods were less than two years, and all were Caucasians. This as well as 
16

the record evidence referenced in the preceding section establishes that a verdict in favor 

of Ray on this claim would not have adequate support.

C. Ray’s Other Claims

1. Denial of Participation in Residency Program

Ray asserts that Pinnacle refused to explain why Dr. Kostin prevented him from 

being appointed to the faculty of the surgical residency program and that no other 

surgeon who asked was denied appointment. He argues that, as he was the only Asian 

Indian surgeon on staff, the reasonable inference to be drawn is that the failure to appoint 

him was the result of prejudice. Pinnacle, however, showed that its concerns about Ray’s 

patient outcomes dated back to at least 1999 under a different head of surgery, Dr. Weiss. 

Subsequently, in 2002, the surgical faculty, not Dr. Kostin, considered appointing Ray to 

the residency faculty but decided against because of QA concerns. Moreover, Pinnacle 

showed that it had other Asians on the residency faculty including physicians from 

Pakistan and the Philippines. In short, Ray failed to carry his burden to raise an inference 

of racial discrimination on this claim.

2. Failure to Provide Information to the Carlisle Hospital

 Ray offers nothing beyond his personal belief in support of his claim that Pinnacle 

failed to provide information to the Carlisle Hospital because he was of Indian descent. 

This is insufficient to carry his burden, particularly in light of undisputed documentary 

and testimonial evidence that Pinnacle did provide all of the information Carlisle 

originally sought.

IV. Rule 62.1 Denial
17

Rule 62.1 allows a trial court to take certain action on a motion for relief when an 

appeal has been docketed and is pending. The court may:

(1) defer considering the motion;

(2) deny the motion; or

(3) state either that it would grant the motion if the court 

of appeals remands for that purpose or that the motion 

raises a substantial issue. Rule 62.1(a).

Here, the District Court decided that the motion did not raise a substantial issue. 

We agree and cannot say the Court abused its discretion in denying the Rule 62.1 motion. 

V. Conclusion

In light of the foregoing, the District Court properly granted Pinnacle’s motion for 

summary judgment on all Ray’s claims and properly denied his Rule 62.1 motion. The 

orders appealed from will be affirmed.