Reilly et al v. Adventist Health et al

Filing 49

ORDER TERMIATING Certain Defendants and ORDER to SHOW CAUSE Regarding Dismissal of Claims Against Other Defendants, signed by District Judge Anthony W. Ishii on 6/30/2020. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES and the STATE OF
CALIFORNIA, ex rel. THOMAS REILLY,
GARRETT LEE, KEVIN SCHMIDT, AND
TERRY HILLIARD,

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Plaintiffs,

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v.

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CASE NO. 17-CV-00613-AWI-SKO
ORDER TERMINATING CERTAIN
DEFENDANTS AND ORDER TO SHOW
CAUSE REGARDING DISMISSAL OF
CLAIMS AGAINST OTHER
DEFENDANTS

ADVENTIST HEALTH, et al.,

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Defendants.

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There are ten defendants named in the First Amended Complaint (“1AC”) in this action:

17 Adventist Health, San Joaquin Community Hospital (“SJCH”), Premier Physician Alliance, Inc.
18 (“PPA”), Raymond Zurcher, Donald Cornforth, Kurt Hoekendorf, Paul Griffin, William Brent
19 Soper, Scott Reiner and Robert Beehler (“Defendants”). See Doc. No. 8, Part III.B. Griffin filed
20 an Answer to the 1AC on September 19, 2019, Doc. No. 34, and Adventist Health, SJCH,
21 Hoekendorf, Soper, Reiner and Beehler (together, the “Moving Defendants”) brought a motion to
22 dismiss the 1AC on October 8, 2019. Doc. No 35. Three other Defendants—PPA, Zurcher and
23 Cornforth—have not responded to the 1AC in any fashion.
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On May 18, 2020, the Court granted the Moving Defendants’ motion to dismiss. See Doc.

25 No. 48. The Court’s May 18 Order dismissed all of the claims in the 1AC as to the Moving
26 Defendants with leave to amend two counts. See id. The Court granted Relators twenty-one days
27 to file an amended complaint and warned that “[i]f Relators fail to file a Second Amended
28 Complaint within 21 days from the date of electronic service of th[e] Order, leave to amend will

1 be withdrawn and Adventist Health, San Joaquin Community Hospital, [] Beehler, [] Hoekendorf,
2 [] Reiner and [] Soper will be terminated as defendants in this action without prior notice to the
3 parties.” Id. More than twenty-one days has now passed, and despite the Court’s warning, Relators
4 have not amended their claims.
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The Court takes Relators’ failure to comply with the May 18 Order—and Relators’ failure

6 to heed the Court’s warning regarding termination of the Moving Defendants—as Relators’
7 decision to discontinue prosecution of this matter as to the Moving Defendants. Moreover, the
8 Relators’ failure to file an amended complaint prevents this case from proceeding as to the
9 Moving Defendants because the Court has found that the operative complaint contains no viable
10 claims against the Moving Defendants, and the time to file an amended complaint has passed.
11 Therefore, it is appropriate to withdraw leave to amend the 1AC and terminate the Moving
12 Defendants as defendants in this action.
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Further, it appears that the rationale applied by the Court in dismissing Relators’ claims as

14 to the Moving Defendants applies with equal force to Relators’ claims against Griffin and to the
15 three Defendants—PPA, Zurcher and Cornforth—who have not responded to the 1AC.
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Accordingly, the Court will order Relators to show cause why the claims against Griffin

17 should not be dismissed. Further, the Court will order Relators to show cause why PPA, Zurcher
18 and Cornforth should not be dismissed as Defendants under Rule 4(m) of the Federal Rules of
19 Civil Procedure for lack of timely service and (assuming Relators make such a showing) why
20 claims against PPA, Zurcher and Cornforth should not be dismissed on the grounds in the May 18
21 Order.
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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. Leave to amend the First Amended Complaint is WITHDRAWN;

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2. Adventist Health, San Joaquin Community Hospital, Kurt Hoekendorf, William Brent

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Soper, Scott Reiner and Robert Beehler are TERMINATED as defendants in this case;

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3. Relators shall SHOW CAUSE in writing within ten days of electronic service of this

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Order as to why claims against Paul Griffin should not be dismissed based on the
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analysis set forth in the Court’s May 18, 2020 Order (Doc. No. 48);

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4. Griffin shall have seven days from electronic service of such filing to respond;

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5. Failure by Relators to timely show cause in writing why the claims against Griffin

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should not be dismissed will result in dismissal with prejudice of claims against Griffin

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and termination of Griffin as a defendant without further notice to the parties;

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6. Relators shall SHOW CAUSE in writing within ten days of electronic service of this

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Order as to why claims against Premier Physician Alliance, Inc. (“PPA”), Raymond

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Zurcher and Donald Cornforth should not be dismissed for lack of timely service under

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Rule 4(m) of the Federal Rules of Civil Procedure and, to the extent such a showing is

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made, why dismissal of the claims against PPA, Zurcher and Cornforth is not

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warranted for the reasons set forth in the Court’s May 18, 2020 Order;

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7. PPA, Zurcher and Cornforth shall have seven days from electronic service of such
filing to respond;

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8. Failure by Relators to timely show cause in writing why the claims against PPA,

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Zurcher and/or Cornforth should not be dismissed will result in dismissal with

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prejudice of claims against PPA, Zurcher and/or Cornforth and termination of PPA,

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Zurcher and/or Cornforth as defendants without further notice to the parties;

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9. In the event Relators fail to timely show cause why any of the remaining claims in this

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action should not be dismissed, all remaining claims will be dismissed with prejudice

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and this case will be closed without further notice to the parties.

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IT IS SO ORDERED.

24 Dated: June 30, 2020

SENIOR DISTRICT JUDGE

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