United States Of America et al v. Spanish Oaks Hospice, Inc et al

Filing 49

ORDER granting re 48 Emergency Motion to Amend/Clarification of Court's Orders and Federal Rule of Civil Procedure 15 re 44 Order on Motion to Amend re 47 Order on Motion to Stay, 39 Order on Motion for Extension of Time to File Response. Plaintiff's shall file their amendment or motion to amend as soon as possible, but not later than August 1, 2017. Signed by Magistrate Judge G. R. Smith on 7/25/17. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA,
ex rel. JOLIE JOHNSON and
DEBBIE HELMLY,
Plaintiffs,
v.
SPANISH OAKS HOSPICE, INC.,
et al.,
Defendants.

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CV415-143

ORDER
The plaintiffs (relators) in this False Claims Act case have
construed the Court’s Order staying discovery -- based on the apparent
strength of defendants’ dismissal arguments -- as indicating that they
must amend their Complaint. See doc. 47 (granting stay of discovery
because defendants appeared likely to prevail on arguments that
Complaint was an impermissible “shotgun pleading,” failed to plead
sufficient facts, among others); doc 48. at 2. They intend to either amend
their Complaint, or move to amend it, by the extended deadline to
respond to defendants’ motion to dismiss.

Doc. 48 at 2.

They have

unsuccessfully sought defendants’ consent to the amendment, despite

contending they have a right to amendment under Fed. R. Civ. P. 15. Id.
at 2 n. 1. Plaintiffs therefore seek “clarification” that the Court intended
to extend their deadline to amend the Complaint until July 31, 2017.1
Doc. 48 at 2. Finally, they want the Court to stay their deadline to
respond to the Motion to Dismiss, pending resolution of their proposed
amendment, which they contend will moot the dismissal motion. Id.
The parties have been before the Court once already seeking
judicial resolution of a dispute that could have been resolved without
judicial intervention. See doc. 44 (resolving dispute between the parties
about meaning of counsels’ “Okay with me” response to extension
request). Normally, the Court would reserve ruling until defendants had
responded in opposition to the amendment or consented by silence. See
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Plaintiffs have asked the Court to rule on their motion to amend under the guise of
a “clarification” of its Order granting them additional time to respond to the Motion
to Dismiss. See doc. 48 at 2 (“Relators need clarification that the Court agrees that
the time for filing the amendment as of right has extended through July 31, 2017.”).
That’s not “clarification,” that’s a ruling on a motion to amend. Further, the Order
that the plaintiffs ask the Court to “clarify” is one that they proposed. See doc. 38-1
(proposed order extending response deadlines until July 31, 2017).
Rather than seek ersatz “clarification,” upon defendants’ refusal to consent to
amendment, the plaintiffs could simply have responded to the Motion to Dismiss,
assuming they maintain their contention that their original Complaint is sufficient
(the Court’s “preliminary peek” at the dismissal motion is not binding on the district
judge, after all) and argued, in the alternative, for amendment, either as a matter of
right or permissive. They chose not to. Thus, the Court is again forced to devote its
resources to managing their litigation.
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S.D. Ga. L. Civ. R. 7.5 (“Failure to respond within the applicable time
period shall indicate that there is no opposition to a motion.”). In this
case, however, waiting for defendants’ response would risk further
wasteful consumption of Court and litigant resources on a moot dismissal
motion.
Since the parties appear incapable of reasonable compromise, the
Court will again step in. First, it GRANTS the plaintiffs’ motion to stay
the August 1, 2017 deadline to respond to defendants’ Motion to Dismiss.
Doc. 48.

Second, the Court will construe relators’ request for

“clarification” as a motion to amend. See id. at 2. To move this case
along, it will, however, impose an abbreviated briefing schedule on this
issue. Plaintiffs shall file their amendment or motion to amend as soon
as possible, but not later than August 1, 2017. If defendants contend
that their amendment is improper (i.e. because the plaintiffs were
required, but failed, to seek leave before amending) and permissive
amendment is not warranted, under Fed. R. Civ. P. 15(a)(2)’s “freely
given” standard, or that the amendment does not moot their pending
dismissal motion, they must respond in opposition to the amendment no

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later than August 8, 2014. If defendants respond and relators wish to
reply, they must do so by no later than August 15, 2017. If defendants
concede the propriety of the amendment, Fed. R. Civ. P. 15(a)(3)’s 14-day
response period and this Court’s ordinary briefing schedule apply.
SO ORDERED, this 25th day of July, 2017.

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