United States of America ex rel. Jolie Johnson and Debbie Helmly et al v. Bethany Hospice of Coastal Georgia, LLC et al

Filing 93

ORDER granting 83 Motion to modify the Court's Order staying the case. The parties are ORDERED to meet and confer within 14 days of service of this Order to discuss a proposed, limited Scheduling Order to proceed with fact discovery on relators retaliation claim. The parties are further ORDERED to file their joint, limited Scheduling Order within 21 days of service of this Order. Signed by Magistrate Judge James E. Graham on 5/2/19. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA
ex rel. JOLIE JOHNSON, et al.,
Relators,
v.
BETHANY HOSPICE AND
PALLIATIVE CARE OF COASTAL
GEORGIA, LLC, et al.,
Defendants.

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CV416-290

ORDER
Relators ask the Court to reconsider its Order (doc. 79) staying the
case pending resolution of defendants’ motion to dismiss the Second
Amended Complaint. Doc. 83. They argue, for the first time, that if the
case must be stayed only discovery relating to the alleged kickback
scheme must be stayed. After all, that is the subject of the motion to
dismiss. That means that discovery on their retaliation claim can go
forward. They’re not wrong, and that would have been a very good
argument to raise in their initial briefing, which they received extra
pages and multiple extensions of time to mount. See docs. 60, 65, 72. But
they did not argue that discovery should be bifurcated. See doc. 67 at 1

(noting that the case involves two claims, “kickbacks and retaliation,”
and that there is no motion to dismiss pending on the retaliation claim,
but failing to affirmatively argue that discovery could go forward on the
retaliation claim without implicating the pending motion to dismiss).
This new argument, in other words, was neither evaluated, nor rejected,
in the Court’s Order staying discovery. Indeed, the Court specifically
stayed discovery because “half” the case (the kickback scheme) might be
carved away if the motion to dismiss were granted. Doc. 79 at 3 & 6 (“The
Court concedes that [the motion to dismiss] may not terminate the entire
case (indeed, at the very lease relators’ retaliation claim will survive)[.]”).
A Fed. R. Civ. P. 59(e) motion for reconsideration may be granted
based only on newly-discovered evidence or to correct manifest errors of
law or fact. In re Kellogg, 197 F.3d 1116, 1119 (11th Cir. 1999). Rule
59(e) motions may not be used to “relitigate old matters, raise argument
or present evidence that should have been raised prior to the entry of
judgment.” Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763
(11th Cir. 2005).
Relators’ “motion relie[s] on no newly-discovered evidence and
demonstrate[s] no manifest error of law or fact” in the court’s order. The
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Bedtow Grp. II, LLC v. Ungerleider, No. 16-10213, 2017 WL 1279036 at
*3 (11th Cir. Apr. 6, 2017).

Nothing in relators’ motion for

reconsideration demonstrates this Court’s holding was incorrectly
reached. 1 The Court, nevertheless, recognizes the merits of relators’ new
argument that discovery could be bifurcated: the retaliation claims are not
subject to any pending motion to dismiss and are, indeed, leveled against
only one defendant. Doc. 45 at ¶¶ 85-88 (naming defendant Bethany
Coastal). And, perhaps, “discovery on the retaliation claims” is indeed
“inevitable.” Doc. 83 at 2. It will therefore construe relators’ motion as
one to modify the Court’s Order, rather than reconsider it.
Defendants’ argument that discovery on the retaliation claims will
necessarily overlap with discovery on the kickback scheme is compelling.
Doc. 88 at 8 (arguing that permitting bifurcated discovery “would prolong,
if not double, the discovery period in this case.”). They do not, however,
and as relators note, name any particular witness that might so duplicate

1

Relators’ grumpiness that the Court failed to raise the matter sua sponte and
bifurcate discovery, see doc. 83 at 2 n. 2, is noted. However, the Court also notes that
it is the parties’ job to brief the positions, and outcomes, that they both desire and
believe are warranted, and to set forth their arguments and support for their
arguments at some point in their extended briefing schedule. The Court is not in the
business of litigating on parties’ behalves.
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discovery efforts. Doc. 92 at 3. Indeed, relators point out, only Bethany
Coastal employees would be witnesses to alleged retaliation, while
Bethany Hospice employees would be witnesses to the alleged kickback
scheme. Id. (representing that even were defendants’ motion to dismiss
granted, neither the witness list nor the nonparty discovery on the
retaliation claim would change). Perhaps, given that characterization of
relators’ proposed discovery arc, a compromise can be reached.
The Court, as already said in its Order, sympathizes with the length
of time that has passed in this aging case. See doc. 79 at 7 n. 2. One relator
has passed away, and her Estate is anxious for resolution. Memories fade,
and documents can get misplaced. The Court also reiterates its confidence
that the already-sent litigation hold notices will do their job of preserving
existing documents. Certainly, the unending papering of this Court is
refreshing witness recollections every day.

The Court is, however,

prepared to permit the parties to agree to narrow discovery on the
retaliation claim.
The parties are ORDERED to meet and confer within 14 days of
service of this Order to discuss a proposed, limited Scheduling Order to
proceed with fact discovery on relators’ retaliation claim. No discovery on
4

the kickback scheme will be permitted at this juncture, nor will any
discovery that the parties reasonably believe would be duplicative of
discovery on the alleged kickback scheme.

The parties are further

ORDERED to file their joint, limited Scheduling Order within 21 days of
service of this Order. In sum, relators’ motion to modify the Court’s Order
staying the case (doc. 83) is GRANTED.
SO ORDERED, this 2nd

day of May, 2019.

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