United States of American v. Malik Dr et al

Filing 112

OPINION AND ORDER denying 109 Motion to Strike Attorney Fees and Expenses. Stephens' Reply to be filed by 7/26/2016. Defendants' Response to be filed by 7/19/2016. Signed by Magistrate Judge Paul R Cherry on 7/5/16. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA
ex rel. BRADLEY A. STEPHENS,
Plaintiff,
v.
DR. ARSHAD MALIK, AFZAL MALIK, and
PRIME HEALTH CARE SERVICES, INC.,
Defendants.

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CAUSE NO.: 2:12-CV-306-WCL-PRC

OPINION AND ORDER
This matter is before the Court on a Motion to Strike [DE 109], filed by Defendants Afzal
Malik and Prime Health Care Services, Inc. on June 1, 2016. Relator Bradley Stephens filed a
Response on June 16, 2016. No reply has been filed, and the time in which to do so has elapsed.
The Court dismissed the instant cause of action without prejudice on April 29, 2016,
pursuant to a stipulation of dismissal signed by all of the parties and filed with the Court. Twenty
days later, on May 19, 2016, Stephens filed a Relator’s Petition for Attorney Fees and Expenses
Pursuant to 31 U.S.C. § 3730(d).
Defendants move the Court to strike Stephens’s petition for fees on the grounds that it was
untimely. Federal Rule of Civil Procedure 54(d) requires a motion for attorney’s fees be made
within fourteen days of entry of judgment. Fed. R. Civ. P. 54(d)(2)(B). Plaintiff argues that the
Court’s Order dismissing this case is not a judgment for the purpose of Rule 54 and, in the
alternative, that the delay was brief, in good faith, and the result of excusable neglect.
“‘Judgment’ as used in [the Federal Rules of Civil Procedure] includes a decree and any
order from which an appeal lies.” Fed. R. Civ. P. 54(a). Because the dismissal of a cause of action
ends the litigation, such a dismissal is a judgment. Am. Nat. Bank & Trust Co. of Chicago v.

Equitable Life Assurance Soc. of U.S., 406 F.3d 867, 875 (7th Cir. 2005); Hill v. Potter, 352 F.3d
1142, 1144 (7th Cir. 2003) (“The test for finality is not whether the suit is dismissed with prejudice
or without prejudice, on the merits or on a jurisdictional ground or on a procedural ground . . . . The
test is whether the district court has finished with the case.”). The Court’s April 29, 2016 Order
dismissing this cause of action is a judgment under the Federal Rules.
Stephens filed his petition for fees after time to do so allowed by Rule 54(d) expired.
Stephens asserts that the delay in filing the petition is partly due to discussions with counsel for
Defendant Afzal Malik in an attempt to reach an agreement about the fee amount. Stephens also
argues that the missed deadline is a result of excusable neglect due to his counsel’s good faith belief
that Rule 54 and the associated local rule do not apply to the facts of this case.
The Court finds that the delay was brief, in good faith, and did not prejudice Defendant. See
McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008) (citing Pioneer Inv. Serv. Co. v. Brunswick
Assocs., 507 U.S. 380, 395 (1993)).
Because the missed deadline is the result of excusable neglect, the Court hereby DENIES
the Motion to Strike [DE 109]. The Court SETS the deadline for Defendants to respond to the
Motion for Attorney Fees and Expenses for July 19, 2016, and the deadline for Stephens to reply
for July 26, 2016.
SO ORDERED this 5th day of July, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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