THOMAS et al v. CLARIAN HEALTH PARTNERS, INC. et al

Filing 54

ORDER granting 50 Motion for Extension of Time to File Response to 8/18/2011 re 36 MOTION for Summary Judgment. (See Order) Signed by Magistrate Judge Debra McVicker Lynch on 6/9/2011. (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PAUL S. THOMAS,
DAWN E. THOMAS,
Plaintiffs,
v.
CLARIAN HEALTH PARTNERS, INC. and
IMC CREDIT SERVICES, LLC,
Defendants.

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Order on Plaintiffs’ Second Motion for Time to
Respond to Clarian’s Motion for Summary Judgment
This matter came before the court on the motion (Dkt. 50) by plaintiffs Paul S. Thomas
and Dawn E. Thomas (the “Thomases”) for a second extension of time, to August 18, 2011, to
respond to the motion for summary judgment filed by defendant Clarian Health Partners, Inc.
n/k/a University Health (“Clarian”) on March 25, 2011. The Thomases’ proposed deadline is 28
days after the close of all fact discovery in this case.
This is the second time the Thomases have sought to extend their time until August
18 to respond to Clarian’s motion for summary judgment. In their first motion, the Thomases
complained generally that they should not have to respond to any summary judgment motion
before the close of all fact discovery. As to the discovery they wanted to conduct, the Thomases
pointed only to their desire to take a Rule 30(b)(6) deposition of each of the corporate defendants
and “perhaps other discovery.” The court—noting that parties can file motions for summary
judgment at any time—granted the Thomases until June 9, 2011, to file their response (an
extension of 45 days).

The Thomases now return to court for more time. They explain, with supporting
affidavits, the nature of the discovery they have conducted to date, the discovery they believe is
still necessary to respond to Clarian’s summary judgment motion, and the efforts they have taken
(and are taking) to complete discovery. (See Dkt. 50-1, 50-2).
Clarian objects to the Thomases’ motion. It contends that the additional discovery
described by the Thomases does not fairly go to the issues raised on summary judgment and is
being pursued to “fish” for new claims and to delay the inevitable grant of summary judgment to
Clarian. The Thomases’ complaint alleges that Clarian libeled them in connection with its
communications to a debt collector—defendant IMC Credit Services, LLC—to collect invoices
for medical services rendered by Clarian to plaintiff Dawn Thomas. The complaint describes
three invoices the plaintiffs claim they paid (late) but which Clarian allegedly wrongfully
referred to IMC for collection, which adversely affected Ms. Thomas’s credit scores, and caused
the Thomases’ damages in the form of more expensive credit. Clarian’s summary judgment
motion asserts that all of Clarian’s communications with IMC regarding the status of Ms.
Thomas’s accounts were true and, even if they were not, the communications it had with IMC
fall within a qualified privilege. Clarian’s motion, in part, relies on its following of its normal
business practices in billing Ms. Thomas, referring unpaid bills to IMC for collection, and
applying payments to patient accounts.
A theory the plaintiffs are pursuing to oppose Clarian’s summary judgment motion
concerns Clarian’s supposed failure to follow one of its normal business practices with respect to
applying payments made by the Thomases on their patient accounts, a policy described as the
Credit Balance Resolution Policy. The Policy also may be relevant to counter Clarian’s placing
blame on the Thomases for using one account number for all their payments to Clarian. The

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plaintiffs might not ultimately succeed in demonstrating a genuine issue of material fact because
Clarian did not allegedly follow its usual policy. There may simply not be enough substance to
call into question the truthfulness of Clarian’s communications with IMC regarding the accounts,
Clarian’s good faith in making those communications even if they were not true, or the
application of the qualified privilege to Clarian’s and IMC’s debt-collector relationship.
However, the theory (in the abstract) does not strike the court as so obviously irrelevant to the
summary judgment issues to foreclose the plaintiffs from further investigating the Credit Balance
Resolution Policy as part of their efforts to oppose Clarian’s motion for summary judgment,
including Clarian’s application of the policy to all patient accounts the Thomases had with
Clarian.
It also appears to the court that Clarian has been inappropriately narrow-minded in its
duty to cooperate with the plaintiffs regarding discovery. Insisting that the plaintiffs’ discovery
efforts are not focused on the summary judgment issues (and viewing the case as “quite simple”
and needing no discovery, and viewing the plaintiffs as desperate to make the case seem
complicated and confusing to get by summary judgment), Clarian has been less than fully
cooperative. For example, Clarian viewed the court’s prior order extending the Thomases’
deadline as somehow limiting the scope of discovery the Thomases are permitted to pursue to
something less than that allowed under the general discovery rules. (“The discovery Plaintiffs
now seek goes well beyond the scope of the Court’s Order”). But the court’s prior order did not
address discovery relevance issues or any of the Fed. R. Civ. P. 26(b)(2)(C) factors, or purport to
apply them to any discovery requests.
Clarian refused to identify and produce a Rule 30(b)(6) designee in response to a
proposed deposition notice from the Thomases sent May 23, 2011, based on its belief that the

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topics are not relevant to Clarian’s summary judgment motion. Although the timing of the
plaintiffs’ Rule 30(b)(6) notice (and its follow-up written discovery requests) was such that it
probably would have been nearly impossible to arrange the depositions in time for any testimony
to be used in opposing Clarian’s summary judgment motion by the June 9 deadline, the court is
concerned that Clarian refused to cooperate.
That said, the plaintiffs have not diligently pursued the discovery they say they need, and
it is those actions that may be the source of Clarian’s exasperation. Clarian’s filing of its
summary judgment motion should have put a fire at the plaintiffs’ feet to expeditiously pursue
discovery and develop their theories. The Thomases must have known that waiting until midMay 2011 to even conduct more discovery, communicate Rule 30(b)(6) deposition topics, and
formulate follow-up written discovery requests jeopardized their ability to file a summary
judgment response by June 9.1
The court finds, however, that the Thomases have met their obligation under Fed. R. Civ.
P. 56(d) to explain, by affidavit, the additional discovery they believe is necessary for their
opposition to Clarian’s summary judgment motion and why they cannot adequately respond
without pursuing more discovery. The court GRANTS the Thomases until August 18, 2011, to
file their response to Clarian’s motion for summary judgment.
The Thomases will need to act quickly, however, and choose wisely regarding their
discovery desires. Absent extraordinary circumstances, the court will not further extend the fact
discovery deadline or the Thomases’ summary judgment response deadline. Extraordinary
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Further, that discovery concerning the Policy may be relevant does not mean that every
communication Clarian has had (internally or externally) concerning the Policy over the last
three years is appropriate discovery. (See, e.g., plaintiffs’ description of deposition topics at Dkt.
50-1). Other discovery requests by the plaintiffs also appear to the court to be overbroad given
the Thomases’ delay in focusing on their discovery desires—for example, the performance
generally of “any” contract between Clarian and IMC for the last three years. (See id.).
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circumstances will not include circumstances that the Thomases created by their delay in
focusing on discovery, including waiting until May to seek a range of discovery that might be
unreasonably cumulative or too broad reasonably to be produced by Clarian within the remaining
time for discovery. This is not a license for Clarian to fall back on its narrow view of its
discovery obligations. As always, the court expects the parties to negotiate in good faith and to
permit the Thomases the reasonable discovery they need to pursue their theories to adequately
oppose Clarian’s motion for summary judgment.
Conclusion
For the foregoing reasons, the plaintiffs’ motion (Dkt. 50) for an extension of time to
August 18, 2011, to file their response to Clarian’s motion for summary judgment is GRANTED.
So ORDERED.
06/09/2011
Date: ____________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
Brandi L. Bennett
ICE MILLER LLP
[e-mail]

David J. Mallon JR
ICE MILLER LLP
[e-mail]

Jenny R. Buchheit
ICE MILLER LLP
[e-mail]

Peter A. Velde
KIGHTLINGER & GRAY
[e-mail]

Michael J. Cork
BAMBERGER, FOREMAN, OSWALD AND
HAHN, LLP
[e-mail]

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