Pharmacy Corporation of America et al v. Concord Healthcare Group, LLC et al

Filing 22

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 4/14/2017 - Plaintiffs' 5 Motion for Entry of Agreed of Judgment is GRANTED IN PART and DENIED IN PART. A separate order will follow entering judgments for Plaintiffs in the amounts owed by Defendants under the Settlement Agreements. cc: Counsel(DAK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-00037-GNS

PHARMACY CORPORATION OF
AMERICA, et al.

PLAINTIFFS

v.

CONCORD HEALTHCARE GROUP,
LLC, et al.

DEFENDANTS

MEMORANDUM OPINION & ORDER
This matter is before the Court upon Plaintiffs’ Motion for Entry of Agreed Orders of
Judgment (DN 5), which is ripe for adjudication. For the reasons discussed below, the motion is
GRANTED IN PART and DENIED IN PART.
I.

BACKGROUND

This action arises out of two settlement and forbearance agreements between Defendants
Concord Healthcare Group, LLC (“Concord”); Waco Healthcare Residence, LLC d/b/a
Crestview Healthcare Residence (“Waco”); Fairview Operations, LLC d/b/a Fairview Healthcare
Residence (“Fairview”); Manor Nursing & Rehab Center, LLC d/b/a The Manor Healthcare
Residence (“Manor”); Western Hills Nursing & Rehab Center, LLC d/b/a Western Hills
Healthcare Residence (“Western Hills”); Groesbeck Healthcare Residence, LLC d/b/a Windsor
Healthcare Residence (“Windsor”); Mesa Hills Healthcare Residence Operator, LLC d/b/a Mesa
Hills Healthcare Residence (“Mesa Hills SNF”); Plano Healthcare Residence Operator, LLC
d/b/a Heritage Manor Healthcare Center (“Plano SNF”); Mesa Hills Specialty Hospital Operator,
LLC (“Mesa Hills LTACH”); Plano Specialty Hospital Operator, LLC (“Plano LTACH”); and
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Specialty Hospital of Midwest City Operator, LLC (“Midwest City LTACH”) (collectively,
“Defendants”)1 and Plaintiffs Pharmacy Corporation of America d/b/a PharMerica, PharMerica
Long-Term Care LLC d/b/a PharMerica, and PharMerica Hospital Pharmacy Services, LLC
d/b/a PharMerica (collectively, “Plaintiffs” or “PharMerica”), each of which contain Agreed
Orders of Judgment.
In 2014 and 2015, Plaintiffs contracted with Concord, the SNF Defendants, and the
LTACH Defendants to provide pharmacy-related goods and services to the residents of the
facilities operated by the SNF and LTACH Defendants. (Tomassetti Aff. ¶¶ 3-4, DN 5-4). A
billing dispute arose, and Defendants failed to pay Plaintiffs for goods and services invoiced, so
the parties began negotiating to resolve the matter.2 (Nueman Aff. ¶ 6, DN 15-1; Tomassetti Aff.
¶ 5). As a result of their negotiations, on April 27, 2016 (the “Settlement Date”), Plaintiffs
executed two settlement and forbearance agreements:

one with Concord and the SNF

Defendants (the “SNF Settlement Agreement”), and the other with Concord and the LTACH
Defendants (the “LTACH Settlement Agreement”) (the SNF Settlement Agreement and the
LTACH Settlement Agreement are jointly referred to as the “Agreements”). (Tomassetti Aff. ¶
6; SNF Settlement Agreement, DN 17-2; LTACH Settlement Agreement, DN 17-1).
Under Section 5.01 of the SNF Settlement Agreement, Concord and the SNF Defendants
acknowledged and agreed that they owed Plaintiffs the sum of $621,998.07 for pharmacy goods
and services provided through December 31, 2015 (the “SNF Balance”). (SNF Settlement
Agreement § 5.01). Under Section 5.01 of the LTACH Settlement Agreement, Concord and the
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Waco, Fairview, Manor, Western Hills, Windsor, Mesa Hills SNF, and Plano SNF are
collectively referred to as the “SNF Defendants” (“SNF” stands for “skilled nursing facility”).
Mesa Hills LTACH, Plano LTACH, and Midwest City LTACH are collectively referred to as the
“LTACH Defendants” (“LTACH” stands for “long-term acute care hospital”).
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Specifically, Defendants claim that Plaintiffs had overcharged and overstaffed Defendants, and
failed to give preferential pricing to Defendants. (4/7/16 Letter, DN 17-12).
2

LTACH Defendants acknowledged and agreed that they owed the sum of $1,248,980.00 through
March 31, 2016 (the “LTACH Balance”). (LTACH Settlement Agreement § 5.01). In order to
settle the outstanding amounts with Concord, the SNF Defendants, and the LTACH Defendants,
Plaintiffs agreed to accept $559,798.26 from Concord and the SNF Defendants and
$1,030,408.50 from Concord and the LTACH Defendants; both balances were to be paid in
accordance with the payment schedules attached to the Agreements.
Agreement § 5.02; LTACH Settlement Agreement § 5.02).

(SNF Settlement

Importantly, the Agreements

contained Agreed Orders of Judgment that were to be entered against Defendants if they failed to
make required payments.

(Tomassetti Aff. ¶¶ 14-15; SNF Settlement Agreement § 5.04;

LTACH Settlement Agreement § 5.04). Section 5.04 of the Agreements provides:
Agreed Order of Judgment. As an inducement for PharMerica to enter into this
Agreement, and as a material term of this Agreement, the [Defendants] have
executed and delivered to PharMerica an Agreed Order of Judgment, which is
attached hereto as Attachment D. PharMerica will not file the Agreed Order of
Judgment unless there is a Forbearance Default. By executing the Agreed Order
of Judgment, the [Defendants] deem their signatures to constitute sufficient and
proper evidence of the justness of the debt and their confession of the judgment
and that no further evidence or appearance in open court is necessary before entry
by the Court of, and execution upon, the Agreed Order of Judgment.
(SNF Settlement Agreement § 5.04; LTACH Settlement Agreement § 5.04).
Defendants have failed to make payments due under the Agreements since November
2016. (Tomassetti Aff. ¶ 16). In accordance with the terms of the Agreements, Plaintiffs
provided notice to Defendants of their defaults and Defendants have failed to cure the defaults.
((Notice of Default, DN 5-7; Tomassetti Aff. ¶ 16). As a result, pursuant to Section 5.07 of the
Agreements the entire SNF Balance and LTACH Balance, less payments made, is now due and
owing with interest at 6% per annum from the Settlement Date until paid in full.
Settlement Agreement § 5.07; LTACH Settlement Agreement § 5.07).

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(SNF

On January 23, 2017, Plaintiffs filed the present motion, asking the Court to enter the
Agreed Orders of Judgment against Defendants. (Pls.’ Mot. Entry Agreed Orders J., DN 5).
Accounting for all payments by Concord and the SNF Defendants before default, Plaintiffs
contend that Concord and the SNF Defendants owe Plaintiffs a principal balance of $361,001.16,
plus interest. (Tomassetti Aff. ¶ 18). Accounting for all payments by Concord and the LTACH
Defendants before default, Plaintiffs allege that Concord and the LTACH Defendants owe
Plaintiffs a principal balance of $901,448.44, plus interest. (Tomassetti Aff. ¶ 19).3
Additionally, the LTACH Settlement Agreement requires Concord and the LTACH
Defendants to pay for goods and services provided by Plaintiffs after March 31, 2016, in
accordance with the terms of the prior contract between the parties.

(LTACH Settlement

Agreement § 5.03). Since March 31, 2016, Mesa Hills LTACH and Plano LTACH have
received goods and services from Plaintiffs but failed to pay for them. (Tomassetti Aff. ¶ 17).
According to Plaintiffs, Mesa Hills LTACH owes $100,819.00, and Plano LTACH owes
$146,387.00. Plaintiffs ask the Court to enter judgments for these amounts as well. (Tomassetti
Aff. ¶ 17).
After filing the present motion, Plaintiffs moved the Court to set an expedited briefing
schedule on their motion and to set a hearing after the parties filed their briefs. (Pls.’ Mot.
Briefing Schedule & Hr’g, DN 9). The Court held a telephone conference with the parties, after
which it entered an order requiring expedited briefs, and setting a hearing date. (Order, DN 13).
Defendants timely filed their response, contending that Plaintiffs’ motion should be denied

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After the hearing held on March 28, 2017, Plaintiffs filed a Proposed Order of Partial Judgment
(DN 19) containing updated interest calculations. As of March 28, 2017, Concord and the SNF
Defendants owe $19,879.79 in interest, plus interest at the rate of $59.34 per day from March 29,
2017. As of March 28, 2017, Concord and the LTACH Defendants owe $49,461.41 in interest,
plus interest at the rate of $148.18 per day from March 29, 2017.
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because there is a question of material fact as to whether the Agreements were signed under
duress. Defendants also assert that the sums for which Plaintiffs seek entry of judgment are
inaccurate because they claimed to have made substantial payments to Plaintiffs which have not
been credited. Defendants further requested an opportunity to conduct discovery regarding their
duress defense, potential other defenses, and whether the conditions necessary for entry of the
Agreed Orders of Judgment have been satisfied under the terms of the Agreements. (Defs.’
Opp’n Pls.’ Mot. Entry Agreed Orders J. 9, DN 15). Plaintiffs replied that Defendants have
failed to establish that they entered the Agreements under duress, that Defendants have failed to
offer any evidence showing that the amounts for which Plaintiffs seek entry of judgment are
inaccurate, and that discovery is unnecessary. (Pls.’ Reply Mot. Entry Agreed Orders J. 8-14,
DN 17). The hearing was held on March 28, 2017 (the “hearing”). (Order, DN 18). This matter
stands ripe for adjudication.
II.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1332(a)(1) because there is diversity of
citizenship between the parties and the amount in controversy exceeds $75,000, exclusive of
interest and costs.
III.

STANDARD OF REVIEW4

Federal Rule of Civil Procedure 56(a) provides that “the court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of
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Given that the Civil Rules make no provision for “motions to enter judgment,” it appears that
Plaintiffs’ motion is one for summary judgment under Fed. R. Civ. P. 56(a). At the hearing
Plaintiffs indicated that they have no objection to their motion being analyzed under the
summary judgment standard, and the Court is unaware of any Sixth Circuit precedent holding
that such an approach is improper. Therefore, the Court accepts Defendants’ invitation to
analyze Plaintiffs’ motion under Rule 56(a).
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material fact exists when there are “disputes over facts that might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However,
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Servs. Co., 391 U.S.
253, 289 (1968)).
Generally, “the moving party bears the initial burden of identifying those parts of the
record that demonstrate the absence of any genuine [dispute] of material fact.” Moldowan v.
City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (citing Celotex Corp. v. Cartrett, 477 U.S.
317, 323 (1986)). If, however, the moving party does not bear the burden of proof on the issue
for which it seeks summary judgment, it may meet its burden by showing “that there is an
absence of evidence to support the nonmoving party’s case.” Id. (internal quotation marks
omitted) (citing Celotex Corp., 477 U.S. at 325). Once the moving party shows that there is an
absence of evidence to support the nonmoving party’s case, “its opponent must do more than
simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475
U.S. at 586 (1986).
In ruling on a motion for summary judgment, “the judge’s function is not . . . to weigh the
evidence and determine the truth of the matter, but to determine whether there is a genuine issue
for trial.” Moldowan, 578 F.3d at 374 (quoting Anderson, 477 U.S. at 249). A court must view
the evidence in the light most favorable to the non-moving party and determine whether “the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251. “The mere
existence of a scintilla of evidence in support of the [non-moving party’s] position will be

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insufficient [to defeat a motion for summary judgment]; there must be evidence on which the
jury could reasonably find for the [non-moving party].” Moldowan, 578 F.3d at 374 (quoting
Anderson, 477 U.S. at 252).
IV.

DISCUSSION

The Court concludes that Defendants’ have failed to raise a genuine dispute of material
fact precluding entry of the Agreed Orders of Judgment: Defendants have not established
genuine factual issues regarding whether they entered the Agreements under duress or regarding
the amounts that Plaintiffs are owed. As the Court indicated at the hearing, however, at this
point it will not enter judgment as to the claims against Concord, Mesa Hills LTACH, and Plano
LTACH for goods and services invoiced to Mesa Hills LTACH and Plano LTACH after March
31, 2016, as the LTACH Settlement Agreement does not preclude dispute of charges incurred
after that date. (See LTACH Settlement Agreement § 2.01).
A.

Duress

“A settlement agreement is a type of contract and is governed ‘by reference to state
substantive law governing contracts generally.’” Cogent Sols. Grp., LLC v. Hyalogic, LLC, 712
F.3d 305, 309 (6th Cir. 2013) (quoting Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150,
152 (6th Cir. 1992)). The Agreements specify they are to be governed by Kentucky law, which
recognizes that contracts executed under duress are voidable at the election of the aggrieved
party. See Atmos Energy Corp. v. Honeycutt, No. 2011-CA-000601-MR, 2013 Ky. App. Unpub.
LEXIS 77, at *22 (Jan. 25, 2013) (citation omitted). “Duress is an actual or threatened violation
or restraint on a man’s person, contrary to law, to compel him to enter into a contract or to
discharge one.” Publishers Press, Inc. v. Montage Media Corp., No. 3:10-cv-068-H, 2011 U.S.
Dist. LEXIS 112750, at *6 (W.D. Ky. Sept. 30, 2011) (internal quotation marks omitted)

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(quoting Bond State Bank v. Vaughn, 44 S.W.2d 527, 528 (Ky. 1931)). The threat must exert
such strong influence on the person claiming duress “that his acts are not the result of his own
will.” Id. (internal quotation marks omitted) (quoting Bond State Bank, 44 S.W.2d at 529).
Furthermore, in Redmon v. McDaniel, 540 S.W.2d 870 (Ky. 1976), the Kentucky Supreme Court
stated that “[t]he general rule . . . is to the effect that it is not duress to threaten to do what one
has a legal right to do, nor is it duress to threaten to take any measure authorized by law and the
circumstances of the case.” Id. at 872. The court further elaborated that “[a] mere threat to
exercise a legal right made in good faith is neither duress nor coercion in law. A threat may be
said to be made in good faith if made in the honest belief that valid grounds exist to justify the
action threatened.” Id. (internal quotation marks omitted) (quoting Pleuss v. City of Seattle, 504
P.2d 1191, 1194 (Wash. Ct. App. 1972)).
Defendants’ duress argument stems from a letter sent by Plaintiffs to Defendants during
settlement negotiations.5 On April 4, 2016, Plaintiffs sent a letter to Defendants conveying
Plaintiffs’ “last, best, and final” settlement offer. (4/4/16 Letter, DN 17-9). After noting that the
parties had negotiated for over three months by that point, Plaintiffs stated that the parties needed
to resolve the outstanding debts by April 6, 2016. (4/4/16 Letter). The letter further stated that if
Defendants did not agree to the terms of the proposed settlement agreements, then:
PharMerica will (1) immediately contact the applicable Departments of
Health/Departments of Pharmacy/DEA so that PharMerica can cease servicing the
LTACHs, to ensure the transition is done in compliance with all laws, and to
confirm the relevant agencies are aware of the large debts the LTACHs owe to
PharMerica; and (2) will immediately initiate litigation(s) [against the
Defendants].
(4/4/16 Letter (emphasis added)).

5

All of these communications occurred between respective counsel for Plaintiffs and
Defendants.
8

Defendants seize upon the italicized language, casting it as disparaging, defamatory, and
improperly threatening.6 The factual substance of the statement was not defamatory, however,
because it is true: as outlined above Defendants indeed owed Plaintiffs a significant sum of
money. See Smith v. Martin, 331 S.W.3d 637, 640 (Ky. App. 2011) (“A claim of defamation
may be defeated by establishing the truth of the matter asserted which is an absolute defense.”).
Second, even if the statement could be viewed as improper or made in bad faith, Defendants
have failed to establish duress.

Defendants contend that there is “significant evidence”

suggesting that Plaintiffs’ threats caused them to sign the Agreements against their will, as set
forth in an affidavit from Concord’s CEO, in which he states:
I signed these documents because I feared that if I did not, PharMerica would
make good on its threat to contact regulatory agencies for the purpose of
disparaging Concord and the other named defendant operators, which could result
in undue regulatory scrutiny and possible additional repercussions up to and
including revocation of the licenses of our facilities and cessation of business.
(Neuman Aff. ¶ 8; Defs.’ Opp’n Pls.’ Mot. Entry Agreed Orders J. 8).
Despite this contention, it is clear that Defendants did not sign the proposed settlement
agreements accompanying Plaintiffs’ April 4, 2016, letter; instead, Defendants continued
negotiating for better terms. On April 5, 2016, Defendants emailed Plaintiffs “a last counter
offer in hopes of settling this matter,” which proposal was a $300,000 discount off what the
LTACH Defendants owed for goods and services, paid as 5% down and the remainder over two

6

Defendants do not address the remainder of the April 4 letter in their opposition, but it was
discussed at the hearing. Defendants conceded that Plaintiffs’ statement that “PharMerica will
immediately contact the applicable Departments of Health/Departments of Pharmacy/DEA so
that PharMerica can cease servicing the LTACHs, to ensure to the transition is done in
compliance with all laws” could not serve as a basis for a duress claim. The second enumerated
prong of the letter—that PharMerica would “immediately initiate ligation(s) [against the
Defendants]—likewise cannot serve as a basis for duress since Plaintiffs were entitled to sue
Defendants for monies owed. See Northcutt v. Highfill, 9 S.W.2d 209, 210 (Ky. 1928) (citing
Posey v. Lambert-Grisham Hardware Co., 247 S.W. 30 (Ky. 1923)).
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years at 0% interest. (4/5/16-4/6/16 Email Chain, DN 17-10). Plaintiffs declined the offer.
(4/16/16 Email, DN 17-11). On April 7, 2016, Defendants sent a letter reiterating the April 5
counter-offer and stating that Plaintiffs’ intention to contact regulatory agencies was
“nonsensical” and that the “only logical explanation” for Plaintiffs to do so would be “to attempt
to ruin [Defendants’] reputation and bully them into an agreement that is beneficial only to
PharMerica.” (4/7/16 Letter). The next day Plaintiffs responded, stating:
[A]s I have explained previously, PharMerica intends to do the following: (1)
contact the applicable Departments of Health/Departments of Pharmacy/DEA so
that PharMerica can cease servicing the LTACHs and to ensure that the transition
is done in compliance with all laws and (2) initiate ligation(s) for the entire
outstanding amounts owed for pharmacy goods and services provided to both the
skilled nursing facilities and the LTACHs . . . .
[Y]ou complain that PharMerica’s reasons for calling state or federal regulatory
agencies are “nonsensical.” However, PharMerica intends to terminate the
services being provided. In doing so, PharMerica simply wants to make sure that
it complies with any applicable regulations and to request guidance in
transitioning out of the facilities so as not to jeopardize patient care. PharMerica
is not attempting to ruin the Concord Entities’ reputations, but only to ensure that
its own actions are both lawful and safe for the affected patients. Contacting
government agencies in doing so is absolutely permissible, and is not a sign of
bad faith at all.
(4/8/16 Letter, DN 17-13). Defendants still refused Plaintiffs’ demands. On April 18, 2016,
Plaintiffs sent letters to each of the LTACH Defendants notifying them that they would stop
servicing certain entities. (4/18/16 Letters, DN 17-14). The following day, Defendants sent an
email indicating they were “preparing to file TROs to halt the withdrawal process . . .” but
attempting “one last time to try to settle this to save costs.” (4/19/16 Email, DN 17-15).
Defendants further explained, “we have made what we believe are very reasonable offers, and
PharMerica has not agreed. So, at this point, I will just ask if settlement is still an option and if
yes, what would be PharMerica’s proposed terms for now and the long term re-payment?”
(4/19/16 Email).
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Subsequently, the parties continued negotiations until they cut the deal embodied in the
LTACH Settlement Agreement, which was executed along with the SNF Settlement Agreement.
The terms of the LTACH Settlement Agreement were more beneficial to Concord and the
LTACH Defendants than the terms presented by Plaintiffs in the April 4, 2016, letter. (Compare
LTACH Settlement Agreement §§ 5.01-.02, with 4/4/16 Letter 8).

While Plaintiffs had

previously been willing to agree only to a 15% discount on outstanding invoices, totaling just
under $150,000, the LTACH Settlement Agreement provides for a 17.5% discount, totaling more
than $218,500. (Compare LTACH Settlement Agreement §§ 5.01-.02, with 4/4/16 Letter 8).
Further, the LTACH Settlement Agreement allowed for payment over 18 months, as opposed to
the 12 months Plaintiffs previously offered. (Compare LTACH Settlement Agreement § 5.02,
with 4/4/16 Letter 8).
These facts completely undermine Defendants’ duress argument. Plaintiffs’ April 8 letter
made clear that they were not seeking to damage Defendants’ reputation by contacting
government agencies, but to ensure only that their own actions were both lawful and safe for
patients. Plaintiffs’ previous threat to tell the government agencies about “the large debts the
LTACHs owe to PharMerica” is totally absent from the April 8 letter, which specifically
promised only legitimate bases for communicating with regulators in response to Defendants’
claim of bad faith and bullying.
Moreover, Defendants declined to execute the settlement agreement Plaintiffs sent with
their April 4 correspondence which Defendants characterized as threatening disparagement.
Instead, the parties continued negotiating and ultimately Defendants obtained a significantly
better deal several weeks later. Under these circumstances, no reasonable jury could conclude
that Plaintiffs’ April 4 letter deprived Defendants of their free will and compelled them to enter

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into the Agreements on April 27. 7 See Keeling v. Jefferson Cty. Bd. of Educ., No. 2002-CA000528-MR, 2003 Ky. App. Unpub. LEXIS 628, at *15 (Apr. 11, 2003) (“[Plaintiff’s] voluntary
action, taken after consultation with [an advisor] and full disclosure of the agreement and its
consequences, undermines her claim of duress.”); James O. Pearson, Jr., Annotation, Economic
Duress or Business Compulsion in Execution of Promissory Note, 79 A.L.R. 598 (2017) (citing
Holmes v. Clark, 118 S.W.2d 758 (Ky. 1938) and noting that “the court, in holding that no
duress was established, emphasized that the payee had given the maker three days in which to act
and that they had discussed the matter among themselves during such period.”).

Having

subsequently extracted more favorable terms and received Plaintiffs’ assurance that any
communication with regulators would be solely for legitimate purposes, Defendants’ claim of
duress related to the April 4 letter is without merit.
For these reasons, the enforcement of the Agreements is not precluded by duress. The
Court will a judgment in favor of Plaintiffs.
B.

Amounts Owed Under Settlement Agreements

In their opposition to Plaintiffs’ motion, Defendants suggested that the amounts Plaintiffs
request are inaccurate, explaining that they “have made substantial payments to PharMerica that
are not accurately credited by PharMerica.” (Neuman Aff. ¶ 10). Along with their motion,
Plaintiffs submitted an affidavit from Berard Tomassetti (“Tomassetti”), Senior Vice President
and Chief Accounting Officer for PharMerica Corporation, Plaintiffs’ parent company. In his
7

In any event, Plaintiffs never made any threats to contact any government agencies regarding
the SNF Defendants or their debts to Plaintiffs. Plaintiffs’ counsel explicitly stated in the April
4, 2016, letter that they would be contacting the state agencies so that they can “cease servicing
the LTACHs . . . and to confirm the relevant agencies are aware of the large debts the LTACHs
owe to PharMerica.” (See 4/4/16 Letter (emphasis added)). Given that Plaintiffs only stated
they would be contacting the state regarding the LTACH Defendants, Plaintiffs have no claim
that the SNF Defendants signed the SNF Settlement Agreement under “duress” from Plaintiffs’
threatened actions.
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affidavit, Tomasseti provided a one-page spreadsheet for each Agreement showing all payments
made by Defendants after the execution of the Agreements. (Tomassetti Aff. Exs. 1-2). At the
hearing, Defendants conceded that they could point to no specific payments that were missing
from Tomassetti’s calculations or any other miscalculation.

Therefore, this argument is

insufficient to prevent the Court from granting Plaintiffs’ motion. See Am. Dairy Queen Corp. v.
Fortune Street Research & Writing, Inc., 753 F. Supp. 2d 675, 681-82 (W.D. Ky. 2010)
(enforcing a liquidated damages provision where the breaching party failed to contest the amount
of damages).
V.

CONCLUSION

For the reasons discussed above, Plaintiffs’ Motion for Entry of Agreed Judgment (DN 5)
is GRANTED IN PART and DENIED IN PART with respect to the claims against Concord,
Mesa Hills LTACH, and Plano LTACH for goods and services provide by Plaintiffs after March
31, 2016. Defendants have failed to raise a genuine dispute of material fact precluding entry of
the Agreed Orders of Judgment. A separate order will follow entering judgments for Plaintiffs in
the amounts owed by Defendants under the Settlement Agreements.

Greg N. Stivers, Judge
United States District Court
April 14, 2017

cc:

counsel of record

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