Flick v. Mercy Health NFP

Filing 59

MEMORANDUM AND OPINION by Senior Judge Thomas B. Russell on 12/1/2015; re 52 MOTION to Dismiss Without Prejudice filed by Cindy Flick ; separate judgment shall issue.cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:14-CV-00198-TBR
CINDY FLICK,

Plaintiff

v.
MERCY HEALTH NFP, d/b/a
LOURDES HOSPITAL

Defendant

MEMORANDUM OPINION
This matter is before the Court upon Plaintiff’s motion to dismiss without
prejudice. (Docket #52). Defendant has responded. (Docket #54). Plaintiff has replied.
(Docket #58). These matters now are ripe for adjudication. For the following reasons,
Plaintiff’s motion to dismiss without prejudice (Docket #52) will be GRANTED.
BACKGROUND
This action arises out of Plaintiff Cindy Flick’s employment with Mercy Health
Partners NFP, d/b/a Lourdes Hospital (“Lourdes”). Flick claims she was wrongfully
terminated after she discovered and reported an improper practice of delaying certain
tests to circumvent Medicare rules and defraud Medicare. More detail can be found in
this Court’s opinion and order denying Lourdes’ motion to dismiss. (Docket #34). In
brief, Flick was hired in January, 2011 as a Laboratory Section Supervisor. In March,
2013, Flick became aware of an alleged practice of “purposely holding breast tissue
biopsy specimens for 14 days after patient discharge before sending them to Agendia (an
outside reference lab).” (Docket #19). Flick alleges the fourteen-day hold was intended
to “circumvent the Medicare Date of Service (“DOS”) rule which specifies that any
laboratory services performed within 14 days of an inpatient admission would be lumped
Page 1 of 4

into the predetermined DRG payment” while “[a]nything after 14 days post discharge is
treated as a separate encounter and can be billed separately.” (Docket #19). By holding
specimens for fourteen days before submitting them for processing, Agendia could bill
Medicare, and not Lourdes, for the $9,325 cost of the testing, allowing Lourdes to retain
full reimbursement payment.
Flick claims she was wrongfully terminated in retaliation for reporting this
practice. Flick filed her complaint pro se. (Docket #1-1). Lourdes has filed several
motions to dismiss Flick’s complaint or strike portions of the complaint. (Docket #6, 7,
8, 20, 23). Flick has filed several motions to amend her complaint. (Docket #15, 21, 24).
The Court has allowed Flick to amend her complaint and has granted in part and denied
in part Lourdes’ motions to strike and dismiss. (Docket #34).
In December, 2014, Flick and Lourdes reached a tentative settlement of Flick’s
claims over a series of phone calls and e-mails. However, after reviewing the terms of
the settlement agreement Flick declined to sign. Lourdes moved to enforce the settlement
agreement. (Docket #26). The Court found that Flick and Lourdes had not reached a
settlement as to all material terms and denied Lourdes’ motion. (Docket #33).
Flick now moves to dismiss her complaint without prejudice pursuant to Federal
Rule of Civil Procedure 41(a)(2). (Docket #52). Lourdes requests that Flick’s motion be
denied or that Flick’s complaint be dismissed with prejudice. (Docket #54).
DISCUSSION
“Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's
request only by court order, on terms that the court considers proper.” Fed. R. Civ. P.
2

41(a)(2). “Whether dismissal should be granted under the authority of Rule 41(a)(2) is
within the sound discretion of the district court.” Grover by Grover v. Eli Lilly & Co., 33
F.3d 716, 718 (6th Cir. 1994). “Generally, an abuse of discretion is found only where the
defendant would suffer ‘plain legal prejudice’ as a result of a dismissal without prejudice,
as opposed to facing the mere prospect of a second lawsuit.” Id. (quoting Cone v. West
Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947)). “In determining whether a
defendant will suffer plain legal prejudice, a court should consider such factors as the
defendant’s effort and expense of preparation for trial, excessive delay and lack of
diligence on the part of the plaintiff in prosecuting the action, insufficient explanation for
the need to take a dismissal, and whether a motion for summary judgment has been filed
by the defendant.” Id.
In analyzing the above factors the Court finds neither an unnecessary delay on
behalf of Flick nor excessive expense to Lourdes. Although this case has been pending
for approximately one year, it is still in the early stages of litigation. To this point the
proceedings have primarily consisted of Lourdes’ motions to dismiss or strike Flick’s
complaint and Flick’s amendments to her complaint. Flick has responded to all motions,
engaged in settlement talks, and has now retained counsel. The Court has thrice stayed
discovery while ruling upon motions and discovery is currently stayed pending ruling on
the present motion. (Docket #17, 44, 57). Although Lourdes claims it has “spent
considerable time and expense in investigating the Plaintiff’s claims,” (Docket #54), the
majority of Lourdes’ efforts have come from contesting procedural issues. Furthermore,
to the extent Lourdes has investigated Flick’s claims, this work would not be lost in the
event that Flick re-filed her claims. See Carrillo v. CSX Transp., Inc., 2014 U.S. Dist.
3

LEXIS 60337 *5-6 (W.D. Ky. 2014). Finally, Lourdes has not filed a motion for
summary judgment in this case. See Gunn v. Am. Mem. Life Ins. Co., 2007 U.S. Dist.
LEXIS 48792 *5-8 (W.D. Ky. 2007). In analyzing these factors the Court finds that
Lourdes would not suffer plain legal prejudice and therefore Flick shall be permitted to
dismiss her complaint without prejudice.
Lourdes argues Flick’s motion may be a precursor to forum shopping and filing
her claims elsewhere. “A Rule 41(a)(2) dismissal may be conditioned on whatever terms
the district court deems necessary to offset the prejudice the defendant may suffer from a
dismissal without prejudice.” Bridgeport Music, Inc. v. Universal-MCA Music Publ'g,
Inc., 583 F.3d 948, 954 (6th Cir. 2009). Flick agrees to the restriction that in the event
she re-files her claims she will do so before this Court.
CONCLUSION
For the following reasons, Plaintiff’s motion to dismiss without prejudice
(Docket #52) will be GRANTED. If Plaintiff files a claim arising under the facts of this
case Plaintiff shall do so in the Western District of Kentucky.
A separate judgment and order shall issue.

cc:

Counsel
December 1, 2015

4