Select Rehabilitation, Inc. v. Harrisonville Healthcare, LLC et al

Filing 48

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Count III is DISMISSED as moot and for failure to prosecute. IT IS FURTHER ORDERED that on or before May 7, 2015, Plaintiff shall submit a supplemental brief and supporting documentation on the amount and reasonableness of the attorneys' fees it requests with respect to Count II. Defendants shall have until May 14, 2015 to file a response brief on the issue of attorneys' fees. IT IS FURTHER ORDERED that a final judgment will be entered in this case after the amount of attorney's fees to which Plaintiff is entitled under Count II is determined by the Court. (Response to Court due by 5/7/2015.) Signed by District Judge Audrey G. Fleissig on May 1, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SELECT REHABILITATION, INC.,
Plaintiff,
v.
BENCHMARK HEALTHCARE OF
HARRISONVILLE, LLC, et al.,
Defendants.

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No. 4:13-CV-01971-AGF

MEMORANDUM AND ORDER
This matter is before the Court upon review of the record. On February 6, 2014,
Plaintiff Select Rehabilitation, Inc. (“Select”) filed its amended complaint against
Defendants Benchmark Healthcare of Harrisonville, LLC; Harrisonville Healthcare,
LLC; Benchmark Healthcare of Lee’s Summit, LLC; Benchmark Healthcare of
Lexington, LLC; Benchmark Healthcare of Raytown, LLC; Benchmark Healthcare of
Monet, LLC; Benchmark Healthcare of St. Charles, LLC; Benchmark Healthcare of
Willowbrooke, LLC; Benchmark Healthcare of Wildwood, LLC (collectively, the
“Benchmark Facilities”); Benchmark Healthcare Group, Inc.; and Benchmark Healthcare
Management, LLC (all of the foregoing entities, collectively, the “Defendants”), seeking
to recover payments due to Select for certain therapy services provided to the Benchmark
Facilities.
Select asserted three claims: breach of contract (Count I), breach of a related
promissory note (Count II), and a request for the entry of judgment by confession (Count

III).
On December 23, 2014, the Court granted Select’s motion for summary judgment
on Counts I and II of Select’s amended complaint, in the total amount Select claimed
Defendants owed: $3,720,932.30 plus costs and reasonable attorneys’ fees. (Doc. No.
46.) Because the only contractual basis for the recovery of attorneys’ fees was the
parties’ promissory note, the Court granted Select’s request for attorneys’ fees solely with
respect to Select’s claim on the note, Count II. The Court held that upon resolution of all
remaining claims, it would set a schedule for the submission of appropriate
documentation in support of Plaintiff’s request for attorneys’ fees with respect to Count
II. Id.
Select did not move for summary judgment on Count III. However, Count III
merely requests that the Court enter judgment by confession for the full amount due
under the promissory note. See Doc. No. 29 at 12. When the Court’s summary judgment
order awarded Select its damages in full, including all amounts due under the promissory
note, Count III became moot. Therefore, on April 6, 2015, the Court entered an Order to
Show Cause why Count III should not be dismissed as moot. (Doc. No. 47.) The Court
specifically cautioned that failure to comply with the Order to Show Cause may result in
the dismissal of Count III for failure to prosecute. Id.
Select failed to respond to the Order to Show Cause in any way, and to date, there
has been no further activity in the case. The Court concludes that under the
circumstances, dismissal of Count III is warranted, both because it is moot and for
Select’s failure to prosecute. See Michaelree v. Millsap & Singer, P.C., No. 10-11722

CV-W-HFS, 2011 WL 830281, at *3 (W.D. Mo. Mar. 2, 2011) (holding that “[a] case is
moot if the decision would have no practical effect upon an existent controversy,” and
because “[a] moot case raises the issue of justiciability, . . . courts may dismiss it sua
sponte”) (citation omitted); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir.
2000) (addressing a district court’s inherent power to dismiss a case for failure to
prosecute).
Accordingly,
IT IS HEREBY ORDERED that Count III is DISMISSED as moot and for
failure to prosecute.
IT IS FURTHER ORDERED that on or before May 7, 2015, Plaintiff shall
submit a supplemental brief and supporting documentation on the amount and
reasonableness of the attorneys’ fees it requests with respect to Count II. Defendants
shall have until May 14, 2015 to file a response brief on the issue of attorneys’ fees.
IT IS FURTHER ORDERED that a final judgment will be entered in this case
after the amount of attorney’s fees to which Plaintiff is entitled under Count II is
determined by the Court.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 1st day of May, 2015.

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