USA, et al v. TYRONE HOSPITAL, et al
Filing
244
MEMORANDUM AND ORDER OF COURT denying 240 Motion for Summary Judgment. By separate order, the Court shall schedule a status conference to discuss with the parties an appropriate scheduling order for trial of this case and whether mediation prior to trial should be scheduled, and as more fully stated in said Memorandum and Order of Court. Signed by Judge Kim R. Gibson on 10/29/2013. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, ex rei.,
THOMAS BARTLETT and KIMBERLY
GUMMO
Plaintiffs,
V.
DANIEL ASHCROFT, TRI COUNTY
IMAGING ASSOCIATES, INC., CARLOS
A. WIEGERING, MD, RAMESH
AGARWAL, MD, URMILA CHOPRA,
Executrix of the Estate of RAMESH
CHOPRA, RAJ KANSEL, MD
Defendants. 1
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CIVIL ACTION NO. 3:04-57
JUDGE KIM R. GIBSON
MEMORANDUM AND ORDER OF COURT
GIBSON, J.
I.
SYNOPSIS
Pending before the Court is Defendants' Motion for Summary Judgment (Doc. No. 240),
filed pursuant to Federal Rule of Civil Procedure 56. The Plaintiffs oppose the motion. (See
Doc. No. 242). For the reasons stated below, Defendants' motion will be DENIED.
II.
JURISDICTION AND VENUE
This Court has jurisdiction over the instant action pursuant to 31 U.S.C. § 3 729, et. seq.,
the False Claims Act, and has supplemental jurisdiction over pendant state law claims, pursuant
to 28 U.S.C. § 1367(a). Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the alleged
acts giving rise to the claims occurred in the Western District of Pennsylvania.
1
The following Defendants were previously dismissed from this action: Tyrone Hospital, Inc.; Quorum Health
Resources, LLC; Tyrone Medical Associates, Inc.; Bernard Digiacobbe, MD; Maria Friday, Executrix for the Estate
of Daniel Friday; Barry Bender, MD.
III.
BACKGROUND
This action is brought qui tam by Relators Thomas Bartlett and Kimberly Gummo
("Plaintiffs") on behalf of the U.S. Government. In their second amended complaint (Doc. No.
77), Plaintiffs allege that Defendants defrauded the U.S. Government by misusing various
federally funded programs, including the federal Medicare and Medicaid Programs, through a
"variety of illegal arrangements," such as submitting false and fraudulent patient claims and
hospital cost reports, paying kickbacks and illegal remuneration, and manufacturing patient
referrals, among others. (Doc. No. 77
at~~
2-7). Plaintiffs allege violations of the False Claims
Act, 31 U.S.C. § 3729; the Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b); and the Stark
Statute, 42 U.S.C. § 1395.
This case has generated a lengthy procedural history, 2 which is only briefly summarized
here. Plaintiffs filed a complaint (Doc. No. 1) on March 23, 2004, a first amended complaint
(Doc. No.2) on May 21, 2004, and a second amended complaint (Doc. No. 77) on February 27,
2006. Defendants filed an answer (Doc. No. 173) to the second amended complaint on April 19,
2011.
Additionally, the parties filed various other pleadings and numerous motions and
conducted extensive discovery. On February 4, 2013, Defendants filed the instant motion for
summary judgment (Doc. No. 240) along with a brief in support (Doc. No. 241). On March 6,
2013, Plaintiffs filed a brief in opposition (Doc. No. 242) to Defendants' motion for summary
judgment.
On March 18, 2013, Defendants filed a sur-reply (Doc. No. 243) to Plaintiffs'
response. This matter is now ripe for adjudication.
2
The filing of bankruptcy by Tyrone Hospital, Inc., and by Tyrone Medical Associates, Inc., (former parties that
have been dismissed from this action) resulted in a lengthy automatic stay ofthese proceedings. (See Docs. No. 102
and 103).
2
IV.
LEGAL STANDARDS
A. Summary Judgment
"Summary judgment is appropriate only where ... there is no genuine issue as to any
material fact ... and the moving party is entitled to judgment as a matter of law." Melrose, Inc.
v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010) (quoting Ruehl v. Viacom, Inc., 500 F.3d 375,
380 n.6 (3d Cir. 2007)); see also Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986); Fed. R. Civ.
3
P. 56(a). Issues of fact are genuine "if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Material facts are those that will
affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. The Court's
role is "not to weigh the evidence or to determine the truth of the matter, but only to determine
whether the evidence of record is such that a reasonable jury could return a verdict for the
nonmoving party." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009).
"In making this determination, 'a court must view the facts in the light most favorable to the
nonmoving party and draw all inferences in that party's favor."' Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777
(3d Cir. 1994).
The moving party bears the initial responsibility of stating the basis for its motion and
identifying those portions of the record that demonstrate the absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323.
If the moving party meets this burden, the party
opposing summary judgment "may not rest upon the mere allegations or denials" of the pleading,
but "must set forth specific facts showing that there is a genuine issue for trial." Saldana v.
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Rule 56 was revised in 2010. The standard previously set forth in subsection (c) is now codified as subsection (a).
The language of this subsection is unchanged, except for "one word-genuine 'issue' bec[ame] genuine 'dispute."'
Fed. R. Civ. P. 56 advisory committee's note, 2010 amendment.
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Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574,587 n.11 (1986)). "For an issue to be genuine, the nonmovant needs
to supply more than a scintilla of evidence in support of its position-there must be sufficient
evidence (not mere allegations) for a reasonable jury to find for the nonmovant." Coolspring
Stone Supply v. Am. States Life Ins. Co., 10 F .3d 144, 148 (3d Cir. 1993 ).
V.
DISCUSSION
Motions for summary judgment are subject to the Federal Rules of Civil
Procedure, but must also comply with the Local Rules of the United States District Court
for the Western District of Pennsylvania ("Local Rules"). Local Rule of Civil Procedure
56.B ("LCvR 56.B") sets forth the requirements for a motion for summary judgment.
Motion Requirements. The motion for summary judgment must set forth
succinctly, but without argument, the specific grounds upon which the judgment
is sought and must be accompanied by the following:
1. A Concise Statement of Material Facts. A separately filed concise
statement setting forth the facts essential for the Court to decide the motion
for summary judgment, which the moving party contends are undisputed and
material, including any facts which for purposes of the summary judgment
motion only are assumed to be true. The facts set forth in any party's Concise
Statement shall be stated in separately numbered paragraphs. A party must
cite to a particular pleading, deposition, answer to interrogatory, admission on
file or other part of the record supporting the party's statement, acceptance, or
denial of the material fact;
2. Memorandum in Support. The supporting memorandum must address
applicable law and explain why there are no genuine issues of material fact to
be tried and why the moving party is entitled to judgment as a matter of law;
and
3. Appendix. Documents referenced in the Concise Statement shall be included
in an appendix. Such documents need not be filed in their entirety. Instead,
the filing party may extract and highlight the relevant portions of each
referenced document. Photocopies of extracted pages, with appropriate
identification and highlighting, will be adequate.
LCvR 56.B.
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This Court has previously detailed the requirements of the Local Rules for summary
judgment motions and explained the consequences of noncompliance.
The Local Rules of this district provide explicit instructions on how litigants are
to file and respond to motions for summary judgment. Local Rule 56.B requires
that a motion for summary judgment set forth succinctly, but without argument,
the specific grounds upon which the judgment is sought. LCvR 56.B. Moreover,
the motion must be accompanied by:
(1) a concise statement of material facts ("CSMF") setting forth in
separately numbered paragraphs the facts essential to the Court's decision
which the moving party contends are undisputed and material (with
citations to the record to support the party's contentions);
(2) a supporting memorandum addressing the applicable law and
explaining why there are no genuine factual disputes to be tried and why
the moving party is entitled to judgment as a matter of law; and
(3) an appendix of documents referenced in the CSMF, although such
documents need not be filed in their entirety as the relevant portions of
each referenced document may be extracted and highlighted.
LCvR56.B.l-3.
To oppose a motion for summary judgment, a party must file its own:
(1) responsive CSMF admitting or denying whether each fact contained in
the movant's CSMF is undisputed and/or material, setting forth the basis
for any denial (with supporting record citations), and setting forth in
separately numbered paragraphs any other facts that are allegedly at issue
and/or necessary for the Court's consideration of the summary judgment
motion;
(2) supporting memorandum addressing the applicable law and explaining
why there are genuine factual disputes to be tried and why the moving
party is not entitled to judgment as a matter of law; and
(3) appendix of documents referenced in the responsive CSMF.
LCvR 56.C.l-3. This Court "strictly adhere[s] to the summary judgment
procedures set forth both by the Federal and Local Rules[,]" and failure to comply
can result in penalties including the Court deeming as admitted a movant's facts
where the non-movant does not properly controvert them. See Rozier v. United
Metal Fabricators, Inc., No. 3:09-257, 2012 U.S. Dist. LEXIS 6200, *7, 2012
WL 170197 (W.D.Pa. Jan. 19, 2012) (citations omitted).
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Kiser v. Potter, 3:10-CV-22, 2012 WL 1134810, *3-4 (W.D. Pa. Apr. 4, 2012); see also Smith v.
Bridgestone Retail Operations, LLC, 3:10-CV-258, 2012 WL 2319039, *3-4 (W.D. Pa. June 18,
2012); Dillner v. Sheesley Supply Co., Inc., 3:10-CV-122, 2012 WL 5818315, *3-4 (W.D. Pa.
Nov. 15, 2012).
As noted above, Defendants filed the instant motion for summary judgment (Doc. No.
240) along with a brief in support (Doc. No. 241) on February 4, 2013. However, Defendants
did not file a concise statement of material facts or an appendix of exhibits as required by Local
Rule 56.B. Similarly, Plaintiffs filed a brief in opposition (Doc. No. 242) to Defendants' motion
for summary judgment on March 6, 2013, but did not file a concise statement of material facts or
an appendix of exhibits as required by Local Rule 56. C.
Because the Defendants failed to follow the Local Rules govemmg a motion for
summary judgment in that they failed to file a concise statement of material facts and an
appendix of exhibits, the Court is unable to rule on the merits of the instant motion.
See
Magruda v. Belle Vernon Area Sch. Dist., 06-CV-995, 2007 WL 2746719 (W.D. Pa. Sept. 17,
2007); Ziller v. Emerald Art Glass, 05-CV -82, 2006 WL 2853976, at * 1 (W.D. Pa. Oct. 4, 2006);
LCvR 56.B (providing that "[t]he motion for summary judgment ... must be accompanied" by a
concise statement of material facts and an appendix) (emphasis added). Neither Defendants nor
Plaintiffs filed a concise statement of material facts; therefore, this Court is unable to determine
whether a genuine issue of material fact exists. See Magruda v. Belle Vernon Area Sch. Dist.,
06-CV-995, 2007 WL 2746719 (W.D. Pa. Sept. 17, 2007).
Thus, the instant motion for
summary judgment is procedurally defective and the Court cannot proceed with an analysis of
the legal issues before the Court. See Babcock & Wilcox Ebensburg Power, Inc. v. Zurich Am.
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Ins. Co., 368 F. Supp. 2d 387, 395-96 (W.D. Pa. 2004).
Accordingly, the Court denies
Defendants' motion for summary judgment.
VI.
CONCLUSION
Defendants' motion for summary judgment (Doc. No. 240) is DENIED for failure to
comply with the Local Rules. An appropriate order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, ex rei.,
THOMAS BARTLETT and KIMBERLY
GUMMO
Plaintiffs,
v.
DANIEL ASHCROFT, TRI COUNTY
IMAGING ASSOCIATES, INC., CARLOS
A. WIEGERING, MD, RAMESH
AGARWAL, MD, URMILA CHOPRA,
Executrix of the Estate of RAMESH
CHOPRA, RAJ KANSEL, MD
Defendants.
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CIVIL ACTION NO. 3:04-57
JUDGE KIM R. GIBSON
ORDER
AND NOW, this
+hday of October, 2013, in accordance with the foregoing
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Memorandum, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment
(Doc. No. 240) is DENIED. By separate order, the Court shall schedule a status conference to
discuss with the parties an appropriate scheduling order for trial of this case and whether
mediation prior to trial should be scheduled.
BY THE COURT:
KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
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