Del Sesto et al v. Prospect CharterCARE, LLC et al

Filing 152

ORDER APPOINTING SPECIAL MASTER: The Court has selected Deming Sherman, Esq. to serve as Special Master in this matter. So Ordered by Chief Judge William E. Smith on 9/5/2019. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
STEPHEN DEL SESTO, AS RECEIVER AND )
ADMINISTRATOR OF THE ST. JOSEPH
)
HEALTH SERVICES OF RHODE ISLAND
)
RETIREMENT PLAN, ET AL.
)
)
Plaintiffs,
)
C.A. No. 18-328 WES
)
v.
)
)
PROSPECT CHARTERCARE, LLC, ET AL., )
)
Defendants.
)
___________________________________)
ORDER APPOINTING SPECIAL MASTER
WHEREAS, Plaintiff Stephen Del Sesto (the “Receiver”), as
receiver and administrator of the St. Joseph Health Services of
Rhode Island Retirement Plan, Named Plaintiffs Gail J. Major, Nancy
Zompa,

Ralph

Bryden,

Dorothy

Willner,

Caroll

Short,

Donna

Boutelle, and Eugenia Levesque, individually and on behalf of all
others

similarly

Services

of

Rhode

situated,
Island

and

Defendants

(“SJHSRI”),

Roger

St.

Joseph

Williams

Health

Hospital

(“RWH”), CharterCARE Community Board (“CCCB”), and CharterCARE
Foundation (“CCF”) (collectively, the “Settling Defendants”), have
reached two separate settlement agreements1 in this matter;

Plaintiffs and Defendants SJHSRI, RWH, and CCCB are parties to
“Settlement A.” Plaintiffs and Defendants SJHSRI, RWH, CCCB, and
CCF are parties to “Settlement B.”
1

1

WHEREAS, Plaintiffs have filed motions for attorneys’ fees in
connection with both settlements, ECF Nos. 64 and 78;
WHEREAS, the Diocesan Defendants2 and the Prospect Entities3
(collectively,

the

“Non-Settling

Defendants”)

have

filed

objections to the approval of the settlements and fee requests;
and
The Court has determined that the appointment of a Special
Master is necessary to carefully and efficiently review the fee
requests

and

objections

thereto,

and

Plaintiffs,

Settling

Defendants, and Non-Settling Defendants have all consented4 to the
appointment of a Special Master,
IT IS ORDERED THAT:
I.

Appointment and No Grounds for Disqualification
1. Deming Sherman is hereby appointed to serve as Special
Master in this matter pursuant to Federal Rule of Civil
Procedure 53(a).

The Diocesan Defendants consist of the Roman Catholic Bishop of
Providence, a corporation sole, the Diocesan Administration
Corporation, and the Diocesan Service Corporation.
3 The Prospect Entities include Prospect CharterCARE, LLC, Prospect
CharterCARE SJHSRI, LLC, Prospect CharterCARE RWMC, LLC, Prospect
East Holdings, Inc., and Prospect Medical Holdings, Inc.
4
The Court gave the parties notice of its intent to appoint a
special master to review the fee motions at a hearing on August
29, 2019.
The parties indicated at that time that they had no
objection to the appointment of a special master.
2

2

2. The Special Master’s appointment will become effective
upon his filing an affidavit disclosing that there are
no grounds for disqualification under 28 U.S.C. § 455,
pursuant to Fed. R. Civ. P. 53(a)(2) and (b)(3), and
shall

continue

appointment.

until
If

the

there

Court
are

terminates
no

the

grounds

for

disqualification or if all grounds for disqualification
have been waived pursuant to Fed. R. Civ. P. 53(a)(2),
the Special Master is directed to proceed with all
reasonable diligence to complete the duties assigned by
this Order.
3. If, during the course of this matter, the Special Master
or the parties become aware of any potential grounds
that would require disqualification, the Special Master
or the parties shall notify the Court immediately.
II.

Accountability to the Court
4. The Special Master will be accountable only to the Court
and will not be supervised by Plaintiffs or Defendants.
The Special Master will be independent from Plaintiffs
and Defendants.

In the course of his work, the Special

Master may consult with counsel for the Plaintiffs, the
Settling Defendants, the Non-Settling Defendants, and
any other person the Special Master deems necessary to
perform the scope of his duties.
3

III. Limited Scope of the Special Master
5. The role of the Special Master is limited.
Master’s

objective

is

to

review

the

The Special
motions

for

attorneys’ fees and make a recommendation as to those
requests. The Special Master is directed to review the
attorney fee motions, ECF Nos. 64 and 78, the objections,
the declarations related thereto, and any other document
the Special Master deems necessary to perform the scope
of his duties.
IV.

Authority and Duties
6. Pursuant to Rule 53(c), the Special Master may:
a. Request documents be produced from a party to the
extent the Special Master deems it necessary to
perform the scope of his duties.

The parties

reserve the right to object to the production of
documents and/or electronically stored information
on privilege or other grounds articulated under
Fed. R. Civ. P. 26 and 34.

Objections shall be

considered by the Special Master and ruled upon.
Any order on discovery shall be appealable to the
District Court Judge in accord with Fed. R. Civ. P.
53(f)(2).

Any documents produced shall be produced

only to the Special Master.
b. Communicate ex parte with the Court or any party in
4

accordance with this Order and Fed. R. Civ. P.
53(b)(2)(B).

Generally, the Special Master shall

not have ex parte communications with any party
without

first

providing

notice

to

the

other

parties.
c. Issue reports and/or recommendations concerning the
requests for attorneys’ fees to be filed with the
Court and shared with the parties in accordance
with Rule 53(e).
i. Any report or recommendation shall comport
with the law in the First Circuit concerning
attorney fee awards.
ii. Any party wishing to respond to or object to
any Special Master report, statement and/or
recommendation

must

file

such

response

or

objection with the Court within seven (7) days
from the day the Special Master files the
report, statement and/or recommendation via
ECF.

Any opposition shall be filed within

five (5) days after the objection is filed.
iii. Pursuant

to

Fed.

R.

Civ.

P.

53(f)(1),

in

acting on a report or recommendation of the
Special Master, the Court shall afford the
parties

an

opportunity
5

to

present

their

positions, and may adopt or affirm; modify;
wholly

or

partly

reject;

resubmit

to

the

Special Master with instructions; or make any
order it deems appropriate.

The standards of

review contained in Fed. R. Civ. P. 53(f)(3)(5) shall apply.
d. To the extent the Special Master determines that he
requires

the

services

of

clerical

staff,

consultants, and experts to assist him in his work,
the Special Master shall inform the parties of the
following:
i. The identity of the person who will provide
such services;
ii. The nature of the services; and
iii. The anticipated costs.
1. Any party shall have five (5) days to
object

to

the

retention

of

any

such

services. If neither side objects, the
Special Master may retain the services in
question.
2. If a

party objects and the objection

cannot be resolved by the Special Master,
the

objecting

party

may

present

its

objection to the Court no later than five
6

(5) days after the Special Master has
made a final decision on the retention of
services.
7. The

Special

Master

must

maintain

orderly

files

consisting of all documents submitted to him by the
parties

and

of

any

of

his

written

findings

and/or

recommendations.
V.

Term
8. The term of the Special Master shall end when he has
filed

his

report(s)

with

the

Court

and

the

Court

terminates the appointment.
VI.

Compensation
9. Pursuant to Rule 53(a)(3), the Court is to consider the
fairness of imposing the likely expense of the Special
Master on the parties and protect against unreasonable
expense or delay.

Consequently, the Special Master

shall provide the Court and the parties a proposed hourly
compensation rate consistent with Rhode Island rates,
and within twenty (20) days of appointment, an estimated
budget including projected time required, out-of-pocket
expenses,

anticipated

resources,

etc.

The

Special

Master may not charge for travel time. The parties shall
have five (5) days to object or comment on the proposed
budget.

After considering any objections, the Court
7

shall approve

the proposed compensation and budget,

subject to modification necessary to comply with Rule
53(a)(3).
10. The costs of the Special Master shall be borne by the
Settling Defendants.
VII.

Amendments
11. Pursuant to Fed. R. Civ. P. 53(b)(4), this Order may

be

amended at any time after notice to the parties and an
opportunity to be heard.
VIII. Rights
12. Nothing in this Order shall be construed as abrogating
any of the parties’ appellate rights.
IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: September 5, 2019

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