Nueterra Healthcare Management et al v. Parry et al

Filing 33

MEMORANDUM DECISION granting 13 Motion to Stay; denying as moot 15 Motion to Dismiss; denying 17 Motion to Stay; denying 19 Motion to Dismiss for Failure to State a Claim ; denying without prejudice 19 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Ted Stewart on 12/16/2011. (tls)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

NUETERRA HEALTHCARE
MANAGEMENT, LLC, a Delaware limited
liability company; and NUETERRA
HOLDINGS, LLC, a Delaware limited
liability company; and NUETERRA
HOLDINGS MANAGEMENT, LLC, a
Delaware limited liability company,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER ON PENDING MOTIONS

vs.

SCOTT PARRY, M.D.; ROBERT COPE,
M.D.; SHARON RICHENS, M.D.; JOHN
MILLER, M.D.; and DAN NIELSON,

Case No. 2:11-CV-498 TS

Defendants.

This matter is before the Court on Defendants Scott Parry, M.D.; Robert Cope, M.D.;
Sharon Richens, M.D.; and John Miller, M.D.’s (the “Physician Defendants”) Motion to Stay1
and Motion to Dismiss.2 Also before the Court is Defendant Dan Nielson’s (“Defendant

1

Docket No. 13.

2

Docket No. 15.
1

Nielson”) Motion to Stay3 and Motion to Dismiss for Failure to State a Claim and (in the
alternative) Motion to Dismiss for Lack of Jurisdiction.4 For the reasons discussed more fully
below, the Court will grant the Physician Defendants’ Motion to Stay and deny as moot the
Physician Defendants’ Motion to Dismiss. The Court will also deny Defendant Nielson’s
Motion to Stay and deny without prejudice Defendant Nielson’s Motion to Dismiss.
I. BACKGROUND
The following allegations are taken from Plaintiffs’ Complaint.5 Plaintiffs Nueterra
Healthcare Management (“NHM”), Nueterra Holdings, LLC (“Nueterra Holdings”), and
Nueterra Holdings Management, LLC (“Nueterra Holdings Management”), are Delaware limited
liability companies. The Plaintiffs’ respective places of business are located in the state of
Kansas. NHM is a wholly-owned subsidiary of Nueterra Holdings. The Physician Defendants
are members of the Board of Managers of Coral Desert Surgery Center, LLC (“Coral Desert”)
and each is alleged to be a resident of the state of Utah. Defendant Nielson is employed by
Nueterra Holdings Management and serves as the facility administrator for Coral Desert. It is
alleged that Mr. Nielson is also a Utah resident.
On November 20, 2002, ASC Management, LLC—NHM’s predecessor in interest—and
Coral Desert entered into a Development and Management Agreement (the “DMA”), pursuant to
which NHM was to provide certain management services in exchange for a monthly

3

Docket No. 17.

4

Docket No. 19.

5

See Docket No. 2.
2

management fee and a minority ownership in Coral Desert. The monthly management fee to be
paid, at the time this dispute arose, was 4.5% of “Net Revenues.”6 This 4.5% fee was subject to
an annual cap equal to the total management fee paid in the seventh year of operations. Plaintiffs
allege that on or about March 26, 2002, the members of Coral Desert executed and entered into
the Operating Agreement of Coral Desert Surgery Center, LLC (the “Operating Agreement”).
Plaintiffs further allege that, pursuant to the Operating Agreement, a supermajority vote is
required to make any material modification of any material contract of Coral Desert.7 Plaintiffs
assert that since March 2011, the Physician Defendants have attempted to reduce the monthly
management fee from 4.5 % to 2 % and to set the annual cap for management fees at $150,000.
As mentioned above, NHM was obligated to perform certain management services under
the DMA. For example, the DMA provides that NHM shall: “have the authority and
responsibility to provide business development services for [Coral Desert] and to conduct,
supervise and direct the day-to-day operations of [Coral Desert]”;8 “establish and administer
accounting procedures and controls and establish and administer systems for the development,
preparation, and safekeeping of records and books of account relating to the business and finance

6

Net Revenues are defined within the DMA as “the gross revenue of the Center less
adjustments for bad debts, contractual adjustments, maximum amounts payable under
governmental healthcare programs, and other discounts and allowances as applicable.” Docket
No. 16-1, at 11.
7

Plaintiffs assert that the DMA and Operating Agreement are attached to their Complaint,
however, the Complaint that was filed with the Court had no attachments. The DMA was
provided to the Court as an attachment to the Physician Defendants’ Memorandum in Support of
Motion to Dismiss and the Court will take judicial notice of the DMA based on its attachment.
8

Docket No. 2, at 4; see also Docket No. 14-1, at 3.
3

affairs of [Coral Desert]”;9 and “pay the payroll, rent, trade accounts, amounts due on short and
long-term indebtedness, taxes and all other obligations of Owner arising out of the operation of
[Coral Desert].”10 Plaintiffs also allege that the DMA provides that the books of accounting shall
be kept and maintained at the offices of NHM.11
According to Plaintiffs, the Physician Defendants improperly impeded or reduced
NHM’s responsibilities under the DMA by ceasing to use NHM’s “Great Plains” accounting
software program; withdrawing NHM’s authority to sign checks and make payments on Coral
Desert’s behalf; using a different accounting software system; and using Defendants’ own
checks to pay Coral Desert’s obligations.
Plaintiffs also allege that the Physician Defendants interfered with Plaintiffs’
employment relationship with Defendant Nielson. Defendant Nielson is the current facility
administrator, a position provided for under the DMA. Plaintiffs allege that, pursuant to the
DMA, the facility administrator serves at NHM’s sole discretion. Plaintiffs further allege that
the Physician Defendants induced Defendant Nielson to eliminate NHM’s signing authority on
Coral Desert’s bank accounts, to add Defendant Nielson’s own name as an account signatory,
and to change the accounting processes for Coral Desert.
Plaintiffs also allege that, through his actions in eliminating NHM’s signing authority on
Coral Desert’s bank accounts and adding his own name as account signatory, and refusing to

9

Docket No. 2, at 4; see also Docket No. 14-1, at 4.

10

Docket No. 2, at 4; see also Docket No. 14-1, at 5.

11

Docket No. 2, at 4.
4

take direction from NHM and Nueterra Holdings Management, Defendant Nielson has breached
his employment agreement with Nueterra Holdings Management.
II. DISCUSSION
The Physician Defendants have brought a Motion to Stay,12 requesting a stay of this
litigation pending the conclusion of arbitration pursuant to the Federal Arbitration Act (“FAA”).
Defendant Nielson has also filed a Motion to Stay13 and joins in the briefing submitted by the
Physician Defendants, arguing that his Motion should be granted on the same grounds. In the
alternative, the Physician Defendants and Defendant Nielson have also filed Motions to
Dismiss.14 The Court will address each of Defendants’ motions in turn.
A.

MOTIONS TO STAY
Defendants assert that this litigation should be stayed pending arbitration under § 3 of the

FAA because the DMA contains a binding arbitration clause. Plaintiffs argue that the arbitration
clause does not apply because the Physician Defendants, Nueterra Holdings, and Nueterra
Holdings Management are not signatories to the DMA. Defendants do not dispute that the above
listed parties are not signatories to the DMA, but assert that under the relevant case law the
arbitration clause should still be enforced.

12

Docket No. 13.

13

Docket No. 17.

14

Docket Nos. 15 & 19.
5

There is a “strong federal policy in favor of enforcing arbitration agreements,”15 and, as
asserted by the Defendants, “[s]ection 3 of the [FAA] entitles litigants in federal court to a stay
of any action that is referable to arbitration under an agreement in writing.”16 In determining
whether a stay is appropriate, the Court will begin its review with the language of the arbitration
clause contained in the DMA.
Section 12.14 of the DMA provides as follows:
Arbitration. Any dispute arising out of or relating to this Agreement or the
breach, termination or validity thereof, which has not been resolved by agreement
among the Members within 30 days of all Members receiving notice of such
dispute shall be finally settled by arbitration . . . . The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. § 1-16 . . . .17
The Tenth Circuit has previously found that an arbitration clause that “provides that any
controversy, claim, or breach arising out of or relating to this [a]greement shall be arbitrable,” is
a broad arbitration clause.18 Under a broad arbitration clause, “all claims with ‘a significant
relationship to the [a]greement, regardless of the label attached’ to them, arise out of and are
related to the [a]greement.”19 Tort based claims such as tortious interference are subject to an

15

Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217 (1985).

16

Arthur Andersen LLP v. Carlisle, 129 S. Ct. 1896, 1899 (2009).

17

Docket No. 14-1, at 20-21.

18

P&P Indus., Inc. v. Sutter Corp., 179 F.3d 861, 871 (10th Cir. 1999) (emphasis in
original) (internal citations and quotation marks omitted).
19

Id. (quoting Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88,
93 (4th Cir. 1993)).
6

arbitration clause where such claims arise out of, or relate to, the underlying agreement.20 As the
Tenth Circuit recently held, “[w]here the arbitration clause is broad, there arises a presumption
of arbitrability and arbitration of even a collateral matter will be ordered if the claim alleged
implicates issues of contract construction or the parties’ rights and obligations under it.”21
Here, Plaintiffs do not dispute that the arbitration clause included in the DMA is a broad
arbitration clause and that under such an agreement all claims that arise out of, or relate to, the
DMA should be referred to arbitration.22 Instead, Plaintiffs argue that this matter should not be
referred to arbitration because the parties to this action never actually agreed to arbitrate their
disputes.
In Howsam v. Dean Witter Reynolds, Inc.,23 the United States Supreme Court instructed
that “a gateway dispute about whether the parties are bound by a given arbitration clause raises a
‘question of arbitrability’ for a court to decide.”24 The same case instructs that “arbitration is a
matter of contract and a party cannot be required to submit to arbitration any dispute which he
has not agreed so to submit.”25

20

See id.; see also Gregory v. Electro-Mech. Corp., 83 F.3d 382, 284 (11th Cir. 1996)
(holding that “[w]hether a claim falls within the scope of an arbitration agreement turns on the
factual allegations in the complaint rather than the legal causes of action asserted”).
21

Newmont U.S.A. Ltd. v. Ins. Co. of N. Am., 615 F.3d 1268, 1274 (10th Cir. 2010)
(internal quotation marks and citation omitted).
22

See Docket No. 24, at 2.

23

537 U.S. 79 (2002).

24

Id. at 84.

25

Id. at 83.
7

The Supreme Court has also addressed the issue of whether “litigants who were not
parties to the relevant arbitration agreement” can seek a stay under the FAA.26 Similar to the
Plaintiffs in this matter, respondents in the Supreme Court case of Arthur Andersen LLP v.
Carlisle argued that “as a matter of federal law, claims to arbitration by nonparties are not
referable to arbitration under an agreement in writing, because they seek to bind a signatory to
an arbitral obligation beyond that signatory’s strictly contractual obligation to arbitrate.”27 The
Supreme Court refused to adopt this argument, reasoning that “[p]erhaps that would be true if the
[FAA] mandated stays only for disputes between parties to a written arbitration agreement.”28
The Supreme Court went on to hold “[i]f a written arbitration provision is made enforceable
against (or for the benefit of) a third party under state contract law, the statute’s terms are
fulfilled.”29
In the instant action, neither the Physician Defendants, Defendant Nielson, Nueterra
Holdings Management, nor Nueterra Holdings are signatories to the DMA. However,
Defendants assert that the arbitration clause is still binding under the precedent set out by the
Supreme Court in Arthur Andersen. The issue before the Court is whether under Utah law the
Defendants and the nonsignatory Nueterra entities may enforce, or be bound by, the arbitration

26

Arthur Andersen, 129 S. Ct. at 1899.

27

Id. at 1902 (emphasis in original) (internal quotation marks and citations omitted).

28

Id. (noting that “[the FAA] says that stays are required if the claims are referable to
arbitration under an agreement in writing”).
29

Id.
8

agreement as contained in the DMA. The Court will address the application of Utah law to the
nonsignatory parties individually.
1.

PHYSICIAN DEFENDANTS

The Physician Defendants argue that, even though they are nonsignatory third parties,
they can enforce the arbitration agreement under Utah law because they are agents for Coral
Desert, a signatory to the DMA. Plaintiffs contend that the Physician Defendants cannot enforce
the arbitration clause because, under Utah law, agents cannot seek to benefit from the contracts
of their principal.
The Utah Supreme Court dealt with the application of arbitration clauses to
nonsignatories in the case of Ellsworth v. American Arbitration Association.30 In that case, the
court recognized that, “under certain circumstances, a nonsignatory to an arbitration agreement
can enforce or be bound by an agreement between other parties.”31 The court went on to state
that “[t]raditionally, five theories for binding a nonsignatory to an arbitration agreement have
been recognized: (1) incorporation by references; (2) assumption; (3) agency; (4) veilpiercing/alter-ego; and (5) estoppel.”32
The Physician Defendants argue that, as the Board of Managers of Coral Desert, they
qualify as agents of Coral Desert and should be allowed to enforce the arbitration agreement
even as a nonsignatory. Plaintiffs do not dispute that the Physician Defendants are agents for

30

148 P.3d 983 (Utah 2006).

31

Id. at 989.

32

Id.
9

Coral Desert, instead arguing that under Utah law it “is clear that the Physician Defendants are
not allowed to benefit from Coral Desert’s contractual provisions simply by virtue of their
agency relationship with Coral Desert.”33 In support of this argument, Plaintiffs cite to Fericks v.
Lucy Ann Soffe Trust,34 in which the Utah Supreme Court held that “one of the most basic
principles of contract law is that, as a general rule, only parties to the contact may enforce the
rights and obligations created by the contract”35 and “an agency relationship with a principal to a
contract does not give the agent the authority to enforce a contractual term for the agent’s own
benefit.”36
At first blush, the Fericks case would seem to be in direct contravention to the Utah
Supreme Court’s later holding in Ellsworth.37 However, these cases can be read in harmony if
they are interpreted to stand for the proposition that the five theories for binding a nonsignatory
to an arbitration agreement are exceptions to the general rule stated in Fericks. The Court is
persuaded that this is the appropriate reading of these cases. “[T]o hold otherwise would make it

33

Docket No. 32, at 5.

34

100 P.3d 1200 (2004).

35

Id. at 1205-06.

36

Id. at 1206.

37

In Ellsworth, the Utah Supreme Court applied the agency theory for binding a
nonsignatory but ultimately found that the theory did not apply because there was no evidence
that the nonsignatory party was an agent. See 148 P.3d at 989.
10

‘too easy to circumvent [arbitration] agreements by naming individuals as defendants instead of
the [signatory] entity [itself].’”38
Lastly, though not argued by the parties, this Court notes that the Physician Defendants
would also be allowed to enforce the arbitration agreement against NHM under a theory of
nonsignatory estoppel. In Ellsworth, the Utah Supreme Court recognized that “another variety
of nonsignatory estoppel is that enforced by a nonsignatory when the signatory plaintiff sues a
nonsignatory defendant on the contract but seeks to avoid the contract-mandated arbitration by
relying on the fact that the defendant is a nonsignatory.”39 Here, NHM—a signatory—is
estopped from avoiding the arbitration clause contained in the DMA by relying on the fact that
the Physician Defendants are nonsignatories to the DMA.
For both of the reasons provided above, the Court will allow the Physician Defendants to
enforce the arbitration agreement contained in the DMA.
2.

NUETERRA HOLDINGS

Plaintiffs also assert that the arbitration agreement does not apply because Nueterra
Holdings is not a signatory to the DMA. The Physician Defendants concede that Nueterra

38

Chaitman v. Wolf Haldenstein Adler Freeman & Herz LLP, 2004 WL 2471372, at *4
(S.D. N.Y. Nov. 3, 2004) (alterations in original) (quoting Roby v. Corp. of Lloyd’s, 996 F.2d
1353, 1360 (2d Cir. 1993)).
39

Ellsworth, 148 P.3d at 989 (citing Bridas S.A.P.I.C. v. Gov’t. of Turkmenistan, 345 F.3d
347, 360-61 (5th Cir. 2003) (holding that “[t]he Plaintiff cannot, on the one hand, seek to hold
the nonsignatory liable pursuant to duties imposed by the agreement, which contains an
arbitration provision, but, on the other hand, deny arbitration’s applicability because the
defendant is a nonsignatory)).
11

Holdings is not a signatory to the DMA but assert that as the parent company of NHM, Nueterra
Holdings’s claims are inherently inseparable from those of NHM.
This Court, in I-Link Inc. v. Red Cube International AG,40 concluded that where the
relationship between a parent and subsidiary were “sufficiently close” and the claims
“sufficiently intertwined” with the relevant agreement, the nonsignatory parent would be bound
by the arbitration agreement.41 In I-Link, this Court cited favorably to the holding of
International Paper Co. v. Schwabedissen Maschinen & Anglagen GMBH, where the Fourth
Circuit held that “‘[w]hen allegations against a parent company and its subsidiary are based on
the same facts and are inherently inseparable, a court may refer claims against the parent to
arbitration even though the parent is not formally a party to the arbitration agreement.’”42 Other
courts have held that “[a] nonsignatory is estopped from refusing to comply with an arbitration
clause ‘when it receives a direct benefit from a contract containing an arbitration clause.’”43
In considering this type of estoppel, the Utah Supreme Court noted that “[i]n cases where
estoppel has been implemented against a nonsignatory, the nonsignatory has sued a signatory on
the contract to his benefit but sought to avoid the arbitration provision of the same contract.”44

40

2001 WL 741315 (D. Utah Feb. 5, 2001).

41

Id. at *5.

42

Id. (quoting Int’l Paper Co., v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d
411, 417 (4th Cir. 2000).
43

Ellsworth, 148 P.3d at 989 (quoting Am. Bureau of Shipping v. Tecara Shipyard S.P.A.,
170 F.3d 349, 353 (2d Cir. 1999)).
44

Id.
12

In considering nonsignatory estoppel in Ellsworth, the court reasoned that the “nonsignatory
estoppel exception [did] not apply to Mr. Ellsworth, a nonsignatory who is not suing on the
contract and who has not received direct benefits from the contract.”45
Nueterra Holdings only alleges two causes of action against the Physician Defendants.
Plaintiffs’ sixth and eighth causes of action both allege that the Physician Defendants sought the
ouster of Nueterra Holdings as a minority member of Coral Desert. Nueterra Holdings alleges
the Physician Defendants sought to bring about this ouster by “among other things, attempting to
manufacture ‘cause’ to terminate the DMA.”46 According to Plaintiffs, this termination of the
DMA “would ultimately result in the ouster of Nueterra Holdings as minority member of Coral
Desert.”47
The relationship between Nueterra Holdings and NHM is “close.” NHM is a wholly
owned subsidiary of Nueterra Holdings. Nueterra Holdings and NHM’s claims are also
“intertwined” with the DMA. Nueterra Holdings is suing on the DMA and alleges that its rights
are being affected by the Physician Defendants’ efforts to terminate the DMA. Nueterra
Holdings claims are based on the DMA and NHM’s success in enforcing its rights under the
DMA. NHM is bound by the arbitration agreement. For these reasons, this Court finds that
Nuettera Holdings has manifested an intent to be bound by the DMA, which it now seeks to

45

Id.

46

Docket No. 2, at 10.

47

Id.
13

enforce. Therefore, the Court will refer any claim by Nueterra Holdings against the Physician
Defendants to arbitration with NHM.
3.

NUETERRA HOLDINGS MANAGEMENT

The Defendants assert that Nueterra Holdings Management’s claims should be stayed
pending arbitration because Nuterra Holdings Management’s claims are directly related to and
contingent upon NHM’s claims. Plaintiffs assert that Nueterra Holdings Management cannot be
bound by the arbitration agreement because it is a nonsignatory sister company to NHM and
does not receive any direct benefit under the DMA.
“A corporation is entitled to a presumption of separateness from a sister corporation even
if both are controlled by the same individuals.”48 Thus, for Nueterra Holdings Management to be
bound with NHM to the DMA, its relationship with NHM must be sufficient to overcome that
presumption.49 This presumption may be overcome where the claims “involve the same
misconduct as that alleged against [the] signatory and arise out of [the] contract containing [the]
arbitration provision.”50

48

Cade v. Zions First Nat’l. Bank, 956 P.2d 1073, 1077 (Utah Ct. App. 1998).

49

See id.

50

Id. (citing Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, 7 F.3d 1110, 1121-22 (3d
Cir. 1993) (holding that arbitration agreement applied to nonsignatory sister corporation that
acted as advisor to signatory sister corporation and that allegedly participated knowingly in
breaches of fiduciary duties; nonsignatory sister corporation’s interests were directly related to,
if not predicated upon, signatory sister corporation’s conduct)); see also Barrowclough v.
Kidder, Peabody & Co., 752 F.2d 923 (3d Cir. 1985) (holding that non-parties to the arbitration
agreement that have related and congruent interests with the principals to the litigation would be
required to arbitrate).
14

The majority of Nueterra Holdings Management’s claims are against Defendant Nielson.
Those claims are allegedly partially premised on a separate employment agreement with
Defendant Nielson. However, in their first claim for relief, Plaintiffs also allege that the
Physician Defendants:
improperly induced the facility administrator, Defendant Nielson, to breach his
fiduciary duty and duty of loyalty to NHM and Nueterra Holdings Management
by corrupting his loyalty to his employer and inducing him to take actions that are
not in the best interest of NHM and Nueterra Holdings Management and that
impede or prevent NHM from performing its duties under the DMA.51
In their second claim for relief, Plaintiffs allege that the Physician Defendants:
intentionally interfered with the employment and economic relations between or
among Defendant Nielson, NHM and Nueterra Holdings Management, by
corrupting his loyalty to his employer and NHM and inducing him to take actions
that are not in the best interest of NHM and Nueterra Holdings Management and
that impede or prevent NHM from performing its duties under the DMA.52
These claims contain a variation of the same allegation. Nueterra Holdings Management alleges
that the Physician Defendants impeded its rights by causing its employee, Defendant Nielson, to
take actions that impeded NHM’s rights under the DMA.
The Court find that these allegations involve the same misconduct as that complained of
by the signatory, NHM, and arise out of the DMA. Thus, they are subject to arbitration.
Moreover, the Court notes that, as against the Physician Defendants, NHM and Nueterra
Holdings Management have related and congruent interests with regard to the litigation.

51

Docket No. 2, at 6.

52

Id. at 7.
15

Nueterra Holdings Management’s claims against the Physician Defendants are directly related
to, if not predicated upon, NHM’s rights under the DMA.
Therefore, to the extent Nueterra Holdings Management alleges a claim against the
Physician Defendants, Nueterra Holdings Management will be bound to arbitrate with NHM
because there are sufficient facts to overcome the presumption of corporate identity separation
among sister companies.
4.

DEFENDANT NIELSON

Defendant Nielson asserts that “[t]he reasons set forth in the Physician Defendant’s
briefing calls for a stay of this entire action, including Plaintiffs’ claims against [Defendant]
Nielson, pending mandatory arbitration.”53 Plaintiffs assert that Defendant Nielson’s Motion to
Stay fails because he is not a signatory to the DMA and cannot enforce the arbitration clause.
Defendant Nielson’s Motion fails on several grounds. First, Plaintiffs’ Complaint does
not merely allege claims against Defendant Nielson under the DMA. Nueterra Holdings
Management also alleges that it has a valid and binding employment agreement with Defendant
Nielson that he has breached by refusing to take directives from NHM.
Moreover, Plaintiffs correctly assert that Defendant Nielson is not a signatory to the
DMA. Nor has Defendant Nielson argued that any of the five theories provided in Ellsworth
allow him to enforce the arbitration clause. For these reasons, the Court will deny Defendant
Nielson’s Motion to Stay.

53

Docket No. 18, at 2.
16

B.

MOTIONS TO DISMISS
The Physician Defendants move this Court to dismiss Plaintiffs’ Complaint under

Fed.R.Civ.P. 12(b)(6) and 12(b)(1). The Court will deny the Physician Defendants’ Motions to
Dismiss as moot per the Court’s grant of the Physician Defendants’ Motion to Stay. Defendant
Nielson has also sought dismissal of Plaintiffs’ Complaint. Similar to his Motion to Stay,
Defendant Nielson merely joins in the briefing filed by the Physician Defendants. The Court
will deny Defendant Nielson’s Motion to Dismiss without prejudice. The Court will allow
Defendant Nielson an opportunity to file a properly supported motion to dismiss for the Court’s
consideration.
III. CONCLUSION
It is therefore
ORDERED that the Physician Defendants’ Motion to Stay (Docket No. 13) is
GRANTED. It is further
ORDERED that the Physician Defendants’ Motions to Dismiss (Docket No. 15) is
DENIED AS MOOT. It is further
ORDERED that Defendant Nielson’s Motion to Stay (Docket No. 17) is DENIED. It is
further
ORDERED that Defendant Nielson’s Motion to Dismiss for Failure to State a Claim and
(in the alternative) Motion to Dismiss for Lack of Jurisdiction (Docket No. 19) is DENIED
WITHOUT PREJUDICE.

17

DATED December 16, 2011.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

18