Nader v. Burwell
Filing
39
MEMORANDUM OPINION AND ORDER pursuant to the 35 , 36 cross-motions for summary judgment; the court directs the parties to submit additional briefing regarding the notice of reopening in this matter, with record citations to the underlying docume nts and the applicable regulation(s); defendant to submit a memorandum regarding notice of reopening by 12/28/2016 of no more than 10 pages; plaintiff to submit a response memorandum by 1/6/2017 of no more than 10 pages; and that any reply memorandum be limited to 5 pages and submitted by defendant by 1/11/2017. Signed by Judge John T. Copenhaver, Jr. on 12/15/2016. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
RAHEEM NADER, M.D.,
Plaintiff,
v.
Civil Action No. 2:14-cv-24993
SYLVIA MATHEWS BURWELL,
United States Secretary of Health and Human Services,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the parties’ cross-motions for summary
judgment.
One was filed by plaintiff Raheem Nader on September
30, 2015, and the other by defendant Sylvia Mathews Burwell,
Secretary of the United States Department of Health and Human
Services (the “Secretary”), on October 29, 2015.
Neither party explains in its briefing regarding the
timing of reopening precisely how the reopening was
accomplished, including whether notice of reopening of
plaintiff’s Medicare claims was provided to plaintiff and, if
so, how, when, and to whom such notice was addressed, together
with citation to the applicable regulation(s).
Defendant
appears to argue that notice was provided to plaintiff.
The
March 17, 2008, document in the administrative record, however,
to which defendant and the ALJ below refer seems not to have
Plaintiff,
v.
Civil Action No. 15-14025
THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM,
an Employee Welfare Benefits Plan,
been directed to plaintiff. See Administrative Record 1350.
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON,
a Massachusetts Corporation, and
Furthermore, neither party has analyzed whether Medicare
DOES 1 THROUGH 10, inclusive,
statutes or regulations require a notice of reopening in this
Defendants.
case, including how, when, and to whom it must be directed.
ORDER AND NOTICE
See, e.g., 42 C.F.R. § 405.1887(a).
Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the
following dates are hereby fixed as the time by or on which
certain events must occur:
Consequently, the court directs the parties to submit
01/28/2016
Motions under F.R. Civ. P. 12(b), together with
supporting briefs, notice of affidavits, this
additional briefing regarding the memoranda, reopening in or other
such matter in support thereof. (All motions
unsupported by to the underlying documents and
matter, with record citations memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
the applicable Last day for Rule 26(f) meeting.
regulation(s). It is hereby ORDERED that
02/08/2016
defendant submit a memorandum regarding notice of reopening by
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See L.R. Civ. P. 16.1.
December 28, 2016, of no more than ten pages; that plaintiff
02/22/2016
Scheduling conference at 4:30 p.m. at the Robert C.
submit a response memorandum by January 6, 2017, of no more before
Byrd United States Courthouse in Charleston, than
the undersigned, unless canceled. Lead counsel
ten pages; and directed to appear.
that any reply memorandum be limited to five
pages and submitted by defendant by January 11, 2017.
02/29/2016
Entry of scheduling order.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
The Clerk is requested to transmit copies of this
The Clerk is requested to transmit this Order and
order to all counsel of record and any unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.
DATED: January 15, 2016
DATED: December 5, 2016
John T. Copenhaver, Jr.
United States District Judge
2
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