Doe, John v. Gundersen Lutheran Health System, Inc. et al

Filing 29

ORDER granting 28 Motion for Leave to File Reply In Support of Motion to Stay Remand Order Pending Appeal; denying 23 Motion to Stay Remand Order Pending Appeal. Signed by District Judge William M. Conley on 3/26/2024. (rks)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOHN DOE, individually and on behalf
of all others similarly situated,
Plaintiff,

OPINION AND ORDER

v.
23-cv-694-wmc
GUNDERSEN LUTHERAN HEALTH
SYSTEM, INC. and DOES 1-20,
Defendants.
Invoking the federal officer removal statute, 28 U.S.C. § 1442(a)(1), defendant
Gundersen Lutheran Health System, Inc., attempted to remove this case from state court.
After returning the case back to state court for lack of federal jurisdiction, this court granted
defendant’s motion for a 30-day stay of the remand order under Federal Rule of Civil
Procedure 62(a). (Dkt. #17.) Defendant now moves for an indefinite stay of the court’s
remand order pending appeal, to which plaintiff objects. (Dkts. #23, 26.) For the reasons
that follow, the court will deny that motion.
Four factors are pertinent to the matter: (1) whether the stay applicant has made a
strong showing that it is likely to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceedings; and (4) where the public interest lies.
Epenscheid v. DirectSat USA, LLC, No. 09-cv-625-bbc, 2011 WL 2132975, at *2 (W.D.
Wis. May 27, 2011) (citing Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). The court
uses a “sliding scale” approach: the greater the moving parties’ likelihood of success on the

merits, the less heavily the balance of harms must weigh in their favor, and vice versa. In
re A & F Enters., Inc. II, 742 F.3d 763, 766 (7th Cir. 2014).
As the court explained in its remand order, defendant’s theory that a private hospital
can invoke federal officer removal under 28 U.S.C. § 1442(a)(1) for a dispute concerning
its online patient portal is questionable and against the tide of district court opinions to
the contrary. (Dkt. #15 at 5-6.) Even acknowledging the two, early decisions that found
federal officer removal appropriate in these circumstances, those decisions have now been
rejected by district court across the country, including this court. (Id. at 8-9.) Accordingly,
the court concludes that defendant has little likelihood of success on appeal.
As for the second factor, defendant cannot demonstrate irreparable harm. A denial
of a stay simply means that this matter proceeds in state court, instead of being held up in
federal court pending an appeal that defendant will likely lose. Defendant notes that it
will have to pay litigation costs in both federal appellate and state court, but “[m]ere
litigation expense, even substantial and unrecoupable cost, does not constitute irreparable
injury.”

F.T.C. v. Standard Oil Co. of California, 449 U.S. 232, 244 (1980) (citation

omitted); see also Adkins v. Nestle Purina Petcare Co., 779 F.3d 481, 483 (7th Cir. 2015) (“It
is established that the costs of ongoing litigation . . . are not irreparable injury.”).
Relatedly, defendant argues judicial economy in support of the fourth factor
requiring consideration of the public interest, noting that Congress has allowed for
appellate review of remand orders in federal officer removal cases and that the specific issue
presented in this case is already before the Seventh Circuit as a consolidated appeal -- Elkins
v. Southeastern Indiana Health Management, Inc., Nos. 23-3159, 23-3175, 23-3340, 23-3340,

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and 23-3385. Defendant adds in reply that the Seventh Circuit is “in a position to rule on
the consolidated appeal in the near future” and appears poised to suspend briefing in
defendant’s appeal pending that ruling. See Doe v. Gundersen Lutheran Health System, Inc.,
No. 24-1378, dkt. #3 (ordering the parties to file a statement explaining their positions
on whether briefing should be suspended pending a decision in Elkins). However, this cuts
mainly against defendant’s stay motion, since (1) the issue of the applicability of the federal
removal statute to circumstances like those in this case will soon be resolved regardless of
whether defendant appealed; and (2) with briefing suspended, defendant is unlikely to
incur substantial litigation costs on appeal to get an answer. Moreover, none of the remand
orders on appeal in Elkins were stayed by the district courts as of the date of this order. See
Lamarr v. Goshen Health System, Inc., No. 23-cv-1173-JRS-MJD, dkt. #47 (S.D. Ind. Feb.
21, 2024) (denying motion to stay the remand order); Elkins v. Southeastern Indiana Health
Management Inc. D/B/A Columbus Regional Health, No. 23-cv-1117-JRS-TAB, dkt. #44 (S.D.
Ind. Feb. 21, 2024) (same); Fleece v. Bd. of Trustees of the Hancock Regional Hospital, No. 23cv-1235-MPB-TAB, dkt. #43 (S.D. Ind. Dec. 11, 2023) (same); Doe v. Sarah Bush Lincoln
Health Center, No. 23-cv-2170-CSB-EIL, dkt. #19 (C.D. Ill. Nov. 20, 2023) (same); Chiaro
v. The Methodist Hospitals, Inc., No. 23-cv-1051-SEB-CSW (S.D. Ind.) (no stay order issued,
litigation is ongoing in Indiana state court).

As a result, defendant has not established

that a stay would harm it or the public interest.
Finally, the third factor also favors a stay because Doe and his putative class (likely
consisting of many Wisconsin citizens) have a legitimate interest in continuing discovery
while delay of the state court proceeding only benefits defendant. See Martin v. Frankling

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Cap. Corp., 546 U.S. 132, 140 (2005) (noting that unfounded removal of a case to federal
court only to have it remanded back “delays resolution of the case, imposes additional costs
on both parties, and wastes judicial resources”).
Accordingly, defendant’s motion for leave to file a reply (dkt. #28) is GRANTED
and its motion for a stay (dkt. #23) is DENIED.
Entered this 25th day of March, 2024.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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