Beitzel v. Becerra ( 2024 )

1 Melissa C. Brown (SBN 110292) COMMUNITY LEGAL SERVICES 2 McGEORGE SCHOOL OF LAW 3200 Fifth Ave. 3 Sacramento, CA 95817 (916) 739-7378 4 mbrown1@pacific.edu 5 Alice Bers (pro hac vice) Justin Lalor (pro hac vice) 6 CENTER FOR MEDICARE ADVOCACY P.O. Box 350 7 Willimantic, CT 06226 (860) 456-7790 8 abers@medicareadvocacy.org jlalor@medicareadvocacy.org 9 Attorneys for Plaintiffs 10 PHILLIP A. TALBERT 11 United States Attorney JOSEPH B. FRUEH 12 Assistant United States Attorney 501 I Street, Suite 10-100 13 Sacramento, CA 95814 Email: joseph.frueh@usdoj.gov 14 Telephone: (916) 554-2702 Facsimile: (916) 554-2900 15 Attorneys for Defendant 16 17 UNITED STATES DISTRICT COURT 18 EASTERN DISTRICT OF CALIFORNIA 19 20 GEORGE BEITZEL, et al., on behalf of No. 2:23-cv-01932-WBS-DB 21 themselves and all others similarly situated, 22 Plaintiffs, STIPULATION, UNOPPOSED MOTION, AND ORDER FOR ENTRY OF 23 v. JUDGMENT 24 XAVIER BECERRA, Secretary of Health and Human Services, 25 Defendant. 26 27 28 Pending the Court’s approval, IT IS HEREBY STIPULATED, by and between the parties, 1 through their respective counsel of record, that it is appropriate for the Court to enter judgment in 2 this action in favor of the Defendant, Secretary of Health and Human Services. 3 On April 22, 2024, the Court entered its Order and Memorandum Granting the 4 Defendant’s Motion to Dismiss the First Amended Complaint, with leave for Plaintiffs to file an 5 amended complaint consistent with the Order within 20 days (Docket No. 35 at 11). The 20-day 6 period has since elapsed and Plaintiffs have not filed and do not elect to file an amended 7 complaint. Based on these circumstances, Plaintiffs respectfully submit that judgment in favor of 8 the Defendant, Secretary of Health and Human Services, is appropriate. See WMX Techs., Inc. v. 9 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (requiring further district court 10 determination before plaintiff who had been given leave to amend complaint could appeal); see 11 also Unified Data Servs., LLC v. FTC, 39 F.4th 1200, 1206-07 (9th Cir. 2022) (WMX 12 Technologies reaffirmed that plaintiff given leave to amend should alert district court of intent to 13 rest on complaint; appealable final order may then be entered); Fed. R. Civ. P. 58(b)(1)(C) (entry 14 of judgment when all relief has been denied). 15 Undersigned counsel for Plaintiffs contacted Defendant’s counsel who does not oppose 16 this request for entry of judgment. 17 DATED: May 22, 2024 Respectfully submitted, 18 By: /s/Alice Bers Alice Bers (pro hac vice) 19 Justin Lalor (pro hac vice) CENTER FOR MEDICARE ADVOCACY 20 Melissa C. Brown (SBN 110292) 21 COMMUNITY LEGAL SERVICES McGEORGE SCHOOL OF LAW 22 Attorneys for Plaintiffs 23 24 PHILLIP A. TALBERT United States Attorney 25 By: /s/ Joseph B. Frueh (authorized 5/22/2024) 26 JOSEPH B. FRUEH Assistant United States Attorney 27 Attorneys for Defendant 28 XAVIER BECERRA 1 Secretary of Health and Human Services 2 3 4 5 6 ORDER 7 This Court considered Defendant’s Motion to Dismiss Plaintiffs’ First Amended g | Complaint and filed its ruling on April 22, 2024, granting Defendant’s motion (Docket No. 35). 9g | The Order granted Plaintiffs 20 days’ leave to amend. The time for Plaintiffs to file an amended 10 | complaint has since expired and Plaintiffs filed the present application stating they do not elect to 11 | file an amended complaint. For these reasons and pursuant to the parties’ foregoing stipulation 12 | and unopposed motion, IT IS HEREBY ORDERED that the decision granting Defendant’s 13 || motion to dismiss is final and appealable and judgment shall be entered in favor of Defendant. 14 15 | ITISSO ORDERED. 6 Dated: May 23, 2024 A the th, b~-— WILLIAMB.SHUBB 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 3 Stip. & P.O. for Entry of Judgment