El-Amin v. Gwu

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHEILA EL-AMIN, et al.,
Plaintiffs,
Civil Action No. 95-2000 (CKK)
v.
GEORGE WASHINGTON UNIVERSITY,
et al.,
Defendants.
MEMORANDUM OPINION
(June 16, 2009)
Currently before the Court is Magistrate Judge John M. Facciola’s [739] October 3, 2008
Report and Recommendation (hereinafter “Magistrate Judge Facciola’s Report”), pursuant to Local
Civil Rule 72.3(a), on Defendant George Washington University’s (“GWU”) [728] Motion for an
Order to Show Cause. Defendant has filed Objections to Magistrate Judge Facciola’s Report and
Recommendation, as provided for in Local Civil Rule 72.3(b). Upon searching consideration of the
pleadings filed by each party, Magistrate Judge Facciola’s Report, the relevant case law, and the
entire record herein, the Court shall adopt the well-reasoned and thorough Report of Magistrate
Judge Facciola in its entirety. Accordingly, the Court shall STRIKE Defendant’s [728] Motion for
an Order to Show Cause and shall disregard Plaintiff’s submission via letter to Magistrate Judge
Facciola’s chambers, for the reasons set forth below.
I. BACKGROUND
The factual background of this case has been extensively discussed many times throughout
the course of this litigation. See El-Amin v. George Washington Univ., 533 F. Supp. 2d 12 (D.D.C.
2008); El-Amin v. George Washington Univ., 522 F. Supp. 2d 135 (D.D.C. 2007); El-Amin v.
George Washington Univ., No. 95-cv-2000, 2005 WL 3275997 (D.D.C. Aug. 31, 2005); El-Amin v.
George Washington Univ., No. 95-cv-2000, 2005 WL 485971 (D.D.C. Feb. 25, 2005); El-Amin v.
George Washington Univ., 26 F. Supp. 2d 162 (D.D.C. 1998). The Court therefore does not repeat
the factual background herein, but shall set forth only those brief facts necessary to resolve the
instant questions now before the Court. Plaintiffs are certified registered nurse anesthetists who
brought this action on behalf of the United States under the qui tam provision of the False Claims
Act, 31 U.S.C. §§ 3729-33, in 1995. Plaintiffs claim that GWU Hospital intentionally defrauded
Medicare by submitting false claims between 1989 and 1995. Plaintiffs allege that the claims were
false because GWU Hospital represented that the services were performed wholly by licensed
anesthesiologists, but many services were performed in part by anesthetists or residents. See
Magistrate Judge Facciola’s Report at 2.
As Magistrate Judge Facciola observed in his Report, this case has been greatly complicated
by the fact that the Medicare claim forms at issue no longer exist. Consequently, Plaintiff have been
engaged in an effort to reconstruct the original claims using circumstantial evidence. Id. In a
Memorandum Opinion dated February 4, 2008, this Court set forth certain minimum criteria that
Plaintiffs must demonstrate in order to go forward with each claim. El-Amin, 533 F. Supp. 2d at 31,
n.9. Specifically, Plaintiffs must show, at a minimum: (1) the date the claim was filed with
Medicare; (2) the name of the attending anesthesiologist; (3) the type of medical procedure involved;
and (4) the amount of the claim. Id.On February 27, 2008, the parties appeared before this Court, at which time they agreed upon
a schedule going forward. See 2/27/08 Order, Docket No. [726]. Plaintiffs agreed to produce, on or
before April 9, 2008, a comprehensive list of all the claims they argue are fraudulent, identified by
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the four criteria listed above. Defendant was then given until May 21, 2008 to review the claims
and lodge their objections with Plaintiffs. Id. at 1-2. Defendant was specifically instructed to
communicate with Plaintiffs regarding any objections to the claims’ list, and not to file any
additional pleadings. Id. at 2. The parties were directed to work toward resolving any disputes
independently and file a joint status report on June 23, 2008 in anticipation of a conference to be
held on June 25. Id.
In accordance with the Court’s order, Plaintiffs prepared two charts–one for liability only
claims and one for damages claims–and sent them to counsel for Defendant on April 9. See
Magistrate Judge Facciola’s Report at 3. Defendant began a review of these charts, and state that
they reviewed over 700 entries without finding a single entry that they deemed compliant with the
Court’s Order. Id. at 4. The parties conferred in late May, at which point Defendant asked Plaintiffs
for an explanation of certain documents. However, on May 21, rather than submit objections to
Plaintiffs as ordered, Defendant sent Plaintiffs a letter stating that they objected in accordance with
the Motion for an Order to Show Cause that they then filed with this Court. Id. Defendant’s Motion
asks this Court to strike all of Plaintiffs’ claims on the grounds that they do not comply with the
Court’s February 27, 2008 Order. See generally Def.’s Mot. for Order to Show Cause.
Thereafter, on June 25, 2008, the parties appeared at a joint status conference before this
Court, at which time the Court referred Defendant’s Motion for Order to Show Cause to Magistrate
Judge Facciola for a Report and Recommendation on how to proceed. See 6/25/08 Order, Docket
No. [733]. On July 7, 2008, Magistrate Judge Facciola issued a Minute Order stating that “[a]ll
proceedings in this matter are hereby stayed, and there shall be no further submissions to the Court,
until a status conference is held.” 7/7/08 Min. Order. A status conference was then scheduled for
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August 14, 2008. Despite the clear ban on submissions prior to the next status conference, Plaintiffs
mailed a letter with an enclosed CD to Magistrate Judge Facciola’s chambers on July 18, 2008. See
Magistrate Judge Facciola’s Report at 4. The CD contained what Plaintiffs claim was an updated
version of the charts that Plaintiffs had submitted to Defendant on April 9, but in an Excel format.
A copy of the chart was also sent to Defendant. See id.
On October 3, 2008, Magistrate Judge Facciola issued his Report, which recommended that
Defendant’s Motion for an Order to Show Cause be stricken and that Plaintiff’s informal submission
to chambers be disregarded. Magistrate Judge Facciola’s Report at 7. Defendant thereafter timely
filed its [740] Objections to Magistrate Judge Facciola’s Report, and Plaintiffs subsequently filed
their [742] Response to Defendant’s Objections.
II. DISCUSSION
As set forth in Defendant’s Objections, Defendant objects solely to that portion of Magistrate
Judge Facciola’s Report striking Defendant’s [728] Motion for Order to Show Cause. See generally
Def.’s Objs. Defendant contends that the motion did not violate the Court’s February 27, 2008
Order, as determined by Magistrate Judge Facciola. Upon review of the record, however, the Court
agrees with Magistrate Judge Facciola that the Defendant’s Motion was in violation of this Court’s
February 27, 2008 Order and should therefore be struck. Defendant was explicitly instructed by this
Court to provide “Plaintiffs–rather than the Court–with their objections to the claims that Plaintiffs
identify and the exhibits that they rely upon,” by May 21, 2008. 2/27/08 Order at 2. However, on
May 21, 2008—rather than providing objections directly to Plaintiffs as ordered—Defendant filed its
Motion for an Order to Show Cause advising the Court of its many objections to Plaintiffs’ claims
and supporting documentation. See Def.’s Mot. for Order to Show Cause, Docket No. [728]. It is
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therefore clear that Defendant’s Motion was filed in direct violation of this Court’s February 27,
2009 Order, and the Court, in its discretion, agrees that the Motion should be struck. See Fed. R.
Civ. P. 16(f)(c) (authorizing court to issue any just orders if a party or its attorney fails to obey a
scheduling or other pretrial order); cf Equal Rights Cent. v. Post Props., Inc., 246 F.R.D. 29, 32
(D.D.C. 2007) (noting that district court has discretion to dismiss a motion for failure to comply
with the meet and confer requirement).
As Defendant does not object to any other portion of Magistrate Judge Facciola’s Report,
which the Court finds to be well-reasoned and thorough, the Court shall adopt Magistrate Judge
Facciola’s October 3, 2008 Report and Recommendations in its entirety, pursuant to Local Civil
Rule 72.3(c). Finally, the Court notes that the parties continue to work with Magistrate Judge
Facciola to resolve these matters relating to Plaintiffs’ claims list.
III. CONCLUSION
For the reasons set forth above, pursuant to Local Civil Rule 72.3(c), the Court shall adopt
Magistrate Judge Facciola’s October 3, 2008 Report and Recommendations in its entirety, including
his recommendation to strike Defendant’s [728] Motion for an Order to Show Cause for failure to
comply with the Court’s Orders.
Date: June 16, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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