United States District Court, S.D. Georgia, Savannah Division
UNITED STATES OF AMERICA ex rel. JOLIE JOHNSON, et al., Relators,
BETHANY HOSPICE AND PALLIATIVE CARE OF COASTAL GEORGIA, LLC, et al., Defendants.
ask the Court to reconsider its Order (doc. 79) staying the
case pending resolution of defendants' motion to dismiss
the Second Amended Complaint. Doc. 83. They argue, for the
first time, that if the case must be stayed only
discovery relating to the alleged kickback scheme must be
stayed. After all, that is the subject of the motion to
dismiss. That means that discovery on their retaliation claim
can go forward. They're not wrong, and that would have
been a very good argument to raise in their initial
briefing, which they received extra pages and multiple
extensions of time to mount. See docs. 60, 65, 72.
But they did not argue that discovery should be bifurcated.
See doc. 67 at 1 (noting that the case involves two
claims, “kickbacks and retaliation, ” and that
there is no motion to dismiss pending on the retaliation
claim, but failing to affirmatively argue that discovery
could go forward on the retaliation claim without implicating
the pending motion to dismiss). This new argument,
in other words, was neither evaluated, nor rejected, in the
Court's Order staying discovery. Indeed, the Court
specifically stayed discovery because “half” the
case (the kickback scheme) might be carved away if the motion
to dismiss were granted. Doc. 79 at 3 & 6 (“The
Court concedes that [the motion to dismiss] may not terminate
the entire case (indeed, at the very lease relators'
retaliation claim will survive)[.]”).
Fed.R.Civ.P. 59(e) motion for reconsideration may be granted
based only on newly-discovered evidence or to correct
manifest errors of law or fact. In re Kellogg, 197
F.3d 1116, 1119 (11th Cir. 1999). Rule 59(e) motions may not
be used to “relitigate old matters, raise argument or
present evidence that should have been raised prior to the
entry of judgment.” Michael Linet, Inc. v. Vill. of
Wellington, 408 F.3d 757, 763 (11th Cir. 2005).
“motion relie[s] on no newly-discovered evidence and
demonstrate[s] no manifest error of law or fact” in the
court's order. The Bedtow Grp. II, LLC v.
Ungerleider, No. 16-10213, 2017 WL 1279036 at *3 (11th
Cir. Apr. 6, 2017). Nothing in relators' motion for
reconsideration demonstrates this Court's
holding was incorrectly reached. The Court, nevertheless,
recognizes the merits of relators' new argument that
discovery could be bifurcated: the retaliation claims are not
subject to any pending motion to dismiss and are, indeed,
leveled against only one defendant. Doc. 45 at ¶¶
85-88 (naming defendant Bethany Coastal). And, perhaps,
“discovery on the retaliation claims” is indeed
“inevitable.” Doc. 83 at 2. It will therefore
construe relators' motion as one to modify the
Court's Order, rather than reconsider it.
argument that discovery on the retaliation claims will
necessarily overlap with discovery on the kickback scheme is
compelling. Doc. 88 at 8 (arguing that permitting bifurcated
discovery “would prolong, if not double, the discovery
period in this case.”). They do not, however, and as
relators note, name any particular witness that might so
duplicate discovery efforts. Doc. 92 at 3. Indeed, relators
point out, only Bethany Coastal employees would be
witnesses to alleged retaliation, while Bethany Hospice
employees would be witnesses to the alleged kickback scheme.
Id. (representing that even were defendants'
motion to dismiss granted, neither the witness list nor the
nonparty discovery on the retaliation claim would change).
Perhaps, given that characterization of relators'
proposed discovery arc, a compromise can be reached.
Court, as already said in its Order, sympathizes with the
length of time that has passed in this aging case.
See doc. 79 at 7 n. 2. One relator has passed away,
and her Estate is anxious for resolution. Memories fade, and
documents can get misplaced. The Court also reiterates its
confidence that the already-sent litigation hold notices will
do their job of preserving existing documents. Certainly, the
unending papering of this Court is refreshing witness
recollections every day. The Court is, however, prepared to
permit the parties to agree to narrow discovery on
the retaliation claim.
parties are ORDERED to meet and confer
within 14 days of service of this Order to discuss a
proposed, limited Scheduling Order to proceed with
fact discovery on relators' retaliation claim. No.
discovery on the kickback scheme will be permitted at this
juncture, nor will any discovery that the parties reasonably
believe would be duplicative of discovery on the alleged
kickback scheme. The parties are further
ORDERED to file their joint,
limited Scheduling Order within 21 days of service
of this Order. In sum, relators' motion to modify the
Court's Order staying the case (doc. 83) is
 Relators' grumpiness that the Court
failed to raise the matter sua sponte and bifurcate
discovery, see doc. 83 at 2 n. 2, is noted. However,
the Court also notes that it is the parties' job to brief
the positions, and outcomes, that they both desire and
believe are warranted, and to set forth their arguments and
support for their arguments at some point in their