United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO
DISMISS  AND DENYING AS MOOT DEFENDANT'S RENEWED
MOTION FOR SUMMARY JUDGMENT 
GERSHWIN A. DRAIN UNITED STATES DISTRICTJUDGE.
before the Court is Plaintiffs' Motion to Dismiss and
Defendant's Renewed Motion for Summary Judgment.
Plaintiff moves to dismiss this case without prejudice.
Defendant moves for summary judgment. For the reasons that
follow, the Court will grant Plaintiffs' Motion to
Dismiss without prejudice and deny Defendant's Motion for
Summary Judgment as moot.
2015, Mr. John Bourdage was involved in a car accident and
sustained physical injuries. Dkt. No. 1-2, at 6 (Pg. ID 10).
The accident made Mr. Bourdage eligible to receive no-fault
insurance benefits. Id. Mr. Bourdage was a patient
of the Plaintiffs. Id. Defendant has received
medical bills from Plaintiffs but has not paid all of the
charges. Id. at 7 (Pg. ID 11). In February of 2017,
Plaintiffs filed a complaint against Defendant in Wayne
County Circuit Court. See Dkt. No. 1, pg. 1 (Pg. ID
1). Defendant removed the case to this Court on March 3,
2017. See Dkt. No. 1. Defendant then moved for
summary judgment on May 31, 2017. Dkt. No. 12. On May 25,
2017, the Michigan Supreme Court decided Covenant Medical
Center, Inc. v. State Farm Mutual Automobile Insurance
Company, which held that health care providers no longer
had a right to file a separate cause of action to recover the
cost of the services they provided. 895 N.W.2d 490, 504-05
(Mich. 2017). Based on that decision, the Defendant moved for
judgment on the pleadings on June 13, 2017 for failure to
state a claim upon which relief could be granted. Dkt. No.
14. Defendant argued that Plaintiffs could not bring a cause
of action because they are healthcare providers. See
Dkt. No. 21, pg. 3 (Pg. ID 181).
Court denied the Motion for Judgment on the Pleadings because
Mr. Bourdage could assign his claim to Plaintiffs, which
would allow Plaintiffs to bring the claim. Dkt. No. 21, pg. 4
(Pg. ID 182). The Court then denied the motion for summary
judgment as moot. Id.
Bourdage did not assign his claim to Plaintiffs, and he
instead brought a lawsuit in Washtenaw County Circuit Court
against Defendant. Dkt. No. 22, pg. 3 (Pg. ID 186).
Plaintiffs' lawyer began representing Mr. Bourdage in his
Washtenaw County Circuit Court claim on July 28, 2017.
Id. Therefore, Plaintiffs' claims will now be
presented in the Bourdage case. Id. Plaintiffs were
the first party to file a motion in the present proceeding.
Plaintiffs filed a Motion to Dismiss requesting this Court to
dismiss the action without prejudice because their case will
be presented in the Bourdage case. Dkt. No. 22. Plaintiffs
requested a dismissal without prejudice so Defendants cannot
use this Court's dismissal in the Bourdage case to claim
that this Court already decided Plaintiffs' claim on the
merits. Dkt. No. 22, pg. 3 (Pg. ID 186). Defendants
responded, requesting that this Court dismiss the action with
prejudice. Dkt. No. 27. On September 6, 2017, Defendants also
filed a Renewed Motion for Summary Judgment for failure to
state a claim upon which relief could be granted pursuant to
the Covenant decision. Dkt. No. 24. Plaintiffs
responded by referencing their earlier Motion to Dismiss,
stating that this Court should dismiss without prejudice so
Plaintiffs can pursue their claims in Mr. Bourdage's
case. Dkt. No. 26, pg. 2 (Pg. ID 209).
Rule of Civil Procedure 12(b)(6) governs motions to dismiss.
The court will dismiss a claim for “failure to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). Federal Rule of Civil Procedure 56(c) governs
summary judgment. “Summary judgment shall be granted if
there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of
law.” Cehrs v. Ne. Ohio Alzheimer's Research
Ctr., 155 F.3d 775, 779 (6th Cir. 1998) (quotations
Plaintiffs filed their Motion to Dismiss first, the Court
will consider it first. Plaintiffs request this Court dismiss
their claim without prejudice. Defendants maintain the
position that the claim should be dismissed with prejudice
because “[a] dismissal for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6) is a
‘judgment on the merits, ' and is therefore done
with prejudice.” Pratt v. Ventas, Inc., 365
F.3d 514, 522 (6th Cir. 2004) (quoting Federal Dep't
Stores, Inc. v. Moitie, 452 U.S. 394, 3699 n.3 (1981)).
This Court is not dismissing Plaintiff's action for
failure to state a claim, so the dismissal is not a judgment
on the merits. This Court is dismissing the action because
Plaintiffs' matter is now pending before another court.
Mr. Bourdage did not assign his claim to Plaintiffs. Instead,
he filed his own claim in Washtenaw County Circuit Court.
Plaintiff's claims will be considered along with his
claims because Mr. Bourdage and Plaintiffs have the same
lawyer. In conclusion, this Court will dismiss the current
action without prejudice to allow the Washtenaw County
Circuit Court to consider the Plaintiffs' issues, which
are in Mr. Bourdage's case.
for Summary Judgment
this Court is granting Plaintiffs' Motion to Dismiss, the
Renewed Motion for Summary Judgment is moot. Accordingly,