United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
F. COX UNITED STATES DISTRICT JUDGE
Greater Lakes Ambulatory Surgical Center, LLC (“Greater
Lakes”) filed this action against Defendant Enterprise
Leasing Company of Detroit (“Enterprise) seeking to
recover payment of alleged medical bills incurred by
non-party Joyce Robinson, who was covered under a Michigan
No-Fault insurance policy issued by Enterprise. The matter is
currently before the Court on a Motion for Summary Judgment
filed by Enterprise after the close of discovery in this
case. The Court concludes that oral argument is not necessary
and orders that the motion shall be decided on the briefs.
Local Rule 7.1(f).
explained below, the Court shall GRANT the motion. Plaintiff
has essentially failed to prosecute this case, in that
Plaintiff did not file a witness list as ordered by the
Court. Thus, Plaintiff has not identified any
witnesses for trial in this case and discovery is now
closed. Plaintiff also failed to file a response to the
summary judgment motion filed by Defendant. After this Court
issued a Show Cause Order, Plaintiff then filed a brief
opposing the motion, without any explanation for having
failed to file a timely brief. In addition, as to the
untimely response brief it did file, Plaintiff: 1) failed to
comply with the Court's practice guidelines and did not
respond to the statement of material facts filed by
Defendant; 2) failed to respond to some arguments set forth
in the motion; and 3) sought to oppose the motion by filing
an affidavit from a person not identified in Plaintiff's
initial disclosures or any witness list, which is
insufficient to survive summary judgment in any event.
Joyce Robinson (“Robinson”) was involved in an
automobile accident on September 9, 2017.
Robinson filed a lawsuit against Enterprise seeking Michigan
No-Fault benefits in Wayne County Circuit Court
Lakes claims to have provided medical services to Robinson.
On September 19, 2018, Greater Lakes filed suit against
Enterprise in Macomb County Circuit Court. On October 18,
2018, Enterprise removed that action to this Court. Greater
Lakes' Complaint includes the following counts:
1) “Violation of Statutory Duty, MCL 500.3101 Et Seq.
Through Assignment of Rights” (Count I): wherein
Greater Lakes alleges that patient Joyce Robinson is entitled
to pursue a direct action for payment of medical treatment
pursuant to Mich. Comp. Laws § 500.3112 et seq., and
assigned her rights to do so to Enterprise, who provided
medical treatment to the patient;
2) “Breach of Contract - Third Party Beneficiary”
(Count II): wherein Greater Lakes claims to be an intended
third-party beneficiary of Joyce Robinson's contract of
No-Fault insurance issued by Enterprise;
3) “Declaratory Relief” (Count III): wherein
Greater Lakes seeks a declaration that Enterprise is the
insurer responsible for the payment of Michigan No-Fault
insurance benefits on behalf of Robinson for her motor
4) “Attorney Fees” (Count IV): wherein Greater
Lakes seeks an award of attorney fees under Mich. Comp. Laws
§ 500.3148; and
5) “Statutory Interest” (Count V): wherein
Greater Lakes seeks an award of statutory interest under
Mich. Comp. Laws § 500.3142.
(ECF No. 1).
Court held the scheduling conference in this matter on
December 10, 2018, and issued the Scheduling Order on
December 13, 2018.
Court's practice guidelines are included in the
Scheduling Order and provide, consistent with Fed.R.Civ.P. 56
(c) and (e), that:
a. The moving party's papers shall include a separate
document entitled Statement of Material Facts Not in Dispute.
The statement shall list in separately numbered paragraphs
concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate
document entitled Counter-Statement of Disputed Facts. The
counter-statement shall list in separately numbered
paragraphs following the order or the movant's statement,
whether each of the facts asserted by the moving party is
admitted or denied and shall also be supported by appropriate
citations to the record. The Counter-Statement shall also
include, in a separate section, a list of each issue of
material fact as to which it is contended there is a genuine
issue for trial.
c. All material facts as set forth in the Statement of
Material Facts Not in Dispute shall be deemed admitted unless
controverted in the Counter-Statement of Disputed Facts.
(ECF No. 5, Scheduling Order at 2-3).
discovery in state court, in Robinson's case, Enterprise
noticed the deposition of Greater Lakes'
“Individual Most Knowledgeable Regarding The Charges
Billed By Greater Lakes Ambulatory On Behalf Of Joyce
Robinson” to take place on September 20, 2018. (Ex. 1
to Def.'s Motion). That notice expressly requested that
the person be able to testify about the following topics:
(1) How the rates charged by the company for services
provided to JOYCE ROBINSON were established;
(2) How the company intends to show that the rates it charged
for service provided to JOYCE ROBINSON are reasonable;
(3) Billing practices, including how bills are generated, how
billed CPT codes are determined, the submission of bills to
plaintiff's health insurer(s), and the submission of
bills to and responses received from Defendant.
(Id. at 2). The notice further requested that the
witness bring the following with them to the deposition on
September 20, 2018:
(1) Any and all materials used to set the rates for the
services provided to JOYCE ROBINSON including but not limited
to any “surveys” or comparative analyses;
(2) Any and all communications, e-mails, notes, or drafts
concerning the establishment of rates;
(3) Any and all materials the corporation believes show that
the rates it charges for services are reasonable;
(4) Any and all documentation of the specific services
provided to JOYCE ROBINSON;
(5) Any reference materials, code books, manuals, computer
programs, etc. that are referenced when determining whether
the correct CPT code is being billed for any particular
response to that notice, Greater Lakes produced Alicia
Ambrozy to testify for a deposition on September 20, 2018.
The full transcript of her deposition is attached to
Enterprise's summary judgment motion as Exhibit 2.
beginning of that deposition, Enterprise's counsel
stated: “Let the record reflect today's the date
and time set for the Duces Tecum Deposition of the Individual
Most Knowledgeable regarding the charges billed by Greater
Lakes Ambulatory on behalf of Joyce Robinson.” (ECF No.
9-4 at PageID.227). Alicia Ambrozy then confirmed that she
was the representative sent in response to the deposition
Q. Good afternoon. How are you this afternoon?
A. Great. How are you?
Q. Great. Thanks for taking the time to be with us. Obviously
- and I marked - before you got out here, I marked the Dep
Notice as Exhibit 1. I see you have copy of the subpoenaed
Dep Notice in front of you; correct?
A. I do.
Q. And we asked for a representative to be produced to
testify regarding some specific topics today. Did you read
the Dep Notice, and do [sic] understand the topics that
you're here to testify about?
A. I do.
Q. And are you able to testify competently about how the
rates charges by Greater Lakes Ambulatory for services
provided to Joyce Robinson were established?
Q. And are you able to testify how the company intends to
show that its rates are reasonable?
A. To the best way I can, yes.
Q. And are you able to testify regarding the billing
practices for these facilities?
(Id. at PageID.228-229).
“Initial Disclosures Pursuant to Fed.R.Civ.P.
26(a)”, that Greater Lakes provided to Enterprise in
this case, identified “Alicia Ambrozy of Block Billing
solutions” as a person knowledgeable about “Joyce
Robinson's medical and billing records.” (ECF No.
14-2 at PageID.347). Greater Lakes did not provide the name
of anyone else employed by Greater Lakes or Block Billing, as
persons knowledgeable about Greater Lakes' bills in this
case. Greater Lakes' Initial Disclosures stated that it
may rely on “Any and all of Plaintiff's ...