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Greater Lakes Ambulatory Surgical Center, LLC v. Enterprise Leasing Co. of Detroit

United States District Court, E.D. Michigan, Southern Division

July 30, 2019

Greater Lakes Ambulatory Surgical Center, LLC, Plaintiff,
v.
Enterprise Leasing Company of Detroit, Defendant.

          OPINION & ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          SEAN F. COX UNITED STATES DISTRICT JUDGE

         Plaintiff 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).

         As 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.

         BACKGROUND

         Non-party Joyce Robinson (“Robinson”) was involved in an automobile accident on September 9, 2017.

         Thereafter, Robinson filed a lawsuit against Enterprise seeking Michigan No-Fault benefits in Wayne County Circuit Court (“Robinson's Action”).

         Greater 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 vehicle accident;
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).

         This Court held the scheduling conference in this matter on December 10, 2018, and issued the Scheduling Order on December 13, 2018.

         This 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).

         During 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 service.

(Id.)

         In 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.

         At the 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 notice:

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?
A. Yes.
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?
A. Yes.

(Id. at PageID.228-229).

         The “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 ...


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