Nader v. Burwell, No. 2:2014cv24993 - Document 39 (S.D.W. Va. 2016)

Court Description: MEMORANDUM OPINION AND ORDER pursuant to the 35 , 36 cross-motions for summary judgment; the court directs the parties to submit additional briefing regarding the notice of reopening in this matter, with record citations to the underlying docume nts and the applicable regulation(s); defendant to submit a memorandum regarding notice of reopening by 12/28/2016 of no more than 10 pages; plaintiff to submit a response memorandum by 1/6/2017 of no more than 10 pages; and that any reply memorandum be limited to 5 pages and submitted by defendant by 1/11/2017. Signed by Judge John T. Copenhaver, Jr. on 12/15/2016. (cc: counsel of record; any unrepresented parties) (taq)

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Nader v. Burwell Doc. 39 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON RAHEEM NADER, M.D., Plaintiff, v. Civil Action No. 2:14-cv-24993 SYLVIA MATHEWS BURWELL, United States Secretary of Health and Human Services, Defendant. MEMORANDUM OPINION AND ORDER Pending are the parties’ cross-motions for summary judgment. One was filed by plaintiff Raheem Nader on September 30, 2015, and the other by defendant Sylvia Mathews Burwell, Secretary of the United States Department of Health and Human Services (the “Secretary”), on October 29, 2015. Neither party explains in its briefing regarding the timing of reopening precisely how the reopening was accomplished, including whether notice of reopening of plaintiff’s Medicare claims was provided to plaintiff and, if so, how, when, and to whom such notice was addressed, together with citation to the applicable regulation(s). Defendant appears to argue that notice was provided to plaintiff. The March 17, 2008, document in the administrative record, however, to which defendant and the ALJ below refer seems not to have Dockets.Justia.com Plaintiff, v. Civil Action No. 15-14025 THE DOW CHEMICAL COMPANY LONG TERM DISABILITY PROGRAM, an Employee Welfare Benefits Plan, been directed to plaintiff. See Administrative Record 1350. LIBERTY LIFE ASSURANCE COMPANY OF BOSTON, a Massachusetts Corporation, and Furthermore, neither party has analyzed whether Medicare DOES 1 THROUGH 10, inclusive, statutes or regulations require a notice of reopening in this Defendants. case, including how, when, and to whom it must be directed. ORDER AND NOTICE See, e.g., 42 C.F.R. § 405.1887(a). Pursuant to L.R. Civ. P. 16.1, it is ORDERED that the following dates are hereby fixed as the time by or on which certain events must occur: Consequently, the court directs the parties to submit 01/28/2016 Motions under F.R. Civ. P. 12(b), together with supporting briefs, notice of affidavits, this additional briefing regarding the memoranda, reopening in or other such matter in support thereof. (All motions unsupported by to the underlying documents and matter, with record citations memoranda will be denied without prejudice pursuant to L.R. Civ. P. 7.1 (a)). the applicable Last day for Rule 26(f) meeting. regulation(s). It is hereby ORDERED that 02/08/2016 defendant submit a memorandum regarding notice of reopening by 02/15/2016 Last day to file Report of Parties= Planning Meeting. See L.R. Civ. P. 16.1. December 28, 2016, of no more than ten pages; that plaintiff 02/22/2016 Scheduling conference at 4:30 p.m. at the Robert C. submit a response memorandum by January 6, 2017, of no more before Byrd United States Courthouse in Charleston, than the undersigned, unless canceled. Lead counsel ten pages; and directed to appear. that any reply memorandum be limited to five pages and submitted by defendant by January 11, 2017. 02/29/2016 Entry of scheduling order. 03/08/2016 Last day to serve F.R. Civ. P 26(a)(1) disclosures. The Clerk is requested to transmit copies of this The Clerk is requested to transmit this Order and order to all counsel of record and any unrepresented parties. Notice to all counsel of record and to any unrepresented parties. DATED: January 15, 2016 DATED: December 5, 2016 John T. Copenhaver, Jr. United States District Judge 2

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