“Pruning” Type Motions to Dismiss

One of the commonly cited uses for a motion to dismiss to to identify and cut out of a case claims or defenses which don’t have support, either in the law or in the facts of the case.  Such motions serve the useful purpose of pruning cases back to what’s actually at issue, although I have an editorial comment on that below.

But as with any pruning job, there’s a line between cutting off the dead wood and cutting out causes of action that are still at least potentially live.  This recent EDTX case illustrates where this line is with respect to pleaded claims.

Breach of Settlement Agreement

I’ve seen a couple of cases recently out of the EDTX dealing with breaches of settlement agreements.  In some cases the complaining plaintiff (who in this case was the original plaintiff) seeks injunctive relief, but in this copyright case it is just seeking an order in a default situation that it is entitled to the unpaid payments due under the original agreement, as well as fees, costs, and since the infringing activity has resumed, a finding of liability and award of statutory damages.  In essence, the hole for the copyright defendant just got twice as deep.  (Pro tip: don’t default).

Admittedly this is a default situation, but it’s a nice template for what to seek when you have to go once more unto the breach.

 

EDTX on False Claims Act Discovery

It’s FCA Monday again, and this week’s case deals with the discoverability of certain information relating to damages in a False Claims Act case.  As with many FCA cases, this one arises out of health care related payments which resulted in Medicare and Medicaid reimbursements by the government.  The specific requests here were to the government, and asked for information regarding the payment of similar claims after the government learned of the claimed violation in this case.

Demolition Contracting & Disposal v. Beauticontrol

The best case caption ever is wasted on a run of the mill business dispute between a company that buys equipment and a cosmetics company looking to dispose of some – but no, not this equipment. Hey guys, are you interested in the closet full of BeautiControl we’re warehousing in the downstairs hall out on Harris Lake Road?

Yeah, there’s a fight over personal jurisdiction and the Court concluded that there wasn’t any with the usual “reasonably expected” and “purposeful availment” analysis, but who cares?  I’m still bummed about all that obsolete skin care product I am sneaking out of the house to the dumpster one bottle at a time hoping my wife won’t notice before one of us dies.

EDTX False Claims Act settlement documents

FCA Monday this week is a quick look at settlements and judgments in FCA litigation in the Eastern District of Texas.  The agreed judgment in this mid-six figure case contains recitals reflecting the facts of the case, as well as a copy of the settlement agreement that sets forth the claims in this case which involved Medicare overbilling for medical imaging services.  These also include the terms of the payments to be made to the named Relators.

Competing Summary Judgment Motions in Pay Disparity Case

This is a particularly interesting opinion resolving multiple competing summary judgment motions in an employment case against a county brought by a female doctor who discovered she was being paid less than a subsequently hired male doctor.  What makes this case interesting is that the EEOC filed suit against the county on behalf of the doctor, and then the EEOC, and the county filed cross motions for summary judgment against each other as well as against the doctor. 

Motions for extension of time to respond

One of the more annoying recent FRCP amendments moved section (f) of FRCP 56 to Section (d), so that the habit of referencing “56(f) motions” seeking an extension of the time to respond to a motion for summary judgment to obtain additional discovery must now be changed to reflect references to 56(d) – which of course no one yet recognizes as the same thing. (Law clerks don’t count).

Contested Rule 56(d) motions are actually fairly rare in practice since most motions are filed after the close of discovery, and where they are not, or additional discovery is still needed, parties frequently work out by agreement the time necessary to obtain the additional discovery. Which makes an order like this that pops the hood on 56(d) to tell us what arguments courts find persuasive particularly useful.