The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Too little, too late, too often. Although it may sound harsh, the foregoing is an accurate, factual description of plaintiff's overall efforts in this case. Once again, counsel has failed to timely oppose summary judgment, and for essential purposes, oppose it at all. For the reasons set forth herein, the Secretary's motion for summary judgment on the issues which remain in this case should be granted.
This case brought as a potential class action, involving the reimbursement of Medicare from payments made by "primary payers" under the Medicare Secondary Payment Act (MSP), has been referred to the undersigned pursuant to E. D. Local Rule 72-302(a). The entire procedural history of the case will not be reiterated here as it was set forth in the first motion for summary judgment. As the record shows, that motion was directed to the major part of plaintiff's case -- alleged unconstitutional pre-hearing taking of Medicare beneficiaries settlement or other payments from non-Medicare sources. The undersigned found that: "Medicare MSP law and regulations set up a situation which inevitably will result in many situations of Medicare's retention of undisputed, and/or ultimately determined, non-MSP monies. Although such raises a specter of unlawful governmental detention of property, for the reasons stated herein, Medicare's Secondary Payment law, policies, and procedures withstand facial due process attack in plaintiff's Wall's case, and generally."
Accordingly, IT IS RECOMMENDED that defendant's motion for partial summary judgment motion, filed August 1, 2008, (docket # 166), be granted as to the Third Cause of Action, and the First Cause of Action insofar as it alleges the non-existence of informal procedures for challenging and rectifying a tentative requirement to repay Medicare for conditional payments made prior to payment by a primary payer.
Findings and Recommendations filed October 29, 2008.
Just after the district court adopted the Findings and Recommendations on January 9, 2009, the undersigned scheduled the remainder of the motion practice in this case:
.... Provided that the findings and recommendations are adopted, the claims remaining are: the remainder of the first cause of action, that is, a violation of regulations and policies in the processing of plaintiff's claim; and the second, fourth, fifth and sixth causes of action, all of which concern post-deprivation issues which are not appropriate for class consideration. More specifically, the second cause of action concerns "violation of requirements for reconsideration requests." The Fourth Cause of Action contends a "violation of requirement to send waiver forms and information upon written request." The Fifth Cause of Action alleges "violation of requirement to provide correct appeal information." Finally, the Sixth Cause of Action indicts the Secretary for "fraudulent back dating of initial determinations," thus shortening the beneficiary's appeal period.
As this court explained in its findings and recommendations, because plaintiff does not seek monetary damages, in responding to a further summary judgment on remaining claims, plaintiff must address why the aforementioned remaining causes of action are not moot, whether plaintiff finally exhausted her own claims, and if there is a policy of action or inaction needing to be corrected such that maintenance of a class action is appropriate. As previously clarified, "issues of fact on a policy cannot be shown by a potpourri of attorney declarations which merely conclude that such a policy, de jure or de facto exists because of their 'past experience,' nor can they be demonstrated by unexplained incidents in which delay or some other problem was encountered." (Docket #202, at 30.) Therefore, the case will proceed with summary judgment on the remaining claims, with defendant as the moving party.
Although plaintiff seeks a ruling on her discovery motion and requests further discovery on post-deprivation policies, the court finds at present that further discovery is not warranted. Plaintiff may explain why further discovery is necessary to the remaining claims, however, in her opposition to defendant's summary judgment motion by way of a Rule 56(f) request. Accordingly, IT IS ORDERED that:
1. Defendant shall file his motion for summary judgment within thirty days of this order.
2. Plaintiff shall file an opposition and/or cross-motion within thirty days of being served with defendant's motion. The opposition may explain why further discovery is needed under Fed. R. Civ. P. 56(f).
3. Defendant may file a reply within fifteen days of receiving plaintiff's ...