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Fleming v. Medicare Freedom of Information Group

United States District Court, District of Columbia

April 20, 2018




         In this case brought pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., Plaintiff Rhonda Fleming, who proceeds pro se, has filed two motions, a “Renewed Motion for a Judge Supervised Settlement Conference” [Dkt. 130] and a “Motion for Interim Award of Fees and Costs” [Dkt. 131].[1] For the reasons that follow, both motions are denied.

         I. BACKGROUND

         Resolution of these motions does not turn on any substantive claims that Plaintiff has raised; a truncated procedural history will be useful, however. In 2010, Plaintiff was convicted in the Southern District of Texas on sixty-seven counts of Medicare-related health care fraud and related offenses in connection with her submission of fraudulent claims to Medicare using supplier numbers purchased from Hi-Tech Medical Supply and First Advantage Nursing. In February 2015, in the District of Minnesota, she filed the Complaint in this action seeking documents related to Medicare payments made to the two companies, documents related to prosecutors involved in her criminal trial, and various other relief related to claims brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). [Dkt. 1]. The case was transferred to this Court in July 2015. [Dkt. 56]. During the period between July 2015 and April 2017, Plaintiff filed approximately twenty motions, including a motion for partial summary judgment and a motion that sought a referral to this Circuit's mediation program [Dkt. 88; Dkt. 110]. Defendants filed a Motion for Summary Judgment in November 2015 [Dkt. 76] and a Supplemental Motion for Summary Judgment in July 2016 [Dkt. 107].

         On November 16, 2017, the undersigned issued a Report and Recommendation that recommended granting in part and denying in part Defendant's motions for summary judgment and denying Plaintiff's motion for partial summary judgment, among other things (the “November 2017 R&R”). [Dkt. 122 at 27-28]. That Report and Recommendation is currently pending before the Honorable Emmet G. Sullivan, United States District Judge. Also on November 16, 2017, the undersigned issued a Memorandum Opinion and Order denying Plaintiff's motion for mediation, among other things (the “November 2017 Order”). [Dkt. 123 at 2-3].


         A. Plaintiff Failed to Receive Permission from the Court to File These Motions

         On September 1, 2016, after Plaintiff had filed nearly twenty motions in just over one year, the Honorable Alan Kay, United States Magistrate Judge, ordered Plaintiff to “refrain from filing any additional motions without prior permission” from the Court. Minute Entry dated Sept. 1, 2016. Plaintiff did not seek or receive such permission to file these motions, so they may be denied on that basis alone.

         B. Motion for Settlement Conference

         In this motion, Plaintiff states that she “has made a fair offer to voluntarily dismiss th[is] case, ” but, because she is a federal prisoner, she is “not in the best position to negotiate with the Department of Justice, ” which is one of the defendants here. [Dkt. 130 at 1]. She therefore seeks this Court's supervision of settlement discussions. Id. Defendants notes that Plaintiff is able to correspond directly with them about settlement and that there is consequently no need for judicial oversight of settlement discussions. [Dkt. 133 at 2]. They further note that they have been working to remedy the defects identified in the Report and Recommendation currently pending before Judge Sullivan, and, assuming it is adopted, plan to renew their motions for summary judgment in order to fully resolve this case. Id. at 1-2.

         Addressing Plaintiff's prior request to mediate this case, the November 2017 Order states:

Mediation would not be useful at this time. The undersigned has recommended dismissal of all of Plaintiff's claims other than her FOIA claim against the Agency Defendants, MFIG, and the United States Department of Justice. The Agency Defendants might well be entitled to summary judgment on that claim after having performed a new search and submitted revised declarations. See, e.g., Long v. Immigrations and Customs Enforcement, 149 F.Supp.3d 39, 61 (D.D.C. 2015) (denying defendants' motion for summary judgment in part and allowing submission of supplemental evidence supporting motion); Walsh v. F.B.I., 905 F.Supp.2d 80, 87 (D.D.C. 2012) (denying FBI's motion for summary judgment and setting schedule for amended motion for summary judgment). Accordingly, the motion for mediation and the appointment of counsel for the purposes of mediation is denied.

[Dkt. 123 at 3]. Nothing material has changed since that order was issued and there is therefore no reason to reconsider the rationale of that order. Judicially-supervised settlement discussions would not be an efficient use of judicial resources at this time, when Plaintiff can communicate her settlement positions to Defendants without the participation of a judge or other mediator, Defendants do not see the need for judicial involvement in any settlement discussions, and Defendants plan to renew their motion for summary judgment at the earliest opportunity. Plaintiff's motion for a court-supervised settlement conference is therefore denied.

         C. Motion for Interim ...

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