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United States v. Sowell

United States District Court, W.D. North Carolina, Charlotte Division

July 28, 2015

UNITED STATES OF AMERICA and THE STATE OF NORTH CAROLINA, Plaintiffs,
v.
JAMES RICHARD SOWELL, M.D., JAMES RICHARD SOWELL M.D. d/b/a HEALTH-PRO MENTAL HEALTH SERVICES, PLLC, and HEALTH-PRO MENTAL HEALTH SERVICES, PLLC, Defendants.

ORDER

DAVID C. KEESLER, Magistrate Judge.

THIS MATTER IS BEFORE THE COURT on the "Defendants' Motion To Quash Deposition Subpoena And To Modify Production Of Documents On Behalf Of Sidewinder, LLC" (Document No. 68). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered the motion, the record, and applicable authority, the undersigned will deny the motion.

BACKGROUND

The United States of America ("United States") and the State of North Carolina ("the State") (together, "Plaintiffs" or "the Government") initiated this action with the filing of a "Complaint" (Document No. 1) on March 28, 2013. The Complaint seeks

treble damages and civil penalties against Defendants James Richard Sowell, M.D. ("Defendant Sowell"), and Defendant James Richard Sowell, M.D. d/b/a Health-Pro Mental Health Services, PLLC ("Defendant HPMHS") (collectively, "Defendants") pursuant to the False Claims Act, 31 U.S.C. §§ 3729-3733, the North Carolina False Claims Act, N.C. G.S. §§ 1-605 et seq., the North Carolina Medical Assistance Provider False Claims Act §§ 108A-70.10 et seq. and to recover all available damages, restitution and other monetary relief under the common law theories of unjust enrichment, payment by mistake, and recoupment.

(Document No. 1, pp.1-2). The Government asserts that this action arises out of Defendants' billing and submission of false claims by and through Defendant HPMHS. (Document No. 1, p.2). The "Answer Of Defendants James Richard Sowell, M.D. And Health-Pro Mental Health Services, PLLC" (Document No. 11) was filed on May 28, 2013.

On June 18, 2013, the Government's "Amended Complaint" (Document No. 15) was filed as a matter of course, adding Defendant Health-Pro Mental Health Services, PLLC. The "Answer Of Defendants James Richard Sowell, M.D., Individually And Doing Business As Health-Pro Mental Health Services, PLLC And Health-Pro Mental Health Services PLLC To Plaintiffs' Amended Complaint" (Document No. 17) was filed on July 5, 2013.

The Court then allowed a series of consent motions seeking to stay this matter pending a criminal investigation of Defendant Sowell. (Document Nos. 21, 25, and 27). On March 21, 2014, the Court ordered that the stay be lifted, and that the parties should file a Certification of Initial Attorney's Conference on or before April 8, 2014. (Document No. 32). Following receipt of the CIAC, the Court entered a "Pretrial Order And Case Management Plan" (Document No. 35) on April 11, 2014. The "... Case Management Plan, " inter alia, set the following deadlines: Discovery Completion - February 6, 2015; Mediation - February 6, 2015; Dispositive Motions - March 20, 2015; and Trial - July 6, 2015. (Document No. 35, p.1).

On November 6, 2014, the Government filed a consented to "Motion To Amend Scheduling Order" (Document No. 38) proposing to extend only the expert report deadlines. The next day, the Court allowed the motion, and set the deadlines for expert reports as December 19, 2014, and for rebuttal reports as January 20, 2015. (Document No. 39). On December 16, 2014, the Government filed a "Notice Of Need To File For Further Adjustment Of Scheduling Order" (Document No. 41). The "Notice..." advised the Court that expert reports could not be timely produced based on on-going "discovery issues related to patient medical records." (Document No. 41).

On February 5, 2015, Plaintiffs filed a "Motion To Compel Defendants' Discovery Responses" (Document No. 43); "Motion For Modification Of Scheduling Order" (Document No. 44); and "Motion For Leave To File A Second Amended Complaint" (Document No. 45). Plaintiffs' motions were granted on March 23, 2015. (Document No. 53).

Plaintiff's "Second Amended Complaint" (Document No. 54) was filed on March 27, 2015. On April 20, 2015, the case deadlines were again revised as follows: "Expert Reports - June 10, 2015; Rebuttal Reports - June 26, 2015; Discovery Completion - July 10, 2015; Mediation Report - July 20, 2015; Dispositive Motions - August 5, 2015; Trial - November 2, 2015." (Document No. 62).

On or about May 14, 2015, the parties' mediator, Gary S. Hemric, sent a letter to the Court reporting that a settlement conference was held on May 13, 2015. (Document No. 65). The letter indicates that the parties failed to achieve a global settlement on that date, but expected to continue the mediation process. Id . Mr. Hemric further stated that his correspondence was a preliminary report and that he would provide a final report as soon as possible. Id . To date, a final mediation report has not been filed in this matter.

"Defendants' Motion To Quash Deposition Subpoena And To Modify Production Of Documents On Behalf Of Sidewinder, LLC" (Document No. 68) and a "Memorandum In Support..." (Document No. 69) were filed on June 26, 2015. "The State Of North Carolina's Opposition To Sidewinder, LLC's Motion To Quash" (Document No. 71) was filed on June 29, 2015. Defendants and Sidewinder, LLC ("Sidewinder") have failed to file a reply brief, or notice of intent not to ...


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