Physicians Home Health Infusion, P.C. v. UnitedHealthcare of the Midwest, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

PHYSICIANS HOME HEALTH )

INFUSION, P.C., )

)

Plaintiff, )

)

v. ) Case no. 4:18cv01959 PLC

)

UNITEDHEALTHCARE OF THE )

MIDWEST, INC., )

)

Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendant UnitedHealthcare of the Midwest, Inc.’s

(“UHC’s”) motion to stay discovery [ECF No. 66], Plaintiff Physicians Home Health Infusion,

P.C.’s (“PHHI’s”) motion for leave to file corrected reply in support of its motion for sanctions

[ECF No. 70], and PHHI’s motion to amend the scheduling order [ECF No. 79]. With the

exception of PHHI’s motion for leave to file corrected reply in support of its motions for sanctions,

the motions are opposed. The Court grants PHHI’s unopposed motion without further discussion.

I. Background

When PHHI’s original complaint was pending, the Court entered, after conferring with

counsel for both parties, a Case Management Order (“CMO”) [ECF No. 26] establishing

discovery, dispositive motion, and other deadlines for this case. In compliance with the CMO’s

deadline for amending pleadings, PHHI timely filed a first amended complaint [ECF No. 38].

In its first amended complaint, PHHI asserts several state law claims against UHC arising

out of UHC’s alleged failure consistently to approve PHHI’s claims for reimbursement of spinal

infusion services PHHI provides to patients suffering from chronic pain who have insurance

through a Medicare Advantage Plan (a Medicare Part C plan) provided by UHC. Specifically, the

reimbursement claims at issue are those PHHI submitted to UHC for services designated by codes

S9325 and S9328. PHHI seeks monetary and injunctive relief from UHC based on claims for

breach of contract (Count I), negligent misrepresentation (Count II), unjust enrichment (Count III),

quantum meruit (Count IV), and “preliminary and permanent injunction” (Count V).

In response to PHHI’s first amended complaint, UHC filed a motion to dismiss [ECF No.

40] arguing: (1) the Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1) and (2) the first amended complaint fails to state a claim upon which relief can be granted

under Rule 12(b)(6). First, UHC contends that PHHI’s state law claims “arise under” the Medicare

Act and PHHI did not exhaust, and is not excused from exhausting, applicable administrative

remedies. Second, UHC urges that PHHI’s state law claims are pre-empted by 42 U.S.C. § 1395w-

26(b)(3). PHHI counters that its claims do not arise under the Medicare Act and are collateral to

a claim for Medicare benefits. Therefore, PHHI asserts, it need not exhaust administrative

remedies before presenting its claims in federal court. PHHI additionally urges its claims are not

pre-empted because it is not seeking application of standards contrary to federal standards.

Prior to the filing of the first amended complaint, PHHI requested a status conference to

address UHC’s objections to PHHI’s effort pursuant to Rule 30(b)(6) to depose UHC’s corporate

representative1 [ECF No. 31]. Additionally, the parties jointly moved for a protective order [ECF

No. 35]. The Court conducted a status conference with the parties [ECF No. 36] and entered a

protective order [ECF No. 39].

1 In its request for a status conference, PHHI also sought guidance on UHC’s allegedly “[i]nadequate [i]nitial

and [f]irst [s]upplemental disclosures” [ECF No. 31].

Approximately one month later, PHHI filed a motion to compel regarding the Rule 30(b)(6)

deposition. The Court granted the motion in part to require Defendant to produce a corporate

representative to testify during a videotaped deposition and denied it in part [ECF No. 54]. UHC

filed an “emergency motion for reconsideration” of the order compelling the deposition and a

request for a hearing [ECF No. 55]. The Court held a telephone conference with the parties the

day UHC filed its “emergency motion” [ECF No. 57] and granted the motion in part and denied it

in part [ECF No. 59]. Approximately two weeks later, PHHI asked for a status conference to

discuss UHC’s “production of a completely unprepared witness for” the Rule 30(b)(6) deposition

[ECF No. 60]2 and a motion for sanctions related to the Rule 30(b)(6) deposition [ECF No. 62].

The Court denied PHHI’s request for a status conference without prejudice [ECF No. 61]. UHC

opposes PHHI’s motion for sanctions.

Shortly after PHHI filed its motion for sanctions, UHC filed a motion requesting a stay of

discovery until the Court ruled the motion to dismiss the amended complaint3 [ECF No. 66]. PHHI

opposes UHC’s motion to stay discovery.

Within the last month, PHHI filed a motion to compel UHC’s responses to PHHI’s first

interrogatories and first request for production [ECF No. 77]. UHC opposes PHHI’s motion to

compel.

The same day that PHHI filed its motion to compel, PHHI filed a motion to amend the

scheduling order until the Court resolves PHHI’s motion for sanctions and UHC’s motion to stay

2 PHHI also mentioned in its request for a telephone conference that UHC had not provided responses to

PHHI’s first interrogatories and request for production of documents [ECF No. 60].

3 UHC specifically asked that the stay of discovery remain in effect pending the later of either a ruling on

the motion to dismiss or PHHI’s “production to [UHC] of a list of the medical claims for which [PHHI] is seeking

payment in this case.” Def’s mot. stay to stay discovery [ECF No. 66].

discovery [ECF No. 79]. UHC opposes PHHI’s motion to amend the scheduling order [ECF No.

82].

II. Motion to stay discovery

UHC asks the Court to stay discovery until, in relevant part, the Court resolves the motion

to dismiss because UHC “is likely to succeed on the merits of the motion to dismiss, [it] would

face undue hardship and inequity if a stay is not granted, [PHHI] will suffer no prejudice by a stay,

and judicial resources would be conserved if a stay were issued.” Def.’s mot to stay discovery

[ECF No. 66]. PHHI opposes the motion urging the parties’ discovery efforts should continue

because, regardless of the outcome of the pending motion to dismiss, “the discovery is inevitable

[as] PHHI will continue pursuing its claims in this Court or through the administrative process.”

Pl.’s opp’n motion to stay discovery at 1 [ECF No. 71].

A district court’s “power to stay proceedings is incidental to the power inherent in every

court to control the disposition of the causes on its docket with economy of time and effort for

itself, for counsel, and for litigants.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936); see also

Contracting Nw., Inc. v. City of Fredericksburg, 713 F.2d 382, 387 (8th Cir. 1983) (addressing a

stay pending arbitration and finding a district court has “the inherent power to grant [a] stay in

order to control its docket, conserve judicial resources, and provide for a just determination of the

cases pending before it”). The issuance of a stay is “an exercise of judicial discretion . . . dependent

upon the circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009)

(discussing a stay pending adjudication of the petitioner’s petition for review of a Board of

Immigration Appeals’ removal order) (internal quotation marks omitted) (quoting Virginian Ry.

Co. v. United States, 272 U.S. 658, 672-73 (1926)). The litigant seeking the stay bears the burden

of showing that the circumstances justify a stay. Id. at 433-34.

While the filing of a motion to dismiss is insufficient in and of itself to support a stay of

discovery, Reinerio v. Bank of New York Mellon, No. 15CV-161-FDG, 2015 WL 4425856, at *6

(W.D. Mo. 2015), aff’d, 668 Fed. App’x 669 (8th Cir. 2016) (unpublished per curiam), a litigant

may obtain a stay of discovery pending disposition of a motion to dismiss. See Nelson v. Maples,

672 Fed. Appx. 621, 621 (8th Cir. 2017) (unpublished per curiam opinion) (concluding “the district

court did not abuse its discretion in granting a motion to stay discovery” while a motion to dismiss

under Rules 12(b)(1) and 12(b)(6) was pending);4 see also Fed. R. Civ. P. 26(c)(1) (providing that

a “court may, for good cause, issue an order to protect a party . . . from annoyance, embarrassment,

oppression, or undue burden or expense”). The decision whether to stay discovery due to the

pendency of a motion to dismiss “is generally practical and . . . left largely to the court’s

discretion.” Dufrene v. ConAgra Foods, Inc., No. 15-cv-2796 (WMW/LIB), 2016 WL 10651947,

at *2 (D. Minn. Apr. 7, 2016).

In resolving whether to stay discovery pending disposition of a motion to dismiss, a court

considers various factors “including: (1) whether the movant has shown a likelihood of success

on the merits of the dispositive motion; (2) hardship or inequity to the moving party if the matter

is not stayed; (3) prejudice to the non-moving party [if the matter is stayed]; and (4) the

conservation of judicial resources.” Id. Put another way, a court considering a stay of discovery

during the pendency of a motion to dismiss may consider the first, second and fourth factors listed

in Dufrene, as well as: “the breadth of the pending discovery; the balance of harms in delaying

discovery against the possibility that the motion [to dismiss] will dispose of the case; [and] the

4 See Nelson v. Maples, No. 6:15-CV-03427-BCW, 2016 WL 9047149, at *1 (W.D. Mo. Feb. 3, 2016),

aff’d, 672 Fed. Appx. 621 (8th Cir. 2017) (unpublished per curiam opinion), for the description of the motions to

dismiss pending before the district court.

public interest.” United States ex rel. Donegan v. Anesthesia Assocs. of Kansas City, PC, No.

4:12-CV-0876-DGK, 2014 WL 12618074, at *1 (W.D. Mo. Jan. 7, 2014) (“Donegan”).

A. Likelihood of success on the merits UHC’s motion to dismiss

UHC urges PHHI’s state law “claims -- which all seek payment for services alleged[ly]

provided to Medicare Advantage patients – arise under the Medicare Act as the Supreme Court

has expansively interpreted that term.” [ECF No. 67 at 7.] Furthermore, UHC asserts, PHHI has

not and cannot plead “administrative exhaustion,” and “does not meet a single one of the

requirements necessary to waive the exhaustion requirement.” [Id. at 8.] Therefore, UHC

contends, “there is far more than a ‘mere possibility’ that the motion to dismiss the amended

complaint will be decided in favor of [UHC].” [Id. at 7.]

PHHI counters that its state law claims “do not arise under the Medicare Act” but instead

only present issues whether UHC’s conduct “in denying and reimbursing identical claims caused”

PHHI harm. [ECF No. 71 at 6.] Because the claims do not arise under the Medicare Act, Plaintiff

urges, “exhaustion is not at issue.” [Id. at 5-6 (emphasis in original).]

To satisfy the “likelihood of success” factor for a stay of discovery, a litigant “must show

more than the mere possibility” of success on its motion to dismiss, but “is not required to

demonstrate a greater than fifty percent probability” that the motion to dismiss will be successful.

Dufrene, 2016 WL 10651947, at *3. For purposes of UHC’s motion to stay only,5 and having

reviewed the amended complaint and UHC’s motion to dismiss that complaint, the Court

concludes it is more than merely possible that the motion to dismiss will be successful based on

the following analysis.

5 This Order does not constitute a resolution of issues in the pending motion to dismiss, which requires

further consideration based on the allegations in the first amended complaint and the parties’ materials addressing the

motion to dismiss.

“Judicial review of claims arising under the Medicare Act is available only after the

Secretary renders a final decision on the claim, in the same manner as is provided in 42 U.S.C.

Section 405(g) for old age and disability claims arising under Title II of the Social Security Act.”

Heckler v. Ringer, 466 U.S. 602, 605 (1984). Sentence three of 42 U.S.C. § 405(h), which was

made applicable to the Medicare Act by 42 U.S.C. § 1395ii, makes 42 U.S.C. “§ 405(g) . . . the

sole avenue for judicial review for all ‘claims arising under’ the Medicare Act.” Id. at 614-15.

Sentence three of 42 U.S.C. § 405(h) provides: “No action against the United States, the [Secretary

of the Department of Health and Human Services], or any officer or employee thereof shall be

brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this

subchapter.” 42 U.S.C. § 405(h); 42 U.S.C. § 1395ii. The Eighth Circuit has held “the

jurisdictional bar imposed by sentence three of [42 U.S.C.] § 405(h) extends to claims based on

diversity of citizenship.” Midland Psychiatric Assocs., Inc. v. United States, 145 F.3d 1000, 1004

(8th Cir. 1998) (“Midland”) (addressing, in relevant part, a service provider’s tortious-interference-

with-contract claim against a Medicare insurance carrier for denying Medicare claims submitted

for the provider’s services).

The Eighth Circuit in Midland found that “[a] claim may arise under the Medicare Act even

though, as pleaded, it also arises under some other law,” and a claim arises under the Medicare

Act “if it is ‘inextricably intertwined’ with a Medicare benefits determination.” Id. (quoting

Ringer, 466 U.S. at 460-61). In affirming the district court’s dismissal of the provider’s tortious-

interference-with-contract claim against the Medicare carrier as jurisdictionally barred under

sentence 3 of 42 U.S.C. § 405(h), the Eighth Circuit concluded the claim arose under the Medicare

Act because “[a]t bottom, [the medical provider serving Medicare patients] is claiming [the

Medicare carrier] should have paid for [the provider’s] services.” Id. Due to the plaintiff’s failure

to exhaust administrative remedies, the Eighth Circuit found the district court did not have the

power under the Medicare Act to review the merits of the insurer’s Medicare claims decisions,

which review would be required to resolve the tortious interference claim. Id. at 1002.

Here, PHHI seeks monetary relief “related to the non-payment of goods and services” in

Counts I (breach of contract claim), III (quantum meruit claim), and IV (unjust enrichment claim)

of its first amended complaint. In Count V, Plaintiff seeks an injunction preventing UHC “from

wrongfully denying claims for services” under the two specified codes at issue in this case. Under

Midland, supra, those four claims may be “inextricably intertwined” with Medicare Act claims

and “arise under the Medicare Act.” PHHI’s negligent misrepresentation claim in Count IV may

also arise under the Medicare Act under the authority of Bodimetric Health Servs., Inc. v. Aetna

Life & Cas. Co., 903 F.2d 480, 482-83 (7th Cir. 1990) (finding a negligent misrepresentation claim

arose under the Medicare Act).

If PHHI’s pending state law claims arise under the Medicare Act, then PHHI had to exhaust

administrative remedies, and obtain a final decision from the Secretary, before presenting the

claims in federal court. See 42 U.S.C. § 405(g). PHHI has not alleged exhaustion of remedies

beyond those available through UHC itself, and the Court’s review of the parties’ motion to dismiss

materials and first amended complaint does not show a persuasive basis for excusing PHHI’s

failure to obtain a final administrative decision before presenting its claims in this Court. See Titus

v. Sullivan, 4 F.3d 590, 592 (8th Cir. 1993) (setting forth the three requirements for waiving

administrative requirements under § 405(g)).

At this stage, PHHI’s argument that its claims do not arise under the Medicare Act and do

not require the Court to ascertain whether the two codes at issue were payable under the Act are

not persuasive in light of the above-cited case law. Under the circumstances and for purposes of

the motion to stay discovery only, UHC has shown a likelihood of success on the merits of its

motion to dismiss. Therefore, this factor weighs in favor of granting a stay of discovery.

B. Hardship or inequity to litigant seeking the stay

UHC states its efforts to comply with PHHI’s Rule 30(b)(6) deposition notice and PHHI’s

failure to provide a list of the relevant reimbursement claims at issue in this case (that PHHI stated

in its original and first amended complaints it would provide after the Court entered a protective

order)6 are causing UHC to incur expenses and effort that may be eliminated if its motion to

dismiss is successful. PHHI contends expenses incurred by UHC in responding to PHHI’s Rule

30(b)(6) deposition notice are due to UHC’s own conduct. Further, Plaintiff counters that there is

little point to staying discovery based on the pendency of a Rule 12(b)(1) motion to dismiss

because, even if the Court grants UHC’s motion to dismiss, the discovery acquired in this lawsuit

may be used in the administrative proceeding. PHHI does not cite authority for the proposition

that discovery in this case, in particular the Rule 30(b)(6) deposition testimony, may be used in

any administrative proceedings that may occur if dismissal is granted. PHHI does, however, cite

Charvat v. NMP, LLC, No. 2:09-cv-209, 2009 WL 3210379 (S.D. Ohio Sept. 30, 2009) and

Zavadzan v. City of New York, No. CV-07-1047 (ARR) (VVP), 2008 WL 2074087 (E.D. N.Y.

May 14, 2008), in support of its position that a stay is inappropriate when a Rule 12(b)(1) motion

to dismiss is pending.

In Charvat, the Southern District of Ohio stated “[a]ny discovery taken while a motion

[under Rule 12(b)(1)] is pending would . . . be available for the parties to use if the case is dismissed

other than on the merits and then refiled in a Court where subject matter or personal jurisdiction is

proper.” Charvat, 2009 WL 3210379, at *2. In Zavadzan, the Eastern District of New York

6 See Pl.’s complt. at 3 n.1 [ECF No. 4]; Pl.’s first am. compl. at 3 no. 1 [ECF No. 38].

considered unspecified federal claims that were the subject of a motion to dismiss for lack of

subject matter jurisdiction due to the plaintiff’s failure to exhaust administrative remedies before

filing the lawsuit. Zavadzan, 2008 WL 207487, at *1. The defendants in Zavadzan sought “a stay

of further discovery pending a decision on the motion” to dismiss. Id. The court noted that the

plaintiffs “advanced substantial arguments that . . . the court . . . retains subject matter jurisdiction

to entertain at least some [of] their federal question claims,” which are not subject to an

administrative exhaustion requirement, and the plaintiffs advised that they had exhausted

previously unexhausted administrative remedies. Id. Therefore, the Eastern District of New York

found “no point in staying discovery” because “all of the claims in the present complaint . . . will

be proceeding, whether in this action or in some other action.” Id.

While the argument that a pending Rule 12(b)(1) motion does not necessarily support a

stay of discovery when the dismissed claims may be filed in another court is persuasive, it is not

as persuasive when, as here, the dismissal may result in the pursuit of administrative proceedings

that may not allow consideration of information acquired through discovery, such as the Rule

30(b)(6) deposition. Absent PHHI’s citation of authority allowing use of discovery acquired in

this lawsuit during any administrative proceedings that may be required prior to judicial review of

PHHI’s claims, the Court finds this factor weighs, at least minimally, in favor of granting a stay.

See Dufrene, 2016 WL 10651947, at *4 (assessing the costs the proponent of the stay may incur

in responding to discovery, such as a Rule 30(b)(6) deposition, during the pendency of its

potentially meritorious dispositive motion in light of the general principle that “courts disfavor the

proliferation of litigation costs associated with potentially unnecessary litigation”).

C. Prejudice to the non-moving party

UHC asserts that PHHI is not prejudiced by a stay because discovery is not needed to

address the motion to dismiss. UHC’s 12(b)(1) motion presents a facial challenge, rather than a

factual challenge, to the Court’s subject matter jurisdiction. See Titus, 4 F.3d at 593

(distinguishing between a facial challenge and a factual challenge to a court’s subject matter

jurisdiction). For a facial challenge, a court “restricts itself to the face of the pleadings . . . and the

non-moving party receives the same protections as it would defending against a motion brought

under Rule 12(b)(6).” Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir. 1990). Based on

the requirement the Court focus on the allegations in the first amended complaint to resolve UHC’s

motion to dismiss, there is no need for discovery either to consider PHHI’s position regarding the

motion to dismiss or to resolve the motion.

PHHI asserts it is prejudiced by a stay of discovery because it continues to service patients

and submit claims under codes S9325 and S9328 that UHC inconsistently grants or denies.

PHHI’s need to provide services, submit claims under the two codes, and pursue appeals of any

denials of those claims, however, exists regardless of whether the Court stays discovery. Nothing

about the issuance of a stay of discovery in this case precludes PHHI from submitting such claims

or pursuing its appeal(s) of UHC’s decisions. Nor does any stay of discovery in this proceeding

adversely affect those submissions or appeals. Nor does an absence of a stay of discovery enhance

PHHI’s claims submission and appeal effort.

Under the circumstances, this factor does not weigh against granting a stay.

D. Conservation of judicial resources

“In determining whether a stay of discovery until the resolution of a pending dispositive

motion would conserve judicial resources, a court examines the breadth of any pending discovery

and whether the pending dispositive motion has the potential to resolve the litigation.” Dufrene,

2016 WL 10651947, at *4. In Dufrene, the District Court of Minnesota found the motion to

dismiss would resolve the entire case and “none of the discovery that is currently pending pertains

to an issue that would not be resolved if [the d]efendant’s motion to dismiss is granted.” Id.

Therefore, the court concluded, “the pending motion to dismiss . . . has the potential to resolve all

of the issues to which the currently pending discovery is relevant [and] this factor weighs in favor

of granting the requested stay.” Id.

UHC asserts this factor supports a stay. PHHI did not explicitly discuss this factor. Under

the circumstances, due to the potential for success of the pending motion to dismiss, the fact all

the claims will be resolved if the motion to dismiss is granted, and the Court’s experience with the

parties’ discovery efforts in the instant lawsuit, this factor weighs in favor of granting the motion

to stay.

Having considered the relevant factors, as set forth in Dufrene and Donegan,7 the Court

grants UHC’s motion to stay discovery pending disposition of UHC’s motion to dismiss and

otherwise denies the motion to stay discovery.

III. Motion to amend the scheduling order

7 In Donegan, a Medicare fraud case cited by PHHI, the Western District of Missouri denied the defendant’s

motion to stay discovery while an unspecified motion to dismiss was pending. Donegan, 2014 WL 12618074. In

reaching its decision, the court could not “say [the d]efendant is likely to prevail on the motion to dismiss or that

absent a stay [the d]efendant will be irreparably harmed” and found “the interests of judicial economy weigh[ed]

against granting the stay.” Id. at 1. Donegan is factually distinguishable and does not support denial of a stay in the

instant lawsuit.

PHHI also cited several other distinguishable decisions issued by the Eastern District of Missouri: Dunne v.

Resource Converting, LLC, No. 4:16CV1351 DDN, 2018 WL 746300 (E.D. Mo. Feb. 7, 2018) (denying a motion to

stay pending trial of a case in the Southern District of Iowa, while providing on the court’s own motion “that the

parties in the case before this Court are directed to take no further action in this case that would impede the . . . trial

setting of the case in Iowa”); Covington v. Janssen Pharm., Inc., No. 4:17cv1588 SNLJ, 2017 WL 3433611, at *3

(E.D. Mo. Aug. 10, 2017) (denying a motion to stay proceedings on a pending motion to dismiss until the Court

resolved a pending motion to remand); Boswell v. Panera Bread Co., 311 F.R.D. 515, 526 (E.D. Mo. 2015) (denying

a motion to stay proceedings pending a decision by the United States Supreme Court in a different case).

PHHI seeks an extension of the discovery and dispositive motion filing deadlines until the

Court resolves UHC’s motion to stay and PHHI’s motion for sanctions [ECF No. 79]. PHHI also

asks that the Court give the parties seven days after disposition of those two motions for the parties

“to confer and [submit] an Amended [CMO] with new . . . deadlines.” UHC counters that, if the

Court denies UHC’s motion to dismiss, UHC “will confer with [PHHI] regarding the current

scheduling order to mutually agree on new deadlines” and “then submit [a] proposed scheduling

order to the Court” [ECF No. 82 at 4].

Due to the stay of discovery, the Court vacates the discovery and dispositive motion filing

deadlines in the CMO. If this case remains pending after the Court resolves the motion to dismiss,

then, within twenty-one days after the Court resolves the motion to dismiss, the parties shall confer

regarding their proposed new discovery and other deadlines and submit their proposed scheduling

order for the Court’s consideration. Therefore, the Court grants PHHI’s motion to amend

scheduling order in part.

After careful consideration,

IT IS HEREBY ORDERED that PHHI’s unopposed motion for leave to file corrected

reply in support of its motion for sanctions [ECF No. 70] is GRANTED.

IT IS FURTHER ORDERED that UHC’s motion to stay discovery [ECF No. 66] is

GRANTED in part and otherwise DENIED.

IT IS FURTHER ORDERED that discovery is STAYED pending resolution of UHC’s

motion to dismiss.

IT IS FURTHER ORDERED that PHHI’s motion to amend the scheduling order [ECF

No. 79] is GRANTED in part and otherwise DENIED.

IT IS FURTHER ORDERED that the discovery and dispositive motion filing deadlines

set forth in the CMO are VACATED to be reset, as necessary, after disposition of UHC’s motion

to dismiss.

IT IS FINALLY ORDERED that, as necessary, within twenty-one days after disposition

of UHC’s motion to dismiss, the parties shall confer regarding their proposed new discovery and

dispositive motion filing deadlines and submit their joint proposed scheduling order for the Court’s

consideration. At this point, the trial date and deadlines related to the trial date remain in full force

and effect.

plain Eo hp

PATRICIA L. COHEN

UNITED STATES MAGISTRATE JUDGE

Dated this 24" day of September, 2019

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