Beitzel v. Becerra

1 Melissa C. Brown (SBN 110292)

COMMUNITY LEGAL SERVICES

2 McGEORGE SCHOOL OF LAW

3200 Fifth Ave.

3 Sacramento, CA 95817

(916) 739-7378

4 mbrown1@pacific.edu

5 Alice Bers (pro hac vice)

Justin Lalor (pro hac vice)

6 CENTER FOR MEDICARE ADVOCACY

P.O. Box 350

7 Willimantic, CT 06226

(860) 456-7790

8 abers@medicareadvocacy.org

jlalor@medicareadvocacy.org

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Attorneys for Plaintiffs

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PHILLIP A. TALBERT

11 United States Attorney

JOSEPH B. FRUEH

12 Assistant United States Attorney

501 I Street, Suite 10-100

13 Sacramento, CA 95814

Email: joseph.frueh@usdoj.gov

14 Telephone: (916) 554-2702

Facsimile: (916) 554-2900

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Attorneys for Defendant

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17

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE BEITZEL, et al., on behalf of No. 2:23-cv-01932-WBS-DB

21 themselves and all others similarly situated,

22 Plaintiffs, STIPULATION, UNOPPOSED MOTION,

AND ORDER FOR ENTRY OF

23 v. JUDGMENT

24 XAVIER BECERRA, Secretary of Health

and Human Services,

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Defendant.

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28 Pending the Court’s approval, IT IS HEREBY STIPULATED, by and between the parties,

1 through their respective counsel of record, that it is appropriate for the Court to enter judgment in

2 this action in favor of the Defendant, Secretary of Health and Human Services.

3 On April 22, 2024, the Court entered its Order and Memorandum Granting the

4 Defendant’s Motion to Dismiss the First Amended Complaint, with leave for Plaintiffs to file an

5 amended complaint consistent with the Order within 20 days (Docket No. 35 at 11). The 20-day

6 period has since elapsed and Plaintiffs have not filed and do not elect to file an amended

7 complaint. Based on these circumstances, Plaintiffs respectfully submit that judgment in favor of

8 the Defendant, Secretary of Health and Human Services, is appropriate. See WMX Techs., Inc. v.

9 Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (requiring further district court

10 determination before plaintiff who had been given leave to amend complaint could appeal); see

11 also Unified Data Servs., LLC v. FTC, 39 F.4th 1200, 1206-07 (9th Cir. 2022) (WMX

12 Technologies reaffirmed that plaintiff given leave to amend should alert district court of intent to

13 rest on complaint; appealable final order may then be entered); Fed. R. Civ. P. 58(b)(1)(C) (entry

14 of judgment when all relief has been denied).

15 Undersigned counsel for Plaintiffs contacted Defendant’s counsel who does not oppose

16 this request for entry of judgment.

17 DATED: May 22, 2024 Respectfully submitted,

18 By: /s/Alice Bers

Alice Bers (pro hac vice)

19 Justin Lalor (pro hac vice)

CENTER FOR MEDICARE ADVOCACY

20

Melissa C. Brown (SBN 110292)

21 COMMUNITY LEGAL SERVICES

McGEORGE SCHOOL OF LAW

22

Attorneys for Plaintiffs

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24 PHILLIP A. TALBERT

United States Attorney

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By: /s/ Joseph B. Frueh (authorized 5/22/2024)

26 JOSEPH B. FRUEH

Assistant United States Attorney

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Attorneys for Defendant

28 XAVIER BECERRA

1 Secretary of Health and Human Services

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3

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6 ORDER

7 This Court considered Defendant’s Motion to Dismiss Plaintiffs’ First Amended

g | Complaint and filed its ruling on April 22, 2024, granting Defendant’s motion (Docket No. 35).

9g | The Order granted Plaintiffs 20 days’ leave to amend. The time for Plaintiffs to file an amended

10 | complaint has since expired and Plaintiffs filed the present application stating they do not elect to

11 | file an amended complaint. For these reasons and pursuant to the parties’ foregoing stipulation

12 | and unopposed motion, IT IS HEREBY ORDERED that the decision granting Defendant’s

13 || motion to dismiss is final and appealable and judgment shall be entered in favor of Defendant.

14

15 | ITISSO ORDERED.

6 Dated: May 23, 2024 A the th, b~-—

WILLIAMB.SHUBB

18 UNITED STATES DISTRICT JUDGE

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3 Stip. & P.O. for Entry of Judgment