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United States v. Creekside Hospice II, LLC

United States District Court, D. Nevada

June 22, 2017

UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
CREEKSIDE HOSPICE II, LLC, et al., Defendants, AND ALL RELATED ACTIONS.

          Counsel for Defendants Creekside Hospice II, LLC, Creekside Home Care II, LLC, Skilled Healthcare Group, Inc. and Skilled Healthcare, LLC. Kathleen McDermott (pro hac vice), Attorney in Charge Howard Young (pro hac vice), Lucas Elliot (pro hac vice), Clayton Morton (pro hac vice), John Cosgriff (pro hac vice), Morgan Lewis & Bockius LLP Charles H. McCrea HEJMANOWSKI & MCCREA LLC

          Counsel for the Relator L. Timothy Terry Steven Cohen (pro hac vice), Matthew J. Piers (pro hac vice), Joshua Karsh (pro hac vice), Juliet Berger-White (pro hac vice), Caryn Lederer Attorneys for Plaintiff/Relator Joanne Cretney-Tsosie

          ORDER GRANTING JOINT MOTION TO STAY PETITION FOR ATTORNEYS' FEES AND COSTS UNDER LOCAL RULE 54-14

         Plaintiff Relator Joanne Cretney-Tsosie ("Cretney-Tsosie") and Defendants Creekside Hospice II, LLC, Skilled Healthcare Group, Inc., and Skilled Healthcare, LLC (all hereinafter referred to as "Creekside"), jointly move to stay any determination of reasonable expenses necessarily incurred and reasonable attorneys' fees and costs, pending the Court of Appeals for the Ninth Circuit resolution of Relator Vcncta Lcpera's appeal of this court's March 30, 2017 order (Dkt. 189) granting Cretncy-Tsosie's Motion to Dismiss the Complaint of Relator Vcncta Lepera. (Dkt. 166), which resolved the first-to-file issue in Relator Cretney-Tsosie's favor, and denying Relator Veneta Lepera's Motion to Dismiss Relator Cretney-Tsosie (Dkt. 188).

         I. Argument

         This action was brought by the United States and Relators Joanne Cretney-Tsosie and Veneta Lepera under the False Claims Act against a hospice provider, Creekside Hospice, and its corporate parent, Skilled Healthcare. The gravamen of the action is that Creekside violated the False Claims Act by knowingly submitting or causing the submission of false claims to Medicare for reimbursement for hospice services for patients who were ineligible for coverage in the time period 2010 to 2013. These allegations were disputed and Creekside filed a motion to dismiss the action in August 2015. (Dkt. #98).[1]

         On October 24, 2016, Cretney-Tsosie filed a Motion to Dismiss the Complaint of Plaintiff/Relator Veneta Lepera. (Dkt. 166). On March 29, 2017, Lepera filed a Motion to Dismiss for Lack of Jurisdiction. (Dkt. 188). On March 30, 2017 the Court held a hearing and granted Cretney-Tsosie's Motion to Dismiss and denied Lepera's Motion to Dismiss. On April 29, 2017, Lepera filed a Notice of Appeal of the Court's order dismissing her Complaint. (Dkt. 195). That appeal is pending before the United States Court of Appeals for the Ninth Circuit. See Cretney-Tsosie v. Lepera, Case Number 17-15894 (9th Cir.).

         On June 9, 2017, Genesis Healthcare, Inc. ("Genesis"), the successor corporation to Skilled Healthcare and Creekside entered into a settlement agreement with the United States and Cretney-Tsosie, which resolves the allegations in this action and provides for a dismissal of the action. The parties filed a Joint Stipulation of Dismissal on June 20, 2017. Pursuant to the Settlement Agreement, Cretney-Tsosie's claims are dismissed with prejudice, except for the following: (a) Cretney-Tsosie's claims for reasonable expenses necessarily incurred and reasonable attorneys' fees and costs pursuant to 31 U.S.C. § 3730(d) and any claims or defenses by Genesis related to any petition for attorneys' fees or costs filed in connection with the action referenced in Paragraph B.l of the Settlement Agreement; and (b) Cretney-Tsosie's claim for the relator's share (i.e. the percentage of the settlement amount any qualified relators are entitled to receive under 31 U.S.C. § 3730(d)). Pursuant to Local Rule 54-14, this Court retains jurisdiction over motions for reasonable attorneys' fees "following the entry of a final judgment or other order disposing of an action." In the interest of judicial efficiency, Cretney-Tsosie and Creeksidc now jointly move to stay Relator Cretney-Tsosie's petition for reasonable attorneys' fees until the Court of Appeals for the Ninth Circuit has resolved any appeal Lepera has filed or may file of this Court's March 30, 2017 order. Lepera's appeal delays final resolution of this action. Once the Ninth Circuit has resolved Lepera's appeal, this Court may hear Cretney-Tsosie's claims for reasonable expenses necessarily incurred and reasonable attorneys' fees and costs pursuant to 31 U.S.C. § 3730(d) and any claims or defenses by Genesis related to Cretney-Tsosie's petition for attorneys' fees or costs filed in connection with the action referenced in Paragraph B.l of the Settlement Agreement. Following a final resolution of the appeal, Cretney-Tsosie and Creekside will notify the Court of the appellate disposition and submit a proposed schedule for Relator to file a petition for attorney's fees under Local Rule 54-14.

         WHEREFORE, Plaintiff Relator Joanne Crctncy-Tsosie and Defendants Creekside Hospice,, move this Honorable Court to:

A. Grant their Joint Motion to Stay the Petition for Attorney's Fees and Costs; and
B. Enter an order staying this case in its entirety until the Ninth Circuit's resolution of the Relator Veneta Lepera's appeal, Case Number 17-15894; and,
C. Award such other and further relied as the nature of this cause may require.

         IT IS SO ORDERED.

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