Fleming v. Medicare Freedom of Info. Grp.
Fleming v. Medicare Freedom of Info. Grp.
Opinion of the Court
In this case brought pursuant to the Freedom of Information Act ("FOIA"),
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 *52using 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 ,
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].
II. DISCUSSION
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.
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. , *53Long v. Immigration 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 Award of Fees and Costs
In the second motion, Plaintiff seeks "an award of inter[i]m fees and costs in the amount of $15,000." [Dkt. 131 at 3]. There are a number of reasons to deny this request.
First, to the extent that Plaintiff seeks attorney's fees under FOIA's fee-shifting provision, she is not entitled to them. Pro se litigants may not recover attorney's fees. See, e.g. , Kay v. Ehrler ,
Second, to the extent that Plaintiff seeks recoverable costs, such as filing fees, the request is premature. In order to recover such costs, a plaintiff must have "substantially prevailed" in the case.
Third, a court may grant an interim award of fees and costs if the plaintiff has raised a concern that, without such an award, she will not be able to continue the litigation. See Clemente v. FBI ,
Finally, as indicated above, Plaintiff has provided nothing to support the amount she has requested. Generally, even if a plaintiff is eligible to recover costs, a request is "properly denied for want of substantiation." Blazy v. Tenet ,
In sum, Plaintiff is not entitled to an interim award of fees.
III. ORDER
Upon consideration of the record and the reasons stated above, it is hereby
ORDERED that Plaintiff's Renewed Motion for a Judge Supervised Settlement Conference [Dkt. 130] is DENIED ; it is further
ORDERED that Plaintiff's Motion for Interim Award of Fees and Costs [Dkt. 131] is DENIED .
SO ORDERED.
Plaintiff's motions were filed on March 26, 2018. Defendants filed their opposition on April 6, 2018. Pursuant to Local Civil Rule 7(d), any reply was due on April 13, 2018. As of the date of this Memorandum Opinion and Order, no reply has been filed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.