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Egan v. Polanowicz

United States District Court, D. Massachusetts

October 24, 2014

RONALD E. EGAN, M.D., Plaintiff,
v.
JOHN POLANOWICZ, Secretary of the Executive Office of Health and Human Services, Defendant.

ORDER OF DISMISSAL

DAVID H. HENNESSY, Magistrate Judge.

The United States Department of Health and Human Services ("DHHS") has moved to dismiss pro se plaintiff Dr. Ronald E. Egan's amended complaint under Federal Rules of Civil Procedure 41(b) for failure to comply with the Court's Order, 12(b)(5) for insufficient service of process, and 12(b)(6) for failure to state a claim upon which relief may be granted. (Docket #33). Dr. Egan has not filed a response to the motion.

For the reasons that follow, DHHS's motion to dismiss is hereby DENIED. However, the Court hereby DISMISSES Dr. Egan's complaint with prejudice for failure to comply with the Court's order of May 8, 2014.

I. BACKGROUND

Dr. Egan filed his complaint on August 5, 2013, naming as the defendant John Polanowicz, the Secretary of the Massachusetts Executive Office of Health and Human Services. (Docket #1). In the complaint, Dr. Egan alleges that from January 1, 2005 through December 31, 2007, he examined approximately twenty home-bound patients resulting in approximately 1, 545 home visitations. (Docket #1 at 2). Dr. Egan alleges that "Medicare subsequently determined that the majority of home visitations were an overpayment during [that] period of time." (Id.).

Dr. Egan attached, as exhibit 1 to his complaint, a Notice of Decision of Medicare Appeals Council dated June 5, 2013 from the Department of Health and Human Services addressed to Egan. (Docket 1-1). The address listed on the notice for the Department of Health and Human Services is located in Washington, DC. (Id.). Citing 42 U.S.C. ยง 1395ff(b), the notice indicated that if the party desires court review of the Medicare Appeals Council's decision, the party may commence a civil action by filing a complaint in the United States District Court for the judicial district in which the party resides or has its principal place of business. (Docket #1-1). The notice directed the party that, if a civil action is commenced, the complaint should name the Secretary of Health and Human Services as the defendant. (Id.). The notice indicated that the Secretary must be served by sending a copy of the summons and complaint by registered or certified mail to the General Counsel, Department of Health and Human Services, 200 Independence Avenue, S.W., Washington, DC 20201. (Id.). The notice also directed the party to serve the United States Attorney for the district in which the complaint is filed and the Attorney General of the United States. (Id.).

On the civil cover sheet, which is attached as exhibit 2 to the complaint, Dr. Egan indicated in the section "Basis of Jurisdiction" that the defendant was the U.S. Government. (Docket #1-2).

On September 4, 2013, Polanowicz moved to dismiss Dr. Egan's complaint under Federal Rule of Civil Procedure 12(b)(6). (Docket #12). A hearing on the matter was held on October 9, 2013. (Docket #18). At the hearing, Dr. Egan moved to amend his complaint to substitute Kathleen Sebelius, Secretary of the United States Department of Health and Human Services, for Defendant John Polanowicz. On October 9, 2013, the Court granted Polanowicz's motion to dismiss and allowed Dr. Egan's motion to amend. (Docket #19). In its order, the Court emphasized that, although it had allowed the motion to amend, Dr. Egan must still comply with the directives given in the Notice of Decision of Medicare Appeals Council attached as exhibit 1 to his complaint. (Id. at 5).

On December 10, 2013, the Court entered an order requiring Dr. Egan to file an amended complaint with the appropriate substitution by January 10, 2014. (Docket #20). The Court noted that failure to comply with the Order might result in dismissal of the action for failure to prosecute. (Id. at 1). The Court again reminded Dr. Egan that he must also comply with the directives given in the Notice of Decision of Medicare Appeals Council attached as exhibit 1 to his complaint. (Id. at 1-2).

On January 9, 2014, Dr. Egan filed a motion to amend his complaint to substitute Kathleen Sebelius for John Polanowicz. (Docket #21). The Court denied this motion as moot on January 13, 2014, stating that it had already granted Dr. Egan permission to file an amended complaint. (Docket #22). The Court further ordered Dr. Egan "to file an amended complaint in which he substitutes the name Kathleen Sebelius, Secretary of the United States Department of Health and Human Services' for that of John Polanowicz, Secretary of the Executive Office of Health and Human Services'" by January 31, 2014. (Id. at 1-2). The Court again reminded Dr. Egan that he must also comply with the directives given in the Notice of Decision of Medicare Appeals Council attached as exhibit 1 to his complaint and attached a copy of that exhibit to its order. (Id. at 2).

On February 3, 2014, the Court entered an order requiring Dr. Egan to file his amended complaint by February 21, 2014, and notifying him that failure to do so might result in dismissal of the action for failure to prosecute. (Docket #23).

On February 14, 2014, Dr. Egan filed an amended complaint. (Docket #24). The amended complaint consists of seven pages comprising a letter dated February 10, 2014 addressed to DHHS requesting judicial review of the Federal Medicare Appeals Council, a letter to Medical Personnel dated January 7, 2014, the first three pages of Dr. Egan's original complaint[1], and the original civil cover sheet. (Id.) The amended complaint continues to list John Polanowicz as the defendant. (Id. at 3). The amended complaint was delivered to the United States Attorney's Office on February 14, 2014 and to DHHS on February 25, 2014. (Docket #28 at 2). No summons was served. (Id. at 3).

On April 14, 2014, DHHS filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(5) for insufficient service of process and 12(b)(6) for failure to state a claim upon which relief may be granted. (Docket #27). On May 8, 2014, the Court denied the motion to dismiss. (Docket #29). However, the Court treated the motion to dismiss as a motion to quash service in the alternative and granted the motion to quash. (Id.). In its order, the Court gave the following directive to Dr. Egan:

To comply with Federal Rule of Civil Procedure 4(m), Dr. Egan must properly serve DHHS in accordance with Federal Rule of Civil Procedure 4(i) and the Notice of Decision of Medicare Appeals Council attached as exhibit 1 to his initial complaint by June 16, 2014. In order to properly serve DHHS, Dr. Egan must file an additional amended complaint, pursuant to Federal Rule of Civil Procedure 15, prior to service which names as a defendant the Secretary of the United States ...

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