Free Motion to Amend/Correct - District Court of California - California

Case 3:08-cv-00027-L-JMA

Document 5

Filed 04/14/2008

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raig R. McClellan (71865)

obert J. Chambers, II (244688)
HE McCLELLAN LAW FIRM

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1144 State Street an Diego, California 92101

(619) 231-0505

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ttorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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10 KATHLEEN VESTEVICH,
) Case No.: 3:08-cv-00027-L-JMA
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) )

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Plaintiff,

PLAINTIFF'S NOTICE OF MOTION TO AMEND COMPLAINT
DATE: TIME:

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vs.

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UNITED STATES OF AMERICA; THE CENTERS FOR MEDICARE AND MEDICAID SERVICES; CNI ADMINISTRATION SERVICES, LLC,

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Defendants.

) ) ) ) ) ) ) )

June 2, 2008
10:30 a.m.

JUDGE: TRIAL:

Hon. M. James Lorenz None set.

TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:

19 PLEASE TAKE NOTICE that on June 2, 2008 at 10:30 a.m., or as soon thereafter as this matter

20 may be heard before Hon. M. James Lorenz, in Courtroom 14, in the above-entitled court,

21 located at 940 Front Street, San Diego, California, plaintiff will and hereby does, pursuant to
22 Fed. R. Civ. P. 15, move for leave to file a First Amended Complaint to add a real party in

23 interest. Good cause exists, and no prejudice to defendant will result.

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PLAINTIFF'S NOTICE OF MOTION TO AMEND COMPLAINT

Case 3:08-cv-00027-L-JMA

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1 This motion is based on this notice of motion and motion, the attached points and
2 uthorities, the Proposed First Amended Complaint, and all pleadings, papers and records in

3 his action, and any other such evidence and argument as may be presented to the Court in

4 onnection with this motion.

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By:

ated: April 10, 2008

THE McCLELLAN LAW FIRM

lsi
ROBERT J. CHAMBERS, II

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Attorneys for Plaintiff

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-2PLAINTIFF'S NOTICE OF MOTION TO AMEND COMPLAINT

Case 3:08-cv-00027-L-JMA

Document 5

Filed 04/14/2008

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1 Craig R. McClellan (71865)

Robert J. Chambers, II (244688)

2 HE McCLELLAN LAW FIRM 1144 State Street

3 San Diego, California 92101

(619) 231-0505
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5 6 7
IN THE UNITED STATES DISTRICT COURT

Attorneys for Plaintiff

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SOUTHERN DISTRICT OF CALIFORNIA

9 10 KATHLEEN VESTEVICH,
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Plaintiff,
) Case No.: 3:08-cv-00027-L-JMA
) ) ) ) ) ) ) ) ) ) ) ) )

MEMORANDUM OF POINTS AND

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vs.

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14 UNITED STATES OF AMERICA; THE
CENTERS FOR MEDICARE AND MEDICAID 15 SERVICES; CNI ADMINISTRATION SERVICES, LLC,

AUTHORITIES SUPPORTING PLAINTIFF'S MOTION TO AMEND COMPLAINT (Fed. R. Civ. P. 15)
DATE: TIME: JUDGE: TRIAL:

June 2, 2008
10:30 a.m.

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Hon. M. James Lorenz None set.

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Defendants.

i. INTRODUCTION
Plaintiff, KATHLEEN VESTEVICH, brings this Motion to Amend her complaint for

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declaratory relief pursuant to Fed. R. Civ. P. 15 in order to add a single defendant:

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Secretary of the United States Department of Health and Human Services, Michael O.

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Leavitt, in his official capacity as a real party in interest. The complaint will remain the

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same in all other respects. A copy of Plaintiff's Proposed First Amended Complaint is

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attached as "Exhibit A."

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PLAINTIFF'S MOTION TO AMEND COMPLAINT

Case 3:08-cv-00027-L-JMA

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II. FACTUAL BACKGROUND
Plaintiff filed her complaint on January 4, 2008, alleging a single cause of action for

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3 declaratory relief. The United States answered the complaint on March 17, 2008. In its 4 answer, the United States noted that Secretary of the United States Department of Health
5 and Human Services, Michael O. Leavitt, in his official capacity, is the real party in interest
6 in any dispute involving the Medicare program. (Doc. 3J. Plaintiff now seeks to add Mr.

7 Leavitt, in his official capacity, as a real party in interest.

8 Two days after the answer was filed, Plaintiff's counsel contacted counsel for
9 defendant to request a stipulation (joint motion) to file an amended complaint on the same

10 grounds now before this Court. However, defense counsel was reluctant to do so. Several
11 days later, Plaintiff's counsel renewed his request for a stipulation. Counsel for defendant

12 did not respond. On April 8, 2008, Plaintiff's counsel sent a final request seeking a
13 stipulation. However, defense counsel would not agree to join in a motion to amend. Thus,

14 Plaintiff is forced to bring the instant motion to amend her complaint.

15 III. LEGAL DISCUSSION
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Leave to amend may be sought any time before entry of judgment, and shall be
freely given when justice so requires. (Fed. R. Civ. P. 15.) The policy favoring amendment
should be applied with extreme liberality. (Eminence Capital, LLC v. Aspeon, Inc. (9th Cir.

2003) 316 F.3d 1048, 1051.) Here, Plaintiff should be permitted to amend her complaint in

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accordance with recently discovered information because there is no prejudice to defendant
in doing so.
Plaintiff seeks leave to amend to add Secretary of the United States Department of

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Health and Human Services, Michael O. Leavitt, in his official capacity as a real party in

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interest. There are no other proposed changes to Plaintiff's complaint. By defendant's own

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admission, Mr. Leavitt is a proper party to this action. (See (Doc. 3J; see also, 42 C.F.R.

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-2PLAINTIFF'S MOTION TO AMEND COMPLAINT

Case 3:08-cv-00027-L-JMA

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1 421.5(b).)
2 Moreover, Plaintiff's proposed amendment will not prejudice defendant. No trial date

3 has been set, discovery has not yet commenced, and no scheduling conference has taken

4 place. The Early Neutral Evaluation is still over one month away, on May 12, 2008. Plaintiff
5 has not delayed in seeking this necessary amendment to her complaint, and respectfully 6 requests that the Court allow her to do so. 7

8 Dated: April 10, 2008 9 10
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THE McCLELLAN LAW FIRM

By: lsi

ROBERT J. CHAMBERS, II

Attorneys for Plaintiff

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-3PLAINTIFF'S MOTION TO AMEND COMPLAINT

Case 3:08-cv-00027-L-JMA

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EXHIB T A

Case 3:08-cv-00027-L-JMA

Document 5

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1

raig R. McClellan (71865)

obert J. Chambers, II (244688)
HE McCLELLAN LAW FIRM

2

1144 State Street 3 an Diego, California 92101

619) 231-0505

4
5 6
7

ttorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

8
SOUTHERN DISTRICT OF CALIFORNIA

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10 KATHLEEN VESTEVICH,

) Case No.: 3:08-cv-00027-L-JMA
) ) )
)

11 Plaintiff,
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s.

(PROPOSED) FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF

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14 UNITED STATES OF AMERICA; THE CENTERS FOR MEDICARE AND MEDICAID 15 SERVICES; CNI ADMINISTRATION
16 SERVICES, LLC; THE DEPARTMENT OF SECRETARY OF MICHAEL LEAVITT,

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17 HEALTH AND HUMAN SERVICES,

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Defendants.

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Plaintiff alleges as follows:
1. 2. 3.

Plaintiff is a competent adult and resident of the State of California.
Defendant, the United States of America, is a sovereign nation.
Defendant, Centers for Medicare and Medicaid Services ("CMS"), formerly

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known as Health Care Financing Administration, is a division of the Department of Health and
Human Services, the governmental agency that administers the Medicare program.

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(PROPOSED) FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF

Case 3:08-cv-00027-L-JMA

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1 4. Defendant, CNI Administration Services, LLC, is a limited liability company

2 registered in the State of Oklahoma and doing business in California. It was awarded a
3 contract by CMS on October 2, 2006 as a national Medicare Secondary Payer Recovery

4 Contractor ("MSPRC") for all post-payment recoveries.
5 s. Defendant, Michael Leavitt, is the Secretary of the Department of Health and

6 Human Services, the federal agency responsible for administering the Medicare program. The
7 Secretary administers the Medicare program through CMS.

8 6. Jurisdiction over this action is conferred by Title XVIII of the Social Security Act

9 (The Medicare Program) and pursuant to the recovery provisions of the Medicare Secondary

10 Payer legislation, 42 U.S.c. §139Sy(b)(2)(B)(ii), 42 C.F.R. §411.24(b) andlor the Federal
11 Claims Collection Act, 31 U.S.c. §3711, et. seq.
12 7. Venue is proper in this Court inasmuch as a substantial part of the events or

13 omissions giving rise to the claim occurred in this district, or a substantial part of the property

14 that is the subject of the action is located within this district.
15 8. On January 21, 2006, plaintiff's husband, James C. Vestevich, was critically

16 injured and later died after the motorcycle he was riding was struck by another vehicle.

17 9. Plaintiff settled with Lorenzo Villa, the driver of the vehicle that struck Dr.
18 Vestevich, for the Progressive Auto Insurance policy limits of $15,000 for the damages she

19 suffered as a result of her husband's death.
20 10. In addition, plaintiff had to pursue an underinsured motorist claim against USAA

21 Insurance, Dr. Vestevich's automobile insurance company. Plaintiff setted with USAA

22 Insurance for $285,000.
23 11. Following the settements with Progressive Auto Insurance and with USAA

24 Insurance, plaintiff attempted numerous times to determine whether defendants would be

25 asserting a lien andlor claiming a right of recovery on the wrongful death settlement and, if so,

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(PROPOSED) FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF

Case 3:08-cv-00027-L-JMA

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1 hat defendants waive any purported lien rights pursuant to Fitch v. Select Products Co. 36
2 Cal.4th 812, 819 (2005), and California Code of

Civil Procedure sections 377.34 and 377.61.

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12.

Defendants ultimately asserted a lien in the amount of $83,109.42. However,

4 defendants have wholly failed and refused to respond to plaintiff's request that they waive

5 their lien rights - despite plaintiff's repeated requests over the past ten months to do so.
6 Defendants' failure to respond is precluding the distribution of the settlement proceeds to

7 plaintiff.

8 13.

A declaratory judgment is necessary to determine whether defendants are

9 asserting a claim for recovery of any benefits paid, and if so, to expunge any purported lien of

10 defendants on the basis of law and equity.
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WHEREFORE, plaintiff prays for declaratory judgment against defendants as follows:
1. That the Court declare the respective rights and duties of plaintiff and

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defendants;
2. That the Court declare, as a matter of law, defendants have no lien rights on the

wrongful death recovery obtained by plaintiff;
3. That plaintiff be awarded her costs, expenses and attorneys fees incurred

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herein; and,
4. For such other and further relief as the Court deems just and proper.

20 Dated: April 10, 2008
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THE McCLELLAN LAW FIRM

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By: lsi

ROBERT J. CHAMBERS, II

Attorneys for Plaintiff

(PROPOSED) FIRST AMENDED COMPLAINT FOR DECLARATORY RELIEF