United States v. Gieger Transfer Service, Inc.

174 F.R.D. 382, 1997 U.S. Dist. LEXIS 12950, 1997 WL 486079
CourtDistrict Court, S.D. Mississippi
DecidedAugust 18, 1997
DocketCivil Action No. 3:97CV214LN
StatusPublished
Cited by17 cases

This text of 174 F.R.D. 382 (United States v. Gieger Transfer Service, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gieger Transfer Service, Inc., 174 F.R.D. 382, 1997 U.S. Dist. LEXIS 12950, 1997 WL 486079 (S.D. Miss. 1997).

Opinion

ORDER

NICOLS, United States Magistrate Judge.

This cause is before the court upon the Plaintiffs motion for protective order, assertion of law enforcement privilege, and motion to stay proceedings. For the reasons more fully discussed below, the court denies the motion.

On March 31, 1997, the United States of America filed a complaint under the False Claims Act against Gieger Transfer Service, Inc., Jeff Gieger, Tracie Gieger, and James E. “Bo” Gieger. Gieger Transfer Service, Inc., an ambulance service, became a Medicare participant in April, 1992, and the individual Giegers were owners or employees of the business. The complaint alleged that the Defendants submitted false Medicare claims in violation of 31 U.S.C. § 3729(a)(1), (2), and (3), in that claims were submitted for ambulance transportation for ambulatory patients, patients for whom ambulance transportation was not medically necessary, and patients being transported to non-approved locations. Additionally, the complaint alleged that the Defendants routinely waived Medicare co-payments or deductibles, thus effectively reducing the actual amount of their bills. The complaint sought damages pursuant to the False Claims Act, common law fraud, unjust enrichment, payment under mistake of fact, and breach of contract. According to the complaint, the claims upon which it was based were submitted during and after October, 1994.

On May 7,1997, Jeffery Gieger and Tracie Gieger were indicted in the Eastern District, in case no. 97-CR-00013, on charges of filing false and fraudulent claims for payment to the Medicare Part B Program, in violation of 18 U.S.C. § 286. Specifically, the Giegers were charged with receiving payment for [384]*384ambulance transportation to destinations not permitted by law, not medically necessary, and for patients whose ambulatory state did not require such transportation. In addition, Trade Gieger was charged with money laundering.

On June 17, 1997, Bo Gieger was voluntarily dismissed from the civil lawsuit. On July 8,1997, Defendant Jeffery Gieger noticed the deposition of Bo Gieger in the civil action. The Government has filed this motion for a protective order and other relief, seeking to prevent that deposition and to stay discovery proceedings in this case until the resolution of the criminal action against Jeffery and Trade Gieger.

In support of its motion, the Government has argued that permitting the Defendants to depose Bo Gieger in the civil case will have the effect of allowing them to subvert the limitations on discovery in the pending criminal action. To bolster its argument, the Government has cited numerous cases in which stays of discovery have been granted in civil cases where parallel criminal cases were pending. Most of those cases, however, are not directly on point, in that either the civil litigation or the request for relief from discovery was instigated by the non-government party. U.S. v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970) (corporate defendant in simultaneous civil and criminal litigation requested stay); U.S. v. Little Al, 712 F.2d 133 (5th Cir.1983) (individual owner of seized vessels sought stay pending appeal of drug conviction); SEC v. First Financial Group, 659 F.2d 660 (5th Cir.1981) (brokerage firm sought stay of civil discovery pending criminal securities investigation); U.S. v. U.S. Currency, 626 F.2d 11 (6th Cir.1980) (defendant in forfeiture case declined to answer interrogatories); McSurely v. McClellan, 426 F.2d 664 (D.C.Cir.1970) (government moved for stay in declaratory judgment action brought by individuals indicted in related criminal case); Texaco, Inc. v. Borda, 383 F.2d 607 (3d Cir.1967) (individual plaintiff in civil antitrust suit asked for stay pending outcome of criminal action); Campbell v. Eastland, 307 F.2d 478 (5th Cir.1962) (government sought stay of discovery from individual plaintiffs who filed tax refund case); Trustees of the Plumbers and Pipefitters National Pension Fund v. Transworld Mechanical, Inc., 886 F.Supp. 1134 (S.D.N.Y.1995) (individual defendants moved to stay fraud case pending resolution of related criminal and civil cases); May v. U.S., 515 F.Supp. 600 (S.D.Ohio 1981) (individual brought suit requesting return of confiscated property and injunction preventing its use as evidence); Founding Church of Scientology v. Kelley, 77 F.R.D. 378 (D.D.C.1977) (government asked for stay of discovery in church’s action against governmental officials pending outcome of grand jury proceedings); St. Paul Fire and Marine Insurance Co. v. U.S., 24 Cl.Ct. 513 (1991) (government requested stay of civil suit brought by contractor pending criminal investigation). It would appear, then, that this case, in which the government instituted parallel civil and criminal proceedings and then requests a stay of one pending the outcome of the other, is an anomaly.

According to 31 U.S.C. § 3731(b) (1983 & Supp.1997), an action under the False Claims Act must be brought within six years after the date that the violation was committed. This liberal statute of limitations could have permitted the Government to delay bringing this civil action until after the resolution of the criminal case. Nonetheless, the Government chose here to bring simultaneous civil and criminal proceedings, and now it complains about the timing of discovery. Even U.S. v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850), 461 U.S. 555, 103 S.Ct. 2005, 76 L.Ed.2d 143 (1983), cited by the Government in support of its contention that these proceedings should be stayed, actually held at the Government should delay instituting civil proceedings where they might hamper the related criminal ease.

New of the cases cited by the Plaintiff are factually analogous, in that both the civil and criminal actions were instigated by the Government, which was also the party seeking a stay. One such case involved a civil forfeiture, in which a more persuasive argument could certainly be made regarding the urgency of instituting the civil proceeding. U.S. v. Any and All Assets of That Certain Business Known as Shane Co., 147 F.R.D. 99 (M.D.N.C.1993). Even Shane, however, ac[385]*385knowledged the court’s discretion in granting such a stay and noted that the government must show both that the civil and criminal cases are related and substantially similar and that discovery in the civil case will compromise the criminal ease. Id. at 101.

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Cite This Page — Counsel Stack

Bluebook (online)
174 F.R.D. 382, 1997 U.S. Dist. LEXIS 12950, 1997 WL 486079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gieger-transfer-service-inc-mssd-1997.