United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
KEITH P. ELLISON UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Aetna Life Insurance
Company's Motion for Judgment (Doc. No. 80). After
considering the Motion, the response thereto, and all
applicable law, the Court determines that the Motion should
case arises from a dispute between Plaintiff Dr. Carlos
Ferrari and Defendant Aetna Life Insurance Company
(“Aetna”) concerning the denial of claims for
October 20, 2016, Aetna moved for summary judgment. (Doc. No.
28.) Discovery closed on January 16, 2017. Dr. Ferrari did
not respond to Aetna's summary judgment motion until
March 8, 2017. (Doc. No. 45.) The day before he filed his
response, Plaintiff produced over 100 pages of new documents.
(Doc. No. 52 at 2.) At a hearing held on April 7, 2017, the
Court struck the newly produced documents from the record.
April 18, 2017, this Court granted summary judgment on the
majority of Plaintiff's claims. (Doc. No. 72.) The only
claims remaining in the case are the breach of contract
claims regarding three patients, identified as K.B., V.T.,
and S.D. Id. Aetna now moves for a judgment
dismissing the claims with respect to patient S.D. (Doc. No.
Ferrari argues that the Court lacks authority under the
Federal Rules of Civil Procedure to grant the requested
relief. (Doc. No. 82.) The Court disagrees. Rule 56(b)
provides that a party may file a motion for summary judgment
only until 30 days after the close of discovery, unless the
court orders otherwise. Here, Aetna filed its first
dispositive motion well within the timeframe contemplated by
Rule 56. However, Dr. Ferrari filed additional documents on
March 7, 2017, nearly two months after the close of
discovery. The Court therefore permits Aetna to move for
summary judgment on the basis of the documents produced on
judgment is proper when there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). A genuine issue of
material fact exists if a reasonable jury could enter a
verdict for the non-moving party. Crawford v. Formosa
Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The
court can consider any evidence in “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Court must view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in
that party's favor. Crawford, 234 F.3d at 902.
The party moving for summary judgment bears the burden of
demonstrating the absence of a genuine dispute of material
fact. Kee v. City of Rowlett, 247 F.3d 206, 210 (5th
Cir. 2001). If the moving party meets this burden, the
non-moving party must go beyond the pleadings to find
specific facts showing that a genuine issue of material fact
exists for trial. Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994). Summary judgment is
appropriate if a party “fails to make a showing
sufficient to establish the existence of an element essential
to that party's case.” Celotex, 477 U.S.
Ferrari is an in-network provider with Aetna pursuant to an
Independent Practice Association Agreement (hereinafter,
“the Contract”) between Aetna and Memorial
Hermann Health Network Provides, Inc. (Doc. No. 72 at 1.) As
part of the Contract, Dr. Ferrari agreed to comply with
Aetna's appeal process. Id. at 9. The Contract
provides that the internal dispute and appeal processes must
be exhausted before a plaintiff may pursue arbitration or a
asserts that Dr. Ferrari failed to appeal his payment for
patient S.D. (Doc. No. 80.) Aetna provides all the documents
Dr. Ferrari produced concerning S.D., noting that there is no
evidence of an appeal. Id. Under Federal Rule of
Civil Procedure 56(e)(2), if a party fails to support an
assertion of fact or fails to properly address another
party's assertion of fact, the court may consider the
fact undisputed for the purposes of the motion. Because Dr.
Ferrari fails to provide evidence that he appealed his
payment for patient S.D., see Doc. No. 82 at 2, the
Court finds his failure to appeal to be undisputed. As such,
under the terms of the Contract, Dr. Ferrari is not entitled
to pursue a lawsuit. The Court therefore grants summary
judgment to Aetna with regard to patient S.D.