The Court would also like to make one final note about HealthStar’s Motion to Dismiss.
In addition to seeking dismissal of the charges pending against it, HealthStar also urges this
Court to dismiss the claims against a co-defendant, Banker’s Life and Casualty Company
(“Banker’s Life”). Like HealthStar, Banker’s Life has already submitted its motion for summary
judgment as well. Unlike HealthStar, Banker’s Life has not filed an untimely motion to dismiss
in addition to its summary judgment motion. In this case, where the interests of defendant
HealthStar are somewhat adverse to the interests of defendant Banker’s Life, HealthStar has no
business making requests (Jet alone standing to make the request) for this Court to dismiss claims
against anyone but itself. In our system of justice, all represented parties speak to the courts
through counsel. When they do, unless there has been some agreement to the contrary, they
speak only for themselves. HealthStar is admonished to keep that in mind in its future
presentations to this Court.

CONCLUSION
For the reasons stated in this memorandum opinion, the Court denies HealthStar’s Motion

to Dismiss Plaintiff's Amended Complaint.

Enter:

David H. Coar TM~
United States District Judge

Dated: October 11, 2002


pursuant to Federal Rule of Civil Procedure 12(b)(6).
DISCUSSION

The behavior of both parties to this motion (Defendant HealthStar and Plaintiff Holy
Cross) has raised serious timeliness concerns in this case. When this Court issues scheduling
orders under Rule 16(b) of the Federal Rules of Civil Procedure, those orders are binding and the
Court expects them to be followed. While parties often have disputes during discovery, there are
mechanisms to resolve those disputes that will still permit compliance with the scheduling order.

While the timeliness of discovery compliance frustrates the Court’s interest in an orderly
process, HealthStar’s submission of a Motion to Dismiss pursuant to Rule 12(b)(6) affer its
submission of a summary judgment motion turns the Federal Rules of Civil Procedure
upsidedown. It is hornbook law that Rule 12 motions must be filed before filing a responsive
pleading, see Wright & Miller, Federal Practice & Procedure: Civil 2d § 1361 (“[I]f a party
decides to raise any of the seven enumerated defenses [in Rule 12] by motion, it ‘shall be made
before pleading if a further pleading is permitted.’”) (quoting Fed. R. Civ. Pro. 12(b)), which by
necessity must also precede filing a summary judgment motion.

HealthStar’s suggestion that other developments in this case justify its delinquent filing of
the Motion to Dismiss is unavailing. Motions to dismiss for failure to state a claim are decided
by reference to one thing and one thing only: the plaintiff's complaint. If matters outside the
complaint are offered and considered, the Court should convert the motion to dismiss to a motion
for summary judgment. See Fed. R. Civ. Pro. 12(b). Here, HealthStar has already submitted its
motion for summary judgment (twice), so the Court will decide the issues raised in HealthStar’s

Motion to Dismiss in its decision on summary judgment.


Minete Order Form (06/97)

Pena S ,
United States District Court, Northern District of Illinois
Name of Assigned Judge David Hl. Coar Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 1505 DATE 10/11/2002
CASE Holy Cross Hospital vs. Bankers Life & Casualty Company
TITLE
{in the following box (a) indicate the party filing the motion, eg, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]

DOCKET ENTRY:

qd) QO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due
(4) a Ruling/Hearing on set for at
(5) a] Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_ saat.
@ im Trial[set for/re-set for] on __at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 CFRCP4I(a\(1) CO FRCP41(a)(2).
ao) [Other docket entry] For the reasons stated in the attached memorandum, Defendant HealthStar’s
Motion to Dismiss Plaintiff's Amended Complaint [Doc # 135] is denied. Additionally, Plaintiff's
Motion to Compel Defendants to Withdraw their Motions for Summary Judgment Filed in Violation of
the Court’s Protective Order (Doc #100] is dismissed as moot in light of Judge Coar’s Minute Order of
June 7, 2002 [Doc # 103], which granted defendants’ motions to withdraw their $1 'y judgment
motions and refile them in compliance with the protective order.
(11) a [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
No notices required. THomber of notices
Notices mailed by judge’s staff. 5
Notified counsel by telephone. pct 15 2002
Y | Docketing to mail notices,
Mail AO 450 form. )
. ‘trate j Pomrsiscgy
Copy to judge/magistrate judge : on
-— 2002
courtroom wd sat on
atic deputy’s “
initials

Date/time received in; «|
ecntral Clerk’s Office _~

IMA.



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

HOLY CROSS HOSPITAL,
No. 01 C 1505
Plaintiff,
HONORABLE DAVID H. COAR
YY.

BANKERS LIFE AND CASUALTY
COMPANY and HEALTHSTAR, INC.,

OCT 15 2002,

Defendants.

weveveveverververvewv

MEMORANDUM OPINION AND ORDER

This case comes before the Court on the Amended Complaint that Plaintiff, Holy Cross
Hospital, filed on December 28, 2001. There are currently two motions pending and fully briefed
in this case: (1) Plaintiff's Motion for Leave to File its Second Amended Complaint, and (2)
Defendant HealthStar Incorporated’s Motion to Dismiss Plaintiff's Amended Complaint. For the
reasons given in this opinion, the Court denies Defendant HealthStar’s Motion to Dismiss.
Plaintiffs Motion for Leave to File its Second Amended Complaint is scheduled for a hearing on
October 17, 2002. The Court reserves ruling on the motion until that date.

Factual and Procedural Background

Holy Cross Hospital (“Plaintiff or “Holy Cross”) filed this lawsuit for recovery of
benefits it believes it is owed under welfare benefit plans governed by the Employment
Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001-1461, on March 2, 2001. After
conducting some discovery, Plaintiff filed an amended complaint on December 28, 2001. The

substance of the allegations against Defendant HealthStar Incorporated (“HealthStar”) did not

) 5


change from the original complaint to the amended complaint.

Discovery in this litigation did not proceed as smoothly as the Court would have hoped.
Discovery was originally due to conclude on May 28, 2002. On April 19, 2002, Holy Cross filed
a Motion to Compel HealthStar’s Discovery Responses. Holy Cross withdrew that motion on
April 25, 2002 because of its belief that HealthStar had “agreed to reexamine its responses to the
first round of discovery.” (Schenkier, Mag. J., Min. Ord. of 6/17/2002, at 2) The motion was
renewed on June 7, 2002, after HealthStar failed to supplement its responses to the first round of
discovery. Although Judge Schenkier had reservations about the timeliness of Plaintiff's request
since it came after the close of discovery and after the filing of HealthStar’s summary judgment
motion (which was filed on May 21), he nevertheless granted it in part. Judge Schenkier ordered
HealthStar to reply to certain of the interrogatories by July 1, 2002. HealthStar did not comply
with this order, and Holy Cross had to seek an additional order from Ji udge Schenkier before
receiving answers to the interrogatories. As a result of this and other discovery squabbles,'
discovery was not completed in this case until two months after the deadline.

On May 21, 2002, HealthStar timely moved for summary judgment on Count III of
Plaintiffs Amended Complaint (Count III is the only count that implicates HealthStar). Because
of the discovery disputes, HealthStar’s original summary judgment motion was stricken. (Coar, J.
Min. Ord. of 7/17/2002) HealthStar was granted leave to file its summary judgment motion on
August 20, and it filed its motion on August 21. Two days later, HealthStar filed a motion to

dismiss the amended complaint for failure to state a claim upon which relief can be granted

‘Holy Cross also required Judge Schenkier’s intervention to secure the deposition of
another defendant’s (Banker’s Life and Casualty Company) Rule 30(b)(6) witness. (Schenkier,
Mag. J., Min. Ord. of 7/9/2002)