UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

UNITED STATES and STATE OF 

TEXAS ex rel. DANIEL W. ELLIOTT, 

M.D. and LISA A. MINSLOFF, M.D.,

Plaintiffs,

v.

SOUTHEAST TEXAS MEDICAL 

ASSOCIATES, LLP et al.,

Defendants.

No. 1:23-CV-00329

DEMAND FOR JURY TRIAL

RELATORS’ REPLY IN SUPPORT OF MOTION TO 

COMPEL AND REQUEST FOR EXPEDITED CONSIDERATION

The Court issued an order allowing for “discovery related to the pending dispositive 

motions.” (Dkt. 114) (emphasis added). Relators reissued tailored discovery tied to issues

raised in motions to dismiss filed by Defendants SETMA, Steward, OnPoint1, and Baptist

(“Defendants”). Defendants refused to comply with any of the discovery. Relators seek to 

compel compliance with discovery in this case. Relators contend the Court’s order allows

for targeted discovery aimed at streamlining the amendment and dispositive motion 

process.2

 1 As noted in the January 3, 2024 Joint Notice of Pending Settlement (Dkt. 123), both 

SETMA and OnPoint have reached a settlement in principle with Relators that is subject to 

government approval. Once final, that settlement will moot some of the issues herein.

Counsel for Relators will work with counsel for SETMA and OnPoint to avoid unnecessary 

briefing and expense on this discovery dispute.

2 As argued in their Motion to Extend Deadline to File Amended Pleadings Without Leave 

of Court (Dkt. 118) and their Reply in support thereof (Dkt. 124), Relators should have the 

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As a core starting position, Defendants cannot credibly assert that the Court’s order 

does not allow for discovery. Instead, Defendants re-urge their arguments for a complete

discovery stay from their June 26, 2023 Joint Motion for a Temporary Stay of Discovery.

(Dkt. 60). While the Court granted Defendants a portion of their requested relief, the 

Court’s order—by its plain and ordinary terms—expressly allows for discovery related to 

the motions to dismiss. Yet Defendants read the Court’s discovery allowance as no 

discovery at all. Defendants even resort to contending, in a footnote, that the Court “may 

not have fully reviewed the voluminous pending motions” before issuing its discovery order. 

(Dkt 120 at 4, n.3.). Relators believe this Court means what it says and that it does not 

accidentally issue orders.

Notably, in their June 26, 2023 Joint Motion for a Temporary Stay of Discovery, 

Defendants recognize that the Court has broad discretion under Rule 26 over discovery 

matters, including stays and the breadth of discovery. Dkt. 60 at p. 2. The Court has 

discretion to limit and allow discovery, which it did in its stay order. And this Division has 

in fact allowed discovery in a False Claims Act action where a motion to dismiss was

pending. In States ex rel. Reddell v. DynCorp Int’l et al., Judge Crone allowed limited 

discovery and explained its relevance to motions to dismiss and potential amendment of the 

complaint:

DynCorp argues there is good cause because discovery is not necessary to 

resolve the pending motion to dismiss, the court’s disposition of the pending 

motion might preclude or reduce the need for discovery, and it will incur the 

expense of re-reviewing all documents previously produced to the 

Government. DynCorp further contends that staying discovery would not 

 

benefit of discovery allowed by the Court in evaluating possible amendment by the Court’s 

deadlines.

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unduly delay litigation. The court is not persuaded that there is good cause 

to stay discovery in this case. The court permitted Relators to amend their 

complaint and to add additional parties without leave of court by June 1, 

2018. The pending motions to dismiss likely will not address these new 

matters. The immediate scope of discovery has been limited, however, to 

written discovery and materials Defendants have already provided to the 

Government. Defendants were directed to file revised motions to dismiss if 

Relators amend their complaint before the agreed deadline, at which time 

broader discovery may be taken.

Reddell, No. 1:14-CV-86, 2018 WL 11348609, at *2 (E.D. Tex. Mar. 20, 2018). Here, the 

Court allowed limited discovery, and Defendants do not contend that the Court abused its 

discretion in allowing that discovery. 

And, to be clear, the fact that this is a False Claims Act action does not alter the 

analysis as to the Court’s discretion to allow discovery. In another recent False Claims Act 

opinion in a declined case, a court in this District denied a defendant’s motion to stay, 

holding as follows:

Under Local Rule CV-26 and Federal Rule of Civil Procedure 26, the

presumption is that discovery shall proceed notwithstanding the filing of a

motion to dismiss. Local Rule CV-26(a), titled “No excuses,” provides “a

party is not excused from responding to discovery because there are pending

motions to dismiss . . . or to change venue.” In the Fifth Circuit, staying

discovery while a motion to dismiss is pending “is the exception rather than

the rule.” Griffin v. Am. Zurich Ins., No. 3:14-cv-2470-P, 2015 WL

11019132, at *2 (N.D. Tex. Mar. 18, 2015). A motion to stay discovery is 

not “automatically granted whenever a motion to dismiss is pending.” Id.

Health Choice Group, LLC et al. v. Bayer Corp. et al., No. 5:17cv126-RWS-CMC, 2018

WL 5728515, at *3 (E.D. Tex. Apr. 25, 2018).

Relators aim to prosecute this case efficiently and diligently. Accordingly, Relators 

ask the Court to order Defendants to respond to Relators’ discovery requests and produce 

responsive documents.

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Dated: January 4, 2024 Respectfully submitted,

REESE MARKETOS LLP

By: /s/ Joshua M. Russ

Joshua M. Russ 

Texas Bar No. 24074990 

josh.russ@rm-firm.com

Joel W. Reese

Texas Bar No. 00788258

joel.reese@rm-firm.com

Adam Sanderson 

Texas State Bar No. 24056264 

adam.sanderson@rm-firm.com 

Andrew O. Wirmani

Texas Bar No. 24052287

andrew.wirmani@rm-firm.com

Tyler J. Bexley 

Texas Bar No. 24073923

tyler.bexley@rm-firm.com 

Brett S. Rosenthal

Texas Bar No. 24080096

brett.rosenthal@rm-firm.com 

Allison N. Cook

Texas Bar No. 24091695

allison.cook@rm-firm.com

750 N. Saint Paul St. Ste. 600

Dallas, Texas 75201-3201

Telephone: (214) 382-9810

Facsimile: (214) 501-0731

MASTROGIOVANNI MERSKY & FLYNN, P.C.

 

By: /s/ Joseph J. Mastrogiovanni 

Joseph J. Mastrogiovanni, Jr.

Texas Bar No. 13184380

jmastro@mastromersky.com

2001 Bryan Street, Suite 1250

Dallas, Texas 75201

Telephone: (214) 922-8800

Facsimile: (214) 922-8801

ATTORNEYS FOR RELATORS

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this document was filed on January 

4, 2024, through the ECF system, and will thereby be sent electronically to the registered

participants as identified on the Notice of Electronic Filing.

 /s/ Joshua M. Russ

Joshua M. Russ

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