Motion to Stay Discovery Proceedings and Memorandum in Support

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UNITED STATES DISTRICT COURT 

FOR THE 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

RICHARD GORDON HATCHER, et al., 

Plaintiff, 

CIViL ACTION NO. H77-154 

METHODIST HOSPITAL OF GARY, INC. 

an Indiana Not-for-Profit 

Corporation, et al., 

Defendants 

MOTION TO STAY DISCOVERY PROCEEDINGS 
  

Come now the defendants, Methodist Hospital of Gary, Inc. 

and Denis E. Ribordy, by counsel, and move that discovery proceedings 

in the above captioned matter be stayed, and in support thereof 

state as follows: 

l. Defendant, Methodist Hospital of Gary, Inc., has on file 

in this Court a Motion to Dismiss in Cause No. H 76-373, based on 

the grounds that this Court lacks subject matter jurisdiction of 

the complaint and that the complaint fails to state a claim upon 

which relief can be granted. 

2. That the defendants, Methodist Hospital of Gary, Inc. and 

Denis E. Ribordy, have on file in this Court a Motion to Dismiss 

filed in Cause No. H 77-154 based on the grounds that this Court 

lacks subject matter jurisdiction of the complaint and that the 

complaint fails to state a claim upon which relief can be granted. 

 



  

3. That as of the date of the filing of this Motion to Stay 

Discovery Proceedings, the Court has not as yet had an opportunity 

to consider and rule upon the jurisdictional questions raised by 

the defendant's Motion to Dismiss in either H 76-373 or H 77-154. 

Accordingly, discovery proceedings should be stayed pending 

resolution by this Court of defendant's Motion to Dismiss. 

Respectfully submitted, 

HODGES, DAVIS, GRUENBERG, COMPTON & SAYERS 

Attorneys for Defendants Methodist Hospit: 
of Gary, Inc. and Denis E. Ribordy 

BY: CA pill Mecatty 
Edward J. Husgey 
5525 Broadway 
Gary, Indiana 46410 

  

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William B. Davis 

5525 Broadway 
Gary, Indiana 46410 

  

  

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BY: oi Ansgar tw fie 
Bruce E. Sayers / 
5525 Broadway 
Gary, Indiana 46410 | 

 



  

UNITED STATES DISTRICT COURT 

FOR THE 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

RICHARD GORDON HATCHER, et al., 

Plaintiff, 

—-vg—- 

CIVIL ACTION NO. EB 77-154 

METHODIST HOSPITAL OF GARY, INC., 
an Indiana Not-for-Profit 
Corporation, et al., 

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Defendants 

MEMORANDUM OF AUTHORITIES AND 

ARGUMENTS IN SUPPORT OF DEFENDANT'S MOTION 

TO STAY DISCOVERY PROCEEDINGS 
  

The defendants, Methodist Hospital of Gary, Inc. and Denis E. 

Ribordy, have filed their Motion to Stay piscovery Proceedings in 

the above captioned matter and submit this Memorandum in support of 

said Motion. Defendant, Methodist Hospital of Gary, Inc. has filed 

its Motion to Dismiss, Cause No. H 76-373, on the grounds this Court 

lacks jurisdiction of the subject matter of the complaint and that 

the complaint fails to state a claim upon which relief may be granted. 

Defendants, Methodist Hospital of Gary, Inc. and Denis E. Ribordy 

have filed their Motion to Dismiss in Cause No. H 77-154 on the 

grounds that this Court lacks jurisdiction of the subject matter of 

the complaint and that the complaint fails to state a claim upon 

which relief may be granted. 

On June 27, 1977, this Court granted defendant's Motion for 

enlargement of time in which to answer or otherwise respond to the 

plaintiffs first set of interrogatories. Said Motion and the Courts 

 



  

Order granting same specifically reserved defendant's right to 

object to any and all of said interrogatories. The time for 

answering plaintiff's interrogatories was extended to and including 

August 10, 1977. 

On July 12, 1977, plaintiffs requested an extension of time of 

one month to and including August 16, 1977 in which to respond to 

defendant's Motion to Dismiss in Cause No. H 77-154. - 

Defendants submit to the Court that the first set of interro- 

gatories to Methodist Hospital of Gary, Inc. filed by the plaintiffs 

herein, is premature and that the action required by defendant, 

Methodist Hospital of Gary, Inc., under such interrogatories, should 

be stayed pending a ruling by this Court on the threshold juris- 

dictional issues raised by defendant's Motion to Dismiss. 

The interrogatories served upon defendant, Methodist Hospital 

of Gary, Inc., in this case were promulgated pursuant to the Federal 

Rules of Civil Procedure, Rule 33. That rule states in part that 

"any party may serve upon any other party written interrogatories to 

1" be answered by the party served... (emphasis added.) The key term 

in the above quoted part of Rule 33 is "party", i.e. the burden of 

the discovery process is to be visited on a party. That burden, 

which in this case is quite heavy (as can be discerned from an 

examination of the plaintiffs first set of interrogatories) should 

not be placed on an individual not a proper party. 

" (The) burdens incident to the status of a defendant 
ought not to be augmented until it is certain that 
the party involved is properly a defendant.” 
Hilton vs, W. TP. Grant Co., '212-F. Supp.: 126, 130 
{(W.D. Pa. 1962). 
  

The Hilton case involved a Motion to Dismiss by a non-resident 

corporate defendant based on the Court's lack of jurisdiction. The 

 



  

Court held that the defendant was properly relieved from answering 

interrogatories pending disposition of its Motion to Dismiss. 

Courts have consistently ruled that, when the Court's juris- 

diction is questioned, that challenge should be resolved prior to 

the time any pre-trial discovery involving the merits of a claim 

a for that matter, prior to any further judicial pro- 

ceedings. Page vs. Wright, 116 Fed 449 (7th Cir. 1940); Defensive 
  

  

Instruments, Inc, ys. R.C. A, Corp., 335 7. Supp. 1053 (W.D. Pa. 1974): 
  

O'Brien vs. Avco, 309 7. Supp. 703 (B.D. N.Y. 1969); Instituto Per 
    

Lo Sviluppo Economico Dell' Italia Merdionale vs. Sperti Products, 
  

Inc., 47 ?.R.D. 530: (S.D. N.Y. 1969); Twardzik vs. Sepauly, 286 Fr. 
  

Supp. 346 (E.D. Pa. 1968); Allied Poultry Processors Co. vs. Polin, 
  

134 ¥. Supp.- 278 (D. Del. 1955); ‘Pyle vg, Pyle, 81 P, Supp. 207 
  

(W.D. La. 1948). 

The Courts give several reasons for such a position: The 

heavy economic burden of discovery proceedings should not fall on 

an individual unless he is a proper party; actions should be 

litigated in an orderly manner and, therefore, questions concerning 

the Courts jurisdiction take precedence over any other judicial 

proceedings; and the Courts own economic burden, i.e. if an action 

can be resolved by preliminary Motion to Dismiss, the Courts will 

be relieved of the economic burden of proceeding further. 

However, the primary consideration may be that if the Court 

does not have jurisdiction, it is powerless to entertain any judicial 

proceedings let alone those proceedings concerned with the discovery 

process. 

"There can be little question but that when the 
jurisdiction of the Court is challenged or denied, 
it is the duty of the Court on application of a 

 



    

party or on its own motion, to determine the ques- 
tion of jurisdiction before proceeding with other 
aspects of the case. If the Court has no juris- 
diction, it can take no further action and, in 
this case, if the Court has no jurisdiction, it 
should not assume to determine the priority of 
discovery process." Allied Poultry Processors 
Co. v8. Polin, 134 P. Supp. 278, at 279-80. 
  

  

Thus, where a defendant's Motion to Dismiss has been filed, such 

Motion to Dismiss has priority over requests for discovery. 

"(If) there is reason to believe that there is a 
probability that said corporation (a defendant) 
may not be a proper defendant, and that an action 
may be dismissed with respect to said corporation, 
it would be unreasonable to require it to undergo 
the burden of answering interrogatories until its 
status as a defendant is determined." Hilton vs. 
Wi. TP. Grant Co.,. 212 Ped. Supp. 126, at 130. 

  

  

The obvious thinking behind such a holding is that if a defendant’ 

Motion to Dismiss is granted, the need for discovery may terminate 

automatically. 

"Ordinarily pre-trial inquiry into the merits of 
a claim will be held in abeyance until jurisdictional 
questions are settled. However, this principal 
applies more particularly to pre-trial discoveries 
sought by the plaintiff rather than by the defendant." 
Instituto Per Lo Sviluppo Economico Dell' Italia 
Merdionale vs.Sperti Products, Inc., 47 F.R.D. 530 
at 532. 

  

  

A number of Courts have held that all judicial proceedings must 

cease regardless of the stage that such proceedings have reached until 

the jurisdictional questions are resolved. The Seventh Circuit Court 

of Appeals, in Page vs. Wright, supra, after examining 28 U.S.C. § 80, 
  

the Federal Rules of Civil Procedure as they were constituted at 

that time, and various Court decisions stated: 

"From the authorities referred to, the conclusion 
seems inescapable that the duty devolves upon the 
Court 'at any time' the jurisdictional question is 
presented to proceed no further until that question 
is determined.” 116 F. 2nd at 453. 

 



  

It is submitted by the defendants, Methodist Hospital of Gary, 

Inc. and Denis E. Ribordy, that the consistent position taken by 

the Federal Judiciary when faced with the issue raised by defendants 

Motion to Dismiss is to stay discovery proceedings pending resolu- 

tion of the jurisdictional questions raised by defendant's Motion 

to Dismiss. Accordingly, based upon the reasons and authorities 

discussed above, the defendants respectfully request that their 

Motion to Stay Discovery Proceedings be granted. 

Respectfully submitted, 

HODGES, DAVIS, GRUENBERG, COMPTON & SAYERS 

Attorneys for Defendants, Methodist Hospital 
of Gary, Inc. and Denis E. Ribordy 

Cia Wnty. 
Edward J. Hussey 

Gary, Indiana 46410 

   
  

5525 Broadway 

1% 1 dl ou igre r 

William B. Davis 
5525 Broadway 
Gary, Indiana 46410 

  

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BY: Li» Ajois ws la] 1 vo 

Bruce E. Sayers / 
5525 Broadway i 
Gary, Indiana 464710 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

RICHARD GORDON HATCHER, 

WILLIE LEE PAGE, : 

METRO CORPS OF GARY, INC., A 

Not-For-Profit Corporation 
and others similarly situated, 

Plaintiffs 

METHODIST HOSPITAL OF GARY, INC., 

An Indiana Not-For-Profit 
Corporation and DENIS E. RIBORDY, 
As President of the Board of 

Directors 

JOSEPH CALIFANO, as United States 
Secretary of Health, Education 
and Welfare, 

WILLIAM T. PAYNTER, M.D., as 

State Health Commissioner for the 

Indiana State Board of Health, 

JAMES WHITE, as Director of the 
Division of Hospital and 
Institutional Services of the 
Indiana State Board of Health, 

DAVID J. EDWARDS, M.D., as 

Director of the Health Facilities, 
Bureau of the Indiana State Board 
of Health, and 

KIPTON KAPLAN, as Executive 

Director of the Northern Indiana 
Comprehensive Health Systems 
Agency, Inc., 

Defendants 

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CIVIL ACTION NO. H 77-154 

AFFIDAVIT OF SERVICE 
  

: —f—} 

On the ATH day of August, 

for defendants, Methodist Hospital of Gary, Inc. and Denis E. Ribordy, 

served a true and correct copy of defendants' Motion To Stay Discovery 

1977, Edward J. Hussey, Attorney 

 



  

and Memorandum in Support thereof and proposed Order granting 

defendants' Motion on the following named individuals by depositing 

~ same in the United States Mail, first class, postage prepaid and 

addressed to the following named individuals as follows: 

Jack Greenberg 
Melvyn R. Leventhal 
Beth J. Lief 

10 Columbus Circle 
New York, New York 10019 

Julian B. Allen 
Charles B. Miller 

2009 Broadway 
Gary, Indiana 46407 

Marilyn G. Rose 
Christine G. Hickman 

1751 NX. Street, N.W. 
Washington, D.C. 20036 

Fred Grady 
Assistant United States Attorney 

507 State Street 
Hammond, Indiana 

Rebecca L. Ross 
Attorneys for Defendant 

Attorneys, Department of Justice 
Washington, D.C. 20530 

HODGES, DAVIS, GRUENBERG, COMPTON & SAYERS 

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= A UA Af - Y i pi 
BY PY Zo { 
     Edward J. Hyssey 
5525 Broadway 
Gary, Indiana 46410 
Phone: 981-2557 [||0a20d80b-b079-4299-ae2d-edb4baca3b2a||]