Miller v. Wellpath et al

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EUGENE MILLER,
Plaintiff,
v.
WELLPATH, et al.,
Defendants.
CIVIL ACTION NO. 4:23-cv-00282
(WILSON, J.)
(LATELLA, M.J.)
REPORT AND RECOMMENDATION
Defendant Wellpath, LLC (“Wellpath”), filed a Motion to Dismiss based
upon the discharge of claims pursuant to a plan of reorganization confirmed by the
United States Bankruptcy Court for the Southern District of Texas. (Doc. 48).
Plaintiff has not filed an opposition to the Motion.1 Co-Defendant Marty Cole,
M.D. (“Dr. Cole”) filed a “Brief in Opposition to Defendant Wellpath’s Motion to
Dismiss.” (Doc. 50). While Dr. Cole acknowledges that dismissal of Wellpath is
appropriate, he seeks an Order (1) directing Defendant Wellpath to “cooperate with
the remaining Defendants for the purposes of completing discovery and/or
producing any representatives, agents, or employees at the time of trial;” and (2)
providing that Defendant Wellpath will appear on the verdict slip at the time of
1 Wellpath represented in its Motion to Dismiss that “Counsel for Plaintiff advises
that they do not oppose the Motion to the extent they do not intend to contest that
Wellpath has been discharged in bankruptcy.” (Doc. 48 at ¶ 14).
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trial. (See Doc. 50-2). For the reasons set forth herein, we will recommend that
Wellpath’s Motion to Dismiss be granted and the relief sought by Dr. Cole be
denied without prejudice to his ability to raise the requests through a proper motion
at the appropriate time.
I. 	PROCEDURAL HISTORY
Plaintiff initiated this action on February 16, 2023. (Doc. 1). Defendants
Wellpath, Gabrielle Nalley, PA (“P.A. Nalley”), and Rajinder Malhi, M.D (“Dr.
Malhi”) filed an Answer on April 24, 2023. (Doc. 8). Defendant Dr. Cole filed a
Motion to Dismiss on June 27, 2023. (Doc. 16). On January 25, 2024, Chief
Magistrate Judge Daryl F. Bloom issued a Report and Recommendation
recommending that Count I of Plaintiff’s Complaint be dismissed as to Dr. Cole.
(Doc. 19 at 7). Plaintiff filed an objection to the Report and Recommendation
(Doc. 20) and Dr. Cole filed a Reply. (Doc. 21). On February 23, 2024, Judge
Jennifer P. Wilson adopted the Report and Recommendation and overruled
Plaintiff’s objection. (Doc. 22). Dr. Cole filed an Answer to the Complaint on
March 26, 2024. (Doc. 23). On November 15, 2024, Wellpath filed a Suggestion
of Bankruptcy and Notice of Stay, indicating that on November 11, 2024, Wellpath
“filed a Voluntary Petition for Non-Individuals Filing Bankruptcy . . . for relief
under chapter 11 of title 11 of the United States Code . . . in the United States
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Bankruptcy Court for the Southern District of Texas.” (Doc. 35 at 1) (italics in
original). Based upon that filing, the Court issued an Order on February 4, 2025
staying the action and directing the defendants to provide an update to the Court
regarding the automatic stay. (Doc. 36). Following updates from the parties
regarding the status of the bankruptcy, the Court issued an Order on May 22, 2025
lifting the automatic stay and directing the parties to provide a “joint supplemental
status report . . . regarding the effect of [the] bankruptcy proceedings on this case,
including to which defendants the bankruptcy discharge applies.” (Doc. 46). The
parties filed a “Status Update Regarding Wellpath Bankruptcy” on June 5, 2025.
(Doc. 47). That Status Update2 provided:
the claims against Wellpath are subject to discharge in
bankruptcy. Claims against Wellpath may be satisfied
from a Liquidating Trust established with the
Confirmation of the reorganization plan, by either
participating in a non-binding alternative dispute
resolution process provided by the Liquidating Trustee,
or by substituting the Liquidating Trustee as a nominal
defendant in place of Wellpath, and pursuing underlying
litigation to judgment. It is expected that any claim,
regardless of the method by which it is determined, will
then be subject to further reduction and allocation within
the means of the Liquidating Trust. Counsel for
Wellpath Defendants are also advised that some change
will be sought in the identification of Wellpath on the
2 Because of the relevant background and context it provides for our analysis of
Defendant Wellpath’s Motion to Dismiss, the content of the Status Update is
reproduced in large part herein.
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docket, perhaps substitution of the Liquidating Trust in
its place, about which counsel for Wellpath Defendants is
still awaiting guidance . . . .
With regard to Defendants Dr. Rajinder Malhi and
Gabrielle Nalley, PA, as employees of Wellpath, any
claims against them are subject to at least one additional
contingency. As a rule, any Wellpath employee is also
released from liability for all claims which arose before
November 11, 2024, provided that Plaintiff did not
and/or does not “opt out,” of their release. Upon
information and belief, parties with claims against such
employees of Wellpath are deemed to have “opted-in”
unless they affirmatively opted out . . . .
Counsel for Plaintiff advises that, when invited to vote
upon Wellpath’s plan confirmation, Plaintiff took the
necessary steps to vote in the negative, and counsel for
the Wellpath Defendants acknowledge that it is
Plaintiff’s intent to “opt-out” of the release of the claims
against employees. Counsel for Wellpath Defendants has
been able to confirm that Eugene Miller is confirmed to
have opted-out of that release . . . .
During the course of the Bankruptcy, the automatic stay
was extended to apply beyond Wellpath debtor entities
themselves (in this case being only Wellpath, LLC, the
main corporate body of the company), to also employ
first to Wellpath employees, in recognition of the fact
that Wellpath was the de facto insurer for its employees
in almost all cases, pursuant to insurance agreements
which, depending upon the specific policy years
implicated, included a self-insured retention (SIR) in
amounts which generally far exceeded the potential
exposure presented by most claims made against
Wellpath and its employees, and that if such litigation
continued and the stay extended only to the corporate
entities, the purpose of the automatic stay would be
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frustrated because such employee-Defendants were
essentially alter-egos of Wellpath entities for almost any
pertinent litigation-related purpose . . . .
With the end of the automatic stay, it has been
represented to Wellpath[’s] counsel in this matter that,
should a Plaintiff “opt-out” of the release of claims
against Wellpath employees such as Dr. Malhi and Ms.
Nalley, that litigation against such employees would then
resume entirely without regard to the bankruptcy. In
other words, Wellpath would resume providing for the
fees and costs of the defense of its employees, as well as
indemnifying them within the SIRs of insurance policies
which would have Wellpath providing for the first $8
million or so in indemnity.
(Doc. 47 at 2–5).
On July 10, 2025, Defendant Wellpath LLC3 filed a “Motion to Dismiss, or
in the Alternative for Judgment on the Pleadings, as to Fewer Than All
Defendants” (the “Motion to Dismiss”). (Doc. 48). Plaintiff did not file a response
in opposition. Defendant Dr. Cole, however, filed a “Brief in Opposition to
Defendant Wellpath’s Motion to Dismiss” on July 24, 2025. (Doc. 50). While Dr.
Cole acknowledges that Defendant Wellpath is entitled to dismissal based upon its
3 The Motion is only filed on behalf of Defendant Wellpath. While Co-Defendants
Rajinder Malhi, M.D. and Gabrielle Nalley, PA are employees of Wellpath, the
Motion to Dismiss indicates that Plaintiff opted out of the “Third-Party Release
associated with the Plan Confirmation,” which has the effect of “allow[ing]
Plaintiff’s claims against Dr. Malhi and Gabrielle Nalley to proceed as normal,
without respect to Wellpath’s bankruptcy.” (Doc. 48 at 6 n.9).
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bankruptcy discharge, he seeks an order compelling Wellpath to “cooperate with
the remaining Defendants in the completion of discovery and for Defendant
Wellpath to remain on the verdict slip in the event that this matter proceeds to
trial.” (Id. at 2). The Motion to Dismiss is now ripe for review.
II. 	LEGAL STANDARD
A. Rule 12(b)(1) Dismissal Standard
Under Federal Rule of Civil Procedure 12(b)(1), the Court dismisses a
complaint if it lacks the “very power to hear the case.” Mortensen v. First Fed.
Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). “If a party asserts several
objections and defenses to a complaint, including a F.R.C.P. 12(b)(1) defense for
lack of subject matter jurisdiction, ‘the cases are legion stating that the district
court should consider the Rule 12(b)(1) challenge first because if it must dismiss
the complaint for lack of subject matter jurisdiction, the accompanying defenses
and objections become moot and do not need to be determined by the judge.’”
Scanlin v. Soldiers & Sailors Mem'l Hosp., No. 4:06-CV-01915, 2007 WL 141014,
at *2 (M.D. Pa. Jan. 17, 2007) (citing 5B Wright & Miller, Federal Practice and
Procedure: Civil 3d § 1350 at 154-55 (2004)); see also Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 101 (1998).
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A defendant may challenge the existence of subject matter jurisdiction in
one of two fashions: it may attack the complaint on its face or it may attack the
existence of subject matter jurisdiction in fact, relying on evidence beyond the
pleadings. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
1977). A district court has to first determine, however, whether a Rule 12(b)(1)
motion presents a “facial” attack or a “factual” attack on the claim at issue, because
that distinction determines how the pleading must be reviewed. In re Schering
Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012) (citing Mortensen, 549 F.2d
at 891).
Where a defendant attacks a complaint as deficient on its face, “the court
must consider the allegations of the complaint as true.” Mortensen, 549 F.2d at
891. “In deciding a Rule 12(b)(1) facial attack, the court may only consider the
allegations contained in the complaint and the exhibits attached to the complaint;
matters of public record such as court records, letter decisions of government
agencies and published reports of administrative bodies; and ‘undisputably
authentic’ documents which the plaintiff has identified as a basis of his claims and
which the defendant has attached as exhibits to his motion to dismiss.” Medici v.
Pocono Mountain Sch. Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa.
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Mar. 16, 2010). However, when a motion to dismiss attacks the existence of
subject matter jurisdiction in fact, “no presumptive truthfulness attaches to
plaintiff's allegations,” and “the trial court is free to weigh the evidence and satisfy
itself as to the existence of its power to hear the case.” Mortensen, 549 F.2d at
891. The plaintiff bears the burden of establishing the existence of subject matter
jurisdiction when challenged under Rule 12(b)(1). See Kehr Packages, Inc. v.
Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
B. Standard for Motion for Judgment on the Pleadings
A motion for judgment on the pleadings is governed by Rule 12(c) of the
Federal Rules of Civil Procedure, which provides that “[a]fter the pleadings are
closed—but early enough not to delay trial—a party may move for judgment on
the pleadings.” Fed. R. Civ. P. 12(c). “Granting a 12(c) motion results in a
determination on the merits at an early stage in the litigation,” and thus, the movant
is required “‘to clearly establish [ ] that no material issue of fact remains to be
resolved and that he is entitled to judgment as a matter of law.’” Inst. for Scientific
Info., Inc. v. Gordon & Breach, Sci. Publishers, Inc., 931 F.2d 1002, 1005 (3d Cir.
1991) (quoting Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290–91
(3d Cir. 1988)). A Rule 12(c) motion is analyzed under the same standards that
apply to a Rule 12(b)(6) motion to dismiss, construing all allegations and
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inferences in the light most favorable to the nonmoving party. Wolfington v.
Reconstructive Orthopaedic Assocs. II PC, 935 F.3d 187, 195 (3d Cir. 2019).
Thus, to survive a 12(c) motion, the complaint must contain sufficient factual
matter to show that the claim is facially plausible, enabling the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.
Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)).
“In considering a motion for judgment on the pleadings, a court must accept
all of the allegations in the pleadings of the party against whom the motion is
addressed as true and draw all reasonable inferences in favor of the non-moving
party.” Zimmerman v. Corbett, 873 F.3d 414, 417–18 (3d Cir. 2017) (citing Allah
v. Al–Hafeez, 226 F.3d 247, 249 (3d Cir. 2000)). When adjudicating a motion for
judgment on the pleadings, the court should generally consider only those
allegations contained in the complaint, as well as “documents that are attached to
or submitted with the complaint, . . . and any matters incorporated by reference or
integral to the claim, items subject to judicial notice, matters of public record,
orders, [and] items appearing in the record of the case.” Buck v. Hampton Twp.
Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006); Atiyeh v. Nat'l Fire Ins. Co. of
Hartford, 742 F. Supp. 2d 591, 595 (E.D. Pa. 2010) (court may consider “the
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pleadings and attached exhibits, undisputedly authentic documents attached to the
motion for judgment on the pleadings if plaintiffs’ claims are based on the
documents, and matters of public record.”).
III. 	DISCUSSION
A. Defendant Wellpath’s Motion to Dismiss
Defendant Wellpath asserts that pursuant to a Confirmation Order and the
discharge of claims against Wellpath in bankruptcy, “further pursuit of any such
claims has been enjoined by the Bankruptcy Court.” (Doc. 49 at 8). It argues that
“[t]he discharge in bankruptcy and injunction against additional litigation
effectively means there is no longer jurisdiction over this matter before this court,
as the Bankruptcy Court retains exclusive jurisdiction of such claims.” (Id.).
Wellpath argues that we make take judicial notice of the Orders issued by
the Bankruptcy Court pursuant to Rules 12(b)(1) or 12(b)(6) of the Federal Rules
of Civil Procedure. (Id. at 8–9) (citing Doe v. University of the Sciences, 961 F.3d
203, 208 (3d Cir. 2020); Gould Electronics Inc. v. United States, 220 F.3d 169, 176
(3d Cir. 2000)).
Wellpath specifically cites to the “First Amended Joint Chapter 11 Plan of
Reorganization of Wellpath Holdings, Inc. and Certain of Its Debtor Affiliates
(With Technical Modifications)” (the “Plan”) as well as to “Findings of Fact,
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Conclusions of Law, and Order (I) Confirming the First Amended Joint Chapter 11
Plan of Reorganization of Wellpath Holdings, Inc. and Certain of Its Debtor
Affiliates and (II) Approving the Disclosure Statement on a Final Basis” (the
“Confirmation Order”) entered by the United States Bankruptcy Court for the
Southern District of Texas (Case No. 24-90533, Doc. 2596). (Doc. 48 at 2, ¶ 5; n.
6).
Wellpath cites Article IX.A. of the Plan, which provides:
The distribution, rights, and treatment that are provided
in the Plan shall be in complete satisfaction, discharge,
and release, effective as of the Effective Date, of Claims,
Interests, and Causes of Action of any nature whatsoever,
including any interest accrued on Claims or Interests
from and after the Petition Date, whether known or
unknown, against, liabilities of, liens on, obligations of,
rights against, and Interests in the Debtors or any of their
assets or properties.
(Doc. 48, at 4, ¶ 9.) Further, it cites Paragraph IX.F. of the Plan, which states that
holders of Claims and Causes of Action that are discharged or released are
permanently enjoined form among other things:
(1) commencing or continuing in any manner any action
or other proceeding of any kind on account of or in
connection with or with respect to any such claims or
interests; (2) enforcing, attaching, collecting, or
recovering by any manner or means any judgment,
award, decree, or order against such Entities on account
of or in connection with or with respect to any such
claims or interests; (3) creating, perfecting, or enforcing
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any encumbrance of any kind against such Entities or the
property or the estates of such Entities on account of or in
connection with or with respect to any such claims or
interests; (4) asserting any right of setoff, subrogation, or
recoupment of any kind against any obligation due from
such Entities or against the property of such Entities on
account of or in connection with or with respect to any
such claims or interests unless such Holder has Filed a
motion requesting the right to perform such setoff on or
before the Effective Date, and notwithstanding an
indication of a claim or interest or otherwise that such
Holder asserts, has, or intends to preserve any right of
setoff pursuant to applicable law or otherwise; and (5)
commencing or continuing in any manner any action or
other proceeding of any kind on account of or in
connection with or with respect to any such claims or
interests released or settled pursuant to the Plan.
(Doc. 48 at 5, ¶ 10).
Wellpath asserts that pursuant to Article IX.F of the Plan, “any holders of
Claims or Causes of Action against the Debtors or against Non-Debtor Defendants
subject to the Third Party Release who did not affirmatively opt out of the Third
Party Release (the ‘Enjoined Parties’) are permanently enjoined from taking any
action, including the commencement, further prosecution of, or collection efforts,
against the Debtors or Non-Debtor Defendants (the ‘Injunction’).” (Id. at ¶ 11).4
4 Wellpath separately notes that “Debtors” include “Wellpath Holdings, Inc.;
Physicians Network Association, Inc.; Alpine CA Behavioral Health HoldCo, LLC;
CCS-CMGC Intermediate Holdings 2, Inc.; CCS-CMGC Intermediate Holdings,
Inc.; CHC Companies, LLC; Conmed Healthcare Management, LLC; Correct Care
Holdings, LLC; Correctional Healthcare Companies, LLC; Correctional Healthcare
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Holding Company, LLC; HCS Correctional Management, LLC; Healthcare
Professionals, LLC; Jessamine Healthcare, LLC; Justice Served Health Holdings,
LLC; Missouri JSH Holdco; Missouri JSH Manager, Inc.; Perimeter Hill RPA,
LLC; Wellpath CFMG, Inc.; Wellpath Community Care Holdings, LLC; Wellpath
Community Care Management, LLC; Wellpath Community Care Centers of
Virginia, LLC; Wellpath Education, LLC; Wellpath Group Holdings, LLC;
Wellpath Hospital Holding Company, LLC; Wellpath LLC; Wellpath Management,
Inc.; Wellpath SF Holdco, LLC; WHC, LLC; WPMed, LLC; Zenova Management,
LLC; and Zenova Telehealth, LLC.” (Doc. 48 at 3, n.7).
Wellpath does not define “Third Party Release.” However, the Plan is attached in
full to the Confirmation Order, which was filed to this Docket as Document 44-1.
The Plan discusses “Releases by the Releasing Parties.” (Doc. 44-1 at 132).
“Releasing Parties” is defined in the Plan to include “(k) each Holder of a Claim
entitled to vote to accept or reject the Plan that does not affirmatively elect to opt
out of being a Releasing Party by (i) checking the appropriate box on such
Holder’s timely and properly submitted Ballot to indicate that such Holder elects to
opt out of the Plan’s release provisions or (ii) timely filing an objection to the
Plan’s release provisions,” and “(m) each Holder of a Claim or Interest in a
nonvoting Class, or is otherwise not entitled to vote on the Plan, that does not
affirmatively elect to opt out of being a Releasing Party by (i) checking the
appropriate box on such Holder’s timely and properly submitted Opt-Out Form to
indicate that such Holder elects to opt out of the Plan’s release provision or (ii)
timely filing an objection to the Plan’s release provisions.” (Doc. 44-1 at 82).
“Holder” is separately defined as “an Entity holding a Claim against or an Interest
in a Debtor, as applicable.” (Id. at 74). “Claim” means “any claim, as defined in
section 101(5) of the Bankruptcy Code, against any of the Debtors or any of the
Estates.” (Id. at 66). Pursuant to Section 101(5) of the Bankruptcy Code, a
“claim” is “right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured;” or “right to an equitable
remedy for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured, or unsecured.” 11
U.S.C.A. § 101.
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Co-Defendant Dr. Cole filed a “Brief in Opposition to Defendant Wellpath’s
Motion to Dismiss.” (Doc. 50). However, the title of this filing is a misnomer in
that Dr. Cole does not actually oppose Wellpath’s dismissal. (See id. at 2) (Dr.
Cole stating: “Plaintiff’s claims against Defendant Wellpath are properly
discharged in bankruptcy”). Rather, Dr. Cole’s “opposition,” is a request for
affirmative relief, which we will address infra. Further, Plaintiff has not filed an
opposition to Wellpath’s Motion to Dismiss, and so, we treat Wellpath’s Motion to
Dismiss as unopposed. See Hollister v. U.S. Postal Service, 142 F. App’x 576, 577
(3d Cir. 2005) (citation omitted) (“if a party represented by counsel fails to oppose
a motion to dismiss, the district court may treat the motion as unopposed and
subject to dismissal without a merits analysis.”); see also M.D. Pa. LR 7.6 (“Any
party opposing any motion, other than a motion for summary judgment, shall file a
brief in opposition . . . . Any party who fails to comply with this rule shall be
deemed not to oppose such motion”).
We take judicial notice of the bankruptcy matter in the Southern District of
Texas docketed at 24-90533. See Tang v. Citig Capital Holdings Ltd., No. 21-
17998-JXN-AME, 2022 WL 6036573 (D.N.J. Oct. 7, 2022) (taking judicial notice
of a bankruptcy case and “relevant items filed on the docket of that case); see also
Liberty Int'l Underwriters Canada v. Scottsdale Ins. Co., 955 F. Supp. 2d 317, 325
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(D.N.J. 2013) (holding the court may take judicial notice of matters of public
record, including “proceedings in other courts that relate to matters at issue.”);
Tang v. Citic Cap. Holdings Ltd., No. CV 21-17008-JXN-AME, 2022 WL
6036573, at *3 (D.N.J. Oct. 7, 2022).
Because Wellpath’s Motion for dismissal is not opposed and because
Plaintiff’s claim against Wellpath appears to be subject to the Confirmation Order
entered in the Bankruptcy Court, we recommend that the Motion to Dismiss be
granted pursuant to Fed. R. Civ. P. 12(b)(1).5 See Freeman v. Kmart Corp., No.
06-2413, 2007 WL 1576463, at *3–5 (E.D. Pa. May 30, 2007) (finding the court
lacked jurisdiction over defendant pursuant to confirmation order entered by
bankruptcy court); see also Hunt v. Wellpath, No. 1:24-CV-01630, 2025 WL
3113632, at *1 (M.D. Pa. Aug. 7, 2025) (“[b]ecause there is no dispute that
Wellpath has been discharged in bankruptcy and [plaintiff’s] claims are barred by
5 We note that other courts have similarly granted motions to dismiss filed by
Wellpath pursuant to the orders of the Bankruptcy Court in the Southern District of
Texas. See McGinnis v. Hill, No. 24-73E, 2025 WL 2469200, at *1 (W.D. Pa. July
25, 2025); Morgan v. Wellpath, No. 23-cv-972-pp, 2025 WL 2480416 (E.D. Wis.
Aug. 28, 2025) (“[b]ecause the bankruptcy court has approved the plan and
because plaintiff has not opposed Wellpath’s motion to dismiss, the court will grant
Wellpath’s motion and will dismiss Wellpath as a defendant from this case.”);
Thomas v. McFadden, No. 3:24-CV-00716, 2025 WL 2711603, *3 (W.D. N.C.
Sept. 23, 2025).
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the injunction in the bankruptcy plan, we recommend that the court grant
Wellpath’s motion . . . [and] dismiss this action.”).6
B. Relief Sought by Defendant Dr. Cole
As noted supra, Dr. Cole does not oppose Wellpath’s Motion to Dismiss.
(Doc. 50 at 2). Rather, Dr. Cole seeks an Order “requiring the inclusion of
Defendant Wellpath on the verdict slip in the event this matter proceeds to trial”
and compelling “Wellpath to cooperate with the remaining Defendants for the
purposes of completing discovery and/or producing any representatives, agents, or
employees at the time of trial.” (Id. at 7).
We will recommend that these requests be denied. First, we observe that Dr.
Cole’s requests are not procedurally proper. Pursuant to Fed. R. Civ P. 7(b), any
“request for a court order must be made by motion.” See also Citizen Developer,
LLC v. System Soft Technologies, Inc., No. 1:23-cv-00564, 2025 WL 1372837, at
6 Because we recommend that Plaintiff’s claim against Defendant Wellpath be
dismissed pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction, we need not
consider Defendant’s alternative argument for judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c). See Scanlin, 2007 WL 141014, at *2 (if court grants
dismissal for lack of jurisdiction, it need not consider other objections and
defenses, which become moot); see also Hunt, 2025 WL 3113632, *1 (court
recommended granting motion to dismiss and did not address motion for judgment
on the pleadings).
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*11, n.10 (M.D. Pa. May 12, 2025) (“A request for affirmative relief or court order
must be in a motion, not an opposing brief.”).
Second, these requests are premature. Dr. Cole has requested an order that
Wellpath be placed on the verdict slip in the event this matter proceeds to trial
pursuant to Pennsylvania’s Fair Share Act. (Doc. 50 at 2–3). The Fair Share Act
abolished joint and several liability in most tort cases, but the statute enumerates
several exceptions to the general rule. Rhoads Indus., Inc. v. Shoreline
Foundation, Inc., Nos. 15-921, 17-266, 2022 WL 612662, at *2 (E.D. Pa. Mar. 1,
2022) (citing Robinson v. Mercy Fitzgerald Hosp., No. 3498 EDA 2019, 2021 WL
2826691, at *2, n.4 (Pa. Super. Ct. July 7, 2021)); see also 42 Pa. Cons. Stat. §
7102, et seq. (2011). One of the exceptions is “akin to the common law ‘empty
chair rule,’ in that it ‘[expands] the scope of persons to be submitted to the
factfinder for apportionment of liability’ by allowing the allocation of
responsibility to a settled nonparty.” Rhoads Indus., Inc., 2022 WL 612662, at *2
(quoting Timmonds v. AGCO Corp., No. 2916 EDA 2019, 2021 WL 1351868, at
*38 (Pa. Super. Ct. April 12, 2021)). This also applies to bankruptcy trusts that are
joined as third-party defendants or that have entered into a release with a plaintiff.
Roverano v. John Crane, Inc., 226 A.3d 526, 546 (Pa. 2020). While the statute
allows for apportionment of liability to a released party, “there is no absolute right
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to have settling co-defendants placed on a verdict slip[.]” Rhoads Indus., Inc.,
2022 WL 612662, at *3 (quoting Hyrcza v. W. Penn Allegheny Health Sys., Inc.,
978 A.2d 961, 969 (Pa. Super. 2009). “Rather, a trial court must determine
whether any evidence of a settling co-defendant’s liability exists before deciding
whether to put that co-defendant on a jury verdict slip.” Rapchak v. Haldex Brake
Prod. Corp., No. 2:13-CV-1307, 2016 WL 3752908, at *4 (W.D. Pa. July 14,
2016) (quotation omitted) (explaining that evaluation of whether settling
codefendant should be on verdict sheet was “impossible” because evidence had not
yet been introduced at trial). The evidence must be sufficient to support a prima
facie case against a settled co-defendant, while a “profound lack of evidence”
against a settled co-defendant will preclude the inclusion of that party in the final
apportionment of damages. Hyrcza, 978 A.2d at 968 (quoting Herbert v. Parkview
Hosp., 854 A.2d 1285, 1289 (Pa. Super. Ct. 2004)); see also Piazza v. Young, No.
4:19-CV-00180, 2024 WL 898116, at *2-3 (M.D. Pa. Mar. 1, 2024); Roverano,
226 A.3d at 546 (bankruptcy trusts that have entered into a release with plaintiff
may be included on verdict sheet upon submission of “appropriate requests and
proofs.”).
Thus, Dr. Cole’s request for an Order placing Wellpath on the verdict sheet
is premature. The trial court may consider such a request only after determining
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whether evidence of Wellpath’s liability has been adduced at trial. We therefore
recommend that Dr. Cole’s request be denied.
Defendant Dr. Cole’s request for an Order compelling Wellpath to cooperate
in discovery is similarly premature. Courts are prohibited from issuing advisory
opinions on hypothetical arguments that a party believes may be present at some
later state of litigation. See Wonderland Nurserygoods Co., Ltd. v. Thorley
Industries, LLC, No. 12-196, 2013 WL 2471801, at *3 (W.D. Pa. June 7, 2013); In
re Maxim Integrated Products, Inc., Misc. No. 12-244, 2013 WL 1909403, at *4
(W.D. Pa. May 8, 2013) (“The more troubling aspect of the [m]oving [p]arties’
motions is that they seek essentially an advisory opinion . . .”).
Dr. Cole has not indicated that Wellpath has failed to comply with any
discovery requests. Accordingly, Dr. Cole is seeking an advisory opinion based
upon a hypothetical concern that Wellpath may not cooperate with discovery
requests at some point in the future. This request is premature and we are
prohibited from issuing such orders.7 Accordingly, we likewise recommend that
this request be denied.
7 However, we also note that Dr. Cole has not cited any authority for the
proposition that a defendant dismissed from an action has a continuing obligation
to participate in discovery as a party. We are aware of no such authority. Thus, to
the extent Wellpath is dismissed from this action, we remind Dr. Cole that
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IV. 	RECOMMENDATION
For the reasons set forth herein, it is respectfully recommended that:
1. Defendant Wellpath’s Motion to Dismiss (Doc. 48) be granted;
2. Defendant Dr. Cole’s request for an Order requiring Defendant Wellpath
to be placed on the verdict slip and that Wellpath be compelled to
cooperate with the remaining Defendants in the completion of discovery
be denied without prejudice to reassert through a proper motion at the
appropriate time.
DATE: December 3, 2025 	s/ Leo A. Latella
LEO A. LATELLA
United States Magistrate Judge
procedures exist for seeking discovery from non-parties.
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EUGENE MILLER,
Plaintiff,
v.
WELLPATH, et al.,
Defendants.
CIVIL ACTION NO. 4:23-cv-00282
(WILSON, J.)
(LATELLA, M.J.)
NOTICE IS HEREBY GIVEN that the undersigned has entered the
foregoing Report and Recommendation dated December 3, 2025.
Any party may obtain a review of the Report and Recommendation pursuant
to Rule 72.3, which provides:
Any party may object to a magistrate judge’s proposed
findings, recommendations or report addressing a motion
or matter described in 28 U.S.C. § 636(b)(1)(B) or
making a recommendation for the disposition of a
prisoner case or a habeas corpus petition within fourteen
(14) days after being served with a copy thereof. Such
party shall file with the clerk of court, and serve on the
magistrate judge and all parties, written objections which
shall specifically identify the portions of the proposed
findings, recommendations or report to which objection
is made and the basis for such objections. The briefing
requirements set forth in Local Rule 72.2 shall apply. A
judge shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made and may
accept, reject, or modify, in whole or in part, the findings
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or recommendations made by the magistrate judge. The
judge, however, need conduct a new hearing only in his
or her discretion or where required by law, and may
consider the record developed before the magistrate
judge, making his or her own determination on the basis
of that record. The judge may also receive further
evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.
Dated: December 3, 2025 	s/ Leo A. Latella
LEO A. LATELLA
United States Magistrate Judge
Case 4:23-cv-00282-JPW-LAL Document 52 Filed 12/03/25 Page 22 of 22