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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118201
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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The default is still lifted. The following is from plaintiffs

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The default is still lifted.

The following is from plaintiff's attorney who attended the hearing. It does explain why the defendant failed to respond. But anyway, I don't think the defendant intends to settle. Collecting evidence is the most important. In the meantime, the plaintiff is waiting for the respond from defendant about the complaint (i.e. breach of contract and fraud). Does defendant's response have to either admit or deny the fact pointed out by the plaintiff (i.e. he didn't practice but billed Medicaid)? If he has to, then the response should be countable if he failed to tell the truth?
Does the mediator's role important at this stage?

1. The service was done properly – particularly the Warning Order. There was never any question about that. There was always a question of the effect of Warning Order service. In Kentucky, it is regarded as “constructive” service not “actual” service, because actual notice is not required. Under our rule, a party “constructively” served can still defend up to the time of judgment, and even then is entitled to move to set aside the default. Default judgments are not favored in our judicial opinions - because they are not on the “merits” -- and for that reason trial judges have complete discretion to lift a default after it its entered.

2. Because of that, our Judge, although recognizing that Denendant did not respond to any attempts to serve him, nor to the Judge’s own order giving him an additional 20 days to respond, granted his motion for relief and lifted his default. His lawyer said he would file an Answer to the lawsuit promptly. I told the lawyer we would entertain some settlement overture, and also told him Defendant may have a Medicaid problem.

3. The next step is discovery (collecting evidence) and mediation – a formal settlement conference facilitated by a trained mediator. The Judge’s rules require us to do both before he gives us a trial date.
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The defendant now has to answer the suit, admitting or denying the allegations. As I told you courts disfavor defaults, which is what your attorney explained by what you posted above.

What you need to do now is send out discovery requests. You need to send interrogatories (questions asking for information to lead you to evidence and witnesses) and also a request for production of documents forcing him to produce his documentation.

Once discovery is complete then your case can proceed through to the court for a trial if he will not settle. The mediator would work only if the other party agrees to mediation.

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Customer: replied 4 years ago.

Does the discovery request go to defendant's attorney for whatever they suppose to know? Also, does plaintiff's attorney need to issue sopena to KY Medicaid to cross check billing records? Also, does the sopena has to be issued to get witness (ie. doctors, staff)? The judge will not set up another hearing until mediation is tried and/or evidence is collected.

Defendant's attorney said they will answer the complaint promptly. My attorney said the defendant normally denies everything according to his experience. Does the defendant bear any consequence if he does not admit fact? I guess the plaintiff has to move fast to find out the possibility of mediation and collect evidence at the same time.

Thank you for your response.

The discovery goes to the attorney, but he has to consult with his client to obtain all for the information. Yes, the attorney has to issue a subpoena to Medicaid to get information to cross check the records.

A subpoena is also needed for witnesses as well. The judge will not set the case for trial until all discovery is completed and any mediation is completed.

Defendants generally deny all facts in a suit, that is part of the game and you bear the burden of proving your allegations, so you need to gather evidence and prove your case.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118201
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and other Legal Specialists are ready to help you
Customer: replied 4 years ago.
if the defendant deny all facts, does it mean he has no intention to settle? Or this is generally how defendants respond regardless there is settlement or not.Since the plaintiff has the Medicaid records and names of witnesses, it should be good enough to prove the defendant billed Medicaid but he didn't practice. One more thing is that the plaintiff may need a representative from Medicaid, or a Medicaid program policy to state that defendant's billing activity is in violation of Medicaid policy. Also, does 10 days a reasonable timeline for defendant and plaintiff to reach possible settlement. If not, the meditation fails. How soon the plaintiff can move this forward?
Thank you for your response.

No, just because they deny everything does not mean that they would not be willing to settle. Frequently, defendants deny claims in lawsuits even when they have no evidence to support those denials or they eventually will settle.

Generally, 10 days is not sufficient for a defendant to settle. They have 20 days to answer the complaint and then they get 30 days to answer the discovery. The mediation usually will not take place for a couple of months before you will know if you can settle or have to go to court for a trial.

Yes you would need a medicaid representative to testify as to the policy and you can send them a subpoena to testify or to take a deposition from them.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 118201
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and other Legal Specialists are ready to help you