Case 2:16-cv-13040-AC-APP ECF No. 357 filed 11/12/18

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
State Farm Mutual Automobile Insurance
Company,
Plaintiff,

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v.
Elite Health Centers Inc.,
Elite Chiropractic, P.C.,
Elite Rehabilitation, Inc.,
Midwest Medical Associates, Inc.,
Pure Rehabilitation, Inc.,
Derek L Bittner D.C., P .C.,
Mark A. Radom,
Derek Lawrence Bittner, D.C.,
Ryan Matthew Lukowski, D.C.,
Michael P. Draplin, D.C.,
Noel H. Upfall, D.O.,
Mark J. Juska, M.D.,
Superior Diagnostic, Inc.,
Chintan Desai, M.D.,
Michael J. Paley, M.D.,
Dearborn Center for Physical Therapy, LLC,
Michigan Center for Physical Therapy, Inc., and
Jayson Rosett,
Defendants.

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) Hon. A vern Cohn
) Mag. Anthony Patti

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DEFENDANT JAYSON ROSETT'S
MOTION FOR A LIMITED STAY OF PROCEEDINGS
NOW COMES Defendant Jayson Rosett and moves this Court to grant this
Motion for a Limited Stay of Proceedings. In support of said Motion, Mr. Rosett
relies upon the Brief in Support of this Motion.

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Respectfully submitted,
LAW OFFICES OF BEN M. GONEK PLLC

Is/ Ben M Gonek
BenM. Gonek
500 Griswold Street, Suite 2450
Detroit, MI 48226
Tel: (313) 963-3377
ben@goneklaw.com
Attorney for Defendants Dearborn Center for Physical
Therapy, LLC, Michigan Center for Physical Therapy,
Inc., and Jayson Rosett

Dated: November 12, 2018

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
State Farm Mutual Automobile Insurance
Company,
Plaintiff,

v.
Elite Health Centers Inc.,
Elite Chiropractic, P .C.,
Elite Rehabilitation, Inc.,
Midwest Medical Associates, Inc.,
Pure Rehabilitation, Inc.,
Derek L Bittner D.C., P.C.,
Mark A. Radom,
Derek Lawrence Bittner, D.C.,
Ryan Matthew Lukowski, D.C.,
Michael P. Draplin, D.C.,
Noel H. Upfall, D.O.,
Mark J. Juska, M.D.,
Superior Diagnostic, Inc.,
Chintan Desai, M.D.,
Michael J. Paley, M.D.,
Dearborn Center for Physical Therapy, LLC,
Michigan Center for Physical Therapy, Inc., and
Jayson Rosett,
Defendants.

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) Case No. 16-cv-13040
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) Hon. Avern Cohn
) Mag. Anthony Patti
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DEFENDANT JAYSON ROSETT'S
BRIEF IN SUPPORT OF MOTION FOR A LIMITED STAY OF
PROCEEDINGS

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INTRODUCTION

Before the Court is Jayson Rosett's ("Jay Rosett") Motion for a Limited Stay
of Proceedings due to imminent pending criminal charges which are going to be
lodged against Mark Radom, Derek Bitner, various nonparties to this litigation and
himself. The charges are for alleged criminal conduct which is currently the
subject matter in the instant case.
After Co-Defendant Mark Radom learned Jay Rosett was cooperating in a
Federal Grand Jury Investigation, Mark Radom noticed up the deposition for Jay
Rosett on November 15,2018. Jay Rosett was scheduled to be arraigned on
November 7, 2018 on criminal charges that stem from the exact same conduct that
Plaintiff, State Farm, is litigating in the instant case. After Mr. Rosett was
interviewed by Pretrial Services for the United States District Court Eastern
District of Michigan on November 5, 2018, Mr. Rosett learned that evening the
Government was postponing his arraignment.
The Government plans to proceed by indictment against Mark Radom,
Derek Bittner, Jayson Rosett, and several non-parties 1 to this litigation at the same
time and in the imminent future. Jay Rosett has worked out all the material terms

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Although there are several non-parties that are going to be named in the upcoming indictment that are not
parties to the instant litigation, those parties keep coming up throughout the factual development of the instant
case

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of a proposed Rule 11 Plea Agreement and expects to enter a guilty plea sometime
after his upcoming indictment.
Jay Rosett is seeking a limited Stay of Proceedings in this case. Rosett is
simply asking the Court to grant a Stay of Proceedings to his deposition for ninety
days. He is not seeking a Stay of Proceedings to all discovery, any other
depositions, and/or any written discovery whatsoever.
Given the factors this Court set out by this Court in another State Farm case,
it is clear Jay Rosett is entitled to a limited stay. First, the factual scenarios in both
the pending case and the criminal investigation completely overlap2 • The instant
case is a complete subset of the subject matter of the upcoming charges. Second,
none of the parties would be prejudiced whatsoever. Numerous depositions are
scheduled over the next two months. No party would be prejudiced by a limited
stay where Jay Rosett's deposition is scheduled at the end of the fact witness
depositions. Nor would such limited relief effect the Court's interest in resolving
this matter expeditiously, as such a limited stay would not delay the adjudication of
this matter.
As such, Jay Rosett respectfully requests that the instant motion be granted
and that his deposition be stayed for at least ninety days.

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• A similar case that has piggybacked from this case is Allstate v. Elite, et al, Case No 18-13484. The complaint in
that case has over 1000 allegations and is more factual specific that the instant motion.

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ARGUMENT
DEFENDANT ROSETT IS ENTITLED TO A LIMITED STAY OF
PROCEEDINGS.
As the Sixth Circuit has instructed, "District courts generally consider and
balance certain factors when determining whether a stay of civil proceedings is
appropriate in a given case:
1) The extent to which the issues in the criminal case overlap with those
presented in the civil case; 2) the status of the case, including whether the
defendants have been indicted; 3) the private interests of the plaintiffs in
proceeding expeditiously weighed against the prejudice to plaintiffs
caused by the delay; 4) the private interest of and burden on the
defendants; 5) the interests of the courts; and 6) the public interest.

F.T.C. v E.MA. Nationwide, Inc., 767 F.3d 611, 627 (6th Cir. 2014) (citing
Chao v. Fleming, 498 F. Supp. 2d 1034, 1037 (W.O. Mich 2007) (internal
quotation marks omitted). Moreover, the Court should consider "the extent to
which the defendant's [F]ifth [A]mendment rights are implicated." Keating v.

Office ofThrift Supervision, 45 F 3d. 322, 324 (9th Cir. 1995 )(quoting Federal
Sav. & Loan Ins. Corp. v Molinaro, 889 F.2d. 899,902 (9th Cir. 1989).
A. The First Factor-Factual Overlap

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1. State Farm's Case
The first factor the Court must consider is the factual overlap between the
two cases, i.e., the current State Farm case and the pending Federal Grand Jury
Investigation/Upcoming Indictment. As the Court will see below, the State Farm's
theory of the current case is a complete subset of the current Federal Grand Jury
Investigation.
State Farm alleges that Defendants Bittner, Radom, Rosett, a non-party
attorney and other nonparties entered a scheme around 2011 up until recently to
defraud them out of monies. State Farm alleges that Defendants Bittner and
Radom are at the center of the scheme to circumvent Michigan laws which limit
the circumstances under which a chiropractor and a layperson may own and
control entities providing medical services. State Farm alleges that Bittner, Radom
and a non-party attorney fraudulently incorporated several the Defendant entities in
the current case and have masked true ownership of those entities. Recent emails
produced by Bittner and Radom support this theory.
State Farm further alleges that the Radom, Bittner, Rosett, and a nonparty
attorney were involved in illegal solicitation of patients/clients for nonparty
attorney. Specifically, State Farm is proceeding on the theory that Defendant
Rosett, Radom, Bittner with the help of other non-parties bribed Detroit Police
Officers to obtain unofficial police reports. State Farm further alleges in the
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litigation that Jay Rosett set up the Accident Information Bureau {"AlB") initially
for soliciting individuals named in the unofficial accident reports as victims in
automobile collisions for medical treatment and legal representation. State Farm is
proceeding on the theory that the reports were then sent to the nonparty
attorney/law firm and Defendant Radom. The emails produced by Rosett, Radom,
and Bittner in this case give support for State Farm's theory in this regard.
State Farm also alleges that AlB was utilized to launder monies paid as
bribes by Bittner, Radom, the Elite Entities, and Rosett to officers for the unofficial
police reports. Specifically, State Farm alleges that the Elite entities routinely
wrote checks to AlB. AlB in turn wrote checks to another nonparty who in tum
put the monies in a mutually accessible bank account by the nonparty police
officer. Bank records in this case could be argued to support State Farm's theory
in this regard.
State Farm further alleges that after the patients were referred for treatment,
the Elite Defendants and the medical providers owned by the Elite entities had a
predetermined protocol for how patients were to be treated and that such treatment
was medically unnecessary. Emails recently produced from Radom, Bittner, and
nonparties also support this contention.
State Farm also alleges in this litigation that various providers paid
kickbacks to the non-party attorney/law firm for referrals. State Farm alleges that
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the Defendants paid these kickbacks directly to third parties at the nonparty
attorney/law firm's direction. State Farm also alleges the Defendants formed the
Elite entities to mask the true ownership of the entities and then pay monies
directly back or on behalf of the nonparty attorney/law firm.
Discovery in this case has shown that Rosett paid nearly ninety thousand
dollars to a contractor on behalf of a nonparty attorney/law firm. Discovery in the
form of photographs and text messages in this case also revealed that at Mark
Radom's direction a duffel bag of a significant amount of cash was delivered to a
nonparty's house. Discovery has also revealed that Radom has given a nonparty a
loan for over a million dollars payable in 45 years with no payments due in the
meantime.
Based on all the above-mentioned fraudulent acts and predetermined
protocol State Farm is alleging in this case that the Defendants perpetrated many
fraudulent acts for getting paid under Michigan's no-fault act.

2. The Government's Criminal Case.
The Government is alleging amongst other things in their pending Federal
Grand Jury Investigation that Defendants Radom, Bittner, Rosett, and various
nonparties conspired together to commit bribery/theft of government property by
paying police officers to obtain unofficial police reports which belonged to the
Government.
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The Government is also alleging in their pending Federal Grand Jury
Investigation that Defendants Radom, Bittner, Rosett and others violated various
income tax laws by 1) masking true ownership of corporate entities that are
Defendants in this case; 2) masking illegitimate business deductions paid to
nonparties in this case as legitimate business deductions; and 3) nonparties failing
to properly declare kickbacks and other monies paid on their behalf as income.
The facts the Government relies on in their investigation/allegations are the
same facts that State Farm relies on in support of their fraud claims. Additionally,
the two offenses that the Government proposes Jay Rosett plead guilty to are
Conspiring to Commit theft/bribery for government property; and Conspiracy to
Defraud the Department of Treasury. The proposed factual basis for the proposed
Rule 11 Plea Agreement contains the same facts that State Farm relies in support
of their fraud theory for the instant case.

B. The second factor: status of the criminal case.
It is true no indictment and/or information has been filed yet. Jay Rosett was
recently advised that the Government would be proceeding by indictment at the
same time it did against Radom, Bittner, and other various nonparties. Mr.
Rosett's best educated guess is that he will be arraigned mid-December. Mr.
Rosett has worked out all the material terms to a proposed Rule 11 Plea Agreement
and will probably enter the plea sometime after the arraignment.
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However, most importantly both the Government and Jay Rosett have
worked out all the material terms to the proposed Rule 11 Plea Agreement. Given
the posture of this case, the fact that an information/indictment has not been filed
yet should not weigh against a stay. See SEC v. Downs, 1993 U.S.Dist LEXIS
753).

C. The third and fourth factors; the interests of State Farm and Mr.
Rosett, and other Defendants.
In terms of State Farm, Jay Rosett does not believe they will oppose the
relief sought in this motion. State Farm will certainly not be prejudiced. As stated
above numerous depositions have been scheduled and delaying Jay Rosett' s
deposition ninety days will not prejudice anyone.
Jay Rosett will be prejudiced if the deposition proceeds. He will have to
determine if he is going to assert his Fifth Amendment rights and if he does it
could make his credibility as a witness in the upcoming criminal case suffer.
Additionally, if he does take the Fifth Amendment, Jay Rosett will have to contend
with the law surrounding adverse inferences.
If Jay Rosett testifies substantive at his upcoming deposition, he will
certainly be at a disadvantage. The alleged fraudulent/criminal conduct in this case
has transpired over the course of years. The Elite Defendants have withheld emails
for nearly eighteen months that should have been produced months ago. If and
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once produced, those emails will certainly help Jay Rosett recall significant factors
in this case that will make his deposition testimony more valuable to this case if he
testifies.
The legitimate interests of the other Defendants will not be harmed if this
limited stay is granted. Upon information and belief, Radom does not want Mr.
Rosett's deposition for defending the instant case. Radom wants Rosett's
deposition now for the upcoming criminal case. Radom either wants the
deposition for discovery of the upcoming criminal case or to use the deposition to
attempt to attack Mr. Rosett' s credibility in the upcoming criminal case. Both
reasons are impermissible and should not be allowed. See SEC v. Downs, supra.

D. The fifth and sixth factors: the interests of the Court and the public.
Mr. Rosett understands the Court has an interest in the expeditious
resolution of matters. Mr. Rosett has not delayed this proceeding. Mr. Rosett has
complied with producing the materials requested of him. The relief sought in this
case will not delay the resolution at all.
The public's interest also weighs in favor of a stay. The Government's
allegations against all the parties are very serious. If the allegations are true,
unsuspected solicited patients/clients have been subjected to unneeded medical
treatment and radiation. The public has a strong interest in making sure the

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Defendants do not use this civil case as gamesmanship for the upcoming criminal
case.

CONCLUSION
Wherefore for all of the above-mentioned reasons Defendant Jayson
Rosett respectfully requests that this Court grant the instant motion.

Respectfully submitted,

BenM Gonek
Ben M. Gonek (P43716)
Attorney for Jayson Rosett
500 Griswold, Suite 2450
Detroit, Michigan 48226
313.963.3377
Ben@goneklaw.com

Certificate of Service
Ben Gonek states that on November 12,2018 that he served via the Court's
electronic filing system all counsel with a copy of this Pleading. Signed Ben

Gonek

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