United States of America v. Diagnostic Physicians Group, P.C. et al

Filing 304

ORDER ADOPTING 180 REPORT AND RECOMMENDATION re 59 MOTION to Dismiss United States' Complaint in Intervention filed by Infirmary Medical Clinics, P.C., Infirmary Health System, Inc., IMC-Diagnostic and Medical, P.C., IMC -Northside Clinic, P.C. as follows: 1) The motion is granted as to all claims against Defendants Infirmary Medical Clinics,P.C. and Infirmary Health Systems, P.C. as contained in Counts One through Five; and2) The motion is granted as to Count Three against Defendants IMC-Diagnostic andMedical Clinic, P.C. and IMC-Northside, P.C.; and3) The motion is denied as to all remaining claims against IMC-Diagnostic and MedicalClinic, P.C. and IMC-Northside, P.C. as contained in Counts One, Two, Four and Five. The request by the United States to amend the complaint is denied. Signed by Judge Kristi K. DuBose on 5/22/2014. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA
ex rel., Christian M. Heesch,

)
)
)
Plaintiff,
)
)
vs.
) CIVIL ACTION NO. 11-0364-KD-B
)
DIAGNOSTIC PHYSICIANS GROUP, P.C.; )
IMC-DIAGNOSTIC AND MEDICAL, P.C.; )
IMC-NORTHSIDE CLINIC, P.C.;
)
INFIRMARY MEDICAL CLINICS, P.C.; & )
INFIRMARY HEALTH SYSTEMS, INC.,
)
)
Defendants.
)
ORDER
This action is before the Court on the motion to dismiss the United States’ complaint in
intervention filed by Defendants IMC Diagnostic and Medical Clinic, P.C., IMC-Northside Clinic,
P.C., Infirmary Medical Clinics, P.C., and Infirmary Health System, Inc. (the Infirmary
Defendants) and brief in support (docs. 59, 60), the United States’ response (doc. 70), the
Infirmary Defendants’ reply (doc. 77), the Report and Recommendation entered by U. S.
Magistrate Judge Sonja F. Bivins (doc. 180), the United States’ objection (doc. 206) and the
Infirmary Defendants’ response to the objection (doc. 274).
After due and proper consideration of the issues raised and a de novo determination of
those portions of the Recommendation to which objection is made, the United States’ objections
are overruled and the Recommendation of the Magistrate Judge made under 28 U.S.C. §
636(b)(1)(B) and dated April 11, 2014 (doc. 180) is adopted as the opinion of this Court.
Further, the United States requests leave to amend its complaint pursuant to Fed. R. Civ. P.

15(a)(2) to cure any defects should the Court overrule the objections (doc. 206, p. 2, 12-13). The
United States asserts that fairness dictates that it should be given at least one chance to correct any
pleading deficiencies. The request is denied. The United States has had almost three years to
properly investigate and assert its claims. Moreover, discovery will close June 10, 2014,
dispositive motions are due June 30, 2014, and the litigation is four months from a firm, specially
set jury selection and trial in September 2014 (doc. 86, Rule 16(b) Scheduling Order).
Accordingly, the Infirmary Defendants’ motion to dismiss is granted in part and denied in
part, as follows:
1) The motion is granted as to all claims against Defendants Infirmary Medical Clinics,
P.C. and Infirmary Health Systems, P.C. as contained in Counts One through Five; and
2) The motion is granted as to Count Three against Defendants IMC-Diagnostic and
Medical Clinic, P.C. and IMC-Northside, P.C.; and
3) The motion is denied as to all remaining claims against IMC-Diagnostic and Medical
Clinic, P.C. and IMC-Northside, P.C. as contained in Counts One, Two, Four and Five.
DONE and ORDERED this the 22nd day of May 2014.

s / Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE