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

Filing 305

ORDER ADOPTING 190 REPORT AND RECOMMENDATION, granting in part and denying in part 57 MOTION to Dismiss filed by Diagnostic Physicians Group, P.C. as follows: 1) The motion is granted as to Count Three against Defendant Diagnostic PhysiciansGroup, P.C.; and2) The motion is denied as to all remaining claims against Defendant DiagnosticPhysicians Group, P.C. as contained in Counts One, Two, Four and Five. The United States' request for 30 days to amend 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 Defendant Diagnostic Physicians Group, P.C. (DPG) and brief in support
(docs. 57, 58), the United States’ response (doc. 69), DPG’s reply (doc. 78), the Report and
Recommendation entered by U. S. Magistrate Judge Sonja F. Bivins (doc. 190), and the United
States’ objection (doc. 211).
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 15, 2014 (doc. 190) is adopted as the opinion of this Court.
Further, the United States requests thirty days to amend its complaint pursuant to Fed. R.
Civ. P. 15(a)(2) to cure any defects and to add a conspiracy claim against all Defendants under the
False Claims Act based upon facts learned in discovery (doc. 211, p. 3-4). The United States

asserts that fairness dictates that it should be given at least one chance to correct any pleading
deficiencies. The United States’ 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, DPG’s motion to dismiss is granted in part and denied in part, as follows:
1) The motion is granted as to Count Three against Defendant Diagnostic Physicians
Group, P.C.; and
2) The motion is denied as to all remaining claims against Defendant Diagnostic
Physicians Group, 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