Clark et al v. Allegiance Specialty Hospital et al

Filing 35

ORDER granting 27 Motion for partial dismissal. Count II of the plaintiffs' complaint is dismissed. The motion to amend embedded in document no. 30 is denied. Signed by Judge D. P. Marshall Jr. on 12/29/11. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

UNITED STATES OF AMERICA
ex rei. AMY CLARK, CYNDIE HOBBS,
and BOBBI PHILLIPS

v.

PLAINTIFFS

No.4:10-cv-711-DPM

ALLEGIANCE SPECIALTY HOSPITAL
and DR. VICTOR WILLIAMS

DEFENDANTS

ORDER
Allegiance Specialty Hospital's motion for partial dismissal, Document
No. 27, is granted. Count II of the plaintiffs' complaint is brought under the

False Claims Act, 31 U.S.C. § 3729(a), and alleges that the defendants
submitted false Medicaid or Medicare claims to the government for payment
of services that did not occur. Because FCA claims are grounded in fraud,
however, they "must satisfy Rule 9(b)'s heightened pleading requirement"
and" state with particularity the circumstances constituting fraud or mistake."
United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822 (8th Cir.

2009) (quotation omitted). Count II of the complaint and its supporting facts
fall short of this heightened standard. In particular, the complaint simply

does not allege the "who, what, where, when, and how" of the alleged
fraudulent activity. United States ex rei. Costner v. United States, 317 F.3d 883,
888 (8th Cir. 2003).
The plaintiff's motion to amend, incorporated in their response,
Document No. 30, is denied as futile.

Like the original complaint, the

additional assertions in Count II of the proposed amended complaint still fail
to allege that any fraudulent claim for payment was ever submitted to the
government. There is similarly no factual basis to discern who may have
submitted such a claim, how it was submitted, or whether the government
ever actually paid a false claim on account of the defendants' activity. The
amended complaint therefore would not survive a motion to dismiss. Owen

v. General Motors Corp., 533 F.3d 913, 921 (8th Cir. 2008).
Allegiance Specialty Hospital's motion for partial dismissal, Document
No. 27, is granted. Count II of the plaintiffs' complaint is dismissed. The

motion to amend embedded in Document No. 30 is denied.
So Ordered.

29 December 2011
-2­