Rusco et al v. Sutter Health

Filing 26

ORDER by Judge Hamilton granting 16 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 11/15/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES ex rel LISA RUSCO,
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Plaintiff(s),

No. C 11-2522 PJH

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v.

ORDER GRANTING MOTION TO
DISMISS

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SUTTER HEALTH,
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Defendant(s).
___________________________________/
Defendant Sutter Health’s motion to dismiss came on for hearing before this court on

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November 14, 2012. Plaintiff-relator Lisa Rusco (“plaintiff”) appeared through her counsel,

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Matthew Carlson. Defendant Sutter Heath (“defendant”) appeared through its counsel,

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Katherine Lauer. Having read the papers filed in conjunction with the motion and carefully

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considered the arguments and the relevant legal authority, and good cause appearing, the

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court hereby GRANTS defendant’s motion to dismiss plaintiff’s complaint under Rule

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12(b)(6), Rule 9(b), and Rule 12(b)(5), for the reasons stated at the hearing and as follows.

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In her opposition to the motion, plaintiff made clear that defendant’s alleged

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violations of the False Claims Act (“FCA”) are based on an “express certification” theory;

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specifically, that defendant made false certifications on certain CMS-1500 reimbursement

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forms sent to the government. However, plaintiff’s complaint contains no reference to this

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theory or to the CMS-1500 form, and instead bases its FCA allegations solely on

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defendant’s alleged violations of California state law. Plaintiff now concedes that these

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alleged state law violations do not create FCA liability, and indicates that she now intends

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to proceed solely under the “express certification” theory. In its current state, the complaint

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does not state a claim under the “express certification” theory, and is thus DISMISSED

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under Rule 12(b)(6). Plaintiff shall be granted leave to amend, except as to her third cause

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of action for “conspiracy,” which she agrees to dismiss with prejudice.

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The court finds two additional bases for dismissal. First, because plaintiff’s

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complaint contains no mention of the “express certification” theory, it necessarily cannot

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meet the heightened pleading standard of Rule 9(b), and is thus dismissed for that reason

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as well. Also, plaintiff has offered no explanation for why she waited over one year after

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the complaint was unsealed to effect service on defendant. Thus, Rule 12(b)(5) provides

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independent grounds for dismissal of the complaint.

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Plaintiff shall have until December 12, 2012 to file an amended complaint. No new

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claims or parties may be added without leave of court. After the complaint is served,

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defendant shall have 28 days to answer or otherwise respond to the complaint.

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Finally, because the court did not find it necessary to consider the materials in
defendant’s request for judicial notice, the request is hereby DENIED.

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IT IS SO ORDERED.

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Dated: November 15, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge