Michelle Ingle v. Janick, et al
Filing
27
ORDER denying as moot 6 the Defendants, Janick Medical Group and Dr. John J. Janick's Motion to Dismiss; denying 17 the Defendants, Janick Medical Group and Dr. John J. Janick's Amended Motion to Dismiss; denying 20 the Plaintiff, Michelle Ingle's Motion to Strike the Defendants, Janick Medical Group and Dr. John J. Janick's Amended Motion to Dismiss. Signed by Judge Sheri Polster Chappell on 11/17/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHELLE INGLE, an individual
Plaintiff,
v.
Case No: 2:14-cv-544-FtM-38DNF
JOHN JOSEPH JANICK, M.D., P.A.
and JOHN J. JANICK,
Defendants.
/
ORDER1
This matter comes before the Court on the Defendants, Janick Medical Group and
Dr. John J. Janick's Motion to Dismiss (Doc. #6) filed on September 18, 2014, and the
Defendants, Janick Medical Group (JMG) and Dr. John J. Janick's Amended Motion to
Dismiss (Doc. #17) filed on October 17, 2014. The Plaintiff filed a Motion to Strike or in
the Alternative a Response in Opposition to the Amended Motion to Dismiss (Doc. #20)
on October 20, 2014. The Motion is fully briefed and ripe for the Court’s review.
FACTS
Ingle worked for the Defendants for over thirty (30) years and was employed as
the Defendants’ office manager until April 3, 2014. (Doc. #1, ¶ 8). Ingle states that
beginning in 2013, the Defendants began using non-credentialed ultrasound technicians
1
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in order to trim costs. (Doc. #1, ¶¶10-11). Ingle asserts that she objected to the practice
because billing Medicare for ultrasound services that were performed by non-credentialed
personnel is illegal under federal and state law. (Doc. #1, ¶¶ 12-13).
In response to her objections to the Defendants’ practice of using non-credentialed
operators, Ingle claims the Defendants subjected her to a hostile work environment. (Doc.
#1, ¶¶ 14-15) Ingle states that beginning in January 2014, the hostile work environment
caused her to suffer serious medical and emotional complications which caused her to
take sick leave from work. (Doc. #1, ¶ 15). When Ingle was ready to return to work, she
states that she asked the Defendants to cease the alleged fraudulent Medicare practices.
(Doc. #1, ¶ 16). Ingle says she informed the Defendants that unless they stopped using
non-credentialed operators and then billing Medicare for the ultra-sounds she would not
return to work. (Doc. #1, ¶ 16). Ingle says she received no response to her inquiries
regarding when she could return to work. (Doc. #1, ¶ 17). Ingle states that since the
Defendants would not inform her of when she could return to work she was forced to
submit her resignation. (Doc. #1, ¶¶ 17-18). As such, Ingle alleges her resignation was
in fact a constructive discharged.
Ingle brought the instant case, alleging that JMG and Dr. Janick violated The False
Claims Act 31 U.S.C. § 3730(h) (Counts I and II) and that the Defendants violated
Florida’s False Claim Act Fla. Stat. § 68.088 (Counts III and IV). In addition, Ingle claimed
the Defendants violated Florida’s Private Whistleblower Act, Fla. Stat. § 448.102(3)
(Count V).
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STANDARD OF REVIEW
In deciding a motion to dismiss, the Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to the plaintiffs. Christopher v
Harbury, 536 U.S. 403, 406, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002). However,
dismissal for failure to state a claim upon which relief may be granted does not require
appearance, beyond a doubt. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561- 563, S.
Ct. 127 S. Ct. 1955, 167 L. Ed 2d 929 (2007) (aboragating Conley v. Gibson, 355 U.S.
41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the “grounds” of his “entitlement” to relief requires more than labels,
conclusions, and a formulaic recitation of the cause of actions elements. Bell Atlantic, 550
U.S. 544, 561- 563.
To satisfy the pleading requirements of Fed. R. Civ. P. 8, a complaint must simply
give the defendants fair notice of what the plaintiff’s claim is and the grounds upon which
it rests. Id. at 555; Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S. Ct. 992, 152
L. Ed. 2d 1 (2002). Although the pleading standard announced in Fed R. Civ. P. 8 does
not require “detailed factual allegations,” it does demand more than an unadorned, “thedefendant-unlawfully-harmed-me accusation.” Sinaltrainal v. Coca-Cola Co., 578 F. 3d
1252, 1268 (11th Cir. 2009) (citing Ascroft v. Iqbal, 556 U.S. 662, 78, 129 S. Ct. 1937,
1949, 173 L. Ed 2d 868 (2009). Furthermore, unwarranted deductions of fact in a
complaint are not admitted as true for the purpose of testing the sufficiency of the
allegations. Sinaltrainal, 578 F. 3d at 1268 (citing Aldana v. Del Monte Fresh Produce,
N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)). The facts as pled must state a claim
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for relief that is plausible on its face. Sinaltrainal, 578 F. 3d at 1268 (citing Iqbal, 129 S.
Ct. at 1950). Dismissal is warranted under Fed. R. Civ. P. 12(b)(6) if, assuming the truth
of the factual allegations of plaintiff’s complaint, there is a dispositive legal issue which
precludes relief. Simplexgrinnell, L.P. v. Ghiran, 2007 WL 2480352 (M.D. Fla. August 29,
2007) (citing Neitzke v. Williams, 490 U.S. 319, 326, 109 S. Ct. 1827, 104 L. Ed. 2d 338
(1989); Brown v. Crawford County, Georgia, 960 F.2d 1002, 1009-1010 (11th Cir. 1992).
DISCUSSION
The Defendants argue that Ingle cannot bring the Complaint on her own behalf
because qui tam actions filed by private citizens pursuant to 31 U.S.C. § 3730(b)(1) are
required to be brought in the name of the United States government with the private
individual as relator. The Defendants further argue that qui tam actions are to be brought
in camera and are to remain sealed for a minimum of sixty (60) days. Ingle did not follow
this procedure. Finally, the Defendants argue that Ingle’s Complaint does not contain
sufficient specifics to allege fraud under Fed. R. Civ. P. 9. Thus, the Defendants argue
the case should be dismissed because Ingle failed to comply with the statute.
Ingle argues the Motion to Dismiss should be stricken under Fed. R. Civ. P. 12(g)
because the Defendants filed an Amended Motion to Dismiss (Doc. #17) after reviewing
Ingles response in opposition to their original motion to dismiss (Doc. #6).
In the
alternative, Ingle states the Motion to Dismiss should be denied because she is bringing
the action pursuant to 31 U.S.C. § 3730(h) for retaliation. Thus, Ingle states the action
does not have to be brought by the United States with her as the relator because the FCA
provides relief for employees who have been discharged because of the possibility of
litigation under the Act.
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(1) Whether the Motion to Dismiss Should be Stricken
Ingle argues the Defendants’ Amended Motion to Dismiss must be stricken
because the Federal Rules of Civil Procedure do not allow a defendant to file a second
motion to dismiss without an Amended Complaint being filed by the Plaintiff. Ingle argues
any new defense which was not brought in the original motion but could have been
brought is waived if said defense(s) was available at the time the original motion was filed.
Federal Rule of Civil Procedure 12(g) states in pertinent part:
Except as provided in Rule 12(h)(2) or (3), a party that makes
a motion under this rule must not make another motion under
this rule raising a defense or objection that was available to
the party but omitted from its earlier motion.
Thus, Ingle argues that the Amended Motion must be stricken because it raises new
defenses which should have been available to the Defendants when they filed their first
motion to dismiss because her Complaint was never amended. Thus, Ingle states any
arguments set forth in the Amended Motion to Dismiss should be considered waived
under Rule 12(g).
Contrary to Ingle’s position, the plain language of Rule 12(g) protects the defense
of failure to state a claim from the risk of waiver. Rule 12(g) provides for certain waiver
exceptions found in Rule 12(h)(2). Under Rule 12(h)(2) lack of subject matter jurisdiction,
failure to state a claim (Rule 12(b)(6) motions), failure to join an indispensable party, and
failure to state a cognizable defense are all preserved even if omitted from an original
12(b) motion. Further, a defendant may amend a motion to dismiss pursuant to Fed. R.
Civ. P. 15(a). See Fed. R. Civ. P 12(h)(1)(B)(ii).
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In considering the amended motion, courts have examined whether the
amendments request was filed before the Rule 12 motion was heard, the time interval
between the original Rule 12 motion and the attempted correction, the moving party’s
good faith, and the likelihood that the omission was intentional and tactical, or merely
inadvertent. See Thomas v. Bank, 2009 WL 481349, *1 (M.D. Ga. February 25, 2009);
Steven Baicker-Mckee, William M. Janssen, and John B. Coor, Federal Civil Rules
Handbook 2014, 498-99 (West, 2014).
Here the Defendants filed their Amended Motion to Dismiss prior to the original
Motion being ruled on by the Court. The Amended Motion was filed approximately one
month after the original motion to dismiss. Based upon the filings the Court does not find
any evidence that the Amended Motion was filed to cause delay or as a tactical move to
slow the progress of the case. Additionally, as a general rule, the Court prefers to resolve
issues on the merits rather than on a technicality. Therefore, the Court will accept the
Amended Motion to Dismiss and rule on the merits of the Motion. The Motion to Strike is
denied.
(2) Whether Counts I and II State a Claim
In Counts I and II, Ingle states the Defendants retaliated against her because she
refused to partake in the alleged fraudulent billing of Medicare. The Defendants argue
that Ingle cannot bring an action pursuant to the FCA because she did not set forth any
facts which established a proper qui tam action under the FCA. Ingle argues that she did
not bring the case as a qui tam action but as a whistle blower action under § 3730(h). As
such Ingle contends that her Complaint is properly brought in her own name.
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The False Claims Act is the primary statute upon which the United States
Government relies on to recover losses caused by fraud perpetrated in the form of “false
claims.” McNutt ex rel. U.S. v. Haleyville Med. Supplies, Inc., 423 F.3d 1256, 1259 (11th
Cir. 2005) (citation omitted). To encourage employees to report violations of the Act, a
Whistleblower Provision grants employees the right to bring a retaliation claim against
their employer if they are discriminated against in their employment because of their
attempts to stop one (1) or more of the “false claims” enumerated under the Act. 31 U.S.C.
§ 3730(h) (2010). Employees enjoy this right even if they are not aware of the existence
of the False Claims Act at the time they attempt to stop the false claim. See Childree v.
UAP/GA CHEM, Inc., 92 F.3d 1140, 1146 (11th Cir. 1996), cert. denied, 519 U.S. 1148,
117 S. Ct. 1080, 137 L. Ed. 2d 216 (1997) (“[N]othing in the language of § 3730 suggests
that its protections are limited to those who were motivated by it.”).
In order to qualify for protection under the Whistleblower Provision, Ingle must
illustrate (1) that she was engaged in protected conduct and (2) that the Defendants
retaliated against her because of that protected conduct. Mack v. Augusta-Richmond
Cnty, Ga., 148 F. App’x 894, 897 (11th Cir. 2005) (citation omitted). With regard to the
first factor, absent an actual qui tam action by Ingle, the Court must evaluate whether
Ingle engaged in protected conducted under the “distinct possibility” standard. See U.S.
ex rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1303-04 (11th Cir. 2010) (evaluating
the plaintiff’s claim of engaging in protected conduct under the “distinct possibility”
standard when she did not file a qui tam action). Under this standard, Ingle’s conduct
constitutes “protected conduct” only if “there was at least ‘a distinct possibility’ of litigation
under the False Claims Act at the time of the employee’s actions.” Id. at 1303 (citing
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Childree, 92 F.3d at 1140). In applying this standard, the Eleventh Circuit concluded that
a plaintiff’s “allegations that she complained about the defendants’ ‘unlawful actions’ and
warned them that they were ‘incurring significant criminal and civil liability’ . . . [was]
sufficient, if proven, to support a reasonable conclusion that the defendants were aware
of the possibility of litigation under the False Claims Act.” Id. at 1304.
In this instance, Ingle specifically states that she complained to Dr. Janick about
the improper filing of Medicare claims on several occasions. (Doc. #1, ¶¶ 11-14). While
it does not appear that Ingle specifically warned the Defendants that they could incur
“significant criminal and civil liability,” she made clear to the Defendants that their actions
were contrary to state and federal law. (Doc. #1, ¶¶ 11-15). Further, Ingle stated that
before she could return to work, the Defendants must stop their alleged illegal Medicare
billing practices. (Doc. #1, ¶¶ 15-16). Thus it is reasonable to conclude, based on the
allegations in the Complaint, the Defendants were aware of the possibility of a claim being
brought against them under the False Claims Act.
The Eleventh Circuit has explicitly held: “If an employee's actions, as alleged in the
complaint, are sufficient to support a reasonable conclusion that the employer could have
feared being reported to the government for fraud or sued in a qui tam action by the
employee, then the complaint states a claim for retaliatory discharge under § 3730(h).”
Sanchez, 596 F.3d at 1304. Because Ingle’s allegations, taken as true, are sufficient to
support a reasonable conclusion that the Defendants could have feared being reported
for the illegal misuse of Medicare funding, Ingle’s Complaint sufficiently states a claim for
retaliatory discharge under § 3730(h). See, e.g., U.S. ex rel. Gatsiopoulos v. Kaplan
Career Inst., Case No. 09-21720-CIV, 2010 WL 5392668, at *7 (S.D. Fla. Dec. 22, 2010)
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(finding that the plaintiff stated a claim for retaliatory discharge under § 3730(h) under
similar facts).
While the Defendants argue that Ingle failed to plead the specifics of the alleged
fraud required by Fed. R. Civ. P. 9, Ingle is not alleging fraud. Instead, Ingle alleges the
Defendants retaliated against her because they reasonably believed that a False Claims
Act case could be brought against them.
As such, Ingle’s Complaint is sufficient.
Sanchez, 596 F.3d at 1304. In view of the Eleventh Circuit’s decision in Sanchez, the
Motion to Dismiss Counts I and II is denied.
(3) Florida State Law Claims Counts III, IV and V
The Defendants argue that since Ingle does not have a federal claim under the
False Claims Act, the Court does not have supplement jurisdiction over Counts III, IV and
V. Counts III and IV were brought pursuant to Florida’s False Claim Act, Fla. Stat. §
68.088. Count V was brought pursuant to Florida’s Whistle Blower Act, Fla. Stat. §
112.3187. However, contrary to the Defendants’ argument, Ingle has stated—at this point
in the case—a claim under the False Claims Act.
Since the Court does maintain
supplemental jurisdiction over Ingle’s State Law claims, the Court will review Counts III,
IV and V.
(a) Counts III and IV
Similar to the federal False Claims Act, Florida’s False Claim Act was enacted as
the primary statute upon which the Florida state government relies on to recover losses
caused by fraud perpetrated in the form of “false claims.” Fla. Stat. § 68.088. Indeed,
Florida’s False Claims Act also provides protection to “[a]ny employee who is . . .
demoted, suspended, threatened, harassed, or in any other manner discriminated against
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in the terms and conditions” of their employment because of their attempts to stop a “false
claim,” as enumerated under the Act. Id. But in contrast to the Whistleblower Provision
of the federal False Claims Act, the Anti-Retaliation Provision of Florida’s False Claims
Act does not, in and of itself, provide a basis for a cause of action. Instead, Florida’s AntiRetaliation Provision alerts employees that if they were discriminated against in violation
of the Provision, they have a cause of action under Florida’s Private Whistleblower Act,
Fla. Stat. § 112.3187.
Ingle states that she alerted the Defendants that their Medicare billing practices
were a violation of both federal and state law. Ingle alleges that after informing the
Defendants that she would not participate in the alleged fraudulent billing practices she
was demoted, harassed, and eventually terminated for her refusal to participate in the
Defendants’ Medicare billing practices. (Doc. #1, ¶¶ 87-92). Thus, Ingle has stated a
claim under Florida’s False Claim Act and the Motion to Dismiss Counts III and IV is
denied.
Count V
Regarding Florida’s Private Whistleblower Act, Ingle states that she informed the
Defendants that she could not participate in their alleged false Medicare billing practices
because she believed them to be illegal. (Doc. # 1, ¶ 89). As a result of her refusal to
participate in the Defendants’ alleged Medicare scheme, Ingle states she suffered a
negative employment action in the form of her constructive termination. (Doc. # 1, ¶ 8690).
Florida’s Private Whistleblower Act provides in pertinent part:
[a]n employer may not take any retaliatory personnel action
against an employee because the employee has: (3) Objected
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to, or refused to participate in, any activity, policy, or practice
of the employer which is in violation of a law, or regulation.
Fla. Stat. § 448.102(3). Since Ingle alleges she was terminated because she informed
the Defendants that their actions were illegal under the False Claim Act, she has
sufficiently stated a claim under Florida’s Private Whistleblower Act.
CONCLUSION
Taking Ingle’s allegations in her Complaint as true, a reasonable person could
conclude that the Defendants could have feared being reported for submitting fraudulent
Medicare claims under the False Claims Act. Further, Ingle’s claims are sufficient at this
point to establish a violation of Florida’s False Claim Act and Florida’s Private
Whistleblower Act.
Accordingly, it is now ORDERED:
(1) The Defendants, Janick Medical Group and Dr. John J. Janick's Motion to
Dismiss (Doc. #6) is DENIED as moot.
(2) The Defendants, Janick Medical Group and Dr. John J. Janick's Amended
Motion to Dismiss (Doc. #17) is DENIED.
(3) The Plaintiff, Michelle Ingle’s Motion to Strike the Defendants, Janick Medical
Group and Dr. John J. Janick's Amended Motion to Dismiss (Doc. #20) is
DENIED.
DONE and ORDERED in Fort Myers, Florida this 17th day of November, 2014.
Copies: All Parties of Record
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