Michelle Ingle v. Janick, et al

Filing 45

ORDER granting 36 the Counter-Defendant/Plaintiff's Motion to Dismiss Second Amended Counterclaim. John Joseph Janick's Second Amended Counter-Claim 35 is hereby DISMISSED without prejudice. Signed by Judge Sheri Polster Chappell on 4/7/2015. (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 Counter-Defendant/Plaintiff's (Ingle)
Motion to Dismiss Second Amended Counterclaim (Doc. #36) filed on December 24,
2014. The Defendants/Counter-Plaintiffs did not file a response to the Motion to Dismiss
and the time to do so has expired.
FACTS
Ingle was employed with the Defendants/Counter-Plaintiffs (Janick) for a period of
approximately eighteen (18) years. (Doc. #35, ¶9). Janick alleges that sometime around
December 2012, Ingle wrote herself a bonus check in the amount of $10,000 without first
receiving permission to do so from Janick. (Doc. #35, ¶11). Janick alleges in the Second
Amended Counterclaim that once Ingle realized that her termination was imminent she

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begin stealing equipment to set up a competing mobile lab. (Doc. #35, ¶19). Janick
alleges that in total, Ingle has stolen approximately $75,000.00 in equipment from the
Janick Medical Group. (Doc. #35, ¶ 18-19).

Janick alleges that Ingle substantially

reduced her hours yet continued to represent that she was still working full time. (Doc.
#35, ¶27). Janick continues that Ingle would come in early, leave, and then represent
that she had worked all day on her time sheets. (Doc. # 35, ¶28). Ingle would also
represent that she was in the office during sick days and vacation days to ensure that she
received a full paycheck. (Doc. #35, ¶29). Janick claims Ingle used Janick medical
services for herself and family members without paying for said services and without
Janick’s authorization. (Doc. #13, ¶ 13).
Janick also states that one of Ingle’s benefits was having her car payment made
by Janick Medical Group. (Doc. #35, ¶32). Due to her seniority with Janick Medical
Group, Ingle was allowed to set up a direct debit from Janick’s employer’s operating
account directly to the auto financing company. (Doc. #35, ¶32).

After Ingle was

terminated she continued to draw funds from Janick Medical Group’s account to pay for
her auto financing even after she was directed to terminate her auto debit from the
account. (Doc. #35, ¶32).
Janick initially filed a one count Counterclaim alleging a state law claim of
conversion. The initial Counterclaim was dismissed and Janick was allowed to file an
Amended Counterclaim. (Doc. #30). Janick was subsequently granted leave to file a
Second Amended Counterclaim (Doc. #36), which is at issue in the instant Motion to
Dismiss.

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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, 667, 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
Ingle argues the Court should decline to take supplemental jurisdiction over
Janick’s counterclaims because Janick failed to provide a reasonable nexus for her claims
to Ingle’s Complaint which established the Court’s original jurisdiction. Further, Ingle
states that Counts I, II, III, and IV fail to state a claim under the Towmbly and Iqbal
standards.
Whether the Court Should Take Supplemental Jurisdiction Over the Counterclaims
Ingle argues the Court should decline to take supplemental jurisdiction over
Janick’s counterclaims because the claims do not have a reasonable nexus to Ingle’s
False Claim Act claim which forms the Court’s original jurisdiction.
This Court clearly has federal question jurisdiction over Ingle’s False Claim Act
(FCA) claim pursuant to 31 U.S.C. § 3729 in accord with 28 U.S.C. § 1331. However,
there is no independent basis for federal jurisdiction over the counterclaims. The four
claims arise under state law not under federal law, there is no allegation of complete
diversity of citizenship—both Parties are citizens of Florida— and no other basis for
original federal jurisdiction is asserted. Defendant does not provide any argument that

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any counterclaims fall within the federal court's jurisdiction. The only possible statutory
basis for federal jurisdiction over the counterclaims is 28 U.S.C. § 1367.
Because of the federal jurisdiction over plaintiff's claim, the Court also has
supplemental jurisdiction over state claims to the extent authorized by 28 U.S.C. § 1367.
Pursuant to § 1367, the Court has supplemental jurisdiction over “all other claims that are
so related to claims in the action within such original jurisdiction that they form part of the
same case or controversy under Article III of the United States Constitution.” Yeseren v.
Cksingh Corp., WL 4023524, *3-4 (M.D. Fla. October 13, 2010)(citing 28 U.S.C. §
1367(a)). Section 1367 “defines the permissible boundaries for the exercise of
supplemental jurisdiction; that is, it delineates the power of the federal courts to hear
supplemental claims and claims against supplemental parties.” Estate of Amergi ex rel.
Amergi v. Palestinian Auth., 611 F.3d 1350, 1366 (11th Cir.2010) (citation omitted).
Section 1367(a) thus authorizes a district court to hear supplemental claims to the
full extent allowed by the “case or controversy” standard of Article III of the Constitution.
Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 742–43 (11th Cir.2006). The
constitutional “case or controversy” standard, in turn, confers jurisdiction over all claims
which arise out of a common nucleus of operative facts with the federal claim. Yeseren,
WL 4023524, at *3-4 (citing Parker, 468 F.3d at 742–43); Palmer v. Hospital Authority of
Randolph County, 22 F.3d 1559, 1563–64 (a federal court has the power under section
1367(a) to exercise pendent jurisdiction over state claims which arise from the same
occurrence and involve the same or similar evidence)). A state cause of action which
requires more proof than the federal claim is still within the court's supplemental
jurisdiction if “both claims clearly arise from the same set of facts.” Milan Exp., Inc. v.

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Averitt Exp., Inc., 208 F.3d 975, 980 (11th Cir.2000); Tamiami Partners, Ltd. ex rel.
Tamiami Dev. Corp. v. Miccosukee Tribe of Fla., 177 F.3d 1212, 1223–24 (11th Cir.1999).
Ingle argues that Janick’s counterclaims have no connection to her original FCA
claim. In Count I, Civil Theft, Janick claims that Ingle wrote herself a Christmas bonus
check in the amount of $10,000.00 without authorization from Janick or Janick Medical
Group.

Count II alleges that Ingle converted $75,000.00 worth of medical equipment in

order to set up a competing mobile lab. Count III claims that Ingle was unjustly enriched
because she claimed time on her time sheet for hours she did not work. Thus, she was
paid wages for work she did perform. And finally, Count IV alleges that Ingle breached
her duty of loyalty to Janick and Janick Medical Group.
After a review of the counterclaims the Court concludes that none of Janick’s
counterclaims arise out of the same common nucleus of operative facts as Ingle’s FCA
claim. Ingle’s FCA claim is based upon allegations that Janick and Janick Medical Group
used non-credentialed technicians to perform ultrasounds and then charged Medicare for
those services. (Doc. #1, ¶13). None of the counterclaims arise out of a common nucleus
of operative facts or circumstances nor have a logical relationship to Ingle’s claim that
Janick abused the Medicare payment system by conducting improper ultrasounds and
collecting fees for same. In fact, Janick’s counterclaims are wholly distinct and unrelated
to the underlying FCA claim. Absent a showing that there is a legally relevant connection
between the alleged counterclaims and Ingle’s FCA claim, the Court cannot conclude that
any of the counterclaims arise from a common nucleus of operative facts. As such, the
Court declines to take supplemental jurisdiction over Janick’s counterclaims.2 See

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Janick does not bring his counterclaims pursuant to Fed. R. Civ. P 13(a) as compulsory counterclaims.
Even if Janick did seek to bring his claims under Rule 13, the Court would reach the same conclusion as

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Yeseren, WL 4023524, at *3-4 (declining to take supplemental jurisdiction over
counterclaim because the counterclaim did not arise out of the same nucleus of operative
facts as the plaintiff’s original FLSA claim).
The Court has determined that it will not take supplemental jurisdiction over
Janick’s counterclaims because they do not arise from a common nucleus of operative
facts and are not reasonably related to Ingle’s FCA claim. Therefore, the issue of merit
is not relevant at this point and the counterclaims are due to be dismissed. However,
nothing would prevent Janick from raising the counterclaims as a rationale for Ingle’s
termination in defense of her retaliation claim under the FCA. Janick may also choose to
file the claims addressed in the counterclaims in the appropriate forum.
Accordingly, it is now
ORDERED:
The

Counter-Defendant/Plaintiff's

Motion

to

Dismiss

Second

Amended

John Joseph Janick’s Second Amended

Counterclaim (Doc. #36) is GRANTED.

Counter-Claim (Doc. #35) is hereby DISMISSED without prejudice.
DONE and ORDERED in Fort Myers, Florida this 7th day of April, 2015.

Copies: All Parties of Record

Rule 13(a) also requires the counterclaim to “arise out of the same transaction or occurrence as the
opposing party’s claim. . . .” Fed. R. Civ. P. 13(a)(1).

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