Paul v. Biotronik, Inc.

Filing 45

ORDERED: Defendant's Motion to Dismiss 26 is GRANTED. Relator is granted leave to file an amended complaint on or before May 4, 2020, which cures the deficiencies discussed in this Order. Failure to file an amended complaint within the time provided will result in dismissal of this action without further notice. Signed by Judge Charlene Edwards Honeywell on 4/20/2020. (CSS)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA and THE
STATE OF FLORIDA ex rel. CHRISTINA
PAUL
Plaintiffs/ Relator,
v.

Case No: 8:18-cv-396-T-36JSS

BIOTRONIK, INC.,
Defendant.

ORDER
This cause comes before the Court upon Defendant Biotronik, Inc.’s Motion to Dismiss
(Doc. 26), Plaintiff’s response in opposition (Doc. 29), and Defendant’s reply to response (Doc.
37). For the reasons that follow, the Court will grant the Motion.
I.

FACTS 1
Relator, Christina Paul, worked as a Field Clinical Specialist with Defendant Biotronik,

Inc, a medical device company, from April 7, 2014, at least up to the time she filed this action.
(Doc. 1 ¶¶ 4, 5). In that capacity, Relater provided technical and clinical support to sales
representatives within a defined geographic boundary and also provided education, follow-up
services, implant services, in service training, and other services necessary to the sales force,
physicians, and other cardiac pacing-related professionals. See id. at ¶ 4. Relator alleges that

1

The following statement of facts is derived from the Relator’s Complaint (Doc. 1), the allegations
of which the Court must accept as true in ruling on the instant Motion to Dismiss. Linder v.
Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v. Latin Am.
Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th Cir. 1983)
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Defendant engaged in a kickback scheme designed to defraud the government in violation of the
Federal False Claims Act, 31 U.S.C. §§ 3729, et seq. and Florida False Claims Act, §§ 68.081 et
seq., Fla. Stat. See id. at ¶¶ 1, 2, 3.
In her complaint, Relator alleges that Defendant was engaging in a fraudulent scheme to
generate consumer demand for its medical devices and services by paying incentives to medical
professionals who used its products and services. See id. at ¶ 17. Relator asserts that Defendant’s
employee Paul McLoughlin made payments—in kind—to various medical professionals in order
to induce them to use Defendant’s products. See id. at ¶ 18. More specifically, Mr. McLoughlin
made inducement payments to at least four cardiologists, including:
a. Paying for Dr. Ketul Chauhan, a cardiologist, and his family
to go on a cruise in exchange for using Defendant's products
and services.
b. Paying for Dr. Chauhan and his girlfriend to go on vacation
in exchange for using Defendant's products and services.
c. Paying for Dr. Chauhan's events he attends in exchange for
using Defendant's products and services.
d. Paying for a cell phone for Dr. Aung Tun's, a cardiologist,
girlfriend in exchange for using Defendant's products and
services.
e. Taking Dr. Tun on an annual vacation to Burma and
removing ten thousand dollars of company money to treat
Dr. Tun while they were there in exchange for using
Defendant's products and services. Additionally, Mr.
Mcloughlin has the company "donate" devices that are
shipped to Burma for Dr. Tun to implant. Mr. Mcloughlin
does not take vacation time for these annual trips.
f. Paying illicit "donations" to Dr. Ramanath Rao, a
cardiologist, in exchange for using Defendant's products and
services.

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g. Taking Dr. Phillip Owen, a cardiologist, on a ski trip in
exchange for using Defendant's products and services.
See id. Relator indicates that these specific examples are just a few of what she witnessed during
her time with Defendant and that many of the devices and procedures used by these named doctors
are reimbursed by federal healthcare programs including Medicare and Medicaid. See id. at ¶ 19.
Additionally, Relator contends that she reported Mr. McLoughlin’s action to Defendant but no
action was taken in response. See id. at ¶¶ 21, 22.
The complaint alleges three violations of the Federal False Claims Act and three identical
violations of the Florida False Claims Act. Count I alleges that “Defendant knowingly presented
or caused to be presented, false or fraudulent claims to officers, employees or agents of the United
States government for payment or approval” in violation of 31 U.S.C. § 3729(a)(1)(A). See id. at
¶ 25. Count II alleges a violation of 31 U.S.C. § 3729(a)(1 )(B) because “Defendant knowingly
made, used, or caused to be made or used false or fraudulent records and statements, and omitted
material facts, to get false or fraudulent claims paid or approved by the United States government.”
See id. at ¶ 30. In Count III, Relator alleges that “Defendant knowingly made, used, or caused to
be made or used, a false record or statement material to an obligation to pay or transmit money or
property to the Government, or knowingly concealed or knowingly and improperly avoided or
decreased an obligation to pay or transmit money or property to the Government” which violates
31 U.S.C. § 3729(a)(1)(G). See id. at ¶ 35. Counts IV, V, and VI allege violations of the equivalent
sections in the Florida False Claim Act. See id. at ¶¶ 41, 47, 53.
Defendant filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 9(b) and
12(b)(6). (Doc. 26). Defendant argues that the Complaint lacks the sufficient particularity required
for pleading fraud as required by Rule 9(b) and otherwise fails to state claims under both the
Federal False Claims Act and Florida False Claims Act. See id. Relator filed a response in which
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she argues, among other things, that she has sufficiently pleaded fraud by providing details as to
“the names of the doctors who received the incentives, the names of the defendants' employees
who negotiated the incentives with the doctors, precisely what the incentives were, when they were
provided, why they were provided, and why they were illegal.” (Doc. 29). In addition, Relator
argues that both the federal and Florida claims sufficiently allege causes of action.
II.

LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels, conclusions and formulaic
recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere naked assertions are not sufficient. Id.
A complaint must contain sufficient factual matter, which, if accepted as true, would “state a claim
to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). The court,
however, is not bound to accept as true a legal conclusion stated as a “factual allegation” in the
complaint. Id.
In addition to satisfying the general pleading requirements articulated in Twombly and
Iqbal, certain claims must satisfy the heightened pleading requirements of Fed. R. Civ. P. 9(b),
which places more stringent requirements on cases alleging fraud. U.S. ex rel. Clausen v. Lab.
Corp. of Am., Inc., 290 F.3d 1301 (11th Cir. 2002). “[U]nder Rule 9(b) allegations of fraud must
include facts as to time, place, and substance of the defendant's alleged fraud.” Id. at 1308 (citation
and internal quotations omitted). The Rule 9(b) particularity requirement for fraud allegations
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exists to put defendants on notice as to the exact misconduct with which they are charged and to
protect defendants against spurious charges. Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202
(11th Cir. 2001); Thornton v. Nat'l Compounding Co., Inc., No. 8:15-CV-2647-T-36JSS, 2019 WL
2744623, at *9 (M.D. Fla. July 1, 2019) (stating same). The failure to satisfy Rule 9(b)’s pleading
requirements amounts to a failure to state a claim under Rule 12(b)(6) and requires dismissal of
the complaint. See, e.g., Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir. 2005).
III.

ANALYSIS
In this case, Relator alleges federal and Florida False Claims Act violations arising from

an alleged unlawful kickback scheme between Defendant and various medical practitioners. “The
FCA was enacted to recover money fraudulently taken from the government” and “allows a private
party to bring a civil action (known as qui tam) alleging fraud upon the government.” Thornton,
2019 WL 2744623, at *9. Because the False Claims Act is ‘a fraud statute’, the heightened
pleading standard of Rule 9(b) applies to Relator’s complaint. See Hopper v. Solvay Pharm., Inc.,
588 F.3d 1318, 1324 (11th Cir. 2009) (citing Clausen, 290 F.3d at 1309–10). This standard applies
to both the allegations regarding the underlying violation of the Anti–Kickback Statute and the
violation of the False Claims Act. United States v. Choudhry, 262 F. Supp. 3d 1299, 1308 (M.D.
Fla. 2017).
Anti–Kickback Statute
The Anti–Kickback Statute is violated when a defendant: (1) knowingly and willfully, (2)
“offers or pays any remuneration,” directly or indirectly, (3) to induce a person to refer individuals
to the defendants for the furnishing of medical services, (4) paid for by a federal healthcare
program. U.S. ex rel. Mastej v. Health Mgmt. Assocs., Inc., 591 F. App'x 693, 698 (11th Cir. 2014)

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(discussing 42 U.S.C. § 1320a–7b(b)); United States v. Kindred Healthcare, No. 8:16-CV-2076T-27CPT, 2019 WL 4345782, at *2 (M.D. Fla. Sept. 12, 2019) (stating same). Failure to
sufficiently plead the elements warrants dismissal. U.S. ex rel. Bane v. Breathe Easy Pulmonary
Servs., Inc., No. 806-CV-40-T-24MAP, 2008 WL 343158, at *1 (M.D. Fla. Feb. 5, 2008), provides
an example. There, Plaintiff alleged that Defendants Breathe Easy Pulmonary Services, Inc. and
Premier Cardio Pulmonary Medical, Inc. violated the Anti-Kickback Act when Lincare referred
patients to Defendants for oximetry testing and obtained referral forms from the patients'
physicians that allowed the oximetry testing, along with other unintentionally authorized tests, to
be performed. Id. The court found that Plaintiff had failed to allege that Lincare solicited or
received, or that Defendants offered or provided, remuneration for the referrals, and dismissed the
claim. Id. But see United States ex rel. McFarland v. Fla. Pharmacy Sols., No. 8:15-CV-1708-T23TGW, 2017 WL 10294800, at *2 (M.D. Fla. Nov. 28, 2017) (finding that the complaint alleged
in detail sufficient to satisfy Rule 9(b) that the marketing defendants Kotchey, Mediverse, and
Wilkerson received $12.3 million in exchange for “arranging” or “recommending” the Tricare
beneficiaries' ordering from defendant Florida Pharmacy Solutions of pain cream, scar cream, and
wellness capsules such that a violation of the Anti-Kickback Act had been sufficiently pleaded).
Upon finding that the underlying violation of the Anti–Kickback Act has been sufficiently pleaded,
a court must then consider whether the violation of the False Claims Act has also been sufficiently
alleged. See Choudhry, 262 F. Supp. 3d at 1308.
Relator’s complaint fails at this threshold juncture. The complaint does not plead with
sufficient particularity that Defendant was engaged in a kickback scheme. Most deficient are the
allegations that medical services or products were being paid for by a federal healthcare program.
Defendant alleges in pertinent part that “[m]any of the devices and procedures used by the above6

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listed medical providers are reimbursed by federal healthcare programs, including Medicare and
Medicaid.” (Doc. 1 ¶ 19). Additionally, Defendant also alleges that “Mr. Mcloughlin also set up
‘dummy’ home monitoring sites which allowed him to check on several doctor's patients remotely
and receive income from HM shipments to these patients. These shipments are likely reimbursed
by federal healthcare programs, including Medicare and Medicaid.” See id. at ¶ 20. These are
conclusory statements. Not only has Relator failed to identify any device or service provided to
patients by the cardiologists identified, the complaint also lacks any information as to which
federal healthcare paid for the particular device or service. This renders the complaint too vague
to plead fraud. Moreover, the complaint is devoid of any facts regarding when or how the
kickbacks were provided to these cardiologists. See Choudhry, 262 F. Supp. 3d at 1307.
Accordingly, the complaint does not sufficiently plead a kickback scheme involving Defendant
and the various medical providers, which along with the remaining deficiencies discussed below,
warrant dismissal of the complaint.
Presentment of False Claims
As to the violation of 31 U.S.C. § 3729(a)(1)(A), and the corresponding state law claim,
“the central question is whether defendants presented or caused to be presented a false claim.”
Choudhry, 262 F. Supp. 3d at 1308; United States ex rel. Silva v. VICI Mktg., LLC, 361 F. Supp.
3d 1245, 1252 (M.D. Fla. 2019) (stating same). “[T]he submission of an actual claim to the
government for payment is ‘the sine qua non’ of an FCA violation.” Mastej, 591 F. App'x at 703
(quoting Clausen, 290 F.3d at 1311). In addressing this requirement, the Choudhry court has
explained:
To satisfy the presentment requirement, a relator “must allege the
actual presentment of a claim ... with particularity, meaning
particular facts about the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘how’
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of fraudulent submissions to the government.” Urquilla–Diaz, 780
F.3d at 1052 (internal quotation marks omitted). “Providing exact
billing data—name, date, amount, and services rendered—or
attaching a representative sample claim is one way a complaint can
establish the necessary indicia of reliability that a false claim was
actually submitted.” Mastej, 591 Fed.Appx. at 704. Alternatively,
“a relator with direct, first-hand knowledge of the defendants'
submission of false claims gained through her employment with the
defendants may have a sufficient basis for asserting that the
defendants actually submitted false claims,” Id. But “[i]t is not
enough for the plaintiff-relator to state baldly that he was aware of
the defendants' billing practices, to base his knowledge on rumors,
or to offer only conjecture about the source of his knowledge.” Id. at
704–705 (internal citations omitted).

262 F. Supp. 3d at 1308–09; see also United States ex rel. Silva v. VICI Mktg., LLC, 361 F. Supp.
3d 1245, 1253 (M.D. Fla. 2019) (finding that the Complaint in partial intervention alleged with
particularity how defendant Larry Smith caused false claims to be submitted to Tricare, a
governmental healthcare program); United States ex rel. Herbold v. Doctor's Choice Home Care,
Inc., No. 8:15-CV-1044-T-33AEP, 2019 WL 5653459, at *12 (M.D. Fla. Oct. 31, 2019) (finding
that the complaint sufficiently alleged the submission of claims that were false).
Failure to sufficiently plead that a claim was submitted justifies dismissal of a claim
alleging a violation of § 3729(a)(1)(A). In Corsello, the Eleventh Circuit Court of Appeals held
that the second amended complaint failed to provide a factual basis to conclude that fraudulent
claims were ever actually submitted to the government in violation of the False Claims Act. 428
F.3d 1008 at 1013. Relator Corsello worked in sales and his allegations were often based on
“information and belief” which the court found lacking the indicia of reliability required by
Clausen. Id. The court reasoned:
Underlying improper practices alone are insufficient to state a claim
under the False Claims Act absent allegations that a specific
fraudulent
claim
was
in
fact
submitted
to
the
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government. Clausen, 290 F.3d at 1311. In short, Corsello provided
the “who,” “what,” “where,” “when,” and “how” of improper
practices, but he failed to allege the “who,” “what,” “where,”
“when,” and “how” of fraudulent submissions to the government.
Id. at 1015.
The fourth amended complaint in United States v. LifePath Hospice, Inc., No. 8:10-CV1061-T-30TGW, 2016 WL 5239863, at *7 (M.D. Fla. Sept. 22, 2016), aff'd sub nom. United States
v. HPC Healthcare, Inc., 723 F. App'x 783 (11th Cir. 2018), suffered the same fate. In that case,
the court dismissed the complaint on the ground that Relator Nancy Chase, a social worker
employed by LifePath, provided only conclusory allegations that false claims were submitted to
the government. Id. at 8. The court explained in detail:
Chase falls well short of meeting the requirements of Rule 9 and the
standard described in Clausen. Chase does not identify a single
claim submitted to the government, let alone a false one. She does
not identify anyone who submitted the alleged false claims she
cannot specifically identify. She does not specify when any false
claims were submitted. What Chase has done is describe a private
scheme in detail, to include facts as to some disturbing medical
practices. She has not alleged “ ‘facts as to time, place, and
substance of the defendant’s alleged fraud’ ”—that is, a fraudulent
claim. Clausen, 290 F.3d at 1310 (quoting Cooper, 19 F.3d at 567–
68); see Matheny, 671 F.3d at 1225. As it was in Clausen, this
failure is fatal to Chase’s claim.
Id. at 7. Thus, it is not enough that the complaint present conclusory allegations without factual
support or some indicia of reliability. There must be enough to apprise defendant as to the exact
conduct that is at issue.
Like the complaints in Corsello and LifePath Hospice, the complaint here does not provide
“particular facts about the ‘who,’ ‘what,’ ‘where,’ ‘when,’ and ‘how’ of fraudulent submissions to
the government.” Choudhry, 262 F. Supp. 3d at 1308–09. In fact, the entire complaint is devoid of
an allegation of a claim being submitted to a federal healthcare program for payment. (Doc. 1 ¶¶
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17 – 28). Again, presentment is “‘the sine qua non’ of an FCA violation.” Mastej, 591 F. App'x
at 703. Rather, Relator merely alleges that reimbursements for many of the devices and procedures
used by the cardiologists identified come from federal healthcare programs and further surmises
that shipments relating to home monitoring are likely reimbursed by those programs. See id. at ¶¶
19, 20. This is not enough to meet the heightened standard for pleading fraud. Moreover, while
Relator identifies herself as “the original source of the facts and information alleged in th[e]
Complaint,” see id. at ¶ 6, her allegations do not provide the indicia of reliability that actual claims
were submitted for payment. See Corsello, 428 F.3d at 1013; United States v. Premier Hospitalists
PL, No. 8:14-CV-2952-T-33TBM, 2017 WL 119773, at *5 (M.D. Fla. Jan. 12, 2017) (finding that
the Second Amended Complaint contained sufficient indicia of reliability to meet the pleading
requirements of Rule 9(b), on the basis that “[a]lthough none of the Plaintiffs personally submitted
fraudulent bills, they allege that they gained firsthand knowledge of the fraudulent billing practices
at Premier through their work”, and they provided detailed description of the allegedly fraudulent
schemes, and insider knowledge of and access to billing logs and summaries). As Plaintiff has
failed to sufficiently plead presentment, the gist of a § 3729(a)(1)(A) claim, Count I fails to satisfy
Rule 9(b).
False Statements
To the contrary, 31 U.S.C. § 3729(a)(1)(B) does not demand proof that the defendant
presented or caused to be presented a false claim to the government or that the defendant's false
record or statement itself was ever submitted to the government. Hopper v. Solvay Pharm., Inc.,
588 F.3d 1318, 1327 (11th Cir. 2009). Under that section, “a plaintiff must show that (1) the
defendant made a false record or statement for the purpose of getting a false claim paid or approved
by the government; and (2) the defendant's false record or statement caused the government to
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actually pay a false claim, either to the defendant itself, or to a third party.” Id.; United States ex
rel Patel v. GE Healthcare, Inc., No. 8:14-CV-120-T-33TGW, 2017 WL 4310263, at *8 (M.D.
Fla. Sept. 28, 2017) (stating same). In Choudhry, for instance, the court dismissed—with leave to
amend—the count which alleged a violation of this section because the relator failed to identify
what “false record or statement” was made or used. 262 F. Supp. 3d at 1311. See also United States
ex rel. Sharpe v. Americare Ambulance, No. 8:13-CV-1171-T-33AEP, 2017 WL 2840574, at *7
(M.D. Fla. July 3, 2017) (“The Complaint fails to identify what ‘false record or statement’ is at
issue and why the statement was ‘material’ to a false claim. Count II is therefore dismissed with
leave to amend.”).
Similarly, the Mastej court granted a dismissal of this claim where it found that Relator
had insufficiently pleaded both of its requirements. 869 F. Supp. 2d at 1345. In its reasoning, the
court found that the first requirement was insufficiently pleaded because Relator’s allegations that
the defendants acted with the purpose of getting a false claim paid were conclusory and the
complaint failed to link the purposes of defendants’ schemes with the intent of submitting false
statements to the government with the intention that the government would rely on those
statements as a condition to payment. Id. at 1345-1346. On the second requirement, the court
reasoned that Relator merely alleged that the Government paid on these claims, without providing
the dates, amounts, or any other identifying detail of any of these alleged payments, and thus lacked
the requisite specificity. Id. at 1346.
In another case, United States v. Cross Garden Care Ctr., LLC, No. 8:16-CV-961-T27AEP, 2019 WL 6493972, at *6 (M.D. Fla. Dec. 3, 2019), bareboned allegations of false
narratives in patient notes was held insufficient to plead a violation of § 3729(a)(1)(B). The
complaint in that case alleged that “CGC, at the direction of Karl Cross, with services being
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performed, at least in part, by [Tabatha] Cross, knowingly made or caused to be made
a false record or statement to a false claim when they created false narratives in patient notes to
justify their decision to provide services in excess of what is medically necessary.” Id. No
allegation about the content of the false narratives or whether they were included with any
submitted claims was presented. Id. In dismissing this claim, the court reasoned that it was
impossible to determine from the complaint whether the statements were material, when the false
narratives were provided, or for which services or patients. Id.
Here, Relator has not identified any statement or record made by Defendant. Indeed, the
only allegations concerning Defendant relate to the alleged kickback scheme involving the trips
and gifts to four cardiologists. (Doc. 1 ¶¶ 17 – 22, 29 – 33). There are no allegations addressing
false claims. This is fatal to a claim alleging a violation of 31 U.S.C. § 3729(a)(1)(B). As the court
in Cross Garden Care Ctr. and many other cases from this circuit have reasoned, the absence of
this false record makes it impossible to determine whether the false statement was material to a
false claim. In light of this, Relator has not satisfied the dictates of Rule 9(b) in pleading Count II.
Reverse False Claim
Lastly, “to establish a reverse false claim cause of action” pursuant to 31 U.S.C. §
3729(a)(1)(G), “a relator must show that the defendant owed a definite and clear ‘obligation to pay
money to the United States at the time of the allegedly false statements.’ ” United States v. Lee
Mem'l Health Sys., No. 2:14-CV-437-FTM-38CM, 2019 WL 1061113, at *7 (M.D. Fla. Mar. 6,
2019) (quoting Space Coast Med. Assocs., LLP, 94 F. Supp. 3d at 1263). Liability under this
section results from avoiding the payment of money due to the government, as opposed to
submitting to the government a false claim. United States ex rel. Stepe v. RS Compounding LLC,
304 F. Supp. 3d 1216, 1226 (M.D. Fla. 2018); Mastej, 869 F. Supp. 2d at 1346 (“In
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a Section 3729(a)(1)(G) action, ‘the defendant's action does not result in improper payment by the
government to the defendant, but instead results in no payment to the government when a payment
is obligated.’ ”).
In Lee Mem'l Health Sys., the court dismissed this claim on the basis that the Amended
Complaint could not establish that Lee Health had an obligation to repay the Government. 2019
WL 1061113, at *7. The court reasoned that Lee Health only had an obligation to repay the
Government if Lee Health submitted and received payment for false claims and the relator failed
to demonstrate that Lee Health submitted and received payment for false claims. Id. Accordingly,
the complaint in that case did not allege facts from which the court could conclude that the
defendant was avoiding a payment obligation to the government. See also United States ex rel.
Childress v. Ocala Heart Inst., Inc., No. 5:13-CV-470-OC-22PRL, 2015 WL 13793109, at *6
(M.D. Fla. July 2, 2015) (“Relator simply makes legal conclusions that defendants violated § 31
U.S.C. § 3729(a)(1)(G), but provides no specific allegations to support his claim.”); United States
v. Space Coast Med. Assocs., L.L.P., 94 F. Supp. 3d 1250, 1264 (M.D. Fla. 2015) (finding that
§ 3729(a)(1)(G) claims failed because the complaint did not plead either a false statement or
knowledge on the part of Defendants).
A different outcome was presented in United States Stepe v. RS Compounding LLC, 325
F.R.D. 699, 709 (M.D. Fla. 2017) where the court found that a reverse false claim was sufficiently
alleged. In that case, the complaint alleged that “the ‘concrete’ obligation to repay under §
3729(b)(3) and § 3729(a)(1)(G) was triggered when the defendants knew they had received funds
to which they were not entitled and retained the funds instead of returning them.” Id. The court
stated that “[t]hese allegations sufficiently set forth an ‘obligation’ within the meaning of §
3729(b)(3), specifically ‘an established duty ... arising from ... the retention of any overpayment,’
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so as to state a cause of action for a reverse false claim under the post-FERA version of the [FCA].”
Id. Notably, the court also found that the complaint sufficiently alleged presentation of a false
claim and use of false records or statements. Id. at 705-708.
As discussed above, Relator has not sufficiently alleged that Defendant either submitted a
false claim for payment by a federal healthcare program or made a false statement or record in
furtherance of such. Relator has not otherwise pleaded that Defendant has any payment obligation
to the government or has made any false statement in order to avoid that obligation. (Doc. 1 ¶¶ 17
– 22, 34 – 38). As a result, Relator does not sufficiently plead a violation of 31 U.S.C. §
3729(a)(1)(G) in Count III.
Florida claims
The claims for violation of Florida’s False Claim Act alleged in Counts IV, V, and VI
model the federal claims addressed above, require proof of the same elements and the same
heightened standard for pleading fraud. United States v. Sand Lake Cancer Ctr., P.A., No. 8:13CV-2724-T-27MAP, 2019 WL 423156, at *2 (M.D. Fla. Feb. 4, 2019) (“Relator’s claims brought
under Florida law require proof of the same elements.”); LifePath Hospice, Inc., 2016 WL
5239863, at *8 (reasoning that because the statutes govern the same conduct, impose the same
liability, grant relators the same stake in any potential recovery, and use nearly identical language
in setting forth the elements of a violation, “the standards under both the Florida Act and the
Federal Act are the same.”) (citing United States ex. rel. Heater v. Holy Cross Hosp., Inc., 510 F.
Supp. 2d 1027, 1036 (S.D. Fla. 2007)); Carrel v. AIDS Healthcare Found., Inc., 898 F.3d 1267,
1272 (11th Cir. 2018) (noting that “Florida has enacted a parallel statutory scheme with similar
provisions” to the False Claims Act, 31 U.S.C. § 3729 et seq.). For instance, the court in United
States v. Norman, No. 8:15-CV-1506-T-23AEP, 2018 WL 264253, at *3 (M.D. Fla. Jan. 2, 2018)
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granted the defendant’s motion to dismiss, noting in its opinion that |[b]ecause the complaint
fail[ed] to identify with particularity a false claim submitted to, or paid by, the State of Florida, the
relator failed] to state a claim under the Florida False Claims Act.” Likewise, in United States v.
Univ. of Miami, No. 12-24513-CIV, 2018 WL 8581772, at *7 (S.D. Fla. Mar. 29, 2018), the court
concluded because the Second Amended Complaint adequately alleges claims under the federal
False Claims Act, Count VIII adequately states a claim under the Florida False Claims Act.
Having found that Relator has not sufficiently pleaded claims under the federal False Claims Act,
and that the identical Florida False Claims violations are based on the same allegations as the
federal claims, the Court finds that Counts IV, V, and VI also fail to satisfy Rule 9(b).
IV.

CONCLUSION
The complaint against Defendant for False Claim Act violations arising from a kickback

scheme between Defendant and various medical providers does not provide the necessary
particularity or detail required for claims of fraud. Instead, the complaint is rife with conclusory
allegations and missing details. Additionally, enough detail is not provided in the complaint to
allow the Court to find that Relator’s knowledge of the alleged scheme—gained from her work
with Defendant—provides an indicium of reliability. For these reasons, as expressed more fully
above, the Court will dismiss Relator’s complaint, with leave to amend.
Accordingly, it is hereby ORDERED:
1. Defendant’s Motion to Dismiss (Doc. 26), is GRANTED. Relator is granted leave
to file an amended complaint on or before May 4, 2020, which cures the
deficiencies discussed in this Order. Failure to file an amended complaint within
the time provided will result in dismissal of this action without further notice.

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Case 8:18-cv-00396-CEH-JSS Document 45 Filed 04/20/20 Page 16 of 16 PageID 233

DONE AND ORDERED in Tampa, Florida on April 20, 2020.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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