State Farm Mutual Automobile Insurance Company et al v. B&A Diagnostic, Inc. et al
Filing
168
AMENDED ORDER Signed by Chief Judge K. Michael Moore on 11/16/2015. (mgn)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 14-cv-24387-KMM
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY and STATE
FARM FIRE & CASUALTY COMPANY,
Plaintiff,
v.
B&A DIAGNOSTIC, INC. n/k/a OASIS
MEDICAL CENTER CORP., ESTEBAN GENAO, M.D.,
ALEX ALONSO, M.D., ERNESTO ALVAREZ
VELASCO, and JOSE ANGEL ORTIZ MAZA,
Defendants.
/
AMENDED ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT
THIS CAUSE came before the Court upon Plaintiff State Farm Mutual Automobile
Insurance Co. and State Farm Fire & Casualty Co.’s (collectively, “State Farm” or “Plaintiff”)
Motion for Summary Judgment (ECF No. 123) and Defendant Alex Alonso, M.D.’s Motion for
Summary Judgment (ECF No. 128) and related responses and replies. The motions are now ripe
for review.
For the reasons that follow, State Farm’s Motion for Summary Judgment is
GRANTED.
This case involves unjust enrichment claims by State Farm against B & A Diagnostic, Dr.
Esteban Genao, Dr. Alex Alonso, and Ernesto Alvarez Velasco (collectively, the “Defendants”),
based on the submission of allegedly illegal and fraudulent claims for X-ray services provided to
State Farm’s insureds pursuant to the insureds’ No-Fault Personal Injury Protection (“PIP”)
policy coverage. State Farm also seeks declaratory relief, stating that it does not owe payment
for any outstanding bills that arose from the performance of allegedly unlawful services.
I.
BACKGROUND
As a threshold matter, the Court places great emphasis upon, and implores the parties to
be mindful of, the fact that local rules have “the force of law.” Hollingsworth v. Perry, 558 U.S.
183, 191 (2010) (quoting Weil v. Neary, 278 U.S. 160, 169 (1929)). The Local Rules expressly
caution that “[a]ll material facts set forth in the movant’s statement filed and supported as
required . . . will be deemed admitted unless controverted by the opposing party’s statement,
provided that the Court finds that the movant’s statement is supported by evidence in the record.”
S.D. Fla. L.R. 56.1(b) (emphasis added). Local Rule 56.1(b) serves a vital purpose in “help[ing]
the court identify and organize the issues in the case.” Mann v. Taser Int’l, Inc., 588 F.3d 1291,
1303 (11th Cir. 2009). It also preserves scarce judicial resources by preventing a court from
“having to scour the record and perform time-intensive fact searching.” Joseph v. Napolitano,
839 F. Supp. 2d 1324, 1329 (S.D. Fla. 2012); see also Borroto v. Geico, No. 1:14-CV-24659KMM, 2015 WL 5786740, at *6 n.3 (S.D. Fla. Sept. 30, 2015) (noting that posing such an
exacting requirement on courts is “untenable”).
Despite Defendants’ assertions, rules like Local Rule 56.1(b) serve more than a technical
purpose, and are held in great esteem by courts around the country. See e.g., Reese v. Herbert,
527 F.3d 1253, 1268 (11th Cir. 2008); Caban Hernandez v. Philip Morris USA, Inc., 486 F.3d 1,
7 (1st Cir. 2007) (“Given the vital purpose that such rules serve, litigants ignore them at their
peril.”); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 921 (7th Cir. 1994) (endorsing “the
exacting obligation these rules impose on a party contesting summary judgment”). Although a
failure to comply with the local rules can often result in harsh, if not fatal, outcomes for a party,
2
such results are “not by calculated choice of t[he] Court.” Gossard v. JP Morgan Chase & Co.,
612 F. Supp. 2d 1242, 1246 (S.D. Fla. 2009).
Here, neither set of defendants 1 filed an opposition to Plaintiff’s Statement of Undisputed
Material Facts in compliance with Local Rule 56.1(b). Nor did the Defendants controvert
Plaintiff’s statement of facts through factual assertions or citations within their respective
Responses to Plaintiff’s Motion for Summary Judgment. See (ECF Nos. 134, 135). Instead,
Defendants offered only conclusory and self-serving declarations in an attempt to create a
genuine issue of material fact. Defendants’ efforts are unsuccessful. Conclusory declarations
lack any probative value and are insufficient as a matter of law. Gordon v. Terry, 684 F.2d 736,
744 (11th Cir. 1982); see also Hilburn v. Murata Elects. N. Am., Inc., 181 F.3d 1220, 1227-28
(11th Cir. 1999) (noting that a “conclusory statement is insufficient to create a genuine issue of a
material fact”).
In essence, the non-moving parties’ failure to comply with Local Rule 56.1(b) presents
the Court with “the functional analog of an unopposed motion for summary judgment.” Reese,
527 F.3d at 1268. Although Plaintiff’s submitted facts are deemed admitted, this “[C]ourt must
still review the movant’s citations to the record to determine if there is, indeed, no genuine issue
of material fact.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009); see also
United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d
1099, 1101-02 (11th Cir. 2004) (“At the least, the district court must review all of the evidentiary
materials submitted in support of the motion for summary judgment.”).
provides the Court an opportunity to address the merits of the motion.
This requirement
See Dunlap v.
Transamerica Occidental Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988).
1
Defendants B & A Diagnostic, Inc, Esteban Genao and Ernesto Alvarez Velasco
(collectively “the non-Alonso Defendants”) are represented by counsel separate from Dr.
Alonso.
3
With this framework in mind, the following facts are undisputed and supported by the
record before this Court.2
Defendant B & A Diagnostic, Inc. (“B & A”), is a Florida corporation licensed by
Florida’s Agency for Health Care Administration (“AHCA”), which operates as a health care
clinic and provides X-ray and other diagnostic services to patients in Miami, Florida. Pl.’s
Statement of Undisputed Material Facts ¶ 1 (ECF No. 122). B & A submits medical bills to
State Farm for X-ray services rendered to State Farm’s insureds. Id. ¶ 2. Felipe Aguilar, a
layperson, is the sole owner of B & A, and is responsible for interviewing and hiring the medical
directors for the clinic. Id. ¶¶ 8–9.
Defendant Esteban Genao, M.D. served as the statutorily designated Medical Director for
B&A from March 21, 2008 through March 31, 2010. Id. ¶ 5. Defendant Alex Alonso, M.D.
subsequently served as the statutorily designated Medical Director of B & A from April 1, 2010
through the present. 3 Id. ¶ 6. From June 2009 through November 30, 2010, Defendant Ernesto
Alvarez Velasco was employed by B & A to perform X-ray scans on B & A patients. Id. ¶ 4.
Likewise, former Defendant Jose Angel Ortiz Maza performed X-ray services for B & A from
approximately July 2009 through November 2011. Id. ¶ 7.
In approximately June 2009, Alvarez applied for employment with B & A and was
interviewed only by Aguilar. Id. ¶ 19. No one at B & A instructed Alvarez that he needed a
certification from the Florida Department of Health (“DOH”) to conduct X-rays lawfully. Id.
As a result, Alvarez believed that a certification from the American Registry of Radiologic
Technicians (“ARRT”) was all that was required to conduct X-rays lawfully in Florida. Id. ¶ 21.
2
The facts are taken from State Farm’s Statement of Undisputed Material Facts and a
review of the corresponding record citations and submitted exhibits. (ECF No. 122).
3
State Farm’s claims against all Defendants are limited to the period between March 21,
2008 and November 16, 2011 (the “Relevant Time Period”).
4
However, Alvarez admitted that the ARRT website expressly indicates that the State is the
appropriate licensing authority and ARRT certification is separate from the radiological
technician licensing process. Id. Alvarez thus acknowledged that he needed to provide more
than his ARRT certification to the Florida DOH in order to obtain his license from the State. Id.
Included among the additional required items Alvarez needed to submit for certification were
proof of educational qualifications, proof of completion of an HIV course, and proof that Alvarez
passed a knowledge-based exam. Id. According to Alvarez’s application to the Florida DOH,
Alvarez did not complete the required HIV course until October 6, 2010. Id. ¶ 28.
Dr. Alonso never verified whether Alvarez was properly certified by the Florida DOH.
Id. at ¶ 26. Once it was discovered that Alvarez lacked certification in October 2010, no one at B
& A instructed Alvarez to discontinue performing X-rays. Id. ¶¶ 27, 29. State Farm became
generally aware of the issue of Alvarez’s lack of certification in December 2010. Id. ¶ 30.
Alvarez signed a “Disclosure and Acknowledgement Form” for each X-ray he performed upon a
State Farm insured prior to November 30, 2010 indicating that he was the one who performed
the technical component of the X-ray. Id. ¶ 25.
On April 22, 2005, Ortiz received his certification from the State of Florida as a Basic
Machine Operator (“BMO”). Id. ¶ 32. At some point in 2007, Ortiz became an employee of B
& A after an interview with Aguilar. Id. ¶ 33. Ortiz was employed full-time and continuously at
B & A from 2007 through September or October 2013. Id. Ortiz’s primary duty was to perform
X-ray scans, and he would typically perform between two and six X-rays daily. Id. ¶ 40.
During Ortiz’s employment, B & A had no rules or policies requiring a medical doctor to
be present at the clinic when Ortiz was conducting X-ray scans. Id. ¶ 41. Ortiz routinely
conducted X-rays at B & A while there was no licensed medical doctor present. Id. For each Xray scan that Ortiz performed at B & A, Ortiz signed the appropriate disclosure form indicating
5
that he was the individual that performed the technical component of the X-ray. Id. ¶ 43. State
Farm first became aware of Ortiz’s unlawful X-ray services in early 2012. Id. ¶ 44.
Throughout his time as Medical Director, Dr. Genao never entered into a written Medical
Director agreement with B & A. Id. ¶ 46. Genao remained unaware of the fact that Medical
Directors have particular statutory obligations under Florida law until after he left B & A in April
2010. Id. ¶ 47. In his capacity as Medical Director, Genao never verified the licensure of any
technicians at B & A and was generally unaware of his obligation to ensure proper certification.
Id. ¶¶ 23, 48. In fact, Genao admitted he did not “check into those things” and indicated that he
relied on the word of an MRI technician that things were “safe” at B & A. Id. ¶ 23. Genao was
also unaware of the statutory requirements for a clinic or a hospital to lawfully employ a BMO
like Ortiz. Id. ¶ 51.
Genao was physically present at B & A approximately once every one or two weeks
during his tenure as Medical Director. Id. ¶ 38. Consonant with this limited contact, Genao did
not perform any of the day-to-day operations identified on the “Job Description for Medical
Director” that was submitted to the AHCA. Id. ¶ 50. Genao also did not play any role in the
hiring or interviewing of technicians and had no input on their work schedule. Id. ¶ 52.
As B & A’s Medical Director, Genao also did not conduct systematic reviews of clinic
billings to ensure the billings were lawful as required by Section 400.9935 of the Florida Statute.
Id. ¶ 49.
Additionally, Genao never reviewed Section 400.9935 and admitted that he is
unfamiliar with its contents. Id. ¶ 47. Genao merely assumed the bills submitted were lawful
because, as he testified in his deposition, “billing was just billing.” Id. ¶ 49. Genao also took no
part in assuring that co-payments or deductibles were collected from patients as required by law.
Id. ¶¶ 10, 53. Genao had no knowledge as to whether there were any attempts, or actual
6
collections, by B & A, of co-payments and deductibles from B & A patients whose PIP benefits
were billed. Id. ¶ 10.
Dr. Alonso became the Medical Director of B & A in April 2010. Id. ¶ 54. Dr. Alonso is
unable to recall entering into a written Medical Director Agreement prior to March 15, 2011. Id.
¶ 56. Dr. Alonso did not participate in the hiring or interviewing of technicians at B & A. Id. ¶
55. Like Genao, Dr. Alonso never verified the licensure of any technician at B & A, nor did he
make any attempt to contact the Florida DOH to determine what certification was necessary to
practice radiologic technology in Florida. Id. ¶¶ 57, 59.
Dr. Alonso admitted that the X-rays Alvarez performed at B & A from April 1, 2010
through November 30, 2010, were unlawful and noncompensable. Id. ¶¶ 30, 60. Dr. Alonso
also acknowledged that Alvarez was unqualified to apply for certification as a radiologic
technician until he completed the required HIV course in October 2010. Id. Regarding his
interaction with Ortiz, Dr. Alonso admitted he did not know when Ortiz would be working at B
& A and he never spoke to Ortiz about the need to be directly supervised by a licensed
practitioner. Id. ¶ 61. Instead, up until June of 2014, Dr. Alonso believed that BMO’s could
work for any diagnostic facility and could be supervised by mere telephone contact. Id. ¶ 62.
Dr. Alonso admitted that as the Medical Director of B & A he was required by law to
ensure that all bills B & A submitted were rendered in accordance with Florida law. Id. ¶ 65.
Further, Dr. Alonso acknowledged in his deposition testimony that it would be a violation of his
Medical Director statutory duties to allow a bill to go out which contains charges for services
performed in violation of Florida law. Id. Dr. Alonso admitted that the bills B & A sent out
containing charges for X-ray services performed by Ortiz were in violation of Florida law. Id. ¶¶
44, 63. Dr. Alonso further admitted that he failed to comply with his statutory Medical Director
duties to ensure Ortiz had the appropriate certification and that the bills for the X-rays performed
7
by Ortiz were unlawful. Id. ¶ 44. Dr. Alonso also had no involvement with any efforts to collect
co-payments and deductibles from B & A’s patients whose PIP benefits were being billed. Id. ¶
11. During his deposition, Dr. Alonso testified that he had no awareness of whether any
statutory obligations existed for clinics, like B & A, to collect co-payments and deductibles from
patients. Id. ¶ 12.
II.
LEGAL STANDARD
Summary judgment is appropriate where there is “no genuine issue as to any material fact
[such] that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); see also Fed R. Civ. P. 56. A dispute about a material fact is genuine
if the evidence is such that a reasonable fact-finder could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Speculation or conjecture
cannot create a genuine issue of material fact sufficient to defeat a well-supported motion for
summary judgment. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
The moving party shoulders the initial burden of showing the absence of a genuine issue
as to any material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). In deciding
whether the movant has met this burden, “[t]he court must view the movant’s evidence and all
factual inferences arising from it in the light most favorable to the non-moving party.” Denney v.
City of Albany, 247 F.3d 1172, 1181 (11th Cir. 2001). Once the moving party satisfies its initial
burden, the non-moving party must come forward with evidence showing a genuine issue of
material fact that precludes summary judgment. Bailey v. Allgas, Inc., 284 F.3d 1237, 1243
(11th Cir. 2002). “The mere existence of a scintilla of evidence in support of the [non-moving
party’s] position will be insufficient; there must be evidence on which the jury could reasonably
find for the [non-movant].” Anderson, 477 U.S. at 252. “If reasonable minds could differ on any
inferences arising from undisputed facts, summary judgment should be denied.” Twiss v. Kury,
8
25 F.3d 1551, 1555 (11th Cir. 1994). But if the record, taken as a whole, cannot lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial, and summary
judgment is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
III.
DISCUSSION
State Farm moves for summary judgment on Counts I (Unjust Enrichment) and II
(Declaratory Relief) of its Complaint. See Pl.’s Mot. for Summ. J. (ECF No. 123). State Farm
asserts that there is no genuine issue of material fact that B & A’s Medical Directors, Drs. Genao
and Alonso, failed to perform the basic requirements of a Medical Director, and each are
responsible for a host of violations of Florida law. Specifically, State Farm argues that there is
no genuine issue of material fact that Drs. Genao and Alonso failed to (1) ensure that all health
care practitioners providing health care services to patients maintained active and appropriate
certification or licensure for the level of care being provided; (2) agree in writing to accept legal
responsibility for the clinic as the Medical Director; (3) conduct systematic review to ensure that
billings are not fraudulent; and (4) conduct systematic review to ensure that billings are not
unlawful. 4 Id. at 17. Accordingly, State Farm maintains that because the charges at issue during
the Relevant Time Period were unlawful, noncompensable, and unenforceable, State Farm is
entitled to summary judgment on its claims to recover $1,478,848.40 in PIP benefits paid to
Defendants. State Farm further seeks a declaration that it is not obligated to pay approximately
$697,970 in bills that remain unpaid for services rendered during the Relevant Time Period.
4
Alternatively, State Farm argues that no genuine issue of material fact exists that B &
A did not operate lawfully during the Relevant Time Period because it was engaged in the
general business practice of waiving, or failing to collect, co-payments and deductibles from its
insureds.
9
Defendant Alex Alonso, M.D. cross-motioned for summary judgment (ECF No. 128).5
In the motion, Dr. Alonso only offers three affirmative defenses supporting dismissal of State
Farm’s claims.
First, Dr. Alonso argues the doctrine of res judicata bars Plaintiff from
proceeding with the current litigation. Second, Dr. Alonso argues that Plaintiff is collaterally
estopped from bringing the current suit against him. Lastly, Dr. Alonso maintains that any of
Plaintiff’s unjust enrichment claims for payment amounts incurred prior to November 19, 2010
are barred by the applicable statute of limitations.
A.
Legal Framework
Florida’s Motor Vehicle No-Fault Law (“Florida’s No-Fault Law”) requires that Florida
automobile insurance policy holders have PIP coverage to provide victims of motor vehicle
accidents benefits for reasonable, necessary, related and lawful treatment, without regard to fault.
Fla. Stat. §§ 627.730–627.7405. The law sets forth what benefits are covered under PIP, stating
in pertinent part that “the medical benefits shall provide reimbursement only for such services
and care that are lawfully provided, supervised, ordered or prescribed.”
Fla. Stat. §
627.736(1)(a). “An insurer is not required to pay a claim or charges for any service or treatment
that was not lawful at the time rendered.” Fla. Stat. § 627.736(5)(b)(1)(b). Additionally, a
service provider may only charge an insurer “a reasonable amount” for the services provided.6
Fla. Stat. § 627.736(5)(a).
5
On August 28, 2015, the non-Alonso Defendants also filed a Motion for Summary
Judgment. (ECF No. 121). However, the motion was filed without a supporting statement of
undisputed material facts as required by the local rules. See S.D. Fla. L.R. 56.1. Accordingly,
the Court denied the motion on the grounds that without the required statement of undisputed
material facts, the Court did not have an “appropriate basis” to determine summary judgment.
(ECF No. 148). Other courts have taken similar action. See e.g., Ocean’s 11 Bar & Grill, Inc. v.
Indem. Ins. Corp. RRG, No. 11-61577-CIV, 2012 WL 2675435, at *3 (S.D. Fla. July 6, 2012).
6
In determining a reasonable amount, “consideration may be given to evidence of usual
and customary charges and payments accepted by the provider . . .” Fla. Stat. § 627.736(5)(a).
10
The statutory definition of “‘lawful’ or ‘lawfully’ means in substantial compliance with
all relevant applicable criminal, civil, and administrative requirements of state and federal law
related to the provision of medical services or treatment.” Fla. Stat. § 627.732(11). Florida’s
No-Fault Law also provides that “[n]o statement of medical services may include charges for
medical services of a person or entity that performed such services without possessing the valid
licenses required to perform such services.” Fla. Stat. § 627.736(5)(d). Insurers are not required
to pay a claim or charges “[w]ith respect to a bill or statement that does not substantially meet
the applicable requirements of paragraph (d).” Fla. Stat. § 627.736(5)(b)(1)(d).
Florida’s Health Care Clinic Act (“HCCA”) makes it unlawful for health care clinics to
operate without a license from AHCA. Fla. Stat. § 400.991. The HCCA also requires that all
clinics which are owned by non-licensed individuals must “appoint a [M]edical [D]irector who
shall agree in writing to accept legal responsibility” for various activities identified in the HCCA.
Fla. Stat. § 400.9935(1). One requirement is that the Medical Director must ensure that all
practitioners have active, unencumbered, and appropriate licenses and certifications for the level
of care being provided. Fla. Stat. § 400.9935(1)(b), (d). The Medical Director also has a
statutory obligation to ensure that any billing for services rendered by the clinic do not contain
charges that are fraudulent or unlawful, and the Medical Director must conduct “systematic
reviews of clinic billings” to accomplish this task. Fla. Stat. § 400.9935(1)(g). Any charge
submitted on behalf of a clinic whose Medical Director is in violation of the aforementioned
statutory requirements “is an unlawful charge and is noncompensable and unenforceable.” Fla.
Stat. § 400.9935(3).
Further, Florida law provides that “such a charge may not exceed the amount the person or
institution customarily charges for like services or supplies.” Id. This is consistent with a
provision of the Florida Motor Vehicle Reform Act (“Reform Act”) which makes it illegal for a
provider to engage in the general business practice of waiving, or failing to make a good-faith
effort to collect, co-payments and deductibles from PIP patients. See Fla. Stat. § 817.234(7)(a).
11
The Radiological Personnel Certification Act (“RPCA”) provides the legal framework for
the use of radiation and radiation-emitting equipment in Florida. Fla. Stat. §§ 468.3001 et seq. It
is unlawful under the RPCA for a person to use radiation, practice radiologic technology, or
perform any of the duties of a radiologic assistant unless they are “the holder of a certificate . . .
and [are] operating under the direct supervision or general supervision of a licensed practitioner
in each particular case.” Fla. Stat. § 468.302(1)(b). For purposes of the RPCA, “certificate” is
defined as the “certification granted and issued by the [Florida DOH].” Fla. Stat. §§ 468.301(3),
(6).
The certification process requires an applicant to meet several criteria including the
submission of an application fee and proof of completion of certain educational requirements and
courses. Fla. Stat. § 468.304. Practicing radiologic technology without an active certificate from
the Florida DOH is a criminal offense. Fla. Stat. § 468.311(1).
A Basic Machine Operator (“BMO”) is defined as “a person who is employed by a
licensed practitioner to perform certain radiographic functions . . . under the direct supervision of
that practitioner.”
Fla. Stat. § 468.301(1).
The RCPA further restricts a BMO to the
performance of “general diagnostic radiographic and general fluoroscopic procedures . . . under
the direct supervision and control of a licensed practitioner in that practitioner’s office.” Fla.
Stat. § 468.302(3)(a). Under the RCPA, “direct supervision” requires “the physical presence of
the licensed practitioner for consultation and direction of the actions of the” BMO as well as the
licensed practitioner’s assumption of “legal liability for the services rendered” by the BMO. Fla.
Stat. § 468.301(7).
B.
The Services Rendered By Defendants During the Relevant Time Period
Were Unlawful and Noncompensable
It is undisputed that Drs. Alonso and Genao failed to meet their statutory obligations as
Medical Directors of B & A. As an initial matter, neither Alonso nor Genao assumed legal
12
responsibility during the Relevant Time Period for the clinic as mandated by the HCCA. The
undisputed record is also clear that Alonso and Genao each failed to ensure that all health care
practitioners providing health care services to B & A patients were appropriately licensed and
certified in accordance with Florida law. Additionally, the record evidence demonstrates that
Drs. Alonso and Genao failed to provide the necessary oversight of B & A’s clinic billings and
neither Medical Director performed their daily supervisory requirements. Considering the record
evidence as a whole, the Court finds no rational trier of fact could find that Drs. Alonso and
Genao complied with the statutory obligations of a Medical Director. Accordingly, none of the
services rendered to State Farm’s insureds during the Relevant Time Period were lawful or
compensable.7
The Court also finds that no genuine issue of material fact exists regarding the unlawful
nature of the X-rays conducted by Alvarez during the Relevant Time Period. The undisputed
record evidence provides that (1) Alvarez lacked appropriate certification to perform X-rays at B
& A; (2) Alvarez continued to perform X-rays even after it was discovered he lacked
certification; and (3) each X-ray performed by Alvarez during the Relevant Time Period was a
criminal act and noncompensable.
Similarly, no rational trier of fact could find that the X-ray services performed by Ortiz
during the Relevant Time Period were lawful. It is undisputed that (1) Ortiz was only certified as
a BMO; (2) Ortiz was not employed by a licensed practitioner; (3) no licensed practitioner
directly supervised the X-rays Ortiz performed; (4) no attempts were made to directly supervise
7
An additional ground exists for granting Plaintiff’s motion. It is undisputed that B & A
and its Medical Directors failed to make a good-faith effort to collect co-payments or deductibles
from State Farm’s insureds on any of the services it billed State Farm for during the Relevant
Time Period. See ECF No. 122 at ¶¶ 10-12, 47, 53. Failure to make a good-faith effort to collect
co-payments is “insurance fraud” that renders the charges submitted to State Farm during the
Relevant Time Period unlawful and noncompensable. See Fla. Stat. §§ 627.736(5)(b)(1)(b),
817.234(7)(a).
13
Ortiz; and (5) the X-rays performed by Ortiz during the Relevant Time Period were unlawful and
noncompensable.
1.
Defendants Were Unjustly Enriched As a Matter of Law
Under Florida law, the elements of a cause of action for unjust enrichment are: “(1)
plaintiff conferred a benefit on a defendant who has knowledge of that benefit; (2) defendant
accepted and retained the benefit and (3) under the circumstances, it would be inequitable for the
defendant to retain the benefit without paying for it.” State Farm Mut. Auto. Ins. Co. v. Kugler,
No. 11-80051, 2011 WL 4389915, at *12 (S.D. Fla. Sept. 21, 2011) (citing Fito v. Attorney’s
Title Ins. Fund, Inc., 83 So. 3d 755, 758 (Fla. 3d DCA 2011)); see also Tooltrend, Inc. v. CMT
Utensili, SRL, 198 F.3d 802, 805 (11th Cir. 1999). Notably, this cause of action exists “‘to
prevent the wrongful retention of a benefit, or the retention of money or property of another, in
violation of good conscience and fundamental principles of justice or equity.’” State Farm Fire
& Cas. Co. v. Silver Star Health & Rehab, 739 F.3d 579, 584 (11th Cir. 2013) (quoting Butler v.
Trizec Props., Inc., 524 So. 2d 710, 711 (Fla. 2d DCA 1988)).
In the automobile liability insurance context, courts have found a cause of action for
unjust enrichment appropriate when a service provider “accepts and retains benefits that it is not
legally entitled to receive in the first place.” Silver Star, 739 F.3d at 584; State Farm Mut. Auto.
Ins. Co. v. Med. Serv. Ctr. of Florida, Inc., No. 14-CV-20625-KMM, 2015 WL 2170396, at *9
(S.D. Fla. May 8, 2015) (granting summary judgment in favor of insurer and holding that an
insurer can refuse payments for services unlawfully rendered as “it would be inequitable to allow
Defendants to retain those benefits”); State Farm Mut. Auto. Ins. Co. v. Altamonte Springs
Diagnostic Imaging, Inc., No. 611-CV-1373-ORL-31GJ, 2011 WL 6450769, at *5 (M.D. Fla.
Dec. 21, 2011). It is widely accepted that “a defendant is not required to individually receive
payments in order for a cause of action for unjust enrichment to exist.” State Farm Mut. Auto.
14
Ins. Co. v. B & A Diagnostic, Inc., No. 14-CV-24387-KMM, 2015 WL 2217312, at *7 (S.D. Fla.
Apr. 6, 2015) (citing State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., Inc., 427 F.
App’x 714, 722-23 (11th Cir. 2011)).
Here, the Court finds that the undisputed record establishes each of the elements of unjust
enrichment and concludes that summary judgment is warranted in State Farm’s favor. 8 First, the
Court finds that there is no genuine issue of material fact that State Farm conferred a benefit on
B & A in the amount of $1,478.848.40 for the services identified in the Complaint, and that B &
A voluntarily accepted and retained that benefit. It is also undisputed that Alvarez, Dr. Alonso,
and Dr. Genao received the benefit of the illegal and improper payments made to B & A in the
form of salaries and additional payments. Florida law expressly states that a provider can refuse
payment for services unlawfully rendered.
Fla. Stat. § 627.736(5)(b)(1)(b).
Based on
Defendants’ unlawful conduct, State Farm paid claims which it was statutorily entitled to deny.
Allowing Defendants to retain those benefits under these factual circumstances would violate all
principles of equity.
2.
State Farm is Entitled to Declaratory Relief
Florida law also provides insurers, like State Farm, the ability to “pursue a declaratory
action which requires a determination of the existence or nonexistence of a fact upon which the
insurer’s obligations under an insurance policy depend.” Higgins v. State Farm Fire & Cas. Co.,
894 So. 2d 5, 12 (Fla. 2004); see also Med. Serv. Ctr., 2015 WL 2170396, at *9. Courts find this
remedy appropriate when an insurer seeks to be excused from making payments to a clinic that
operates unlawfully. See Silver Star, 739 F.3d at 584; Med. Serv. Ctr., 2015 WL 2170396, at *9.
The record is clear that Defendants have engaged in unlawful conduct in a variety of
ways. As a result, there is no genuine issue of material fact regarding whether the services for
8
The Court addresses Defendants’ various affirmative defenses below.
15
which Defendants submitted bills to State Farm were lawful and compensable during the
Relevant Time Period. Accordingly, the Court finds that a declaration is warranted confirming
that State Farm is not obligated to pay Defendants the amount of Defendants’ outstanding
invoices for any unlawful and noncompensable services provided to State Farm’s insureds.
C.
Defendant Alex Alonso, M.D.’s Motion for Summary Judgment
Dr. Alonso’s Motion for Summary Judgment rests on three affirmative defenses: (1) res
judicata (claim preclusion), (2) collateral estoppel (issue preclusion), and (3) statute of
limitations.9 Regarding the first two affirmative defenses, Dr. Alonso argues that the claims and
issues raised in State Farm’s Complaint were fully litigated before the Honorable Ursula Ungaro
in a prior action (the “2013 Action”). 10 For his third affirmative defense, Dr. Alonso argues that
any claims of unjust enrichment for payments he received prior to November 19, 2010 are barred
by the relevant statute of limitations.
State Farm argues that Dr. Alonso cannot viably assert res judicata as a defense based on
the terms of the 2013 Settlement Agreement, and the fact that Dr. Alonso was not a party to the
2013 Action. Similarly, State Farm asserts that Dr. Alonso’s collateral estoppel defense must
fail as a result of the express terms and conditions of the 2013 Settlement Agreement. Finally,
9
The non-Alonso Defendants, in response to State Farm’s Motion for Summary
Judgment, also raise the affirmative defenses of statute of limitations and res judicata. See ECF
No. 134. The non-Alonso Defendants’ arguments in support of their affirmative defenses
originate from the same factual basis as those asserted by Dr. Alonso. That is, the non-Alonso
Defendant’s also argue that Plaintiff’s cause of action is barred by a four year statute of
limitations and that the results of a prior action have preclusive effect. Therefore, the Court’s
analysis on these issues is equally applicable to the non-Alonso Defendants where relevant.
10
In 2013, State Farm Mutual sued B & A and Alvarez in the case of State Farm Mutual
Automobile Insurance Co. v. B & A Diagnostic, et al., No. 13-cv-24393-UU (S.D. Fla. 2013).
The case was voluntarily dismissed with prejudice as a result of a settlement agreement (the
“2013 Settlement Agreement”) between the parties. See (ECF 121-1).
16
State Farm argues that Dr. Alonso’s statute of limitations defense is tempered by the delayed
discovery and equitable tolling doctrines.
1.
Res judicata (Claim Preclusion)
As this Court previously recognized, the doctrine of res judicata serves as a bar to
subsequent litigation only when there is “(1) identity of the thing sued for, (2) identity of the
cause of action, (3) identity of persons and parties to the action, and (4) identity of the quality or
capacity of the person for or against whom the claim is made.” State Farm Mut. Auto. Ins. Co. v.
B & A Diagnostic, Inc., No. 14-CV-24387-KMM, 2015 WL 2217312, at *5 (S.D. Fla. Apr. 6,
2015) (quoting Saboff v. St. John’s River Water Mgmt. Dist., 200 F.3d 1356, 1360 (11th Cir.
2000)).
Where parties consent to a voluntary dismissal of a complaint with prejudice, “a
somewhat modified form of res judicata applies to the written settlement agreement upon which
such dismissal is predicated.” Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1291
(11th Cir. 2004).
A court’s analysis under these circumstances requires a focus on the settlement
agreement between the parties. Id. at 1289 (“In determining the res judicata effect of an order of
dismissal based upon a settlement agreement, [courts] should also attempt to effectuate the
parties’ intent. The best evidence of that intent is, of course, the settlement agreement itself.”).
In fact, the scope of the preclusive effect of a voluntary dismissal based on settlement “should
not be determined by the claims specified in the original complaint, but instead by the terms of
the Settlement Agreement, as interpreted according to traditional principles of contract law.” Id.
Accordingly, a court should “look to the agreement itself to determine what claims the parties
intended to be finally and forever barred by the dismissal.” Ruple v. Hartford Life & Acc. Ins.
Co., 340 F. App’x 604, 610 (11th Cir. 2009). Courts often rely upon the release language in a
settlement agreement to determine the scope of claims subject to res judicata. Norfolk, 371 F.3d
17
at 1290; Harty v. Ehden, N.V., No. 12-CV-14087-KMM, 2012 WL 2312044, at *2 (S.D. Fla.
June 18, 2012) (concluding that release agreement barring all future claims “constitute[d] a prior
judgment on the merits” for purposes of res judicata).
Dr. Alonso’s res judicata argument is threefold and centers on the essential elements of
that affirmative defense. First, Dr. Alonso argues State Farm’s claims are barred as a court of
competent jurisdiction previously entered a final judgment on the merits between identical
parties. Second, Dr. Alonso asserts that State Farm’s claims are barred as the two cases involve
the same causes of action. Finally, Dr. Alonso rests this affirmative defense on the argument that
he was in privity with B & A or on the notion that State Farm’s claims against him and his codefendants could have been brought at the time of the initial complaint.
Dr. Alonso’s argument fails to consider the important distinction between the res judicata
effect of an earlier judgment and that of a settlement agreement. The record is clear that the
parties jointly and voluntarily dismissed with prejudice the 2013 Action pursuant to a settlement
agreement that covered certain claims. In relevant part, the 2013 Settlement Agreement states:
The Parties will dismiss with prejudice all claims and counterclaims filed against
the other party in the case styled State Farm Mutual Automobile Insurance
Company v. B & A Diagnostic, Inc. n/k/a Oasis Medical Center Corp., and
Ernesto Alvarez Velasco, Case No. 1:13-cv-24393-UU pending in the United
State District Court, Southern District of Florida pertaining to those damages
identified on Exhibits “E” and “J” to the Amended Complaint.
...
Notwithstanding the foregoing, the Parties collectively expressly acknowledge
and agree that this agreement has no effect on any rights the Parties, or any nonparty, may have pertaining to any other dispute, claims, damages, charges or
causes of action which any entity may in the future pursue.
Pl.’s Resp. in Opp’n to Def.’s Mot. for Summ. J. (ECF No. 140).
Employing traditional
principles of contract law, the Court finds that the parties’ intent in the 2013 Settlement
Agreement was clear. The voluntary dismissal centered on only those damages identified on
18
Exhibits “E” and “J” of the Amended Complaint in the 2013 Action. As Plaintiff correctly
states, none of the claims in this case are duplicative of those gaining preclusive effect by way of
the 2013 Settlement Agreement. Moreover, the express language of the release agreement is
narrowly tailored to only apply to damages identified on Exhibits E and J and does not serve as a
universal bar to all future claims by either party. Because State Farm’s claims fall squarely
outside the terms of the 2013 Settlement Agreement, they are not subject to res judicata. Dr.
Alonso has also failed to meet his burden on his remaining res judicata arguments.11
2.
Collateral Estoppel (Issue Preclusion)
While res judicata acts as a bar to the relitigation of claims, “collateral estoppel precludes
the relitigation of an issue that has already been litigated and resolved in a prior proceeding.”
Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1359 (11th Cir. 1998). To invoke collateral
estoppel, a party must establish the following essential elements:
(1) the issue at stake must be identical to the one involved in the prior litigation;
(2) the issue must have been actually litigated in the prior suit; (3) the
determination of the issue in the prior litigation must have been a critical and
necessary part of the judgment in that action; and (4) the party against whom the
earlier decision is asserted must have had a full and fair opportunity to litigate the
issue in the earlier proceeding.
I.A. Durbin, Inc. v. Jefferson Nat. Bank, 793 F.2d 1541, 1549 (11th Cir. 1986). Like res
judicata, when a judgment dismissing an action with prejudice is based upon a settlement
agreement between the parties, it is the express intent of the parties that is the determining factor
11
Dr. Alonso’s argument that he was in privity with B & A for purposes of the 2013
Action is unavailing. It is widely recognized that the term “privity” is not limited in scope to a
traditional contractual relationship, but instead is more broadly understood as “a word used to
say that the relationship between the one who is a party on the record and another is close
enough to include that other within the res judicata.” United States v. Manning Coal Corp., 977
F.2d 117, 121 (4th Cir. 1992) (quoting Bruszewski v. United States, 181 F.2d 419, 423 (3d
Cir.1950) (Goodrich, J., concurring)). As a nonparty to the 2013 Action, Dr. Alonso can assert
nonparty preclusion only if the facts show that one of the limited exceptions to the rule against
nonparty preclusion is met. See Taylor v. Sturgell, 553 U.S. 880, 894-95 (2008). There is no
evidence that any of the Sturgell exceptions apply to Dr. Alonso.
19
whether the judgment is given collateral estoppel effect. Norfolk, 371 F.3d at 1288; see also
Richardson v. Alabama State Bd. of Educ., 935 F.2d 1240, 1245 (11th Cir. 1991). The Eleventh
Circuit has held that “a consent judgment cannot constitute collateral estoppel unless the party
pleading collateral estoppel proves from the record of the prior case or through extrinsic
evidence that the parties intended the consent judgment to operate as a final adjudication of a
particular issue.” Balbirer v. Austin, 790 F.2d 1524, 1528 (11th Cir. 1986). Generally, matters
dismissed on the basis of a settlement agreement do not support collateral estoppel because the
purpose of settlement is to avoid the actual litigation of an issue. Arizona v. California, 530 U.S.
392, 414 (2000) (“[S]ettlements ordinarily occasion no issue preclusion . . . unless it is clear . . .
that the parties intend their agreement to have such an effect.”); Citibank, N.A. v. Data Lease
Fin. Corp., 904 F.2d 1498, 1504 (11th Cir. 1990) (citation omitted).
Dr. Alonso argues that each of the elements for collateral estoppel are met here. In
response, Plaintiff asserts that it is clear that the parties had no intention for the 2013 Settlement
Agreement to provide any preclusive effect to any issues in subsequent litigation. Supporting
this contention, Plaintiff notes that the 2013 Settlement Agreement expressly acknowledges that
the parties did not intend the dismissal by Judge Ungaro to constitute a final judgment on any
issue. Additionally, Plaintiff argues that Dr. Alonso cannot establish that any of the issues before
this Court were actually litigated or critical and necessary to the judgment in the 2013 Action.
The Court finds the language of the 2013 Settlement Agreement clear that the parties had
no intention for the agreement to operate as a final adjudication of any particular issue.
Moreover, none of the issues before the Court are the same as those disposed of through the 2013
Settlement Agreement. In pertinent part, the unambiguous language of the agreement expressly
states that the “Settlement Agreement shall not infer any admission by either State Farm or B &
A and State Farm acknowledges that, although B & A is entering into this Settlement
20
Agreement, there has been no admission by B & A of the wrongdoing alleged in State Farm’s
Amended Complaint.” (ECF No. 121-1). The Court finds the language of the 2013 Settlement
Agreement represents a prime example of a situation where, pursuant to a settlement agreement
between parties, there has been no judicial decision on the merits, and thus collateral estoppel
does not apply. Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1182 n.8 (11th Cir.
2013); Restatement (Second) of Judgments § 27 cmt. e (1982).
3.
Statute of Limitations
Finally, Dr. Alonso asserts that the relevant statute of limitations bars State Farm’s unjust
enrichment claims. There is no specific statute of limitations for a claim of unjust enrichment in
Florida. See Fla. Stat. § 95.11. Instead, courts apply various limitations periods based on the
nature of the underlying allegations. Grove Isle Ass’n, Inc. v. Grove Isle Assocs., LLLP, 137 So.
3d 1081, 1094 (Fla. 3d DCA 2014); Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So. 3d 855,
859 (Fla. 4th DCA 2013); Blackburn v. Bartsocas, 978 So. 2d 820, 823 (Fla. 4th DCA 2008)
(applying two year limitations period). Here, State Farm’s claims for unjust enrichment are
based on fraud with a corresponding statute of limitations of four years. Fla. Stat. § 95.11(3)(j).
According to Dr. Alonso, Plaintiff is legally barred from seeking any relief on claims that arose
prior to November 19, 2010. Plaintiff counters this assertion by arguing that both the delayed
discovery and equitable tolling doctrines are applicable.
As the party seeking to assert an affirmative defense, it is undisputed that the burden to
establish the essential elements of the statute of limitations defense lies with Dr. Alonso. Int’l
Stamp Art, Inc. v. U.S. Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (noting that when a
movant “is asserting an affirmative defense, it must establish that there is no genuine issue of
material fact as to any element of that defense”); see also Office of Thrift Supervision v. Paul,
21
985 F. Supp. 1465, 1470 (S.D. Fla. 1997) (“The reason is that the defendant bears the burden of
proof on his affirmative defenses at trial.”).
Under Florida law, the general rule is that “[a] cause of action accrues when the last
element constituting the cause of action occurs.” Fla. Stat. § 95.031. However, circumstances
can arise that necessitate either delaying accrual, see Rodriguez v. Favalora, 11 So. 3d 393, 395
(Fla. 3d DCA 2009), or otherwise tolling the relevant statute of limitations. Grossman v.
Greenberg, 619 So. 2d 406 (Fla. 3d DCA 1993) (statute of limitations is tolled where defendant
has engaged in fraudulent concealment). In a cause of action for unjust enrichment, the delayed
discovery doctrine and the doctrine of equitable tolling have been recognized as an appropriate
reference for “the perimeters of th[e] limitations period.” State Farm Mut. Auto. Ins. Co. v.
Kugler, No. 11-80051, 2011 WL 4389915, at *13 (S.D. Fla. Sept. 21, 2011).
The delayed discovery doctrine is a well-established statutory exception in Florida and
“generally provides that a cause of action does not accrue until the plaintiff either knows or
reasonably should know of the tortious act giving rise to the cause of action.” Hearndon v.
Graham, 767 So. 2d 1179, 1184 (Fla. 2000). The doctrine, as codified, provides in relevant part
that “[a]n action founded upon fraud” accrues when “the facts giving rise to the cause of action
were discovered or should have been discovered with the exercise of due diligence.” Fla. Stat. §
95.031(2)(a). Thus, a plaintiff must initiate an action “founded upon fraud” within four years of
discovering the facts underlying the action or within four years of when those facts should have
been discovered with diligence.
Under the common law doctrine of equitable tolling, a plaintiff “may sue after the
statutory time period has expired if they have been prevented from doing so due to inequitable
circumstances.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 706 (11th Cir. 1998). In
Florida, the doctrine supports the interests of justice by preserving “a plaintiff’s right to assert a
22
meritorious claim when equitable circumstances have prevented a timely filing.” Machules v.
Dep’t of Admin., 523 So. 2d 1132, 1134 (Fla. 1988). The Florida Supreme Court has explained
that equitable tolling is generally “applied when the plaintiff has been misled or lulled into
inaction, has in some extraordinary way been prevented from asserting his rights, or has timely
asserted his rights mistakenly in the wrong forum.” Id.
The Court finds support for the application of both doctrines in the undisputed record
evidence. The central thrust of State Farm’s allegations is that Defendants falsely represented
that the services B & A provided were lawful and compensable. Compl. (ECF No. 1) at ¶¶ 124–
127. As an action clearly “founded upon fraud,” State Farm’s ability to overcome the four year
statute of limitations rests on when State Farm discovered, or reasonably should have discovered,
Defendants’ unlawful conduct. Defendants have not offered any factual support suggesting that
State Farm was aware of Defendants’ unlawful conduct at a point in time that would necessitate
dismissal of State Farm’s claims. Instead, the undisputed record evidence before the Court
indicates that State Farm became aware of: (1) Alvarez’s unlawful performance of X-rays in
December 2010; (2) Ortiz’s unlawful performance of X-rays in early 2012; (3) the issue of
Medical Director statutory non-compliance by Drs. Alonso and Genao in June and July of 2014;
and (4) B & A’s lack of a good-faith effort to collect co-payments and deductibles from its
patients in September, 2014. Accordingly, the delayed discovery doctrine defers the accrual of
State Farm’s claims in this case, as all of the knowledge gained by State Farm regarding
Defendants’ unlawful conduct occurred at a point of time within the limitations period.
The undisputed record evidence is equally clear that through each submitted bill claiming
that the services Defendants’ rendered were lawful and not fraudulent, Defendants, including Dr.
Alonso, lulled State Farm into inaction. Specifically, State Farm continually relied upon the
representation that B & A was operating under a lawful license obtained from Florida’s AHCA.
23
In order to obtain this license, B & A and its designated Medical Director were required to
represent that B & A employed a legally compliant Medical Director who provided daily
oversight of the clinic and that the Medical Director undertook the expressly enumerated
statutory duties of Section 400.9935.
However, the record evidence shows that B & A’s license was obtained through false and
misleading statements on the clinic application submitted to AHCA.
As this Court has
previously recognized in an analogous situation, “[l]icenses obtained in violation of a licensing
statute or otherwise procured by fraud or deception have been found to be void ab initio.” State
Farm Mut. Auto. Ins. Co. v. Med. Serv. Ctr. of Florida, Inc., No. 14-CV-20625-KMM, 2015 WL
2170396, at *7 (S.D. Fla. May 8, 2015). Defendants’ false representations caused State Farm to
continue to make payments to Defendants for which they were not entitled. Although the record
supports an inference of “active deception” by Defendants, this is not necessary to support a
finding in favor of State Farm on the issue of equitable tolling. See Perera v. Wachovia Bank,
N.A., No. 09-23773-CV-LENARD, 2010 WL 1375635, at *4 (S.D. Fla. Mar. 15, 2010).
Therefore, equitable circumstances exist that warrant preserving State Farm’s cause of action by
tolling the relevant statute of limitations.
Accordingly, viewing the facts in the light most favorable to State Farm as the nonmoving party, the Court finds no basis for granting summary judgment in Dr. Alonso’s favor.
V.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiffs’
Motion for Summary Judgment (ECF No. 123) is GRANTED. It is further ORDERED AND
ADJUDGED that Defendant Alex Alonso, M.D.’s Motion for Summary Judgment (ECF No.
128) is DENIED.
24
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.
Plaintiff State Farm Mutual is awarded a judgment against Defendants B & A and
Dr. Genao, jointly and severally, in the amount of $316,315.63;
2.
Plaintiff State Farm Fire is awarded a judgment against Defendants B & A and
Dr. Genao, jointly and severally, in the amount of $178,866.72;
3.
Plaintiff State Farm Mutual is awarded a judgment against Defendant B & A in
the amount of $811,254.59;
4.
Plaintiff State Farm Fire is awarded a judgment against Defendant B & A in the
amount of $172,411.46;
5.
Plaintiff State Farm Fire is awarded a judgment against Defendant Alvarez in the
amount of $43,290.73;
6.
Plaintiff State Farm Fire is awarded a judgment against Defendant B & A in the
amount of $28,210.58.
7.
It is further ORDERED AND ADJUDGED that Plaintiff is not obligated to pay to
$697,970.00 to Defendants for services regarding Plaintiff’s insureds which remain outstanding
and unpaid.
The Clerk of Court is directed to CLOSE this case. All pending motions are DENIED AS
MOOT.
16th
DONE AND ORDERED in Chambers at Miami, Florida, this ____ day of November,
2015.
Kevin Michael Moore
2015.11.16 16:19:37 -05'00'
________________________________
K. MICHAEL MOORE
CHIEF UNITED STATES DISTRICT JUDGE
cc:
All counsel of record
25
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