United States of America v. Patka et al

Filing 30

ORDER granting 24 Motion for Default Judgment as to Defendant Firoz M. Patka, M.D. in the amount of $1,200,000.00. This case stands closed. Signed by Chief Judge J. Randal Hall on 7/2/2018. (pts)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

UNITED STATES OF AMERICA,
•k
■k

Plaintiff,

*

CV

117-062

*

V.
*
5

FIROZ M. PATKA, M.D.,

*

Defendant.

ORDER

Before

judgment.

the

Court

(Doc. 24.)

is

Plaintiff's

motion

for

default

For the reasons set forth below, the

Court GRANTS Plaintiff's motion.

I. BACKGROUND

Defendant is

a doctor of medicine

registered to dispense

Schedule II, III, IV, and V controlled substances in the State

of Georgia.

Plaintiff, the United States of America, alleges

that Defendant violated Section 829 of the Controlled Substances

Act ("CSA"), 21 U.S.C. § 829, by improperly dispensing Schedule
II controlled substances.

Defendant,

who

practiced

Specifically, Plaintiff claims that

at three

different

locations,

would

pre-sign blank prescriptions so that physician assistants — who
otherwise could prescribe only Schedule III, IV, and V drugs —

could prescribe Schedule II controlled substances in Defendant's
absence.

Plaintiff filed its complaint against Defendant on May 26,
2017.

(Doc.

appear.

1.)

Defendant

Plaintiff

moved

failed

for

an

to

entry

answer

of

or

otherwise

default,

and

on

December 22, 2017, the Clerk entered default against Defendant.

(Docs. 20, 21.)

judgment

On March 20, 2018, Plaintiff moved for default

against

Defendant.

(Doc.

24.)

Plaintiff

sought

damages of $3.3 million and requested an evidentiary hearing to
establish its requested damages.
hearing

on

April

25,

2018,

The Court held an evidentiary

and

heard

evidence

related

to

Defendant's liability as well as damages.
II. DISCUSSION

Under Federal Rule of Civil Procedure 55, a court may enter

default judgment against a defendant

when: (1) both subject-

matter and personal jurisdiction exist; (2) the allegations in
the complaint state a claim against the defendant; and (3) the
plaintiff has shown the damages that it is entitled to.

See

Pitts ex rel. Pitts v. Seneca Sports, Inc., 321 F. Supp. 2d 1353,
1356-58 (S.D. Ga. 2004).

^'[A]

defendant's

default

does

not

court in entering a default judgment."

in

itself

warrant

the

Nishimatsu Constr. Co. v.

Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).

Default

judgment is warranted only ^^when there is a sufficient basis in

the

pleadings

Terrace

for

Found./

omitted)

the

entered.''

789 F.3d 1239, 1245

(internal

''defaulted

judgment

quotation

defendant

is

marks

deemed

to

Surtain

v.

Hamlin

{11th Cir. 2015) (citation

omitted).
admit

And

the

although

plaintiff's

a

well-

pleaded allegations of fact, [a defendant] is not held to admit
facts that are not well-pleaded or to admit conclusions of law."
Id. (citation omitted) (internal quotation marks omitted).

The

upshot of this standard is that "a motion for default judgment is
like a reverse motion to dismiss for failure to state a claim."

Id.

Thus, when evaluating a motion for default judgment, a court

must look

to see

whether

the "complaint contain[s] sufficient

factual matter, accepted as true, to state a claim to relief that

is plausible on its face."

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citation omitted) (internal quotation marks omitted).
1. Jurisdiction

The Court has subject-matter jurisdiction because this case
arises

under

personal

federal

law.

jurisdiction

over

28

U.S.C.

Defendant

§

1331.

because

It

the

issue occurred in the Southern District of Georgia.

also

conduct

has

at

21 U.S.C.

§ 842(c)(1)(A); see also Goodyear Dunlop Tires Operations, S.A.
V. Brown, 564 U.S. 915, 923 (2011).
2. Liability

Plaintiff

alleges

that

Defendant

§ 842 by pre-signing blank prescriptions.

violated

21

U.S.C.

Section 842 states

that "[i]t

shall

be

unlawful

for

any

person

. . .

who

[is

registered to dispense controlled substances] to distribute or

dispense a controlled substance in violation of section 829 of
this title."

21 U.S.C. § 842(a)(1).

Section 829 states that

"[ejxcept when dispensed directly by a practitioner, other than

a pharmacist, to an ultimate user, no controlled substance in
schedule

II

.

.

.

may

be

dispensed

without

prescription of a practitioner . . . ."

the

written

21 U.S.C. § 829(a).

For purposes of § 829, a valid ''written prescription" means:

A prescription for a controlled substance to be effective
must

be

issued

for

a

legitimate

medical

purpose

by

an

individual practitioner acting in the usual course of his
professional practice. The responsibility for the proper

prescribing and dispensing of controlled substances is
upon the prescribing practitioner, but a corresponding
responsibility rests with the pharmacist who fills the
prescription. An order purporting to be a prescription
issued not in the usual course of professional treatment

or

in

legitimate

and

authorized

research

is

not

a

prescription within the meaning and intent of section 309
of

the

Act

(21

U.S.C.

829)

and

the

person

knowingly

filling such a purported prescription, as well as the
person issuing it, shall be subject to the penalties
provided for violations of the provisions of law relating
to controlled substances.

21 C.F.R. § 1306.04.

The

that

Court

Defendant

schedule

II

allegations
blank

finds

that

violated

controlled

in

its

prescriptions

Plaintiff

§

829

by

substance.

complaint

that

so

his

that

sufficiently

unlawfully
Plaintiff

Defendant
physician

prescribe Schedule II drugs in his absence.

established

dispensing
made

was

a

detailed

pre-signing

assistants

could

(Doc. 1 SlSl 34-71.)

Plaintiff

also

prescriptions

was

alleged

that

^^outside

the

Defendant's

usual

course

pre-signing

of

of

professional

practice [and] in violation of the requirements of the CSA."^
(Id.)

Thus, Plaintiff's pleadings contain a sufficient basis to

find Defendant liable.

3. Damages

Section 842(c) provides that every violation § 829 carries a

civil

penalty of up to $25,000.

Government's
§ 829(a).

allegations

21

established

U.S.C. § 842(c).

299

separate

violations

The
of

The Court must now determine the appropriate civil penalty

to impose.

''When

determining

monetary

penalties

under

§

842(c),

district courts have frequently considered four factors: (1) the
level of defendant's culpability, (2) the public harm caused by
the violations, (3) defendant's profits from the violations, and

(4)

defendant's

ability

to

pay

a

penalty."

Advance

Pharmaceutical, Inc. v. United States, 391 F.3d 377, 399 (2d

^ Additionally, Plaintiff included in its motion for default
judgment evidence supporting the allegations made in its complaint.
Specifically, it offered a written affidavit from an expert. Dr. Gene
Kennedy, who declared that "it is the responsibility of the

prescribing physician to validate each prescription under his
signature" and "in a situation where schedule II prescriptions are
being provided by physician assistants without oversight and on presigned prescription forms, all such prescriptions are illegal .
outside

the

course

of

normal

medical

practice

.

.

.

[and]

not

medically legitimate." (Doc. 27-3, at 3.) Dr. Kennedy also declared
that after reviewing a sample of patient files related to the
prescriptions at issue, he believed that "[Defendant's] scheduled
medication prescribing for these patients was outside the usual course
of medical practice and not medically legitimate." (Id. at 2.)

Cir. 2004).

After considering these factors, the Court finds

that a penalty of $1,200,000 is appropriate in this case.
coming

to

things,

its

conclusion,

Plaintiff's

prescribed

drugs

discussing

the

the

Court

evidence

and

of

the

Plaintiff s

negative

public

considered,

street

expert

health

among

value

witness

In

other

of

the

testimony

consequences

resulting

from irresponsible opioid prescription practices.
III. CONCLUSION

Accordingly,

default

judgment

JUDGMENT
amount

in

of

favor

the

Court

(doc,
of

24)

GRANTS

and

Plaintiff

$1,200,000.

The

Plaintiffs

ORDERS
and

Clerk

the

against

SHALL

Clerk

to

Defendant

CLOSE

TERMINATE all deadlines.

motion

this

for

ENTER
in

the

case

and

^

ORDER ENTERED at Augusta, Georgia, this

icX.

day of July,

2018.

^CHIEF JUDGE
UNITED STATES DISTRICT

N

COURT

DISTRICT OF GEORGIA