Options Home Health of North Florida, Inc. et al v. Nurses Registy and Home Health Corporation et al
Filing
50
MEMORANDUM OPINION & ORDER: 7 MOTION to Dismiss by Nurses Registy and Home Health Corporation DENIED; 15 MOTION to Dismiss by Lennie G. House DENIED AS MOOT. Signed by Judge Joseph M. Hood on 2/9/2012.(STB)cc: COR Modified on 2/10/2012 (STB).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
OPTIONS HOME HEALTH OF
NORTH FLORIDA, INC.,
BRIAN VIRGO, and
JOSH GOODE,
)
)
)
)
)
) Action No. 5:11-CV-166-JMH
)
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)
Plaintiffs,
v.
NURSES REGISTRY AND
HOME HEALTH CORPORATION,
Defendant.
**
**
**
**
**
This matter is before the Court on a Motion to Dismiss
[Record No. 7] filed by Defendants Nurses Registry and Home
Health Corporation (“Nurses Registry”).1
Plaintiffs have
filed a Response [Record No. 30] and Defendant has Replied
[Record No. 42].
This matter is now ripe for review.
This dispute centers on Nurses Registry’s purchase of
the
assets
of
Plaintiff
Options
1
Home
Health
of
North
A Motion to Dismiss [Record No. 15] was also filed
regarding the claims against Defendant Lennie House.
He
was subsequently dismissed from the case by virtue of this
Court’s
August
25,
2011
Order
[Record
No.
33].
Accordingly, that Motion to Dismiss [Record No. 15] is
denied as moot.
1
Florida, Inc. (“Options”) and the effect of a change in the
law prohibiting the transfer of Options’ existing Medicare
License on the parties’ agreement.
Plaintiffs claim that
Nurses Registry breached the contract for the purchase of
Options and that Nurses Registry has been unjustly enriched
because it has had the use and benefit of Options’ assets
since
August
25,
2009
without
full
compensation,
the
benefits of Josh Goode’s services without full compensation
and Nurses Registry has received payments from Medicare by
using
Options’
Medicare
license,
which
Medicare
is
now
trying to recover from Options.2
Statement of Facts
Plaintiffs Virgo and Goode founded Options, a Florida
company
engaged
in
providing
home
health
care
services,
such as minor medical care, bathing, toileting, feeding,
housekeeping,
meal
preparation
and
transportation.
In
June, 2009, Options and Nurses Registry entered into an
asset purchase agreement (the “APA”) providing for the sale
of
essentially
all
of
Options’
2
assets
for
a
price
of
Plaintiffs agreed to dismiss the following claims
against Nurses Registry, as indicated in the August 25,
2011 Order [Record No. 33]: Counts III, injunctive relief
regarding funds to be placed in escrow; Count IV,
conversion; and Count V, punitive damages.
2
$650,000.3
The assets covered by the agreement included
Options’ tangible personal property, contracts, inventory
and
work-in-process,
intellectual
proceeds,
leased
property,
intangible
personal
certain
books
records,
goodwill,
licenses,
certain
insurance
assets,
property,
schedules
and
as
thereto.
claims
set
The
and
forth
APA
defenses,
in
the
provided
and
APA
and
that
the
closing would occur on the later date of August 25, 2009,
or on the date at which all of the contingencies set forth
in the APA were met, whichever occurred later.
According
to
the
Complaint,
the
“transactions
contemplated by the APA closed on or about August 29, 2009,
but except for the $100,000 paid to Options pursuant to the
Escrow
Agreement,
the
remaining
balance
of
the
Purchase
Price remained unpaid.” [Complaint, ¶ 16.]
The
provided
Options,
Trust
that
Agreement,
Josh
would
Goode,
remain
which
a
was
part
plaintiff
employed
as
and
of
the
APA,
founder
the
of
acting
DON/Administrator for a certain time period. [Exhibit 1 to
3
Nurses Registry contends that the two parties executed
two separate versions of the APA.
Options states that it
was not aware of the two separate versions of the APA until
Nurses Registry filed a copy of the separate document along
with its Motion to Dismiss.
Regardless, as discussed
below, the Court excludes consideration, at this stage, of
the version executed by Nurses Registry on June 30, 2009,
because it was not part of the pleadings.
3
Complaint.] The Trust Agreement provided that upon Goode’s
termination
from
employment,
Options
was
to
be
paid
$75,000, which was being held in trust by Nurses Registry.
Nurses Registry terminated Goode's employment on or about
October 22, 2009.
However, Options alleges that Nurses
Registry failed to make the payment pursuant to the Trust
Agreement and APA. [Complaint, ¶ 17]
Options
Statement”
in
contemplated
Registry
and
Nurses
February
by
the
indicated
Registry
2010,
APA.
that
executed
which
Options
if
its
was
not
avers
“demand
a
“Closing
explicitly
that
Nurses
the
Closing
for
Statement was not met, it would not pay the $75,000 it owed
to Options under the Trust Agreement.” [Complaint, ¶ 18.]
The effective date of the Closing Statement was August 29,
2009, as that was the date on which the asset purchase
transaction had occurred.
The
Closing
Statement
identified
one
remaining
condition to be fulfilled before Nurses Registry would be
required
to
deliver
the
remaining
Purchase
Price
to
Options: “that ‘Section 5.1 of the [APA] requires the State
of Florida to issue a license to [Nurses Registry] before
the remaining Purchase Price set forth in Section 2.5 of
the [APA] is to be paid.’”
[Complaint, ¶ 20.] The APA
itself specifically provides in Section 2.5(p) that:
4
Seller shall have been issued any and all
licenses, permits and governmental certificates
and approvals necessary to conduct business as a
Home Health Agency in the State of Florida,
including, but not limited to, those licenses,
permits
and
governmental
certificates
and
approvals contained on Schedule 5.1(p)...
The parties further acknowledged “the issuance of the
Medicare License is a prerequisite and condition to the
duty of [Nurses Registry] to pay the Purchase Price set
forth
in
this
Settlement
Statement.”
[Complaint,
¶
20.]
The Closing Statement provided that the closing would be
“void ab initio” and the Purchase Price returned to Nurses
Registry “if the Medicare License is not issued to [Nurses
Registry] for any reason not within the control of the
[Nurses Registry] …” [Complaint, ¶ 24.]
The controversy between the parties centers around the
transferability of Options’ Medicare License.
the
license
from
Options,
Nurses
To transfer
Registry
Application for a “Change in Ownership.”
filed
an
While the Change
of Ownership application was pending, changes were made to
federal law, which allegedly prevented Nurses Registry from
obtaining a transfer of the Medicare license under which
Options
previously
provided
services.
According
to
the
Complaint, Nurses Registry became aware on or before May
11,
2010
that
the
Options’
5
Medicare
license
was
not
eligible for transfer to Nurses Registry due to the change
in the law and that it would therefore have to apply for a
new
Medicare
license
license
number
had
number.
a
Unless
retroactive
the
effective
new
Medicare
date,
Nurses
Registry’s ability to bill for Medicare services provided
before
the
new
license
was
issued
became
questionable.
However, according to Options, Nurses Registry continued to
bill Medicare during this time by using Options’ license
number. [Complaint, ¶ 28.]
After learning that the Medicare license might not be
eligible for transfer under the new laws, Nurses Registry
sent a letter on May 18, 2010, to Options “stating that
[the Department of Health and Human Services, Centers for
Medicare
approve
and
Medicaid
Services
(“CMS”)]
‘the
Medicare
component
of
the
had
refused
license’
to
thereby
‘terminat[ing] the Buyer’s duty to pay any of the Purchase
Price.’”
[Complaint,
¶
29.]
The
Complaint
alleges
that
“Nurses Registry did not take any steps to void or rescind
the transaction and continued to conduct business with the
Purchased Assets.”
[Complaint, ¶ 29.]
CMS issued a final
determination on or about November 5, 2010, confirming that
Options’ license was not eligible for transfer to Nurses
Registry under the new law. [Complaint, ¶ 32.]
6
While
Options’
Nurses
waiting
on
CMS’
could
be
pursued
a
license
Registry
determination
conveyed
new
to
of
whether
Nurses
license.
In
the
Registry,
May,
2010,
Nurses Registry filed an enrollment application with CMS
for a new license.
[Complaint, ¶ 30.]
received
or
notice
on
about
July
31
Nurses Registry
2010,
that
the
Enrollment Application had been processed and a site survey
would
be
conducted
accrediting
by
organization
the
to
State
ensure
Survey
Agency
or
compliance
with
the
conditions for participation in Medicare by a home health
agency.
Nurses
[Complaint, ¶ 30.]
Registry
received
On or about February 23, 2011,
its
provider.
[Complaint, ¶ 34.]
not
to
able
Registry
was
obtain
not
Medicare
License
as
a
new
Although Nurses Registry was
Options’
precluded
Medicare
from
license,
obtaining
a
Nurses
license
altogether. However, according to Options, Nurses Registry
could only bill for services provided after the effective
date of the Joint Commission survey, February 23, 2011,
rather than an earlier date based on the Options’ license
which was already in effect.
“Medicare
often
makes
an
As stated in the Complaint,
advance
payment
for
services
provided by a [Home Health Agency] and may seek claw back
or offset those payments at a later time if a reimbursement
is later disallowed.”
[Complaint, ¶ 42.]
7
Accordingly,
certain
reimbursements
disallowed.
Because
to
Nurses
those
Registry
services
were
were
provided
later
under
Options’ provider number, however, CMS demanded refund of
those
payments.
The
requests
for
repayment
allegedly, initially ignored by Nurses Registry.
were,
However,
on or about March 31, 2011, Nurses Registry forwarded the
accumulated
demand
letters
counsel
for
Options.
$80,000
from
forward
to
CMS
Options,
the
and
seeks
which,
Department
delinquent
of
to
notices
recover
Options
more
than
CMS
will
argues,
Treasury’s
Debt
to
Collection
Center (“DCC”), if not paid promptly.
The DCC can collect
from
and
other
ownership
entities
interest,
in
which
thereby
Virgo
causing
Goode
harm
have
to
an
these
Plaintiffs for which there is no adequate remedy at law.
According
to
the
Complaint,
Nurses
Registry
has
neither paid the Purchase Price, nor has it given notice
that it deems the closing void ab initio.
Instead, Nurses
Registry has continued to use the assets since the closing
date.
Nurses Registry admits that it did not comply with its
obligations
under
the
APA
and
Closing
Agreement,
specifically that it did not pay Plaintiff Josh Goode the
agreed upon sum upon his termination, and that it has not
paid
the
remainder
of
the
8
purchase
price
under
the
agreement.
Nurses
allegations
regarding
arguments
before
Registry
this
does
Medicare
Court
not
address
overpayments
directly,
instead
the
in
it
its
argues
that it was not able to receive Medicare payments because
Nurses Registry did not acquire Options’ license.
Nurses
Registry argues that because it was impossible to obtain
the
Options’
Medicare
comply with the
license,
it
was
not
obligated
to
provisions contained in the agreement.
Standard of Law
Nurses Registry filed the current motion as a motion
to
dismiss
attached
pursuant
as
to
exhibits
Fed.
a
R.
number
Civ.
of
P.
items
12(b)(6),
but
that
not
formally part of the pleadings in this matter.
are
Thus, the
question becomes whether this motion should be treated as
one for summary judgment under Fed. R. Civ. P. 56.
Rule
12(d) provides that if “matters outside the pleadings are
presented and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.
All
parties must be given a reasonable opportunity to present
all the material that is pertinent to the motion.”
obligation
to
convert
to
a
summary
judgment
motion
The
is
mandatory if matters outside the pleadings are not excluded
by the Court.
Max Arnold & Sons, LLC v. W.L. Hailey & Co.,
Inc., 452 F.3d 494, 503 (6th Cir.
9
2006) (applying Rule 12
(d) to a Rule 12(c) motion). “A district court’s decision
to exclude such materials should be explicit.”
Ennis v.
Wells Fargo Bank, N.A., 2011 WL 1118669, *2 (W.D. Mich.
March 25, 2011) (citing Gunasekera v. Irwin, 551 F.3d 461,
466 n.1 (6th Cir. 2009)).
However, a court may consider
matters outside of the pleadings without converting to a
Rule 56 motion if the documents - in this case, exhibits
attached to Defendant’s motion to dismiss - are “referred
to in the complaint and are central to the claims contained
therein.”
Bassett v. Nat’l Collegiate Athletic Ass’n, 528
F.3d 426, 430 (6th Cir. 2008).
Plaintiffs argue, and this Court agrees, that it would
be unfair to convert this to a summary judgment motion in
this
circumstance.
No
discovery
has
occurred
to
date.
Defendant filed correspondence and affidavits as exhibits,
and Plaintiffs have not had the opportunity to counter the
allegations
otherwise.
contained
therein
through
discovery
or
Considering the defenses asserted, converting
the motion to a summary judgment motion, providing notice
to the parties of this intent and forcing the Plaintiffs to
file evidence opposing the motion at this stage would be
inefficient and unreasonable.
Acad.,
See Yorkavitz v. Grand River
2010 WL 2195650 (N.D. Ohio May 28, 2010);
Clark
Motor Co. v. Mfrs. & Traders Trust, Co., 2007 WL 2155528
10
(M.D. Pa. July 26, 2007); Black v. Franklin Cty, Ky., 2005
WL 1993445, *2 (E.D. Ky
Aug. 16, 2008).
Moreover, opening
the matter for discovery prior to ruling on the motion
would not be any more efficient than allowing discovery to
proceed
in
due
course
and
allowing
the
parties
the
opportunity to file their summary judgment arguments after
discovery has taken place and all of the relevant evidence
may be brought to light.
Accordingly, this Court shall review the sufficiency
of the Complaint and consider the Asset Purchase Agreement
executed
by
Options
on
June
30,
2009,
the
Closing
Statement, and the May 18, 2010 letter from counsel for
Nurses
Registry
to
counsel
referenced in the Complaint.
for
Options,
which
was
In considering the pending
Motion to Dismiss, the Court shall exclude the remaining
exhibits attached to Defendant’s motion, including several
items
of
correspondence,
the
APA
executed
by
Nurses
Registry,4 and Craig Carter’s Affidavit, as well as Craig
4
Nurses Registry contends that it signed a separate
version of the APA on or about June 30, 2009.
Options
contends, however, that it was unaware of this separate
agreement until after the Complaint was filed. Considering
the posture of the instant motion, any argument related to
this separate agreement may be raised by the parties at a
later date in an appropriate motion.
11
Carter’s Supplemental Affidavit and the exhibits attached
thereto.
A
motion
to
dismiss
pursuant
to
Fed.
R.
Civ.
P.
12(b)(6) tests the sufficiency of a plaintiff’s complaint.
The Court views the complaint in the light most favorable
to the plaintiff and “[f]actual allegations must be enough
to raise a right to relief above the speculative level...
on the assumption that all the allegations in the complaint
are true.”
Bell Atlantic v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 1965 (2007).
With respect to the averments set forth in Plaintiffs’
Complaint, the Court accepts Plaintiffs’ averments as true
for
the
purposes
Dismiss.
“A
inferential
of
evaluating
complaint
allegations
Defendant’s
must
contain
either
with
respect
to
Motion
to
direct
or
all
material
elements necessary to sustain a recovery under some viable
legal theory.”
Cir.
1997).
Weiner v. Klais & Co., 108 F.3d 86, 88 (6th
If
it
appears
beyond
doubt
that
the
plaintiffs’ complaint does not state facts sufficient to
“state a claim that is plausible on its face,” then the
claims
must
be
dismissed.
Twombly,
550
U.S.
at
570;
Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541-42 (6th
Cir. 2007); Our Lady of Bellefonte Hospital, Inc. v. TriState Physicians Network, Inc., 2007 WL 2903231, *2 (E.D.
12
Ky.
Sept.
27,
complaint
need
2007).
to
be
The
factual
sufficient
to
allegations
give
in
notice
the
to
the
defendant as to what claims are alleged, and the plaintiff
must plead “sufficient factual matter” to render the legal
claim plausible, i.e., more than merely possible. Ashcroft
v.
Iqbal,
---
U.S.
----,
129
S.Ct.
1937,
1949-50,
173
L.Ed.2d 868 (2009).
Analysis
Defendant argues that because Options’ license could
not be transferred to Nurses Registry after the change in
the
law,
grounds
the
of
entire
legal
contract
became
impossibility,
null
mutual
performance of a condition precedent.
and
mistake
void
and
on
non-
However, these three
arguments rest on the foundational tenet that the APA and
Closing
Agreement
required
the
specific
transfer
of
Options’ Medicare license and could not be satisfied by the
issuance of a new Medicare license to Nurses Registry.
The
Court cannot draw that conclusion from the materials before
it at this time.
In fact, the Court must view the well-
pleaded facts in the Complaint as true at this juncture
and,
in
doing
so,
this
Court
must
reject
Defendant’s
argument that the agreement between the parties was voided.
The plain language of the APA and Closing Agreement
suggests that the issuance of a Medicare License to Nurses
13
Registry
in
Florida,
license,
fulfills
transferred
whether
parties,
and
therefore
a
new
the
triggers
license
or
requirements
Defendant’s
Options’
for
the
obligations
under the contract as agreed. The APA defines “Licenses” as
“all
licenses,
permits,
authorizations,
Environmental
certificates
approvals,
Permits
of
authority
registrations,
and
similar
franchises,
consents
granted
or
issued by any Person and associated with or related to the
Purchased
Assets.”
itemization
Licenses”
of
are
The
all
to
APA
other
be
provides,
purchased
transferred.
along
assets,
[APA,
with
the
that
“All
Section
2.1.]
Later, in Section 5.1, “Conditions to the Obligations of
the Buyer to Close,” the APA provides that “Seller shall
have
been
issued
any
and
all
licenses,
permits
and
governmental certificates necessary to conduct business as
a
Home
Health
Section 5.1(p).]
Agency
in
the
State
of
Florida…”
[APA,
However, Options’ Medicare license is not
specifically listed, defined or otherwise referred to in
the APA outside of the global references therein.
The Closing Statement provided that “the issuance of
the Medicare License is a prerequisite and condition to the
duty of [Nurses Registry] to pay the Purchase Price set
forth
in
this
Settlement
Closing Statement.]
Statement.”
[Complaint,
¶
20;
The Closing Statement further provided
14
that the closing would be “void ab initio” and the Purchase
Price returned to Nurses Registry “if the Medicare License
is
not
issued
to
[Nurses
Registry]
for
any
reason
not
within the control of the [Nurses Registry]…” [Complaint, ¶
24; Closing Statement, Section 2.] Earlier in the Closing
Statement, it states that Section 5.1 of the APA “requires
the State of Florida to issue a license to the Seller…”
Even
the
Closing
Statement,
on
which
Nurses
Registry
heavily relies, defines license to mean Options’ Medicare
license only.
At this point of the litigation, based on the facts
before it, the Court cannot agree that the language in the
APA
and
Closing
Agreement
explicitly
requires
Options’
license to be transferred for the parties to be bound by
the agreement, as Defendant argues.
Plaintiffs allege that
Defendant
license
was
issued
February 23, 2011.
the
contract
Registry’s
relevant
Statement
is
a
Medicare
void
must
fail.
license
conditions
spelled
been
or
about
Therefore, Defendant’s arguments that
Medicare
have
on
met
has
out
and
Assuming
been
in
the
the
that
issued,
APA
Complaint
Nurses
then
and
all
Closing
cannot
be
dismissed on grounds of legal impossibility, mutual mistake
and non-performance of a condition precedent.
15
Defendant also argues, in the alternative, that each
party executed a different version of the APA, a fact that
was allegedly unknown to Plaintiffs until the filing of the
Motion to Dismiss.
Defendant argues that there was never a
meeting of the minds between the parties.
The Court has
determined to exclude the Nurses Registry version of the
APA, executed on or about June 30, 2009, for purposes of
this motion.
Accordingly, the Court declines to consider
these arguments, although the defendant is free to raise
this issue at a later time.
The Court now turns to the sufficiency of Plaintiffs’
individual claims.
With the understanding that a Medicare
License has been issued to Nurses Registry, the Court will
not dismiss the remaining claims.
Breach of Contract Claim
To state a claim for breach of contract, “Kentucky law
has long been clear that [the complaint] must state ‘the
contract, the breach and the facts which show the loss or
damage
by
reason
of
the
breach.’”
Shane
v.
Bunzl
Distribution USA, Inc., 275 F. App’x 535, 538 (6th Cir.
2008) (unpublished decision) (quoting Fannin v. Commercial
Credit Corp., 249 S.W.2d 826, 827 (Ky. 1952)).
In other
words, the elements of a breach of contract claim are: (1)
the
existence
of
a
valid
contract;
16
(2)
breach
of
the
contract; and (3) damages or loss to Plaintiff.
Metro
Louisville/Jefferson Cty Gov’t v. Abma, 326 S.W.3d 1, 8
(Ky.App.
2009);
Summit
Petroleum
Corp.
of
Indiana
v.
Ingersoll-Rand Financial Corp., 909 F.2d 862, 868 (6th Cir.
1990).
The
Complaint
herein
clearly
details
the
contract, the APA and Closing Statement, and sets forth the
obligations which Nurses Registry allegedly failed to meet.
Specifically, Nurses Registry failed to pay the balance of
the
purchase
issued
to
price,
Nurses
Additionally,
Nurses
$550,000,
once
Registry
Registry
a
on
Medicare
February
failed
to
pay
License
23,
2011.
Options
the
agreed upon sum of $75,000 upon the termination of Josh
Goode. Nurses Registry admits its failure to pay both of
these
sums.
Moreover,
the
Complaint
financial damage caused by the breach.
discusses
the
These facts as
alleged in the Complaint, if accepted as true, present an
actionable
claim
upon
which
Options
could
recover
for
breach of contract.
Nurses Registry argues that because Options’ license
cannot be transferred to Nurses Registry that the agreement
is void and, therefore, Nurses Registry did not have an
obligation to follow through on the obligations set forth
in the APA and Closing Statement.
this
argument
with
respect
to
17
the
Nurses Registry makes
$75,000
due
at
the
termination
of
Josh
Goode,
and
with
respect
to
the
remainder of the purchase price, notwithstanding the fact
that Josh Goode was terminated prior to the change in the
law which rendered the Options’ license non-transferable.
Nonetheless,
the
Complaint
asserts
that
Nurses
Registry
has, in fact, received a Medicare license and, accordingly,
all of the conditions precedent have been met.
While the
Court understands the defendant’s argument that the APA and
closing statement were referring to the sale of Options’
Medicare License, the Court is not willing or able to draw
that conclusion from the information available to it on
this
motion
sufficient
plausible
to
dismiss.
factual
and,
at
Plaintiffs’
matter
this
to
stage,
render
it
Complaint
the
survives
legal
pleads
claim
Defendant’s
motion to dismiss.
Unjust Enrichment
A valid claim for unjust enrichment must demonstrate
“three elements: (1) [a] benefit conferred upon defendant
at
plaintiff’s
benefit
by
expense;
defendant;
(2)
and
a
(3)
resulting
appreciation
inequitable
benefit without payment for its value.”
retention
of
of
Jones v. Sparks,
297 S.W.3d 73, 78 (Ky.App. 2009) (citing Guarantee v. Big
Rivers Electric Corp., 669 F.Supp. 1371, 1380-81 (W.D.Ky
1987)).
18
Plaintiffs’ Complaint alleges three separate benefits
enjoyed
Nurses
by
Nurses
Registry
Registry
has
at
enjoyed
Plaintiffs’
the
use
of
expense:
Options’
(1)
assets
while it operated, and continues to operate business, in
Florida since the date of the closing, August 29, 2009; (2)
Plaintiff Goode provided valuable services during the time
following the closing until his termination on October 22,
2009, for which he was not compensated as agreed; and (3)
Medicare
made
advance
payments
to
Nurses
Registry
under
Options’ license, and now that the license has not been
transferred, CMS is attempting to recoup the payments made
from Options, rather than Nurses Registry.
Nurses Registry
has
license
been
billing
Medicare
under
Options’
number
before the application for Change of Ownership was filed
and while it was pending.
allegedly
not
repaid
any
However, Nurses Registry has
of
the
monies
received
it
not
while
billing under that license.
Defendant
briefly
argues
that
was
because it did not receive Options’ license.
enriched
However, the
allegations in the Complaint, if true, may set forth a
valid claim for unjust enrichment.
Although, ultimately,
it may be determined that the allegations of an explicit
contract regarding the sale of Options’ assets and Goode’s
employment
preclude
this
claim
19
on
those
grounds,
Sparks
Milling
Co.
v.
Powell,
factual
allegations
143
S.W.2d
regarding
the
75
(Ky.
1940),
Medicare
the
overpayments
would be sufficient for an unjust enrichment claim under
Kentucky law.
The benefits described by Options were, if
Options’ allegations are true, conferred on Nurses Registry
to its benefit at Options’ expense and inequitably retained
without
payment.
Accordingly,
this
claim
survives
argument
regarding
Defendant’s motion to dismiss.
Injunctive Relief
Defendant
Plaintiffs’
only
claims
offers
for
a
cursory
injunctive
relief,
arguing
that
because Nurses Registry was not issued Options’ license, it
cannot bill Medicare for services rendered in Florida and,
therefore,
Defendant
injunctive
does
not
relief
address
is
the
improper.
However,
allegation
that
Nurses
Registry billed and received payment for services performed
after
the
closing
date
and
before
the
denial
of
the
Application for Change in Ownership, or the allegation that
CMS is seeking to recover those overpayments.
has
not
Complaint
demonstrated
do
not
that
qualify
the
for
facts
as
Defendant
alleged
injunctive
in
relief
the
and,
therefore, the motion to dismiss will be denied in this
respect.
20
Conclusion
For the foregoing reasons, IT IS ORDERED that Motion
to
Dismiss
[Record
No.
7]
filed
by
Defendant
Registry and Home Health Corporation is DENIED.
Nurses
Moreover,
the Motion to Dismiss filed by Lennie House [Record No. 15]
is DENIED AS MOOT.
This the 9th day of February, 2012.
21
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