SCIBETTA v. ACCLAIMED HEALTHCARE et al

Filing 19

MEMORANDUM AND ORDER granting 13 Motion to Dismiss without prejudice. Scibetta will have 30 days to file an amended complaint. Signed by Judge Peter G. Sheridan on 04/06/2021. (jdb) Modified on 4/6/2021 (jdb).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANNETTE SCIBETTA,
Case No.: 3:16-cv-02385 (PGS)(DEA)
Plaint UI
MEMORANDUM
AND ORDER

V.

ACCLAIMED HEALTHCARE et al.,
Defendants.

Plaintiff Annette Scibetta (“Scibetta”) brought a qui tam action on behalf of herself, the
United States, and the State of New Jersey, against Defendants Acclaimed Healthcare, Cane and
Able, Ray Stahl, Joan Stahl, Basha Stahl, ABC Corporations 1-10, and John Does 1-10. She
alleged that all Defendants violated the federal and New Jersey False Claims Acts (Counts I and
III); conspired to violate the federal and New Jersey False Claims Acts (Count II and IV);
violated New Jersey RICO (Count V); committed common law fraud (Count VI), unjust
enrichment (Count VII), and fraud in the inducement (Count VIII); violated the covenant of good
faith and fair dealing (Count IX); and retaliated against her (Count X). In the present motion,
Defendants Acclaimed Healthcare, Ray Stahl, Joan Stahl, and Basha Stahl seek dismissal of the
claims against them. (ECF No. 13).
Scibetta’s complaint cites the “reverse false claim” provision of the False Claims Act
31 U.S.C.

§ 3729(a)(1)(G)

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—

which relates to several claims in her complaint. (See Moving Br.

8, ECF No. 13; Opp. Br. 5, ECF No. 17). In her opposition brief, Scibetta clarified that “this is
not a reverse false claim complaint” and that she intended to quote language from 31 U.S.C.
3729(a)(1)(A) and (B) instead. (Opp. Br. 5). In addition, she includes a great deal of

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§

supplemental information in her opposition brief and attachments, explaining that she filed the
complaint quickly because she was concerned for patients who were being provided inferior or
fewer medical supplies than those prescribed by their doctors. (Cert. of Annette Scibetta ¶ 2,
Opp. Br. Ex. 1, ECF No. 17-1). However, a party may not amend or supplement her complaint
in a brief opposing a motion to dismiss. Corn. ofPa. ex rel. Zirnrnerrnan v. PepsiCo, Inc., 836
F.2d 173, 181 (3d Cir. 1988); accord Janowski v. City ofN Wildwood, 259 F. Supp. 3d 113, 130
(D.N.J. 2017). Scibetta requests that if this Court grants Defendants’ Motion to Dismiss, it do so
without prejudice so that she may move for leave to amend her complaint. (Opp. Br. 20).
To allow Scibetta to cure deficiencies in her complaint, the Court shall grant Defendants’
motion to dismiss without prejudice. Scibetta shall have 30 days to file an amended complaint.
Defendants may move to dismiss the amended complaint in accordance with the timeframes set
forth in the Federal Rules of Civil Procedure.
ORDER

THIS MATTER having come before the Court on a motion to dismiss filed by Defendants

Acclaimed Healthcare, Ray Stahl, Joan Stahl, and Basha Stahl (ECF No. 13); and the Court having
carefully reviewed and taken into consideration the submissions of the parties, as well as the
arguments and exhibits therein presented; and for good cause shown; and for all of the foregoing
reasons,
IT IS on this

(

day of April 2021,

ORDERED that Defendants’ motion to dismiss is granted without prejudice, and it is

further
ORDERED that Scibetta will have 30 days to file an amended complaint.
PETER G. SHERIDAN, U.S.D.J.
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