United States of America Ex rel. v. National Strength and Conditioning Association et al

Filing 31

ORDER granting 11 Motion to Dismiss; denying 27 Motion to Strike. Signed by Judge George C. Smith on 11/17/15. (lvw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

UNITED STATES OF AMERICA,
ex rel. MITCHELL D. POTTERF IV,
Plaintiff-Relator,
v.

Case No.: 2:15-CV-701
JUDGE SMITH
Magistrate Judge Deavers

NATIONAL STRENGTH AND
CONDITIONING ASSOCIATION, et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court upon the Motion to Dismiss (Doc. 11) of Defendants,
National Strength and Conditioning Association and the Journal of Strength and Conditioning
Research. Plaintiff-Relator, Mitchell Potterf (“Plaintiff”) moved to strike Defendants’ exhibits
from the Motion to Dismiss (Doc. 27). In a separate filing, Plaintiff responded to Defendants’
motion and moved for leave to file an amended complaint (Doc. 28). Defendants opposed
Plaintiff’s request for leave and replied in support of their motion (Doc. 29).

Separately,

Defendants opposed Plaintiff’s Motion to Strike (Doc. 30). Plaintiff failed to timely reply in
support of his Motion to Strike. Accordingly, all of the motions are ripe for review. For the
following reasons, Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s request for leave
and Motion to Strike are DENIED.
I.

BACKGROUND

This case arises from a 2012 study and the resulting article (the “Study”) written by Ohio
State University (“Ohio State”) researchers, including, inter alia, Steven T. Devor, P.h.D. (“Dr.

Devor”). The article, titled “Crossfit-based high-intensity power training improves maximal
aerobic fitness and body composition,” concerned participants in a study at Plaintiff’s gym, Ohio
Fit Club. (Doc. 28-1, Am. Compl. at ¶ 20, Ex. 1). Plaintiff is the owner of Ohio Fit Club, which
uses an exercise regimen called CrossFit to train its clientele. The Study measured workout
participants both at the beginning and end of a ten-week period of daily CrossFit workouts.
(Doc. 1, Compl. at ¶ 22). Eleven of the fifty-four participants dropped out of the Study before
reaching the “test-out” stage, which was conducted at the completion of the ten-week period.
(Id. at ¶ 24). The Study noted that of the eleven participants who failed to test-out, nine
withdrew due to “injury or overuse.” (Id. at ¶ 25). In 2012, the Defendants, National Strength
and Conditioning Association (“NSCA”) and its online journal, the Journal of Strength and
Conditioning Research (the “Journal”) published the Study in the Journal. (Id. at ¶ 27). Plaintiff
alleges that the Study contained a false statement (the “Statement”) pertaining to the subjects’
purported injuries and overuse. (Id. at ¶ 26).
Plaintiff alleges that Defendants were made aware of the Statement’s false nature, but
neglected to issue a retraction or correction. (Id. at ¶ 31) The proposed Amended Complaint
alleges an erratum was issued on September 11, 2015—roughly three years after the Study’s
original publish date. (Doc. 28-1, Am. Compl. at ¶ 31). Due to Defendants’ prolonged failure to
correct or retract the Statement, Plaintiff brought the instant qui tam lawsuit on behalf of the
United States against the NCSA and the Journal on February 24, 2015, alleging violations of the
False Claims Act (“FCA”) under 31 U.S.C. §§ 3729(a)(1)(A) and 3729(a)(1)(B). (See Doc. 1,
Compl. at ¶ 17). In addition to the instant lawsuit, Plaintiff filed a nearly identical complaint
bringing claims against Ohio State and Professor Devor on the same day. See United States of
America ex rel. Mitchell Potterf IV v. The Ohio State University, No. 15-cv-703, at Doc. 1,

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Compl. (S.D. Ohio) (Smith, J.). Plaintiff also filed a lawsuit against Ohio State in the Ohio
Court of Claims. See Potterf IV, et al. v. Ohio State Univ., Ohio Court of Claims Case No. 201400328 (filed March 31, 2014).

Last, CrossFit, Inc. filed a lawsuit against Defendants in

California. See CrossFit, Inc. v. Nat’l Strength and Conditioning Assoc., 14 CV 1191 (S.D. Cal.)
(filed May 12, 2014).
II.

STANDARD OF REVIEW

Defendants bring this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted.
Under the Federal Rules, any pleading that states a claim for relief must contain a “short
and plain statement of the claim” showing that the pleader is entitled to such relief. Fed. R. Civ.
P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is
“plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim will be
considered “plausible on its face” when a plaintiff sets forth “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the
foregoing standards. In considering whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint in the light most favorable to the
plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d
829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).
However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to
threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”

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Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading
must still contain facts sufficient to “provide a plausible basis for the claims in the complaint”; a
recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes,
Inc. v. Ritz-Craft Corp of Michigan, Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S.
at 679.
III.

DISCUSSION

Defendants moved to dismiss this case, arguing that Plaintiff did not meet the stringent
pleading standard required under Rule 9(b) of the Federal Rules of Civil Procedure for fraud
claims. Plaintiff moved to strike the exhibits attached to Defendants’ motion and also responded
in opposition to Defendants’ motion. Plaintiff’s response also requested leave to file an amended
complaint. Plaintiff argued that the Complaint meets the pleading standards required under Rule
9(b) and that any doubt would be removed by the filing of the Amended Complaint.
A.

Motion to Dismiss
“A complaint stating a violation of the FCA constitutes an ‘averment[] of fraud’ for

purposes of Rule 9(b), and a complaint alleging such a claim must state the circumstances
surrounding the FCA violation with particularity.” United States ex rel. Bledsoe v. Cmty. Health
Sys., 342 F.3d 634, 642–43 (6th Cir. 2003) (“Bledsoe I”) (quoting Yuhasz v. Brush Wellman,
Inc., 341 F.3d 559, 563 (6th Cir. 2003)). Rule 9(b) is designed to give defendants “notice of the
specific conduct with which they were charged,” to reduce exposure “to fishing expeditions and
strike suits,” and to protect them “from spurious charges of immoral and fraudulent behavior.”
United States ex rel. Bledsoe v. Cmty. Health Sys., 501 F.3d 493, 510 (6th Cir. 2007) (“Bledsoe
II”). To comply with Rule 9(b), Plaintiff “must allege the time, place, and content of the alleged
misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent intent of the

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defendants; and the injury resulting from the fraud.” Bledsoe I at 643 (internal quotations
omitted).
The FCA, as amended in 2009, provides liability for any person who: a) “knowingly
presents, or causes to be presented, a false or fraudulent claim for payment or approval;” or b)
knowingly makes, uses, or causes to be made or used, a false record or statement material to a
false or fraudulent claim.”

31 U.S.C. § 3729(a)(1).

Plaintiff brings claims under both

§§ 3729(a)(1)(a) and 3729(a)(1)(b).
A review of the Plaintiff’s Complaint against Ohio State and Dr. Devor in this Court
makes clear that Plaintiff made identical allegations against Ohio State and Dr. Devor and the
NSCA and the Journal. See United States ex rel. Potterf IV v. The Ohio State Univ., No. 15-cv703, at Doc. 1, Compl. Thus, it is easy to see why Plaintiff’s allegations make little sense with
regard to the Defendants in the instant case. For example, the Complaint alleges that the
Defendants approached Plaintiff to do the study, proposed the procedures for the Study, did the
test-in and test-out procedures for the Study, made conclusions within the Study, and ultimately,
caused themselves to publish the Study. (Doc. 1, Compl. at ¶¶ 20, 21, 24, 25)1. What remains
unclear is if—or when—Defendants submitted any false or fraudulent information as a basis for
payment from the United States Government.
In order to have a claim under either provision of the FCA, Plaintiff must allege that
Defendants made false or fraudulent statements to the government in order to obtain payment.
U.S. ex rel. SNAPP, Inc. v. Ford Motor Co., 532 F.3d 496, 504–05 (6th Cir. 2008). “A plaintiff
must identify the specific claims that were submitted to the United States . . . .” United States ex

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Plaintiff’s Amended Complaint makes clear that these allegations actually refer to Ohio State and Dr. Devor. (See
generally, Doc. 28-1, Am. Compl.).

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rel. Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439, 446 (6th Cir. 2008) (internal quotations
omitted).
Plaintiff alleges that the claims presented to the government in this case were applications
for NIH grants in 2012 and 2013. (Doc. 1, Compl. at ¶ 30). Plaintiff claims that Defendants
obtain NIH grants “on the basis of their reputation and results in conducting research and
publishing studies.” (Compl. at ¶ 28). Further, Plaintiff alleges, “[t]he study underlying this
case is one of the studies the Defendants relied upon in furthering its reputation and obtaining
further grants from the NIH.” (Id.). However, that Defendants relied on their reputation to
obtain grants does not create a cause of action under the FCA.
Plaintiff’s Complaint alleges that the Statement was incorrect, and therefore, asks the
Court to assume that Defendants relied on the falsity of that specific statement to falsely bolster
their own reputation. Notably, Plaintiff makes no allegation that the Statement had any effect on
the methodology, the quality of the research, the ultimate conclusions of the article, or
Defendants’ reputation. (See generally Doc. 1, Compl.). Requiring more assumptions, Plaintiff
asks the Court to assume Defendants’ reputation is in fact false and that Defendants in turn relied
on the falsity of their reputation in order to apply for NIH grants. The Court will not make those
assumptions when the Plaintiff must plead fraud with specificity. Marlar, 525 F.3d at 448 n.3.
Plaintiff does not allege that Defendants’ reputation has suffered as a result of the Statement
being published, that Defendants alleged representation of its reputation was false when
presented to the NIH, or that Defendants made any mention of the Study when applying for NIH
grants.
Plaintiff’s failure to allege that Defendants made false statements to the NIH is fatal to
his FCA claims under Rule 9(b). The Complaint also fails to allege with specificity the false

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statement Defendants relied upon in a request for payment from the United States. For the
foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss the Complaint.
B.

Motion for Leave
Plaintiff also moved this Court for leave to file an Amended Complaint pursuant to Rule

15(a) of the Federal Rules of Civil Procedure. Plaintiff argues that the necessary information is
in the hands of the Defendants but fails to explain why the NIH is not subject to Freedom of
Information Act requests for their records, including grant awards and applications. Defendants
ask this Court to deny Plaintiff’s Motion for Leave on the basis that the amendment would be
futile because the Amended Complaint does not comport with Rule 9(b) of the Federal Rules of
Civil Procedure.
Other than minor changes to certain paragraphs, there are no material differences
between Plaintiff’s original Complaint and the Amended Complaint. Notably, the Amended
Complaint actually removes Plaintiff’s allegation that Defendants applied for and received NIH
grants in 2012 and 2013. (See Doc. 1, Compl. at ¶¶ 29, 30). However, Plaintiff continues to
assert that Defendants applied for and obtained grants from the NIH based on the Study. (Doc.
28-1, Am. Compl. at ¶ 28). Added to the proposed Amended Complaint are the following
paragraphs:
29. Additionally, the Defendants publish [sic] take advantage of additional
financial benefits from NIH in that they cross-publish all of their peerreviewed articles, including the article at issue in this case, in the NIH’s
journal “PubMed/Medline” search engine and database.
30. The Article containing the false/fraudulent data was published by the
Defendants on PubMed/Medline.
31. The Defendants continued to allow the article to be published, both in their
Journal and on PubMed/Medline, without retraction, and to be circulated on a
world-wide basis, through September 11, 2015, when they issued a retraction
in the form of an Erratum, and withdrew a portion of the false/fraudulent
data.

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(Doc. 28-1, Am. Compl. At ¶¶ 29–31).
Rule 15 of the Federal Rules of Civil Procedure instructs courts to “freely give[]” leave to
amend “when justice so requires.” See Fed. R. Civ. Pro. 15(a); Rose v. Hartford Underwriters
Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). However, this is not to say that leave to amend
should always be granted. Some circumstances such as undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies, undue prejudice to the opposing party, or futility of
the amendment may be grounds for denial. See Foman v. Davis, 371 U.S. 178, 182 (1962).
Ultimately, though, whether to grant or deny leave to amend a pleading is within the discretion
of the district court. Id.
Determining whether a proposed amendment is futile requires a single straightforward
question: can the claim, as amended, survive a motion to dismiss? Thiokol Corp. v. Dep’t of
Treasury, State of Mich., Revenue Div., 987 F.2d 376, 383 (6th Cir. 1993) (“This Circuit has
addressed the issue of ‘futility’ in the context of motions to amend, holding that where a
proposed amendment would not survive a motion to dismiss, the court need not permit the
amendment.”); Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23
(6th Cir. 1980) (“It is well settled that the district court may deny a motion for leave to amend a
complaint if such complaint, as amended, could not withstand a motion to dismiss.”). If the
answer is no, the amendment is futile and the Court has grounds to deny leave. To address the
pending motion, then, the Court must consider each claim set forth in Plaintiff’s proposed
Amended Complaint and determine whether any of his claims, as amended, could survive a
motion to dismiss, i.e., state a claim upon which relief could be granted.
Plaintiff’s only new allegation is that the Defendants take advantage of financial benefits
from the NIH when Defendants publish peer-reviewed articles through the NIH. (Doc. 28-1,

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Am. Compl. at ¶ 29). This allegation does not pass muster under Rule 9(b) because, even if true,
it is not an allegation that the Defendants used the Statement in the Study to request benefits
from the government or that Defendants submitted a claim for payment to the government as
would be required by the FCA. Instead, it is an allegation that Defendants received a financial
benefit when Defendants published articles with the NIH. Even assuming the allegation is true,
Plaintiff does not allege that Defendants submitted this article to the NIH in order to receive the
benefit of publication rights or financial benefits as would be required under the FCA. Instead,
Plaintiff’s Amended Complaint simply claims that Defendants cross-published all of their
articles with the NIH. Notably, Plaintiff’s Amended Complaint does not allege that the benefits
received by Defendants are even from the NIH. Plaintiff’s failure to allege what benefits
Defendants received as a result of the alleged fraudulent behavior does not meet the strict
pleading standard of Rule 9(b).
Further, Plaintiff’s section titled “Defendants’ Liability,” casts doubt on Plaintiff’s new
allegation of publication benefits because Plaintiff again presents only one substantive
allegation:
32. By virtue of the acts described above, Defendants knowingly (a) submitted
and continue to submit and/or (b) cause and/or continue to cause to be
submitted false or fraudulent claims to the United States Government for
NIH grants based upon the quality and accuracy of its research and academic
publications.
(Doc. 28-1, Am. Compl. at ¶ 32).
The allegation in paragraph 32 of Plaintiff’s Amended Complaint suffers from the same
deficiencies as the original Complaint, namely, that the allegation of fraud is not specific enough
to satisfy the burdens of Rule 9(b). As stated above, Plaintiff “must allege the time, place, and
content of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the

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fraudulent intent of the defendants; and the injury resulting from the fraud.” Bledsoe I at 643
(internal quotations omitted).
In the Amended Complaint, Plaintiff actually removes the dates of his allegations,
alleging simply that Defendants applied for and obtained grants. By comparison, the original
Complaint specifically alleged that Defendants obtained grants in 2012 and 2013. It is difficult
to comprehend how Plaintiff’s removal of dates satisfies a heightened standard requiring
plaintiffs to plead the time of alleged fraudulent activity.

Plaintiff alleges the article was

improperly filed in 2012 but not corrected until 2015. (Doc. 28-1, Am. Compl. at ¶¶ 27, 31).
Plaintiff does not provide a single date—or even a year—when the allegedly fraudulent
communication was made to the United States. The Court finds that Defendants have the right
under Rule 9(b) to a more precise claim than a three-calendar-year period.
In sum, Plaintiff’s Amended Complaint appears to be no more than a fishing expedition
that does not meet the stringent pleading standards under Rules 12(b)(6) or 9(b). Accordingly,
the Court DENIES Plaintiff’s request for leave to file the Amended Complaint.
C.

Motion to Strike
Plaintiff also moved this Court to strike Defendants’ Exhibits 1, 2, and 3. Plaintiff argued

that the exhibits could not be considered on a Motion to Dismiss, but made no argument or
reference to Defendants’ request that this Court take judicial notice of these exhibits. Regarding
Exhibit 3—the complaint in Mitchell Potterf IV v. The Ohio State University—it is well-settled
in this Circuit that judicial notice of other court proceedings is proper when faced with a Rule
12(b)(6) motion. See e.g. Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir.
2010); Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th Cir. 2008). Plaintiff’s
Motion to Strike on this issue is clearly without any basis in law. As the Court has excluded
Exhibits 1 and 2 from its consideration in making this ruling, Plaintiff’s Motion to Strike those
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exhibits is moot. See Fed. R. Civ. P. 12(d). Accordingly, the Court DENIES Plaintiff’s Motion
to Strike Exhibits 1, 2, and 3.
IV.

CONCLUSION

Based on the foregoing, Defendants’ Motion to Dismiss is GRANTED. Additionally,
Plaintiff’s request for leave to amend and Motion to Strike are DENIED. The Clerk shall
REMOVE Documents 11 and 27 from the Court’s pending motions list. The Clerk shall enter
final judgment in favor of Defendants and REMOVE this case from the Court’s pending cases
list.
IT IS SO ORDERED.
__/s/ George C. Smith
___
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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