United States of America v. Southwest Home Health Care, Inc. et al

Filing 113

OPINION AND ORDER by Judge Terence Kern - Defendant Kinnser Software, Inc.'s Motion for Entry of Final Judgment (Doc. 91) is GRANTED. ; granting 91 Motion for Judgment (lmc, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,
Ex rel. NICOLE OLCOTT,
Plaintiff,
v.
SOUTHWEST HOME HEALTH CARE,
INC., KINNSER SOFTWARE, INC., and
DR. ROGER LEE KINNEY,
Defendants.

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Case No. 12-CV-605-TCK -FHM

OPINION AND ORDER
Before the Court is Defendant Kinnser Software, Inc.’s Motion for Entry of Final
Judgment. Doc. 91. Relator Nicole Olcott (“Relator”) opposes the motion. Doc. 92.
I. Procedural Background
This action was originally filed under seal on October 29, 2012 by qui tam Relator Olcott
as an action to recover damages for alleged violations of the Federal Civil False Claims Act, 31
U.S.C. § 3729. Doc. 2. On June 13, 2013, Relator filed her First Amended Complaint under seal
“to clarify details of the allegations of the Complaint, to include specificity, and to amend
allegations with regard to the failure by defendants to meet the Conditions of Participation and the
Conditions of Payment required in order to seek reimbursement from the United States under the
Medicare Home Health Program.” Doc. 10.
On December 11, 2017, the United States elected to intervene as to a claim Relator alleged
against defendant Southwest Home Health Care, Inc. (“Southwest”), that Southwest “submitted

false claims to the United States by submitting bills for services rendered to patients that were not
homebound.” Doc. 37 at 1. The United States declined to intervene as to all other allegations,
including those against Kinnser Software, Inc. (“Kinnser”). Id.
On March 27, 2018, Kinnser filed a Motion to Dismiss pursuant to Rules 12(b)(6)and 9(b)
of the Federal Rules of Civil Procedure. Doc. 68. Specifically, Kinnser argued (1) the Amended
Complaint failed to allege facts supporting her allegations that Kinnser knew, encouraged, and
conspired with the other defendants for Southwest to submit false or misleading claims to
Medicare, and (2) the Relator failed to plead fraud with particularity, as required by Fed. R. Civ.
P. 9(b). Id. Relator opposed the motion, and in the alternative, requested that, in the event the
Court granted the Motion, she be given leave to file a Second Amended Complaint. Doc. 78 at
28.
On September 24, 2018, the Court granted Kinnser’s Motion to Dismiss and denied the
Relator’s request for leave to file a Second Amended Complaint. Doc. 87 at 14-15. In so ruling,
the Court concluded that the Amended Complaint contained no facts supporting her allegations
that Kinnser ever submitted or falsified a claim for payment or reimbursement to the government
or that Kinnser impliedly or expressly agreed with any defendant to defraud or scheme to defraud
the government. Id. at 7-15. The Court also denied the Relator’s request to amend her complaint
again. Id. at 14.
In the pending motion, Kinnser seeks entry of final judgment under Fed. R. Civ. P. 54(b).
Relator contends entry of judgment should be delayed until all remaining claims and issues are
resolved, because she would be unduly burdened, “as she would be forced to simultaneously
litigate her claims against the remaining defendants, while at the same time prosecute an appeal of
the judgment entered in favor of Kinnser.” Doc. 92 at 7.

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II. Applicable Law
“[W]hen multiple parties are involved, the court may direct entry of a final judgment as to
one or more, but fewer than all, claims or parties only if the court expressly determines that there
is no just reason for delay.” Fed. R. Civ. P. 54(b). “The purpose of Rule 54(b) is to avoid the
possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than
all of the parties until the final adjudication of the entire case by making an immediate appeal
available.” Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001) (quotations
omitted).

In order to enter a Rule 54(b) certification, the court must make two express

determinations. First, the court must determine that its judgment is final. Stockman’s Water
Co.,LLC v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (citation omitted). Second,
the court must determine that no just reason for delay of entry of its judgment exists. Id.
The Court may also consider “whether the claims under review [are] separable from the
others remaining to be adjudicated and whether the nature of the claims already determined [are]
such that no appellate court would have to decide the same issues more than once even if there
were subsequent appeals.’” Id., quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8
(1980).
III. Analysis
In granting Kinnser’s Motion to Dismiss, the Court denied Relator’s request for leave to
file a second amended complaint, concluding that request was untimely and Relator had failed to
describe what additional factual allegations would be included in a second amended complaint or
how any additional allegations would cure the deficiencies in her claims against Kinnser. Doc. 87
at 14. Accordingly, the Court’s judgment with respect to Relator’s claims against Kinnser is final.
Stockman’s Water co., LLC, supra.

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With respect to the second issue—whether there is just reason to delay entry of judgment—
Relator argues that she should not be forced to simultaneously litigate her claims against the
remaining defendants, while at the same time prosecuting an appeal of the judgment entered in
favor of Kinnser. Relator has cited no authority supporting a conclusion that the inconvenience of
prosecuting an appeal while her case against the remaining defendants justifies denial of Kinnser’s
motion.
Moreover, the basis for the Court’s dismissal of Relator’s claim against Kinnser is entirely
unrelated to the claims against the remaining parties. As a result, it is unlikely an appellate court
would have to decide the same issue again if there are subsequent appeals by other defendants.
Curtiss-Wright Corp., 446 U.S. at 8; Stockman’s Water Co., LLC v. Vaca Partners, L.P., 425 F.3d
1263, 1265 (10th Cir. 2205) (same).
Accordingly, the Court concludes Kinnser’s motion for entry of judgment should be
granted.
IV. Conclusion
For the foregoing reasons, the Motion for Entry of Final Judgment (Doc. 91) is hereby
granted.
ENTERED this 12th day of August, 2019.

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TERENCE C. KERN
United States District Judge

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