UNITED STATES OF AMERICA v Sanjay Bharti,et al

Filing 99

OMNIBUS MEMORANDUM OPINION AND ORDER. The Court DENIES Defendant Cimenga Tshibaka's motion to dismiss for lack of personal jurisdiction [ECF No. 55 ]; GRANTS Defendant Alexander Yazhbin's motion to dismiss for failure to state a claim [ECF No. 57 ]; GRANTS the Bharti Defendants' motion to dismiss for failure to state a claim [ECF No. 59 ]; GRANTS the Hospital Defendants' motion to dismiss for failure to state a claim [ECF No. 65 ]; and GRANTS Defendant Feyisitan Adebajo's motion to dismiss for failure to state a claim [ECF No. 91 ]. Signed by Chief District Judge Thomas S Kleeh on 9/29/2023. (jb)

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 1 of 33 PageID #: 862

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CLARKSBURG
UNITED STATES OF AMERICA ex rel.
KATHLEEN S. EMBREE,
Plaintiff,
v.

CIVIL NO. 1:20CV43
(KLEEH)

SANJAY BHARTI, M.D.; SANJAY BHARTI,
M.D., PLLC, doing business as MEDBRIDGE,
doing business as TRANSITION HEALTH CARE;
FEYISITAN ADEBAJO, M.D.; CIMENGA TSHIBAKA,
M.D.; ALEXANDER YAZHBIN, M.D.; HIGHLANDS
HOSPITAL; and DOES 1-100,
Defendants.

Pending
Defendant

OMNIBUS MEMORANDUM OPINION AND ORDER
before the Court are the motions to

Cimenga

Tshibaka

[ECF

No.

55];

Defendant

dismiss

of

Alexander

Yazhbin [ECF No. 57]; Defendants Sanjay Bharti and Sanjay Bharti,
M.D., PLLC 1 [ECF No. 59]; Defendants Highlands Hospital, Penn
Highlands Healthcare, and Highlands Hospital d/b/a Penn Highlands
Connellsville 2 [ECF No. 65]; and Defendant Feyisitan Adebajo [ECF
No. 91].

The motions are fully briefed and ripe for review.

For the reasons discussed herein, the Court DENIES the motion
to dismiss of Defendant Tshibaka [ECF No. 55] but GRANTS the

Sanjay Bharti and Sanjay Bharti, M.D., PLLC are referred to collectively
herein as the “Bharti Defendants.”
2 Highlands Hospital, PHH, and PHC are referred to collectively herein
as the “Hospital Defendants.”
1

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 2 of 33 PageID #: 863
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
motions to dismiss of Defendant Yazhbin [ECF No. 57], the Bharti
Defendants [ECF No. 59], Defendant Adebajo [ECF No. 91], and the
Hospital Defendants [ECF No. 65].
I.

PROCEDURAL HISTORY

On March 11, 2020, Plaintiff and Relator Kathleen Embree, on
behalf of the United States of America, filed a False Claims Act
Complaint,

pursuant

to

31

U.S.C.

§

3729,

et

seq.,

against

Defendants Sanjay Bharti, M.D. (“Dr. Bharti”); Sanjay Bharti,
M.D.,

PLLC

(“the

(“Dr. Adebajo”);

Bharti
Cimenga

company”);

Feyisitan

Tshibaka,

M.D.

Adebajo,

(“Dr.

M.D.

Tshibaka”);

Alexander Yazhbin M.D. (“Dr. Yazhbin”); Highlands Hospital; and
Does 1 through 100 [ECF No. 1]. 3

On July 2, 2020, the United

States, by counsel, filed a sealed motion requesting the Court
enter an ex parte Order under 31 U.S.C. § 3730(b)(2) granting the
United States an extension of time from June 11, 2020, through
December 8, 2020, to “notify the Court of its decision regarding
intervention in the above-captioned False Claims Act qui tam
action”

[ECF

No.

5].

The

United

States

also

requested

complaint remained filed under seal during this time.

Id.

the
The

Court granted the motion, under seal, as to all the relief sought
therein [ECF No. 6].

The United States filed four (4) additional

Dr. Bharti, Dr. Adebajo, Dr. Tshibaka, and Dr. Yazhbin are referred to
collectively herein as the “Physician Defendants.”

3

2

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 3 of 33 PageID #: 864
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
sealed motions of the same nature, requesting relief and extensions
of time pursuant to 31 U.S.C. § 3730(b)(2) [ECF Nos. 7, 9, 11,
13].

The Court granted each motion by orders entered under seal

[ECF Nos. 8, 10, 12, 14].
On May 9, 2022, the United States filed its Notice of Election
to Decline Intervention and requested the Court unseal the case
[ECF No. 15].

The Court granted the request and unsealed the case

[ECF No. 17].

Several of the defendants filed responsive motions.

Thereafter,

on

October

24,

2022,

Relator

filed

an

Amended

Complaint, adding factual allegations regarding the defendants’
violations of the qui tam provisions of the False Claims Act and
adding Penn Highlands Healthcare (“PHH”) and Highlands Hospital
d/b/a Penn Highlands Connellsville (“PHC”) as defendants in this
action [ECF No. 53].

Specifically, Relator alleges violations of

31 U.S.C. §§ 3729(a)(1)(A), 3729(a)(1)(B), and 3729(a)(1)(C).

Id.

Defendants now seek to dismiss the Amended Complaint pursuant to
Rules 9(b), 12(b)(2), 12(b)(6) of the Federal Rules of Civil
Procedure.

The Court will address each motion in turn.
II.

In

the

Amended

FACTUAL ALLEGATIONS 4

Complaint,

Relator

alleges

Defendants

conspired to bill for medical services and treatment not performed;
The facts are taken from the Amended Complaint and construed in the
light most favorable to Relator. See De’Lonta v. Johnson, 708 F.3d 520,
524 (4th Cir. 2013).
4

3

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 4 of 33 PageID #: 865
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
to bill for medical services and treatment at a higher, more
sophisticated and more time-intensive level than was performed;
and to bill for medical services performed but not necessary and
effective.

Id. at ¶ 1.

As a result, “Defendant[s] defrauded

federally funded health insurance programs, namely Medicare and
Medicaid, out of significant amounts of federal funds from at least
2018.” Id.
A.

Parties
Kathleen Embree (“Relator”) is a Pennsylvania resident who

was employed by Highlands Hospital, located in Fayette County,
Pennsylvania, as a Case Manager and Utilization Review RN at all
times relevant to this lawsuit.
Relator

reviewed

submissions
physicians

to
to

medical

patients’
observe

Id. at ¶ 5.

charts

to

insurances

their

ensure
payors

interactions

assessments of their patients.

In this position,

Id.

compliance
and

with

rounded
and

with
with

physical

“In doing so, [Relator]

personally observed the physicians engaging in and discussing the
[alleged] scheme to defraud.” Id.
Dr. Bharti is a resident of Morgantown, West Virginia who
worked

as

a

contract

hospitalist

practitioner at Highlands Hospital.

4

and

Id.

emergency

at ¶ 7.

medicine

Dr. Bharti is

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 5 of 33 PageID #: 866
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
the

primary

owner

of

the

Bharti

company, 5

a

West

Virginia

corporation with its principal place of business in Morgantown,
West Virginia.

Id. at ¶ 8.

Dr. Adebajo is a resident of Pennsylvania 6 who was contracted
by the Bharti Defendants to work as a hospitalist and emergency
medicine practitioner at Highlands Hospital.

Id. at ¶ 9.

Dr.

Tshibaka is a resident of Pennsylvania who worked as a contracted
general surgeon at Highlands Hospital. Id. at ¶ 10. Occasionally,
he worked for the Bharti Defendants to cover the services of the
other Physician Defendants.

Id.

Dr. Yazhbin is a resident of

Pennsylvania who was contracted by the Bharti Defendants to work
as a hospitalist and emergency medicine practitioner at Highlands
Hospital.

Id. at ¶ 11.

At the relevant time, Highlands Hospital functioned as a
Pennsylvania non-profit corporation.

Id. at ¶ 12.

It employed

over 400 individuals and operated a 64-bed hospital that provided
emergency, medical, surgical, and behavioral health services in
Southwest Pennsylvania.

Id.

PHH is a Pennsylvania non-profit parent corporation of a
community health system consisting of “seven acute care hospitals,

The Bharti company is also known as Medbridge and Transition Health
Care. Id. at ¶ 8.
6 Based on his submissions to the Court, it appears that Dr. Tshibaka
may now be a resident of Arkansas.
5

5

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 6 of 33 PageID #: 867
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
a home care agency, long term care facilities, a senior living
facility, and a network of physician practice, which together
provide primary, secondary, and tertiary health care services. .
. .” Id. at ¶ 13.

On April 1, 2022, “PHH became the sole corporate

member of Highlands Hospital, rendering it a subsidiary of PHH.”
Id.

PHC is the corporate entity that operates Highlands Hospital

following PHH’s acquisition.
B.

Id. at ¶ 14.

Federally Funded Insurance Programs
Medicare, the nation’s largest health insurance program, “is

a federally funded health insurance program for people 65 or older,
people under age 65 with certain disabilities, and people of all
ages with end-stage renal disease.” Id. at ¶ 25.

Medicare pays

healthcare providers for medical goods and services according to
government-established conditions and rates.
two parts.
other

Id.

related

It consists of

Medicare Part A covers inpatient hospital and

services.

Id.

Medicare

outpatient medical services and expenses.
After

Id.

enrolling

in

the

Medicare

Part

B

covers

other

Id.
program,

providers

are

reimbursed by the government predetermined rates for services
provided to covered patients.

Id. at ¶¶ 28, 32.

Under Part A,

providers receive interim reimbursements by submitting claims for
medical care provided during a patient’s hospital stay.
¶¶ 33-34.

Id. at

Providers then submit annual hospital cost reports
6

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 7 of 33 PageID #: 868
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
summarizing all care provided to determine if they have been
underpaid or overpaid over the course of the fiscal year.
¶¶ 34-37.

Id. at

Under Part B, providers submit claims for services

rendered and Medicare reimburses them 80% of the reasonable charge
for medically necessary items and services.

Id. at ¶¶ 44-45.

To participate in the Medicare program, medical providers
must abide by certain conditions.

Id. at ¶ 30.

For example,

providers agree to bill the government only for services that meet
professionally recognized standards of care and are medically
necessary may be billed to the government.
Providers

also

must

certify

that

hospital

Id. at ¶¶ 23-31.
cost

reports

are

truthful, accurate, complete and that they have complied with all
applicable laws and regulations.

Id. at ¶¶ 38-41, 48.

Medicaid functions similarly. It is a joint federal and state
health insurance program that pays medical expenses for low-income
and disabled patients. Id. at ¶¶ 49-50. Enrolled providers submit
claims for reimbursement to the State after rendering services to
Medicaid beneficiaries.

Id. at ¶¶ 49-50, 53-55.

The State pays

providers according to government-established rates.

Id. at ¶ 55.

The federal government then pay the State a percentage of the total
funds expended.
Centers

for

Id. at ¶¶ 51, 55.
Medicare

and

Medicaid

Services

(“CMS”),

a

division of the United States Department of Health & Human Services
7

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 8 of 33 PageID #: 869
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
(“HHS”), administers and supervises the Medicare and Medicaid
Programs.

Id. at ¶ 6.

medical service.

Id.

CMS establishes standard rates for each
Medicare and Medicaid providers bill for

these services using standard descriptions and Common Procedural
Terminology (“CPT”) codes.
C.

Id. at ¶¶ 25, 63.

Allegations under the Federal False Claims Act (“FCA”)
Here, Relator alleges that Defendants defrauded the Medicare

and Medicaid programs by knowingly submitting false claims to
receive reimbursement beyond that to which they were entitled.

In

July 2018, Highland Hospital contracted the Bharti Defendants to
provide physician emergency room and hospitalist care.
¶ 61.

Id. at

Dr. Bharti, in turn, hired Drs. Adebajo and Yazhbin to

provide these services.

Id.

Dr. Tshibaka occasionally worked for

Dr. Bharti to cover the other Physician Defendants’ services.

Id.

All defendants accepted Medicare and Medicaid insurance for
services rendered to their patients.

Id. at ¶¶ 62-63.

The

Physician Defendants billed Medicare and Medicaid for patient care
by submitting individual claims with the standardized CPT codes
for the services rendered.

Id. at ¶ 63.

The Bharti corporation

processed all the Physician Defendants’ reimbursement claims.
The

Hospital

Defendants,

however,

reimbursements for patient care.

received

Id. at ¶ 62.

8

flat

Id.
rate

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 9 of 33 PageID #: 870
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
To receive more reimbursement funds than they were owed, the
Physician
claims

and

Defendants
statements

knowingly
to

submitted

Medicare

and

four

types

Medicaid.

of

false

First,

the

Physician Defendants inaccurately reported that their physician
assistants were working as scribes.

Id. at ¶¶ 93-96. 7

The

Physician Defendants employed several physician assistants who saw
Highland Hospital patients unsupervised.

Id. at ¶¶ 92-94.

The

physician assistants “conduct[ed] patient encounters without the
physician providing the care, but nevertheless note[d] patient
charts and billing documentation [as if] they were acting as a
scribe with the physician present and personally providing the
care, when in fact the Physician Assistant conducted the patient
encounter from start to finish.” Id. at ¶ 92.

Thus, the Physician

Defendants billed 100% of the reimbursement rate rather than the
85% to which they were entitled.
Second, the Physician Defendants billed for services and
procedures not performed.

Id. at ¶¶ 97-98.

Relator recounts

several instances in which patients’ charts indicated they had

In Pennsylvania, physicians may employ paraprofessionals, such as physician
assistants or nurse practitioners, to diagnose and treat patients unsupervised.
Id. at ¶ 89. Physicians can bill Medicare and Medicaid for paraprofessional
services, but they are reimbursed only 85% of the standard physician rate. Id.
Physicians may also use scribes who perform ministerial functions, i.e., taking
progress notes and updating medical charts, while the physician assesses the
patient.
Id. at ¶ 90.
A scribe’s services may be billed to Medicare and
Medicaid at the full physician rate.
Id.
Where a physician is present, a
paraprofessional can act as a scribe and be reimbursed the full rate. Id. at
¶ 91.
7

9

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 10 of 33 PageID #: 871
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
been evaluated and treated by the Physician Defendants although
the physicians (1) were not physically present at the hospital
when the services were allegedly rendered, (2) were not with the
patient long enough to perform the alleged treatment, or (3) did
not see the patient at all.

Id.

Third, the Physician Defendants billed for more expensive or
extensive

medical

services

than

performed.

Relator

includes

several instances of the physicians exaggerating the amount of
time

spent

encounters.

with

patients

Id. at ¶ 99.

and

services

rendered

during

these

In doing so, the Physician Defendants

billed for services they never performed.

Id. at ¶¶ 99-100.

Finally, the Physician Defendants billed for treatment and
services that were not medically necessary.
03.

Id. at ¶¶ 78, 101-

The Physician Defendants “upcoded” their billing or submitted

“claims alleging patients were more ill than they actually were
and therefore needed more extensive treatments than was reasonable
and necessary, and claim[ed] they provided more extensive care
than the doctors actually did.” Id. at ¶ 65.

Physician Defendants

“intentionally diagnosed patients with more serious conditions
than those with which they initially presented” so they could “bill
for diagnoses requiring more intensive care and treatment, which
corresponded to CPT codes that provided higher reimbursement for
physician services.”

Id. at ¶ 72.
10

For example, Dr. Bharti

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 11 of 33 PageID #: 872
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
encouraged the Physician Defendants to diagnose with sepsis any
patient

presenting

with

a

slight

infection,

fever,

or

mild

dehydration because the associated treatment had higher paying
billing codes.
The

Id. at ¶¶ 73-74.

Hospital

Defendants,

through

its

administrators,

officers, nurse managers, physicians, utilization review staff,
and quality and risk management staff, were aware of this conduct
but did not intervene.

Relator attended monthly case management

meetings with the Highland Hospital administrators at which the
Physician Defendants’ “patient care and treatment practices were
regularly discussed.”
he

had

repeatedly

concerns.

Id. at ¶ 68.

informed

Id. at ¶ 69.

the

One administrator stated that
hospital’s

board

about

these

Ultimately, hospital administrators

directed employees to stop questioning the Physician Defendants’
practices.

Id. at ¶ 70.

According to Relator, Highlands Hospital

permitted the “upcoding” to continue because it allowed it to raise
the level of care it reported to Medicare and Medicaid and so
increased the amount it was reimbursed.

Id. at ¶ 71.

Based on these facts, Relator asserts Defendants violated FCA
in three ways: by presenting false claims for payment to the United
States Government, in violation of 31 U.S.C. § 3729(a)(1)(A) (Count
One); by making false statement to the United States Government,
in violation of 31 U.S.C. § 3729(a)(1)(B) (Count Two); and by
11

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 12 of 33 PageID #: 873
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
conspiring to commit the foregoing violations against the United
States Government, in violation of 31 U.S.C. § 3729(a)(1)(C) (Count
Three).

Id. at ¶¶ 21, 110-23.
III. LEGAL STANDARDS

A.

Federal Rule of Civil Procedure 12(b)(2)
When

a

defendant

Procedure 12(b)(2)

files

a

to

dismiss

motion

Federal
for

Rule
lack

of
of

Civil

personal

jurisdiction, the plaintiff bears the ultimate burden of showing
that jurisdiction exists by a preponderance of the evidence.

New

Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d 290,
294 (4th Cir. 2005).

However, where a court makes a Rule 12(b)(2)

determination without a hearing and based only on the written
record, as the Court does here, the plaintiff need only put forth
a prima facie showing of jurisdiction “by pointing to affidavits
or other relevant evidence.” Henderson v. Metlife Bank, N.A., 2011
WL

1897427,

at

*6

(N.D.W.

Va.

May

18,

2011);

Wellington Fin. Corp., 416 F.3d at 294.

see

also

New

The Court must then

“construe all relevant pleading allegations in the light most
favorable to the plaintiff, assume credibility, and draw the most
favorable

inferences

for

the

existence

of

jurisdiction.”

New

Wellington Fin. Corp., 416 F.3d at 294; see also 5B Wright &
Miller, Federal Practice and Procedure § 1351 (3rd ed.).

12

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 13 of 33 PageID #: 874
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
B.

Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows

a defendant to move for dismissal upon the grounds that a complaint
does not “state a claim upon which relief can be granted.” In
ruling on a motion to dismiss, a court “must accept as true all of
the factual allegations contained in the Complaint.” Anderson v.
Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson
v. Pardus, 551 U.S. 89, 94 (2007)).

A court is “not bound to

accept as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
A motion to dismiss under Rule 12(6)(b) tests the “legal
sufficiency of a Complaint.” Francis v. Giacomelli, 588 F.3d 186,
192 (4th Cir. 2009).

A court should dismiss a Complaint if it

does not contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007).

Plausibility exists “when the plaintiff pleads

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).

The

factual

allegations “must be enough to raise a right to relief above a
speculative level.” Twombly, 550 U.S. at 545.

The facts must

constitute more than “a formulaic recitation of the elements of a
cause of action.” Id. at 555.

A motion to dismiss “does not
13

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 14 of 33 PageID #: 875
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses.” Republican Party of N.C. v. Martin,
980 F.2d 942, 952 (4th Cir. 1992).
C.

Federal Rule of Civil Procedure 9(b)
Rule 9(b) of the Federal Rules of Civil Procedure includes a

heightened pleading standard for fraud claims.

“In alleging fraud

. . ., a party must state with particularity the circumstances
constituting fraud.” Fed. R. Civ. P. 9(b).

“[T]he circumstances

required to be pled with particularity under Rule 9(b) are the
time, place, and contents of the false representations, as well as
the identity of the person making the misrepresentation and what
he obtained thereby.” Harrison v. Westinghouse Savannah River Co.,
176 F.3d 776, 784 (4th Cir. 1999) (internal citation and quotation
marks omitted).

“A court should hesitate to dismiss a complaint

under Rule 9(b) if the court is satisfied (1) that the defendant
has been made aware of the particular circumstances for which she
will have to prepare a defense at trial, and (2) that plaintiff
has

substantial

prediscovery

evidence

of

those

facts.”

Id.

“Malice, intent, knowledge, and other conditions” may be alleged
generally.

Fed. R. Civ. P. 9(b).

14

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 15 of 33 PageID #: 876
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
IV.

DISCUSSION

Defendants seek to dismiss the Amended Complaint pursuant to
Rules 9(b), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil
Procedure.
A.

Defendant Cimenga Tshibaka’s Motion to Dismiss [ECF No. 56]
Dr. Tshibaka moves to dismiss Relator’s Amended Complaint

pursuant to Rule 12(b)(2) for lack of personal jurisdiction because
he has no contacts with the forum state, West Virginia [ECF No.
56]. He underscores that, at all times relevant to the allegations
in this case, he resided in and exclusively practiced medicine in
Pennsylvania.

Id. at 2-3.

He is not licensed in West Virginia

and has never provided medical services here.
further

contends

that

this

Court’s

Id.

exercise

Dr. Tshibaka
of

personal

jurisdiction over him would violate the due process clause of the
Fourteenth Amendment.

Id. at 5-6.

Relator opposes Dr. Tshibaka’s motion asserting that, he has
sufficient minimum contacts with West Virginia because the alleged
injury was caused by his business relationship with a West Virginia
company [ECF No. 62 at 5-6].

She further argues that Dr. Tshibaka

has sufficient minimum contacts with the United States and that
this Court has personal jurisdiction over him pursuant to the
“national contacts test.”

Id.

15

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 16 of 33 PageID #: 877
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
1.

The Court has personal jurisdiction over Dr. Tasibaka
under the national contacts test.

For

a

defendant,

court

to

exercise

there

must

be

personal

“a

jurisdiction

constitutionally

relationship between the defendant and the forum.”

over

a

sufficient

ESAB Group v.

Centricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997) (citing Omni
Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). 8
The defendant typically must “have certain minimum contacts with
[the forum] such that the maintenance of the suit does not offend
‘traditional

notions

of

fair

play

and

substantial

justice.’”

Int’l. Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

“Where Congress has

authorized nationwide service of process by federal courts under
specific federal statutes, so long as the assertion of jurisdiction
over the defendant is compatible with due process, the service of
process is sufficient to establish the jurisdiction of the federal
court over the person of the defendant.”

Hogue v. Milodon Eng’g.,

Inc., 736 F.2d 989, 991 (4th Cir. 1984); accord.

ESAB Group, 126

F.3d at 626.
To comport with due process, courts have determined that
“[w]here ... there is a federal statute that permits worldwide
The Court must also have subject matter jurisdiction, venue, and
authorization for service of a summons upon the person. ESAB Group, 126
F.3d at 622 (citing Omni Capital Int’l, 484 U.S. at 104). None of these
requirements are disputed in this case.
8

16

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 17 of 33 PageID #: 878
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
service of process, the relevant inquiry is whether the defendants
have minimum contacts with the United States as a whole,” not the
traditional
contacts

inquiry

with

the

of

whether

forum

the

state. 9

defendants
United

have

States

minimum
ex

rel.

Thistlethwaite v. Dowty Woodville Polymer, 976 F. Supp. 207, 210
(S.D.N.Y.1997); accord. Autoscribe Corp. v. Goldman & Steinberg,
47 F.3d 1164, at *3 (4th Cir. 1995), United States v. Gwinn, No.
2008 WL 867927, at *16 (S.D.W. Va. Mar. 31, 2008).

“This is

commonly referred to as the ‘national contacts’ test.”
2008 WL 867927, at *16.

Gwinn,

In this case the FCA authorizes nationwide

and worldwide service of process.

See 31 U.S.C. § 3732(a).

Thus,

“so long as the assertion of jurisdiction over the defendant is
compatible with due process, the service of process is sufficient
to establish the jurisdiction of the federal court over the person
of the defendant.” Hogue, 736 F.2d at 991.
The Fourth Circuit has not expressly adopted the national
contacts test in a case involving FCA claims.

It has, however,

Typically, under Rule 4(k)(1)(A) of the Federal Rules of Civil
Procedure, a federal district court may exercise personal jurisdiction
over a defendant to the same degree that a counterpart state court could
do so. See Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health
Partners, 229 F.3d 448, 450 (4th Cir. 2000). As a result, for a district
court to have jurisdiction over a nonresident defendant, the exercise
of jurisdiction (1) must be authorized under the state’s long-arm
statute, and (2) must comport with the due process requirements of the
Fourteenth Amendment.
Carefirst of Md., Inc. v. Carefirst Pregnancy
Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing Christian Sci.
Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209, 215
(4th Cir. 2001)).
9

17

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 18 of 33 PageID #: 879
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
applied this analysis to claims arising under other statutes that
similarly permit nationwide service of process.

See e.g., Trs.

of the Plumbers and Pipefitters Nat’l Pension Fund v. Plumbing
Servs., Inc., 791 F.3d 436, 443–44 (4th Cir. 2015) (applying
national contacts test to claim under the Employee Retirement
Income Security Act);

ESAB Group, 126 F.3d at 626 (applying

national contacts test to claim under the Racketeer Influenced and
Corrupt

Organizations

Act); Hogue,

736

F.2d

at

989 (applying

national contacts test to claim under the Bankruptcy Act).
on

this

precedent,

courts

in

this

District

and

Circuit

Based
have

routinely applied the national contacts test to cases involving
FCA claims.

See e.g., United States ex rel. Fadlalla v. DynCorp

Int’l LLC, 402 F. Supp. 3d 162, 177 (D. Md. 2019); United States
v. Hobbs, No. 2018 WL 1368325 (N.D.W. Va. Mar. 16, 2018); Skinner
v. Armet Armored Vehicles, Inc., 2014 WL 4243670 (W.D. Va. Aug.
26, 2014); Gwinn, 2008 WL 867927.
The

Court

likewise

finds

the

national

applicable to Relator’s FCA claims in this case.

contacts

test

Accordingly, its

due process analysis will focus on Dr. Tshibaka’s contacts with
the United States as a whole, rather than on his contacts with
West Virginia.

See Hobbs, 2018 WL 1368325, at *6; Gwinn, 2008 WL

867927, at *16.

Dr. Tshibaka meets the minimum standard for

contacts with the United States to establish the Court’s personal
18

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 19 of 33 PageID #: 880
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
jurisdiction.

He is a citizen and resident of the United States.

He is licensed to practice medicine in Pennsylvania, Maryland, and
Arkansas and, at all times relevant to the complaint, he lived and
worked as a physician in Pennsylvania.
Still, the Court must ensure that the exercise of personal
jurisdiction does not offend the Fifth Amendment.
F.3d at 627.

ESAB Group, 126

“The Fifth Amendment’s Due Process Clause not only

limits the extraterritorial scope of federal sovereign power, but
also protects the liberty interests of individuals against unfair
burden and inconvenience.” Id.

But only in “highly unusual cases”

will inconvenience create a constitutional concern.

Id.

“Thus,

unless [Dr. Tshibaka] can prove that litigating this case in West
Virginia

places

an

unfair

burden

or

inconvenience

upon

him,

personal jurisdiction is compatible with the Due Process Clause of
the Fifth Amendment.” Gwinn, 2008 WL 867927, at *16.
has

put

forth

no

evidence

to

demonstrate

any

Dr. Tshibaka
inconvenience

associated with litigating in this Court, let alone, such “extreme
inconvenience or unfairness as would outweigh the congressionally
articulated

policy

of

allowing

the

assertion

of

in

personam

jurisdiction.” ESAB Group, 126 F.3d at 627.
Because Dr. Tshibaka has sufficient minimum contacts with the
United States and there is no extreme inconvenience or unfairness

19

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 20 of 33 PageID #: 881
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
in requiring him to litigation in this District, the Court DENIES
Dr. Tshibaka’s motion to dismiss [ECF No. 55].
B.

Remaining Physician Defendants’ Motions to Dismiss [ECF Nos.
57, 59, 91]
Although the Bharti Defendants, Dr. Adebajo, and Dr. Yazhbin

filed separate motions to dismiss, each raises a common issue which
is

dispositive

of

the

claims

against

them:

whether

Relator

adequately pleaded presentment of false claims to the United States
Government. 10

Claims arising under the FCA are fraud-based claims

that must satisfy Rule 9(b)’s heightened pleading standard.

See

United States ex rel. Taylor v. Boyko, 39 F.4th 177, 189 (4th Cir.
2022); United States ex rel. Nathan v. Takeda Pharms.
Inc., 707 F.3d 451, 456 (4th Cir. 2013).

N. Am.,

The Court of Appeals of

the Fourth Circuit has “adhered firmly to the strictures of Rule
9(b) in applying its terms to cases brought under the [FCA].”
Nathan, 707 F.3d at 456 (citing United States ex rel. Wilson v.
Kellogg Brown & Root, Inc., 525 F.3d 370, 379-80 (4th Cir. 2008));
see e.g., Taylor, 39 F.4th at 177.

“Rule 9(b)’s particularity

requirement serves as a necessary counterbalance to the gravity
Because this issue is dispositive of their claims, the Court does not
address the other pleading deficiencies argued by these defendants. For
example, the Bharti Defendants assert that Relator fails to make specific
allegations about each individual defendant [ECF No. 60 at 12-14], Dr.
Adebajo asserts that Relator fails to allege any motive for his
participation in the alleged scheme [ECF No. 92 at 18-19], and Dr.
Yazhbin asserts that Relator includes only one factual allegation
directly related to his conduct [ECF No. 58 at 6].
10

20

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 21 of 33 PageID #: 882
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
and ‘quasi-criminal nature’ of FCA liability.”

United States ex

rel. Grant v. United Airlines Inc., 912 F.3d 190, 197 (4th Cir.
2018).

“We require that detail to prevent frivolous suits, stop

fraud actions where everything is learned after discovery (i.e.,
fishing expeditions), and to protect defendants’ reputations.”
United States ex rel. Nicholson v. MedCom Carolinas, Inc., 42 F.4th
185, 195 (4th Cir. 2022).
Section 3729(a)(1)(A) of the FCA prohibits any person from
“knowingly present[ing], or caus[ing] to be presented, a false or
fraudulent

claim

§ 3729(a)(1)(A).

for

payment

or

approval.”

31

U.S.C.

Section 3729(a)(1)(B) of the FCA prohibits any

person from “knowingly mak[ing], us[ing], or caus[ing] to be made
or used, a false record or statement material to a false or
fraudulent claim.” 31 U.S.C. § 3729(a)(1)(B).

To state a claim

under subsections A and B, a relator is generally required to
allege

four

elements: “(1)

there

was

a

false

statement

or

fraudulent course of conduct; (2) made or carried out with the
requisite scienter; (3) that was material; and (4) that caused the
government to pay out money or to forfeit moneys due (i.e., that
involved a ‘claim’).”
176 F.3d at 788).

Taylor, 39 F.4th at 188 (quoting Harrison,

Section 729(a)(1)(C) of the FCA prohibits any

person from “conspiring to commit a violation of subparagraph (A)
[or] (B) . . . .” 31 U.S.C. § 3729(a)(1)(C).
21

For a conspiracy

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 22 of 33 PageID #: 883
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
claim under subsection C, a relator must show that the defendants
“agreed that [a] false record or statement would have a material
effect on the Government’s decision to pay [a] false or fraudulent
claim.”

Nicholson, 42 F.4th at 193 (quoting Allison Engine Co. v.

United States ex rel. Sanders, 553 U.S. 662, 673 (2008).
1.

Relator fails to plausibly plead presentment.
“In order for a false statement to be actionable under [the

False Claims Act], it must be made as part of a false or fraudulent
claim.”

Id. (quoting Grant, 912 F.3d at 196).

The FCA defines a

“claim” as “any request or demand ... for money or property ...
that ... is presented to an officer, employee, or agent of the
United States.” 31 U.S.C. § 3729(b)(2)(A)(i) (emphasis added).
Thus, presentment of a false claim to the federal government for
payment is an essential element of all FCA claims. “[T]he critical
question is whether the defendant caused a false claim to be
presented to the government, because liability under the Act
attaches only to a claim actually presented to the government for
payment, not to the underlying fraudulent scheme.”
F.3d at 456; accord.

Nathan, 707

Grant, 912 F.3d at 196, Harrison, 176 F.3d

at 785-86.
A relator can plead presentment under Rule 9(b) in two ways.
First, they can “allege with particularity that specific false
claims actually were presented to the government for payment.”
22

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 23 of 33 PageID #: 884
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
Nathan, 707 F.3d at 457.

The pleading must “at a minimum, describe

‘the time, place, and contents of the false representations, as
well as the identity of the person making the misrepresentation
and what he obtained thereby.’”
Harrison, 176 F.3d at 784).

Wilson, 525 F.3d at 379 (quoting

Alternatively, a relator can allege

a pattern of conduct that would “necessarily have led [] to
submission of false claims to the government for payment.” Nathan,
707 F.3d at 457 (emphasis in original).

“The gravity of FCA

liability reinforces the importance of pleading with particularity
that there was a false claim and that the false claim was presented
to the government for payment.”

Grant, 912 F.3d at 200.

As to the first option for pleading presentment, the Bharti
Defendants, Dr. Adebajo, and Dr. Yazhbin assert that Relator fails
to plead with particularity that specific false claims actually
were presented to Medicare or Medicaid for payment.

Relator

concedes that the Amended Complaint falls short in this regard,
relying instead on the second option for pleading presentment.
See e.g., ECF No. 93 at 8 (“[T]he Amended Complaint does not
specifically

allege

all

of

the

aspects

of

the

false

claims

submitted to Medicare or Medicaid by the Bharti Company.”).

The

Court accordingly focuses its attention on whether the Amended
Complaint

plausibly

alleges

a

pattern

23

of

conduct

necessarily

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 24 of 33 PageID #: 885
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
resulting in false claims being submitted for reimbursement.

Upon

careful review, the Court concludes it does not.
The Fourth Circuit’s analysis in United States ex rel. Taylor
v. Boyko, 39 F.4th 177 (4th Cir. 2022), is instructive.

There,

the plaintiff brought FCA claims against two doctors, five medical
companies, and an accounting firm.

Id. at 183.

She alleged that

the defendants “knowingly engaged in a fraudulent upcoding scheme
to charge Medicare physician-level rates for mid-level care.”
at 188.

Id.

She brought claims connected to the medical treatment

provided to herself and an unspecified number of other patients.
Id.

The district court found that the plaintiff had adequately

pleaded presentment of false claims based on the treatment provided
to herself but not for the treatment provided to other patients.
Id. at 195.

The Fourth Circuit affirmed.

Id.

As to her own treatment, the plaintiff alleged that she was
seen

in

an

defendants

emergency

room

represented

to

by

a

nurse

Medicare

that

practitioner,
she

was

but

seen

the

by

a

physician, enabling them to receive reimbursement at a higher rate.
Id. at 184-85.
room visit.

The Plaintiff was charged $668 for her emergencyId. at 185.

Billing at the physician-level rate

allowed the defendants to receive Medicare reimbursement in the
amount of $132.46 instead of the $112.59 they should have received
for the provided mid-level care.
24

Id. at 186.

Based on these

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 25 of 33 PageID #: 886
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
allegations, the Fourth Circuit found the plaintiff had adequately
pleaded presentment under the FCA. 11

Id. at 197.

As to patients other than herself, however, the Fourth Circuit
found that the plaintiff failed to plausibly plead presentment
because her complaint lacked specific allegations as to whether
(1) other patients were seen by mid-level providers, (2) providers
had signed other charts for patients they had not treated, and (3)
the signatures “necessarily prompted [the accounting firm] to
submit fraudulent invoices for physician-level care.”

Id. at 196.

While the plaintiff had adequately alleged a fraudulent scheme,
she failed to “connect the dots” between the scheme and the
eventual government payment.

Id. at 196.

It underscored that “an

allegation that the company directed doctors to sign something for
a fraudulent purpose is not the same thing as an allegation that
false claims were actually submitted.” Id. (emphasis in original).
Here, Relator’s FCA claims suffer from the same defect.

Her

complaint details the alleged scheme to defraud federally funded
insurance programs.

She adequately describes the methods used by

the Physician Defendants to carry out their fraudulent scheme based
on her observations of their conduct as a fellow Highlands Hospital
employee.

Relator

fails

to

show,

however,

that

any

of

the

The Fourth Circuit ultimately affirmed the district court’s dismissal
of the plaintiff’s personal claim, however, finding that she failed to
allege the requisite scienter. Taylor, 39 F.4th at 197-98.
11

25

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 26 of 33 PageID #: 887
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
allegedly false claims were necessarily presented to Medicare or
Medicaid for reimbursement. She does not purport to have knowledge
of any fraudulent claim actually submitted on behalf of any of the
Physician Defendants by the Bharti company.
allege

how,

or

even

whether,

the

bills

“[Relator] fails to
for

these

fraudulent

services were presented to [Medicare or Medicaid] and how or even
whether [Medicare or Medicaid] paid [] for the services.”

Grant,

912 F.3d at 198.
Merely alleging fraudulent conduct is insufficient.

Thus,

like the Plaintiff in Taylor, Relator fails to “connect the dots”
between the scheme and the eventual reimbursement by Medicare or
Medicaid.

Her complaint “leaves open the possibility that the

government was not billed for and accordingly never paid for the
particular alleged fraudulent [services]” and “the possibility
that any fraudulent [services] were remedied prior to government
payment.”

Grant, 912 F.3d at 198.

These possibilities are fatal

to her claim.
Citing precedent from the Court of Appeals for the Fifth
Circuit, United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180
(5th Cir. 2009), Relator argues that she has satisfied Rule 9(b)’s
heightened standard for presentment by pleading sufficient facts
to support a “logical conclusion” that the physicians presented
the false and fraudulent bills for reimbursement [ECF No. 67 at
26

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 27 of 33 PageID #: 888
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
14].

According to her, “[i]t would ‘stretch the imagination’ for

physicians to routinely and falsely chart and code without actually
submitting the bill to Medicare or Medicaid for that fraudulent
reimbursement.”

Id. (quoting Grubbs, 656 F.3d at 191-92).

Fourth Circuit dismissed this same argument in Taylor.

The

39 F.4th

at 196.
Rule 9(b) “does not permit a False Claims Act plaintiff merely
to describe a private scheme in detail but then to allege simply
and without any stated reason for his belief that claims requesting
illegal payments must have been submitted, were likely submitted
or should have been submitted to the Government.” Taylor, 39 F.4th
at 196 (emphasis in original) (citing Nathan, 707 F.3d at 461).
Relator’s claim that the Physician Defendants must have submitted
claims to Medicare and Medicaid for reimbursement because they
undertook the effort to falsify patient charts is “inherently
speculative” and insufficient under Rule 9(b). Thus, Relator fails
to plausibly plead presentment as required.
Because Relator fails to set out an FCA claim with the
requisite particularity, the Court grants the motions to dismiss
of the Bharti Defendants, Dr. Adebajo, and Dr. Yazhbin.
C.

Hospital Defendants’ Motion to Dismiss [ECF No. 65]
The Hospital Defendants likewise move to dismiss the Amended

Complaint for failure to state a claim because the Physician
27

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 28 of 33 PageID #: 889
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
Defendants submitted their own billing and because Relator fails
to plausibly plead presentment [ECF No. 65-1 at 19-23].

They also

assert the claims against PHH and PHC should be dismissed because
Relator fails to state a claim for successor liability under common
law and because they were improperly joined in this action.

Id.

at 9-19.
1.

The Court will not consider extrinsic evidence.

In an attempt to contradict Relator’s allegations in the
Amended Complaint, the Hospital Defendants attached five exhibits
to their motion to dismiss.

Exhibits A, B, and C are Highland

Hospital’s income tax documents for fiscal years 2017, 2018, and
2019, respectively [ECF Nos. 65-2, 65-3, 65-4].

The Hospital

Defendants offer these exhibits to demonstrate the financial state
of Highland Hospital prior to PHH’s acquisition of the facility
[ECF No. 65-1 at 4].

Exhibit D is a redacted copy of the purchase

agreement between PHH and Highlands Hospital [ECF No. 65-5],
offered to demonstrate how the Joined Defendants intended to limit
their liability during the transaction.

Finally, Exhibit E is a

copy of the contract between Highlands Hospital and the Bharti
company for services provided by the Physician Defendants [ECF No.
65-6].

The Hospital Defendants offer this exhibit to prove the

Physician Defendants exclusively billed Medicare and Medicaid for
their services.
28

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 29 of 33 PageID #: 890
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
Before turning to the merits of the Hospital Defendants’
motion, the Court first must address which, if any, of these
exhibits can be considered the motion to dismiss stage.

When a

defendant moves to dismiss under Rule 12(b)(6), courts are limited
to considering the sufficiency of allegations set forth in the
complaint and the “documents attached or incorporated into the
complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 448 (4th Cir. 2011).

“Consideration of extrinsic

documents by a court during the pleading stage of litigation
improperly converts the motion to dismiss into a motion for summary
judgment.”

Zak v. Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597,

606 (4th Cir. 2015) (citing E.I. du Pont de Nemours & Co., 637
F.3d at 448). “This conversion is not appropriate when the parties
have not had an opportunity to conduct reasonable discovery.”

Id.

Courts may consider documents attached to a motion to dismiss
without converting it to a motion for summary judgment only if the
documents

are

“integral

to

and

explicitly

relied

on

in

the

complaint,” and “the plaintiffs do not challenge [the documents’]
authenticity.”

Zak, 780 F.3d at 606-07; see also Goines v. Valley

Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016).
Relator objects to the Court’s consideration of any of the
Hospital Defendants’ exhibits at the pleading stage [ECF No. 80 at
13-15].

The Hospital Defendants did not address this issue.
29

Upon

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 30 of 33 PageID #: 891
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
careful consideration, the Court agrees with Relator.

None of the

Hospital Defendants’ exhibits are integral to or incorporated by
reference in the Amended Complaint.
authenticity.

Relator also challenges their

Thus, the Hospital Defendants’ exhibits cannot be

considered without converting their motion to dismiss into one for
summary judgment.

Because the parties have not had an opportunity

to conduct reasonable discovery, conversion is inappropriate at
this time.

For these reasons, the Court will not consider the

extrinsic evidence submitted by the Hospital Defendants and will
evaluate the sufficiency of the Amended Complaint based solely on
the allegations therein.
2.

Relator fails to plausibly plead presentment.

As it disposes of the claims against them, the Court begins
with the Hospital Defendant’s final argument: that Relator fails
to state a claim upon which relief may be granted [ECF No. 65 at
19-23].

First, they assert Relator’s claims should be dismissed

because the Physician Defendants retained exclusive authority to
submit billing to Medicare and Medicaid in their contract with
Highlands Hospital.
the

allegations

contradictory

Id. at 19-20.

contained

factual

in

the

allegations

Defendant’s supporting exhibits.
30

This argument is not based on
Amended
drawn

Complaint,
from

the

but

on

Hospital

As explained, the Court will not

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 31 of 33 PageID #: 892
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
consider the Hospital Defendants’ extrinsic evidence at this early
stage and denies their motion to dismiss on this basis.
The Hospital Defendants next contend that Relator fails to
plausibly plead presentment as required for FCA claims.
20-23.

Id. at

As explained above, Relator may show presentment with

particularity

either

by

alleging

a

representative

example

describing the time, place, identity of the person making the
misrepresentation and what he obtained thereby or by alleging a
pattern on conduct that would necessarily have led the Hospital
Defendants to submit false claims to Medicare or Medicaid.
Nicholson, 42 F.4th at 194.

See

Again, Relator fails to adequately

plead presentment through the first avenue.

Her complaint is

devoid of any representative example of services that were actually
billed to either Medicare or Medicaid, the date they were billed,
the amount they were billed, and the amount of reimbursement
received by any of the Hospital Defendants.
Relator also fails to allege a pattern of conduct that would
have necessarily led to the presentment of false claims on the
part of the Hospital Defendants. In the Amended Complaint, Relator
alleges

she

reported

her

suspicions

about

the

Physician

Defendants’ billing practices to Highlands Hospital administrators
and that part of her responsibilities included submitting initial
payor approvals for reimbursement for the hospital to Medicaid.
31

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 32 of 33 PageID #: 893
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
But

the

Amended

Complaint

contains

only

conclusory

allegations that the allegedly false claims were submitted to
Medicare or Medicaid on behalf of Highlands Hospital.

It fails to

allege any specifics about when or how the claims were submitted.
She also fails to address how Highland Hospital’s daily rate
specifically was impacted by the Physician Defendants alleged
billing fraud.

Further, the Amended Complaint does not contain

any allegations related to what initial reimbursement Highlands
Hospital received or whether any alleged overbilling could have
been corrected the annual rectification process.
has

not

plausibly

connected

the

Hospital

Because Relator

Defendants’

alleged

participation in a fraudulent billing scheme and their eventual
reimbursement by Medicare or Medicaid, the Court grants their
motion to dismiss pursuant to Rule 12(b)(6).
V.

CONCLUSION

For the reasons discussed above, the Court:
(1)

DENIES Defendant Cimenga Tshibaka’s motion to dismiss
for lack of personal jurisdiction [ECF No. 55];

(2)

GRANTS the Hospital Defendants’ motion to dismiss for
failure to state a claim [ECF No. 65];

(3)

GRANTS Defendant Alexander Yazhbin’s motion to dismiss
for failure to state a claim [ECF No. 57];

32

Case 1:20-cv-00043-TSK Document 99 Filed 09/29/23 Page 33 of 33 PageID #: 894
USA V. BHARTI ET AL.

1:20CV43

OMNIBUS MEMORANDUM OPINION AND ORDER
(4)

GRANTS the Bharti Defendants’ motion to dismiss for
failure to state a claim [ECF No. 59]; and

(5)

GRANTS Defendant Feyisitan Adebajo’s motion to dismiss
for failure to state a claim [ECF No. 91].

It is so ORDERED.
The Clerk is directed to transmit copies of this Memorandum
Opinion and Order to counsel of record.
DATED: September 29, 2023

____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA

33