United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON, UNITED STATES DISTRICT JUDGE.
Rogers filed a qui tam action against her former employer,
Clearview Cancer Institute (CCI), and several of its
physicians, alleging that they used unaccredited equipment
and fraudulently billed Medicare and Tricare in violation of
the False Claims Act. Doc. 1. Rogers subsequently amended her
complaint to add a retaliation claim after CCI discharged her
shortly after the court unsealed the complaint. Doc. 11.
Presently before the court is the Defendants' motion to
dismiss, doc. 20, which is fully briefed and ripe for
consideration, docs. 20; 24; & 26. After reading the
briefs and considering the relevant law, the court grants the
motion solely as to Rogers' qui tam claims.
LEGAL STANDARD FOR A MOTION TO DISMISS
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This pleading standard
“does not require ‘detailed factual allegations,
' but it demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
allegations “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Id.
is facially plausible when “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. The complaint must establish
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. Ultimately, this
inquiry is a “context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.” Id. at 679.
suits under the FCA, Rule 9 of the Federal Rules of Civil
Procedure imposes a heightened pleading standard, requiring
that a party “state with particularity the
circumstances constituting fraud or mistake.”
See Fed. R. Civ. P. 9(b). This particularity
requirement “alert[s] defendants to the precise
misconduct with which they are charged, ” Durham v.
Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir.
1988), and requires the plaintiff to plead “particular
facts about the ‘who, ' ‘what, '
‘where, ' ‘when, ' and ‘how' of
fraudulent submissions to the government, ”
Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1052
(11th Cir. 2015) (internal quotations omitted).
began her employment at CCI, a cancer treatment facility, as
a PET Nuclear Medicine Technologist. Doc. 11 at 11. During
the period relevant to this lawsuit, she held the position of
Director of Imaging. Id. Based on her review of
patients' files and diagnostic equipment documents,
Rogers maintains that the Defendants “used unaccredited
diagnostic imaging equipment to run PET and CT scans in
violation of federal regulations.” Id. at
12-13. Consequently, she alleges that the Defendants
“knowingly, systematically, and illegally submitted
hundreds to thousands of false and/or fraudulent bills to
Medicare and Tricare representing that they were in
compliance with [applicable] regulations, ” and billed
for medically unnecessary PET and CT scans. Id.
amended complaint includes four causes of action: (1)
Presentation of False Claims, 31 U.S.C. § 3729(a)(1)(A),
(Count I); (2) Making or Using False Record Statement to
Cause Claim to be Paid, 31 U.S.C. § 3729(a)(1)(B),
(Count II); (3) Making or Using False Record Statement to
Avoid an Obligation to Refund, 31 U.S.C. 3729(a)(1)(G),
(Count III); and (4) Retaliation, 31 U.S.C. 3730(h), (Count
IV). Doc. 11 at 14-19. The Defendants have moved to dismiss
all four claims. Doc. 20. The court will address the
Defendants' contentions below, beginning with the FCA
claims in Part A, and the retaliation claims in Part B.
FCA Claims (Counts I, II, and III)
of Rogers' FCA claims is that CCI used unaccredited
equipment, in violation of the requirements set by the
Centers for Medicare and Medicaid Services, and billed
Medicare and Tricare for medically unnecessary procedures.
Doc. 11. Therefore, to state a valid claim, Rogers must plead
sufficient facts to support her contentions regarding the use
of unaccredited equipment and the Defendants' ordering of
unnecessary medical procedures. Rogers has failed to do so.
Allegedly unaccredited equipment
their motion, the Defendants challenge Rogers'
accreditation claim and attach a document to support their
contention. Docs. 20 at 5, 9; 20-1. In the Eleventh Circuit,
“a document attached to a motion to dismiss may be
considered by the court without converting the motion into
one for summary judgment only if the attached document is:
(1) central to the plaintiff's claim; and (2)
undisputed.” Horsley v. Feldt, 304 F.3d 1125,
1134 (11th Cir. 2002). A document is “undisputed”
in this context if its authenticity is not challenged.
Id. The document at issue demonstrates that the
equipment at CCI's Huntsville, Alabama facility is
properly accredited by the American College of Radiology
(“ACR”), one of the accreditors approved by the
Centers for Medicare and Medicaid Services.Docs. 20 at 5;
20-1 at 2. Rogers does not dispute the authenticity of the