United States District Court, S.D. Mississippi, Eastern Division
UNITED STATES ex rel. RICHARD M. OKEEFFE, JR., M.D., PLAINTIFF
THE RIVER OAKS MANAGEMENT COMPANY, LLC, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
STARRETT UNITED STATES DISTRICT COURT JUDGE.
reasons below, the Court grants in part and denies in
part Defendants' Motion to Dismiss . The
Court denies the motion as
moot with respect to Plaintiff's claim of
“corporate practice of medicine, ” but the Court
grants the motion in all other respects.
a qui tam action under the False Claims Act
(“FCA”). Relator/Plaintiff was a physician employed
by Defendants. He contends that Defendants conspired to
violate the federal Anti-Kickback Statute, the Stark Law, and
the False Claims Act by providing payments to physicians as
remuneration for referrals of patients, and knowingly
submitting claims for reimbursement to Medicare and Medicaid
that falsely represented that the claims complied with
applicable federal law. Defendants filed a Motion to Dismiss
, which the Court now addresses.
Standard of Review
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Great Lakes Dredge & Dock Co. LLC v. La.
State, 624 F.3d 201, 210 (5th Cir. 2010) (punctuation
omitted). “To be plausible, the complaint's factual
allegations must be enough to raise a right to relief above
the speculative level.” Id. (punctuation
omitted). The Court must “accept all well-pleaded facts
as true and construe the complaint in the light most
favorable to the plaintiff.” Id. But the Court
will not accept as true “conclusory allegations,
unwarranted factual inferences, or legal conclusions.”
Id. Likewise, “a formulaic recitation of the
elements of a cause of action will not do.” PSKS,
Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d
412, 417 (5th Cir. 2010) (punctuation omitted). “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct.
1937, 1950, 173 L.Ed.2d 868 (2009).
“complaints under the FCA must comply with Rule 9(b),
which provides that ‘[i]n alleging fraud or mistake, a
party must state with particularity the circumstances
constituting fraud or mistake.'” United States
ex rel. Rigsby v. State Farm Fire & Cas.
Co., 794 F.3d 457, 466 (5th Cir. 2015).
Rule 9(b) generally requires the plaintiff to plead the time,
place, and contents of the false representation and the
identity of the person making the representation. However, an
FCA claim can meet Rule 9(b)'s standard if it alleges
“particular details of a scheme to submit false claims
paired with reliable indicia that lead to a strong inference
that claims were actually submitted.”
United States v. Bollinger Shipyards, Inc., 775 F.3d
255, 260 (5th Cir. 2014) (quoting United States ex rel.
Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir.
2009)). Moreover, “[m]alice, intent, knowledge, and
other conditions of a person's mind may be alleged
generally.” Fed.R.Civ.P. 9(b).
Counts I & II - Anti-Kickback Statute & Stark
Defendants argue that neither the Anti-Kickback Statute nor
the Stark Law provide a private right of action. Defendants
are correct. Neither the Anti-Kickback Statute nor the Stark
provide a private right of action. Plaintiff effectively
concedes this point, arguing that he may assert a claim under
the False Claims Act premised upon violations of the
Anti-Kickback Statute or Stark Law. Therefore, the Court
grants Defendants' motion with respect to any independent
claims under the Anti-Kickback Statute or Stark Law that
Plaintiff may have asserted.
Count III - False Claims Act
referred to numerous sections of the FCA in his Complaint.
Defendants argue that he failed to ...