Case 8:20-cv-02419-VMC-CPT Document 50 Filed 02/25/21 Page 1 of 35 PageID 1542
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`
`
`
`
`GOVERNMENT EMPLOYEES
`INSURANCE CO., GEICO
`INDEMNITY CO., GEICO
`GENERAL INSURANCE COMPANY,
`and GEICO CASULTY CO.,
`
`
`Case No. 8:20-cv-2419-VMC-CPT
`
`Plaintiffs,
`
`v.
`
`AFO IMAGING, INC. d/b/a
`ADVANCED DIAGNOSTIC GROUP,
`RADIOLOGY IMAGING
`SPECIALISTS, LLC d/b/a
`CAREFIRST IMAGING, KEVIN
`JOHNSON, CHINTAN DESAI,
`ROBERT D. MARTINEZ, and
`STANLEY ZIMMELMAN,
`
`
`Defendants.
`
`
`
`/
`
`ORDER
`
`This matter comes before the Court upon consideration of
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`Defendants AFO Imaging, Inc. d/b/a Advanced Diagnostic Group,
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`Kevin Johnson, Dr. Chintan Desai, Dr. Robert D. Martinez, and
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`Dr. Stanley Zimmelman’s (collectively, the “Advanced
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`Diagnostic Defendants’”) Motion to Dismiss (Doc. # 36), filed
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`on January 4, 2021. Plaintiffs Government Employees Insurance
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`Co., Geico Indemnity Co., Geico General Insurance Company,
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`and GEICO Casualty Co. responded on January 19, 2021. (Doc.
`
`# 46). For the reasons set forth below, the Motion is denied.
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`
`
`
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`1
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`

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`I.
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`Background
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`Plaintiffs are motor vehicle insurers that have
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`reimbursed Defendants for certain personal injury protection
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`insurance (“PIP insurance”) covered radiology procedures.
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`(Doc. # 1 at ¶¶ 1, 9). Defendants are medical diagnostic
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`centers and medical diagnostic center owners or directors.
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`(Id. at ¶¶ 10-15). Advanced Diagnostic owns and operates
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`multiple Florida diagnostic centers, with eight locations in
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`Tampa, Brandon, Lakeland, Kissimmee, Orlando, and Palm Beach
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`Gardens. (Id. at ¶ 10). During the relevant time periods,
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`Plaintiffs allege that Kevin Johnson was the owner of Advanced
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`Diagnostic. (Id. at ¶ 12). Dr. Chintan Desai is a radiologist
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`who serves or served as the medical director of Advanced
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`Diagnostic’s Tampa, Brandon, and Orlando locations. (Id. at
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`¶¶ 11, 15). Dr. Robert Martinez is a physician who serves or
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`served as the medical director of Advanced Diagnostic’s
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`Lakeland location. (Id. at ¶ 13). Dr. Stanley Zimmelman is a
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`physician who serves or served as the medical director of
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`four of Advanced Diagnostic’s locations – in Tampa, Palm Beach
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`Gardens, Kissimmee, and Orlando. (Id. at ¶ 14).
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`Plaintiffs aver that the Advanced Diagnostic Defendants
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`entered into two related fraudulent scheme s. First,
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`Defendants allegedly submitted or caused to be submitted
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`2
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`thousands of PIP insurance charges for medically unnecessary,
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`falsified radiology services, namely for magnetic resonance
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`imaging (“MRIs”). (Id. at ¶¶ 1, 7). Second, the Advanced
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`Diagnostic medical centers allegedly operated in violation of
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`Florida law because their medical directors failed to
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`properly perform their duties. (Id. at ¶¶ 120-38).
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`
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`In the first alleged fraudulent scheme, Plaintiffs aver
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`that the Advanced Diagnostic Defendants repeatedly billed
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`them for medically unnecessary MRIS from at least 2015 to the
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`present. (Doc. # 1 at ¶ 48). In support of this allegation,
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`Plaintiffs provide a substantial number of examples of PIP-
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`covered patients who were “involved in relatively minor, low-
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`speed, low-impact ‘fender-bender’ accidents,” and sustained
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`only minor, soft tissue injuries – to the extent that they
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`suffered any injuries at all. (Id. at ¶¶ 50-52, 53). These
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`patients either did not seek treatment at a hospital following
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`their accident or were discharged shortly thereafter without
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`being admitted. (Id. at ¶ 51). Following these relatively
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`minor accidents, the patients visited an Advanced Diagnostic
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`clinic, where an employee performed an MRI as an initial
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`diagnostic tool, despite the fact that “[i]n a legitimate
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`clinical setting, MRIs should not be used as an initial form
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`of diagnostic testing in the treatment of patients
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`3
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`complaining of soft tissue injuries such as sprains secondary
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`to automobile accidents.” (Id. at ¶¶ 55-58, 63). This is
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`because most “soft tissue injuries such as sprains and strains
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`will resolve over a period of weeks through conservative
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`treatment, or no treatment at all.” (Id. at ¶ 66).
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`Not only did a substantial number of patients involved
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`in these minor accidents receive MRIs, but they also received
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`substantially the same MRIs. (Id. at ¶ 70). The Advanced
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`Diagnostic Defendants “routinely purported to perform and/or
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`provide both cervical and lumbar MRIs with respect to
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`[patients] who had not been seriously injured in their
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`accidents, did not plausibly require both cervical and lumbar
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`MRIs (or any MRIs), and in any case did not require cervical
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`and lumbar MRIs as a first-line diagnostic test, before they
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`had failed a legitimate course of conservative treatment.”
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`(Id. at ¶ 71). This is also despite the fact that these
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`patients were different ages, heights, weights, were in
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`different physical conditions and locations within the
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`vehicle, and the locations of impact differed. (Id. at ¶¶ 73-
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`78). Plaintiffs provide a number of representative examples.
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`(Id. at ¶ 79). For instance:
`
`On June 28, 2017 two Insureds – JK and KG – were
`involved in the same automobile accident. JK and KG
`were different ages, in different physical
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`4
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`condition, and experienced the impact from
`different positions in the vehicle. To the extent
`that they suffered any injuries at all in the
`accident, their injuries were different, and
`resolved at different rates. They did not require
`substantially identical MRIs on the same date as
`their accident. Even so, Advanced Diagnostic,
`Johnson, Zimmelman, and Desai submitted bills to
`GEICO for MRI scans purportedly performed on the
`cervical spine and lumbar spine of both JK and KG
`at AD-Kissimmee on June 28, 2017.
`
` *
`
` * *
`
`
`On March 29, 2019, two Insureds – BD and JD – were
`involved in the same automobile accident. BD and JD
`were different ages, in different physical
`condition, and experienced the impact from
`different positions in the vehicle. To the extent
`that they suffered any injuries at all in the
`accident, their injuries were different, and
`resolved at different rates. They did not require
`substantially identical MRIs on or about the same
`date after their accident. Even so, Advanced
`Diagnostic, Johnson, Martinez, and Desai submitted
`bills to GEICO for MRI scans purportedly performed
`on the cervical and lumbar spines of BD and JD at
`AD-Lakeland on April 18, 2019.
`
`
`(Id.).
`
`
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`After performing these unnecessary MRIs, Plaintiffs
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`allege that the Advanced Diagnostic Defendants falsely
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`diagnosed these patients “in order to make it appear as if
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`the [patients] had suffered from serious injuries as the
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`result of their automobile accidents, when in fact they had
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`not.” (Id. at ¶ 83). In support of this, Plaintiffs provide
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`a number of examples of Advanced Diagnostic patients who were
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`5
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`involved in these aforementioned minor automobile accidents,
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`who did not visit a hospital or were discharged without being
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`admitted, and were then diagnosed with serious disc bulges
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`and “numerous herniations at multiple levels of their spines”
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`at Advanced Diagnostic. (Id. at ¶ 84). The physicians made
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`these diagnoses despite the fact that it is “improbable that
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`a minor accident actually would cause a patient to suffer
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`from numerous bulging discs at multiple levels of his or her
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`spine,” and that it is equally as unlikely that this would
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`“occur over and over again within a large cohort of patients
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`being treated within a small group of related radiology
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`practices.” (Id. at ¶¶ 94-95). For example:
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`On July 19, 2018, an Insured named KM was involved
`in a minor automobile accident. In keeping with the
`fact that the accident was minor, KM was not
`seriously injured and was discharged from the
`hospital emergency room hours after arriving
`without being admitted to the hospital. To the
`extent that KM experienced any health issues at all
`as the result of the accident, they were minor soft
`tissue injuries that did not require MRIs, not disc
`herniations. Even so, after purportedly taking MRIs
`of KM’s cervical spine and lumbar spine at AD-
`Lakeland on July 31, 2018, Advanced Diagnostic,
`Johnson, Martinez, and Desai falsely reported that
`KM had disc herniations at the C3-4 and L5-S1 levels
`of her spine.
`
` *
`
` * *
`
`
`On August 4, 2018, an Insured named EC was involved
`in a minor automobile accident. In keeping with the
`fact that the accident was minor, EC was not
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`6
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`seriously injured and was discharged from the
`hospital emergency room hours after arriving
`without being admitted to the hospital. To the
`extent that EC experienced any health issues at all
`as the result of the accident, they were minor soft
`tissue injuries that did not require MRIs, not disc
`herniations. Even so, after purportedly taking MRIs
`of EC’s cervical spine and lumbar spine at AD-
`Orlando 2 on September 6, 2018, Advanced
`Diagnostic, Johnson, Zimmelman, and Desai falsely
`reported that EC had disc herniations at the C3-4,
`C4-5, C6-7, L3-4, L4-5, and L5-S1 levels of her
`spine.
`
`
`(Id. at ¶ 86).
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`Additionally, Plaintiffs allege that Dr. Desai, who
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`worked remotely and was responsible for interpreting these
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`MRIs, made these diagnoses without personally examining the
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`patients, and without referencing those patients’ medical
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`records. (Id. at ¶¶ 103-04). Despite not referencing those
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`materials, a number of Dr. Desai’s reports indicated that
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`these disc herniations and bulges were caused by the
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`automobile accidents in question. (Id. at ¶¶ 105-06). And,
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`Dr. Desai allegedly interpreted sixty to seventy MRIs per day
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`that were then submitted to Plaintiffs, which Plaintiffs
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`proffer indicates that they were not properly reviewed. (Id.
`
`at ¶¶ 110-14). Taking these allegations together, Plaintiffs
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`posit that the Advanced Diagnostic Defendants exaggerated
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`these diagnoses in order “to ensure a steady stream of
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`referrals to [their clinics] for medically unnecessary MRIs.”
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`7
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`(Id. at ¶ 88). Defendants were allegedly then enriched by
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`this fraud by billing Plaintiffs for these MRIs – with Dr.
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`Desai, Dr. Martinez, and Dr. Zimmelman as medical directors
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`of the various clinics, and Johnson as the purported owner.
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`(Id. at ¶¶ 2, 10-15, 139-40).
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`In the second related scheme, Plaintiffs allege that the
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`Advanced Diagnostic clinics operated in violation the Florida
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`Health Care Clinic Act’s licensing requirements. (Doc. # 1 at
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`¶ 122). Under Florida law, when a clinic is not “wholly owned”
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`by a licensed health care practitioner, it must “appoint a
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`medical director or clinic director.” (Id. at ¶¶ 35-39); Fla.
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`Stat. § 400.9935(1) (2020). The Clinic Act requires these
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`medical directors to accept legal responsibility for certain
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`activities on behalf of the clinic, including the duty to
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`“[c]onduct systematic reviews of clinic billings to ensure
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`that the billings are not fraudulent or unlawful.” Fla. Stat.
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`§ 400.9935(1)(g). “Upon discovery of an unlawful charge, the
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`medical director . . . [must] take immediate corrective
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`action.” Id.
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`
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`Plaintiffs aver that Johnson, who is not a licensed
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`health care practitioner, operated the Advanced Diagnostic
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`clinics without these requisite medical directors. (Doc. # 1
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`at ¶¶ 12, 122). Johnson allegedly did not recruit legitimate
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`8
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`physicians to serve in those posts so that he would be able
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`“to use Advanced Diagnostic as a vehicle to submit a large
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`amount of fraudulent PIP billing to GEICO and other Florida
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`automobile insurers.” (Id. at ¶ 123). Instead of recruiting
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`physicians who would properly oversee Advanced Diagnostic’s
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`billing, Johnson employed Dr. Zimmelman, Dr. Martinez, and
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`Dr. Desai “to falsely pose at the legitimate medical
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`director[s]” of various clinic locations. (Id. at ¶¶ 124-27).
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`Plaintiffs maintain that Dr. Desai, Dr. Martinez, and Dr.
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`Zimmelman never performed their duties as clinic directors,
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`instead ceding those oversight requirements to Johnson. (Id.
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`at ¶ 129). Had these individuals properly served in their
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`roles as medical directors, Plaintiffs posit that the
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`purported directors would have uncovered the fraudulent
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`billing of the unnecessary MRIs. (Id. at ¶ 131).
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`
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`Plaintiffs filed this suit on October 16, 2020. (Doc. #
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`1). The complaint includes the following relevant causes of
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`action: declaratory judgment under 28 U.S.C. §§ 2201 and 2202
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`against Advanced Diagnostic (Count I), violations of Section
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`1962(c) of the Racketeer Influenced and Corrupt Organizations
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`Act (“RICO”) against Johnson (Count II), violations of
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`Section 1962(d) of RICO against Johnson, Dr. Desai, Dr.
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`Martinez, and Dr. Zimmelman (Count III), violations of the
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`
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`9
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`Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”)
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`against Advanced Diagnostic, Johnson, Dr. Desai, Dr.
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`Martinez, and Dr. Zimmelman (Count IV), violations of Section
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`772.103(3) of the Florida RICO counterpart against Johnson
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`(Count V), violations of Section 772.103(4) of the Florida
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`RICO counterpart against Johnson, Dr. Desai, Dr. Martinez,
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`and Dr. Zimmelman (Count VI), common law fraud against the
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`Advanced Diagnostic Defendants (Count VII), and unjust
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`enrichment against the Advanced Diagnostic Defendants (Count
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`VIII).
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`
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`The Advanced Diagnostic Defendants moved to dismiss the
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`claims against them on January 4, 2021. (Doc. # 36).
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`Plaintiffs have responded (Doc. # 46), and the Motion is now
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`ripe for review.
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`II. Legal Standard
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`On a motion to dismiss pursuant to Federal Rule of Civil
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`Procedure 12(b)(6), this Court accepts as true all the
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`allegations in the complaint and construes them in the light
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`most favorable to the plaintiff. Jackson v. Bellsouth
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`Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
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`the Court favors the plaintiff with all reasonable inferences
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`from the allegations in the complaint. Stephens v. Dep’t of
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`10
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`Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).
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`But,
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`[w]hile a complaint attacked by a Rule 12(b)(6)
`motion to dismiss does not need detailed factual
`allegations, a plaintiff’s obligation to provide
`the grounds of his entitlement to relief requires
`more than labels and conclusions, and a formulaic
`recitation of the elements of a cause of action
`will not do. Factual allegations must be enough to
`raise a right to relief above the speculative
`level.
`
`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
`
`(quotations and citations omitted). Courts are not “bound to
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`accept as true a legal conclusion couched as a factual
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`allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The
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`Court must limit its consideration to “well-pleaded factual
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`allegations, documents central to or referenced in the
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`complaint, and matters judicially noticed.” La Grasta v.
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`First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
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`The Federal Rules of Civil Procedure accord a heightened
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`pleading standard to claims for fraud, requiring that they be
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`pled with particularity. Fed. R. Civ. P. 9(b). Under Rule
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`9(b), the “plaintiff must allege: (1) the precise statements,
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`documents, or misrepresentations made; (2) the time, place,
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`and person responsible for the statement; (3) the content and
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`manner in which these statements misled the [p]laintiffs; and
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`(4) what the defendants gained by the alleged fraud.” Am.
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`11
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`
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`Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.
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`2010) (quoting Brooks v. Blue Cross & Blue Shield of Fla.,
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`Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)).
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`This “requirement serves an important purpose in fraud
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`actions by alerting defendants to the precise misconduct with
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`which they are charged and protecting defendants against
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`spurious charges of immoral and fraudulent behavior.” W.
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`Coast Roofing and Waterproofing, Inc. v. Johns Manville,
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`Inc., 287 F. App’x 81, 86 (11th Cir. 2008) (quoting Ziemba v.
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`Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)).
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`III. Analysis
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`The Advanced Diagnostic Defendants move to dismiss all
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`claims against them, arguing that (1) the complaint is an
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`impermissible shotgun pleading, and that (2) it fails to state
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`a claim under Rule 9(b) and Rule 12(b)(6). (Doc. # 36). The
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`Court will address each argument as to all counts in turn.
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`A. Shotgun Pleading
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`First, Defendants argue that the complaint should be
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`dismissed as a shotgun pleading because it: (1)
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`“impermissibly incorporates, as though fully set forth
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`therein, each and every allegation in paragraphs 1-149 for
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`all thirteen counts”; (2) “brings Counts 3, 4, 6, 7, and 8
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`against multiple [Advanced Diagnostic Defendants] without
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`12
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`specifying what conduct each Defendant allegedly contributed
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`to the cause”; and (3) “due to its length – 94 pages, 244
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`paragraphs, and 13 counts – the pleading cannot be considered
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`a short and plain statement of the claims showing that
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`[Plaintiffs are] entitled to relief.” (Doc. # 36 at 7-10)
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`(internal quotation marks and citations omitted).
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`“A defendant served with a shotgun complaint should move
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`the district court to dismiss the complaint pursuant to Rule
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`12(b)(6) or for a more definite statement pursuant to Rule
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`12(e) on the ground that the complaint provides it with
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`insufficient notice to enable it to file an answer.” Paylor
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`v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126-27 (11th Cir.
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`2014) (footnotes omitted). The Eleventh Circuit has
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`“identified four rough types or categories of shotgun
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`pleadings”: (1) “a complaint containing multiple counts where
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`each count adopts the allegations of all preceding counts”;
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`(2) a complaint that is “replete with conclusory, vague, and
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`immaterial facts not obviously connected to any particular
`
`cause of action”; (3) a complaint that does “not separat[e]
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`into a different count each cause of action or claim for
`
`relief”; and (4) a complaint that “assert[s] multiple claims
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`against multiple defendants without specifying which of the
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`defendants are responsible for which acts or omissions, or
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`13
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`which of the defendants the claim is brought against.” Weiland
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`v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1322-23
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`(11th Cir. 2015). “The unifying characteristic of all types
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`of shotgun pleadings is that they fail to . . . give the
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`defendants adequate notice of the claims against them and the
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`grounds upon which each claim rests.” Id. at 1323.
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`Here, the Advanced Diagnostic Defendants argue that the
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`complaint falls within the first and fourth categories
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`identified in Weiland. (Doc. # 36 at 8-10). Regarding the
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`first category, the Advanced Diagnostic Defendants argue that
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`each count impermissibly incorporates every allegation in
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`paragraphs 1 through 149 of the complaint. (Id. at 8).
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`However, this does not make the complaint a shotgun pleading,
`
`as the complaint realleges only the facts in the body of the
`
`complaint, not those in the preceding counts. See Barmapov v.
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`Amuial, 986 F.3d 1321, 1321-22 (11th Cir. Feb. 3, 2021)
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`(“Barmapov’s second amended complaint does not fall into the
`
`first category because although nine of the [nineteen] counts
`
`incorporate almost every factual allegation in the complaint,
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`none of them adopts the allegations in the preceding
`
`counts.”).
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`Regarding the fourth category, the Advanced Diagnostic
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`Defendants argue that the complaint impermissibly lumps the
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`14
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`action of multiple defendants together. (Doc. # 36 at 8-9).
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`However, the Court finds that the complaint includes
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`sufficient factual allegations as to each Advanced Diagnostic
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`Defendant to place them on notice of the allegations against
`
`them. See Cont’l 332 Fund, LLC v. Albertelli, 317 F. Supp. 3d
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`1124, 1140 (M.D. Fla. 2018) (“Other courts have also reached
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`this nuanced distinction by approving claims lodged against
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`multiple defendants where the activities undertaken by each
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`defendant were alleged.”). The complaint explains the role of
`
`each of the Advanced Diagnostic Defendants, in that Dr. Desai
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`evaluated the MRIs, created patient reports on behalf of
`
`Advanced Diagnostic, and purportedly served as medical
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`director for three Advanced Diagnostic locations, which would
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`require him to oversee those locations’ PIP insurance
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`billing. (Doc. # 1 at ¶¶ 15, 100). Dr. Martinez and Dr.
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`Zimmelman purportedly served as medical directors for five of
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`Advanced Diagnostic’s locations, such that they also would
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`have overseen those locations’ insurance billing. (Id. at ¶¶
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`13-14). And, Johnson, as the purported owner of all of
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`Advanced Diagnostic’s clinics, allegedly oversaw the entire
`
`corporation and operated the clinics, which he utilized “as
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`a vehicle to submit a massive amount of fraudulent PIP billing
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`to GEICO.” (Id. at ¶¶ 133-34).
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`15
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`This therefore does not constitute a shotgun pleading
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`under the fourth category identified in Weiland. See FFC
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`Mortg. Corp. v. Red Door Title Ins. Agency, Inc., No. 13-
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`61132-Civ-SCOLA, 2013 WL 12138556, at *3 (S.D. Fla. Dec. 12,
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`2013) (“These are specific acts that are connected to specific
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`Defendants. The Court therefore finds that FFC has not simply
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`lumped the Defendants together but has provided the specific
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`acts attributable to Pollack and Martinez to give sufficient
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`notice of the allegations of fraud against them.”).
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`And, the Court disagrees with the argument that the
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`complaint is so long that is constitutes a shotgun pleading.
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`(Doc. # 36 at 10). Although the Court appreciates that the
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`complaint is ninety-four pages and 244 paragraphs long, this
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`is a complex civil conspiracy case, and the length does not
`
`make it so that Defendants are unable to prepare a proper
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`response. See Bailey v. Janssen Pharmaceutica, Inc., 288 F.
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`App’x 597, 603 (11th Cir. 2008) (“Moreover, a complaint – so
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`long as it is minimally sufficient to put a defendant on
`
`notice of the claims against him – will not fail for mere
`
`surplusage.”); Snow v. Etowah Cnty. Sheriff’s Dep’t, No.
`
`4:20-cv-00344-ACA, 2020 WL 6899168, at *4 (N.D. Ala. Nov. 24,
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`2020) (“Length alone does not make a shotgun pleading[.]”).
`
`Accordingly, the Court declines to dismiss the complaint
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`
`
`
`
`16
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`

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`Case 8:20-cv-02419-VMC-CPT Document 50 Filed 02/25/21 Page 17 of 35 PageID 1558
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`
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`as a shotgun pleading. See Lenz v. Michaels Org., LLC, No.
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`8:19-cv-2950-TPB-AEP, 2020 WL 6119376, at *3 (M.D. Fla. Oct.
`
`16, 2020) (“Although the complaint is unnecessarily lengthy,
`
`and incorporates all prior factual allegations, the Court
`
`finds that the complaint is sufficient to give Defendants
`
`notice of the claims against them. Additionally, each
`
`Plaintiff is not required to separately plead a distinct claim
`
`against each Defendant.”).
`
`B. RICO and Related State Law Claims
`
`Next, the Advanced Diagnostic Defendants argue that
`
`Counts II, III, V, and VI should be dismissed for failure to
`
`state a claim under the federal and Florida RICO statutes
`
`because the complaint: (1) fails to plead the predicate acts
`
`with particularity; (2) fails to establish the existence of
`
`an enterprise; and (3) lacks any particularized allegations
`
`of a conspiracy. (Doc. # 36 at 16-19).
`
`Counts II and V allege violations of Section 1962(c) of
`
`the federal RICO statute and its Florida counterpart against
`
`Johnson. (Doc. # 1 at ¶¶ 156-63, 181-87). Counts III and VI
`
`allege violations of Section 1962(d) of the federal RICO
`
`statute and its Florida counterpart against Johnson, Dr.
`
`Desai, Dr. Martinez, and Dr. Zimmelman. (Id. at ¶¶ 164-71,
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`188-95). Because the Florida counterparts mirror the federal
`
`
`
`
`
`17
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`

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`Case 8:20-cv-02419-VMC-CPT Document 50 Filed 02/25/21 Page 18 of 35 PageID 1559
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`
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`RICO statute, the Court will discuss the federal and state
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`claims in conjunction. See Jackson, 372 F.3d at 1263 (“[T]he
`
`analysis we apply to the plaintiffs’ federal RICO claims is
`
`equally applicable to their state RICO claims.”).
`
`
`
`
`
`
`
`1. Section 1962(c) and Related Florida Claim
`
`The federal RICO statute “was enacted in 1970 and
`
`prohibits racketeering activity connected to interstate
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`commerce.” Cisneros v. Petland, Inc., 972 F.3d 1204, 1210
`
`(11th Cir. 2020) (citing Ray v. Spirit Airlines, Inc., 836
`
`F.3d 1340, 1348 (11th Cir. 2016)). The statute reaches beyond
`
`organized crime and should “be liberally construed to
`
`effectuate its remedial purposes.” Boyle v. United States,
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`556 U.S. 938, 944 (2009) (citation omitted). Section 1962(c)
`
`of the statute makes it “unlawful for any person employed by
`
`or associated with any enterprise engaged in, or the
`
`activities of which affect, interstate or foreign commerce,
`
`to conduct or participate, directly or indirectly, in the
`
`conduct of such enterprise’s affairs through a pattern of
`
`racketeering activity or collection of unlawful debt.” 18
`
`U.S.C. § 1962(c).
`
`
`
`To state a claim under RICO, Plaintiffs must plausibly
`
`allege that Johnson: “(1) operated or managed (2) an
`
`enterprise (3) through a pattern (4) of racketeering activity
`
`
`
`
`
`18
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`

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`Case 8:20-cv-02419-VMC-CPT Document 50 Filed 02/25/21 Page 19 of 35 PageID 1560
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`
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`that included at least two predicate acts of racketeering,
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`which (5) caused (6) injury to the business or property of
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`the plaintiff.” Cisneros, 972 F.3d at 1211. Here, the alleged
`
`predicate acts are violations of Section 1341 of the federal
`
`mail fraud statute. (Doc. # 1 at ¶ 158). Because Plaintiffs’
`
`RICO claims are wholly based on the predicate acts of mail
`
`fraud, their substantive RICO allegations must comply with
`
`Rule 9(b)’s heightened pleading standard. American Dental,
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`605 F.3d at 1291.
`
`The Advanced Diagnostic Defendants allege that
`
`Plaintiffs have failed to adequately plead the second and
`
`fourth elements of their Section 1962(c) claim – that Johnson
`
`engaged in an (2) enterprise pertaining to (4) racketeering
`
`activity that included at least two predicate acts of
`
`racketeering. (Doc. # 36 at 16-19).
`
`
`
`
`
`
`
`
`
`a. Enterprise
`
`Under the federal RICO statute, an “enterprise” is
`
`defined as “any individual, partnership, corporation,
`
`association, or other legal entity, and any union or group of
`
`individuals associated in fact although not a legal entity.”
`
`18 U.S.C. § 1961(4). Here, Plaintiffs are not alleging that
`
`the enterprise is an association in fact, but a corporation
`
`
`
`
`
`19
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`

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`Case 8:20-cv-02419-VMC-CPT Document 50 Filed 02/25/21 Page 20 of 35 PageID 1561
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`
`
`– Advanced Diagnostic, Inc. 1 (Doc. # 1 at ¶ 157). Plaintiffs
`
`allege that Johnson – as owner of Advanced Diagnostic –
`
`operates diagnostic centers that he utilized to “submit[]
`
`thousands of fraudulent charges on a continuous basis for
`
`over three years seeking payments that Advanced Diagnostic
`
`was not eligible to receive” under the Florida PIP statute.
`
`(Doc. # 1 at ¶¶ 156-58). The complaint further alleges that
`
`enterprise “engaged in inherently unlawful acts, inasmuch as
`
`it continues to submit and attempt collection on fraudulent
`
`
`1 . The Advanced Diagnostic Defendants discuss at length
`whether Plaintiffs meet their burden of alleging an
`enterprise as an “association in fact,” but that test is
`irrelevant given that all individuals alleged to be involved
`in the scheme purportedly own, serve as medical directors of,
`or provide radiology services as employees of the corporate
`enterprise. (Doc. # 36 at 17-19). The corporation itself –
`Advanced Diagnostic, Inc. – is not named as a defendant in
`any of the RICO counts, and so Defendants are sufficiently
`distinct from the enterprise. (Doc. # 1 at ¶¶ 156, 181); see
`Roche Diagnostics Corp. v. Priority Healthcare Corp., 407 F.
`Supp. 3d 1216, 1239 (N.D. Ala. 2019) (“Clearly distinguishing
`the persons and the enterprise involved here, Roche alleges
`the exact type of unlawful behavior described in Kushner and
`Ray. The Amended Complaint asserts that Ms. Minga – through
`PHC, which she co-founded with Ms. Carson – acquired
`legitimate, pre-existing pharmacies and helped create false-
`front pharmacies to conduct her scheme of submitting false
`test strips for adjudication; Mr. Carson, meanwhile,
`allegedly helped Ms. Minga operate Priority Care with his
`pharmacy business knowledge. . . . The entire enterprise,
`then allegedly constituted a funnel through which she could
`channel unlawful activities, with the help of Mr. Carson and
`others. The court finds that Roche adequately differentiates
`between the persons and the enterprise, as required by Ray.”).
`
`
`
`
`
`20
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`

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`Case 8:20-cv-02419-VMC-CPT Document 50 Filed 02/25/21 Page 21 of 35 PageID 1562
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`
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`billing submitted to GEICO and other insurers. These
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`inherently unlawful acts are taken by Advanced Diagnostic in
`
`pursuit of inherently unlawful goals – namely, the theft of
`
`money from GEICO . . . through fraudulent no-fault billing.”
`
`(Id. at ¶ 161).
`
`This is sufficient to plead the existence of an
`
`enterprise in the form of a corporation under the RICO
`
`statute. See Fernandez de Cordoba v. Flores , No. 17-20122-
`
`CV-WILLIAMS/TORRES, 2018 WL 1830805, at *3 (S.D. Fla. Jan.
`
`10, 2018) (“Such an enterprise has been adequately pled here;
`
`the Complaint states that Gold Lion is a limited liability
`
`company organized and existing under the laws of the United
`
`Kingdom created for the purpose of perpetrating the fraud and
`
`scheme upon Plancarte and possibly others. The Complaint also
`
`states clearly that Flores worked on behalf of Gold Lion in
`
`an effort to induce Plaintiffs to deposit money into accounts
`
`controlled by the Defendants.” (citations omitted)), report
`
`and recommendation adopted, No. 17-20122-CIV-WILLIAMS, 2018
`
`WL 1811945 (S.D. Fla. Feb. 9, 2018).
`
`
`
`
`
`
`
`
`
`b. Predicate Acts
`
`Next, the Advanced Diagnostic Defendants argue that
`
`Plaintiffs have not alleged the predicate acts – mail fraud
`
`– with the particularity required by Rule 9(b). (Doc. # 36 at
`
`
`
`
`
`21
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`

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`Case 8:20-cv-02419-VMC-CPT Document 50 Filed 02/25/21 Page 22 of 35 PageID 1563
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`
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`16). The elements of mail fraud include: “(1) an intentional
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`participation in a scheme to defraud a person of money or
`
`property, and (2) the use of the mails in furtherance of the
`
`scheme.” United States v. Lander, 668 F.3d 1289, 1297 (11th
`
`Cir. 2012) (citation omitted). “The gravamen of the offense
`
`is the scheme to defraud, and any ‘mailing . . . incident to
`
`an essential part of the scheme satisfies the mailing
`
`element,’ even if the mailing ‘contain[s] no false
`
`information.’” Bridge v. Phx. Bond & Indem. Co., 553 U.S.
`
`639, 647 (2008) (quoting Schmuck v. United States, 489 U.S.
`
`705, 712 (1989)).
`
`As noted, because Plaintiffs’ RICO claims are based upon
`
`mail fraud, they must comply with Rule 9(b)’s heightened
`
`pleading standard. Drummond v. Zimmerman, 454 F. Supp. 3d
`
`1210, 1218 (S.D. Fla. 2020). Under Rule 9(b), the plaintiff
`
`must allege: “(1) the precise statements, documents, or
`
`misrepresentations made; (2) the time, place, and person
`
`responsible for the statement; (3) the content and manner in
`
`which these statements mi