`
`
`
`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
`
`Defendants Radiology Imaging Specialists, LLC d/b/a CareFirst
`
`Imaging and Dr. Chintan Desai’s (collectively, the “CareFirst
`
`Defendants”) Motion to Dismiss (Doc. # 38), filed on January
`
`11, 2021. Plaintiffs Government Employees Insurance Co.,
`
`Geico Indemnity Co., Geico General Insurance Company, and
`
`GEICO Casualty Co. responded on January 24, 2021. (Doc. #
`
`47). For the reasons set forth below, the Motion denied.
`
`
`
`
`
`
`
`1
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`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 2 of 24 PageID 1680
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`
`
`I.
`
`Background
`
`Both the Court and the parties are familiar with the
`
`facts underlying this case. Therefore, the Court need not
`
`reiterate them in detail. Plaintiffs are motor vehicle
`
`insurers that have reimbursed the CareFirst Defendants for
`
`certain
`
`personal
`
`injury
`
`protection
`
`insurance
`
`(“PIP
`
`insurance”) covered radiology procedures. (Doc. # 1 at ¶¶ 1,
`
`9). Dr. Desai is a physician and the owner of CareFirst, a
`
`company that operates two medical diagnostic facilities in
`
`Ocala and Leesburg, Florida. (Id. at ¶¶ 3, 11, 15).
`
`Plaintiffs posit that the CareFirst Defendants entered
`
`into two related fraudulent schemes. First, Defendants
`
`allegedly submitted or caused to be submitted thousands of
`
`PIP insurance charges for medically unnecessary, falsified
`
`radiology services – namely for magnetic resonance imaging
`
`(“MRIs”). (Id. at ¶¶ 1, 7). Second, the CareFirst diagnostic
`
`centers allegedly operated in violation of Florida law
`
`because the clinics neither qualified for licensure, nor did
`
`they have a legitimate medical director. (Id. at ¶ 138).
`
`
`
`Plaintiffs filed this suit on October 16, 2020. (Doc. #
`
`1). The complaint includes the following relevant causes of
`
`action: declaratory judgment against CareFirst (Count I),
`
`violations of Section 1962(c) of the Racketeer Influenced and
`
`
`
`
`
`2
`
`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 3 of 24 PageID 1681
`
`
`
`Corrupt Organizations Act (“RICO”) against Dr. Desai (Count
`
`IX), violations of the Florida Deceptive and Unfair Trade
`
`Practices Act (“FDUTPA”) against the CareFirst Defendants
`
`(Count X), violations of the Florida RICO counterpart against
`
`Dr. Desai (Count XI), common law fraud against the CareFirst
`
`Defendants (Count XII), and unjust enrichment against the
`
`CareFirst Defendants (Count XIII). (Doc. # 1).
`
`
`
`On January 4, 2021, Dr. Desai and the other defendants
`
`in this case, AFO Imaging, Inc. d/b/a Advanced Diagnostic
`
`Group, Kevin Johnson, Dr. Robert D. Martinez, and Dr. Stanley
`
`Zimmelman
`
`(collectively,
`
`the
`
`“Advanced
`
`Diagnostic
`
`Defendants”), filed a motion to dismiss the complaint. (Doc.
`
`# 36). On February 25, 2021, the Court denied the Advanced
`
`Diagnostic Defendants’ motion. (Doc. # 50). On January 11,
`
`2021 – one week after the initial motion to dismiss was filed
`
`– the CareFirst Defendants filed the instant Motion. (Doc. #
`
`38). Plaintiffs have responded (Doc. # 47), and the Motion is
`
`now ripe for review.
`
`II. Legal Standard
`
`On a motion to dismiss pursuant to Federal Rule of Civil
`
`Procedure 12(b)(6), this Court accepts as true all the
`
`allegations in the complaint and construes them in the light
`
`most favorable to the plaintiff. Jackson v. Bellsouth
`
`
`
`
`
`3
`
`
`
`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 4 of 24 PageID 1682
`
`
`
`Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
`
`the Court favors the plaintiff with all reasonable inferences
`
`from the allegations in the complaint. Stephens v. Dep’t of
`
`Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).
`
`But,
`
`[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
`
`accept as true a legal conclusion couched as a factual
`
`allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The
`
`Court must limit its consideration to “well-pleaded factual
`
`allegations, documents central to or referenced in the
`
`complaint, and matters judicially noticed.” La Grasta v.
`
`First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
`
`The Federal Rules of Civil Procedure accord a heightened
`
`pleading standard to claims for fraud, requiring that they be
`
`pled with particularity. Fed. R. Civ. P. 9(b). Under Rule
`
`9(b), the “plaintiff must allege: (1) the precise statements,
`
`documents, or misrepresentations made; (2) the time, place,
`
`
`
`
`
`4
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`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 5 of 24 PageID 1683
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`
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`and person responsible for the statement; (3) the content and
`
`manner in which these statements misled the [p]laintiffs; and
`
`(4) what the defendants gained by the alleged fraud.” Am.
`
`Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.
`
`2010) (quoting Brooks v. Blue Cross & Blue Shield of Fla.,
`
`Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)).
`
`This “requirement serves an important purpose in fraud
`
`actions by alerting defendants to the precise misconduct with
`
`which they are charged and protecting defendants against
`
`spurious charges of immoral and fraudulent behavior.” W.
`
`Coast Roofing and Waterproofing, Inc. v. Johns Manville,
`
`Inc., 287 F. App’x 81, 86 (11th Cir. 2008) (quoting Ziemba v.
`
`Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)).
`
`III. Analysis
`
`The CareFirst Defendants move to dismiss the claims
`
`against them, arguing that (1) the applicable statutes of
`
`limitations have expired, (2) Plaintiffs failed to follow
`
`certain statutory pre-suit requirements, (3) the Court should
`
`decline jurisdiction under the primary jurisdiction doctrine,
`
`(4) the Court should dismiss or stay the case under various
`
`abstention doctrines, (5) Plaintiffs’ RICO claims are reverse
`
`preempted by the McCarran-Ferguson Act, and (6) the complaint
`
`fails to plead fraud with specificity. (Doc. # 38).
`
`
`
`
`
`5
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`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 6 of 24 PageID 1684
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`
`
`At the outset of their response to the instant Motion,
`
`Plaintiffs note that this is the second motion to dismiss
`
`filed on Dr. Desai’s behalf, improperly allowing him two
`
`motions to dismiss. (Doc. # 47 at 1). The Court will first
`
`address this issue, followed by CareFirst’s arguments for
`
`dismissal.
`
`A. Improper Successive Motion to Dismiss
`
`Under Federal Rule of Civil Procedure 12(g) “a party
`
`that makes a motion under [Rule 12] must not make another
`
`motion under [Rule 12] raising a defense or objection that
`
`was available to the party but omitted from its earlier
`
`motion.” Fed. R. Civ. P. 12(g)(2). There are two exceptions
`
`to this rule. First, “a party may raise the defenses of
`
`‘failure to state a claim upon which relief can be granted,
`
`to join a person required by Rule 19(b), or to state a legal
`
`defense to a claim’ in a pleading under Rule 7(a), by motion
`
`under Rule 12(c), or at trial.” Connectus LLC v. Ampush Media,
`
`Inc., No. 8:15-cv-2778-VMC-JSS, 2017 WL 1155448, at *5 (M.D.
`
`Fla. Mar. 28, 2017) (quoting Fed. R. Civ. P. 12(h)(2)).
`
`Second, “subject-matter jurisdiction may be attacked at any
`
`time.” Id. (citing Fed. R. Civ. P. 12(h)(3)).
`
`Here, Dr. Desai previously filed a motion to dismiss
`
`under Rule 12 in this case, arguing that the complaint was an
`
`
`
`
`
`6
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`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 7 of 24 PageID 1685
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`
`
`impermissible shotgun pleading, and that certain counts were
`
`not plausibly or particularly alleged. (Doc. # 36). The
`
`instant Motion to Dismiss does not fall within any of the
`
`exceptions identified in Rule 12(g), as Dr. Desai does not
`
`challenge this Court’s subject-matter jurisdiction, 1 the
`
`Motion is not one for judgment on the pleadings, and the case
`
`has not gone to trial. See Conradis v. Geiger, No. 6:18-cv-
`
`1486-TBS, 2019 WL 448311, at *3 (M.D. Fla. Feb. 5, 2019) (“The
`
`exceptions in Rule 12(h)(2) and (3) do not apply to permit
`
`Geiger to file successive motions to dismiss. He has not
`
`challenged the Court’s subject-matter jurisdiction, he has
`
`
`1 . None of Dr. Desai’s abstention arguments challenge
`subject-matter jurisdiction. To the contrary, when a court
`abstains, the Court has subject-matter jurisdiction, but
`declines to exercise it for prudential reasons. See Carlsbad
`Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (“This
`Court’s precedent makes clear that whether a court has
`subject-matter jurisdiction over a claim is distinct from
`whether a court chooses to exercise that jurisdiction.”); see
`also Sierra v. City of Hallandale Beach, 904 F.3d 1343, 1350
`(11th Cir. 2018) (“Unlike when a court lacks subject-matter
`jurisdiction, the primary-jurisdiction doctrine applies when
`a court maintains jurisdiction over a matter but nonetheless
`abstains for prudential reasons.”); Quackenbush v. Allstate
`Ins. Co., 517 U.S. 706, 712 (1996) (explaining that the
`district court’s remand order based on Burford abstention was
`“not based on lack of subject matter jurisdiction”); Reiseck
`v. Universal Commc’ns of Mia., Inc., 141 F. Supp. 3d 1295,
`1304 (S.D. Fla. 2015) (“Colorado River abstention provides an
`exception by which ‘a District Court may decline to exercise
`or postpone the exercise of its jurisdiction[.]’” (citation
`omitted)); Wilton v. Seven Falls Co., 515 U.S. 277, 279 (1995)
`(noting that Brillhart abstention is discretionary).
`
`
`
`
`
`7
`
`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 8 of 24 PageID 1686
`
`
`
`not filed a pleading or motion for judgment on the pleadings,
`
`and the case has not gone to trial.” (citation omitted)).
`
`Additionally, Dr. Desai cannot file a second motion to
`
`dismiss simply by virtue of having different attorneys
`
`address the claims related to the CareFirst clinics. See
`
`McGregor v. In Tune Music Grp., No. 15-62044-CIV-ZLOCH, 2016
`
`WL 8809246, at *2 (S.D. Fla. Sept. 30, 2016) (“Judge Hunt is
`
`correct that there is no provision in the Federal Rules of
`
`Civil Procedure that would permit parties to file multiple
`
`motions to dismiss, even if said parties have obtained new
`
`counsel.”). And, because the pleadings have not yet closed, 2
`
`the Court cannot construe the Motion as one for judgment on
`
`the pleadings under Rule 12(c). See E. Coast Test Prep LLC v.
`
`Allnurses.com, Inc., No. 15-3705 (JRT/JSM), 2016 WL 5109137,
`
`at *2-3 (D. Minn. Sept. 19, 2016) (“But a motion for judgment
`
`on the pleadings is only available ‘[a]fter the pleadings are
`
`closed.’ Here the pleadings have not yet closed, so the first
`
`exception does not apply.” (quoting Fed. R. Civ. P. 12(c))).
`
`Accordingly, the Motion is denied as to the claims
`
`against Dr. Desai. See Id. (“The Court also notes that even
`
`
`2 . Although Dr. Desai has filed an answer as to the
`allegations against him related to the Advanced Diagnostic
`scheme, he does not appear to have filed a proper answer
`regarding his role in the CareFirst scheme. (Doc. # 51).
`
`
`
`
`
`8
`
`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 9 of 24 PageID 1687
`
`
`
`though adherence to Rule 12’s formalities may appear to be
`
`nothing more than annoyance here, the Court must still follow
`
`the rule’s dictates. A district court errs if it considers an
`
`improper successive Rule 12 motion, and it is also error for
`
`a district court to construe a successive and improper Rule
`
`12 motion as a motion for judgment on the pleadings if the
`
`pleadings have not yet closed.”); see also Norfolk S. Ry. Co.
`
`v. Boatright R.R. Prods., Inc., No. 2:17-cv-01787-AKK, 2019
`
`WL 4455995, at *1-2 (N.D. Ala. May 23, 2019) (denying a
`
`successive motion to dismiss in a civil RICO case).
`
`B. CareFirst’s Motion
`
`Because the Court has denied the Motion as to Dr. Desai
`
`as an improper successive motion to dismiss, it addresses
`
`only the claims against CareFirst – Counts I, X, XII, and
`
`XIII. 3 (Doc. # 1). The Court will address CareFirst’s
`
`arguments as to all of these counts in turn.
`
`
`
`
`
`
`
`1. Statutory Pre-suit Requirements
`
`First, CareFirst argues that the complaint should be
`
`
`3. Specifically, the Court does not address the Motion’s
`argument as to statute of limitations, which discussed only
`the RICO claims, because Plaintiffs assert no RICO claims
`against CareFirst. (Doc. # 38 at 3-5; Doc. # 1). For the same
`reason, neither does the Court address whether Plaintiffs’
`federal RICO claims are reverse preempted by the McCarran-
`Ferguson Act. (Doc. # 38 at 14). Nor does the Court address
`whether Plaintiffs’ RICO claims have been sufficiently pled.
`
`
`
`
`
`9
`
`
`
`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 10 of 24 PageID 1688
`
`
`
`dismissed for failure “to satisfy Florida’s strict pre-suit
`
`requirements for challenging a medical provider’s provision
`
`or omission of care.” (Doc. # 38 at 5). Plaintiffs respond
`
`that these requirements only apply to medical malpractice
`
`claims, something not at issue here. (Doc. # 47 at 6-7).
`
`
`
`As a condition precedent to filing a medical negligence
`
`suit, Florida law requires that a plaintiff follow certain
`
`pre-suit notice requirements. Fla. Stat § 766.106 (2020);
`
`Aiken v. United States, No. 8:14-cv-1921-VMC-EAJ, 2014 WL
`
`4792006, at *2 (M.D. Fla. Sept. 22, 2014). “‘Medical
`
`negligence’ is defined as ‘medical malpractice, whether
`
`grounded in tort or in contract.’” Solomon v. Well Care HMO,
`
`Inc., 822 So.2d 543, 545 (Fla. 4th DCA 2002) (quoting Fla.
`
`Stat. § 766.202(6)). “[T]o qualify as a medical malpractice
`
`claim, the wrongful act alleged ‘must be directly related to
`
`the improper application of medical services and the use of
`
`professional judgment or skill.’” Horst v. Parker, No. 6:07-
`
`cv-612-PCF-KRS, 2007 WL 4234616, at *2 (M.D. Fla. Nov. 29,
`
`2007) (quoting Quintanilla v. Coral Gables, Hosp., Inc., 941
`
`So.2d 468, 469 (Fla. 3d DCA 2006)). And, “the alleged injury
`
`‘must be a direct result of receiving medical care or
`
`treatment by the healthcare provider.’” Id. (quoting
`
`Quintanilla, 941 So.2d at 469).
`
`
`
`
`
`10
`
`
`
`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 11 of 24 PageID 1689
`
`
`
`“The fact that a wrongful act occurs in a medical setting
`
`does not necessarily mean that it involves medical
`
`malpractice.” Joseph v. Univ. Behavioral LLC, 71 So.3d 913,
`
`917 (Fla. 5th DCA 2011). Importantly, because these pre-suit
`
`notice requirements “restrict plaintiffs’ constitutional
`
`right of access to courts, . . . the requirements’
`
`applicability must be construed narrowly in favor of access.”
`
`Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491, 493
`
`(Fla. 5th DCA 2013).
`
`
`
`Here, the crux of Plaintiffs’ complaint is that the
`
`CareFirst Defendants engaged in fraud by billing for
`
`medically unnecessary MRIs and operating in violation of the
`
`Clinic Act. Although CareFirst is correct that the complaint
`
`alleges improper application of medical services, this is not
`
`a case in which Plaintiffs aver that physicians committed
`
`medical malpractice. The complaint does not seek damages for
`
`a personal injury caused by a physician in the course of
`
`medical treatment, but rather on the basis of a fraudulent
`
`billing scheme. The Court agrees with the holding in
`
`Orthopedic Rehab Specialty Clinics, Inc. v. State Farm Mutual
`
`Automobile Insurance Company, No. 3:02-cv-824-JHM-HTS, 2003
`
`U.S. Dist. LEXIS 29312 (S.D. Fla. May 27, 2003), that cases
`
`alleging fraudulent billing for medically unnecessary MRIs
`
`
`
`
`
`11
`
`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 12 of 24 PageID 1690
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`
`
`sent to PIP insurers are not subject to Florida’s pre-suit
`
`notice requirements. Id. at *17. Accordingly, the Motion is
`
`denied as to this requested relief.
`
`
`
`
`
`
`
`2. Primary Jurisdiction Doctrine
`
`Next, CareFirst argues that the Court should either
`
`refer Plaintiffs’ claims to the Florida Agency for Health
`
`Care Administration (“AHCA”) or dismiss them under the
`
`primary jurisdiction doctrine. (Doc. # 38 at 7). Plaintiffs
`
`respond that “the Court will not have to interfere with the
`
`AHCA’s determinations in order to adjudicate [Plaintiffs’]
`
`claims in this case – it will simply have to determine whether
`
`or not the CareFirst Defendants actually were operating in
`
`compliance with the Clinic Act.” (Doc. # 47 at 7).
`
`
`
`The primary jurisdiction doctrine is a common-law
`
`doctrine “concerned with protecting the administrative
`
`process from judicial interference.” Boyes v. Shell Oil
`
`Prods. Co., 199 F.3d 1260, 1265 (11th Cir. 2000). The doctrine
`
`“allows courts to refer issues or cases to an administrative
`
`agency when a claim involves issues which, ‘under a regulatory
`
`scheme, have been placed within the specifical competence of
`
`an administrative body.’” LSSi Data Corp. v. Comcast Phone,
`
`LLC, No. 1:11-CV-1246-CAP, 2013 WL 12244044, at *8 (N.D. Ga.
`
`Mar. 4, 2013) (quoting United States v. W. Pac. R.R. Co., 352
`
`
`
`
`
`12
`
`
`
`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 13 of 24 PageID 1691
`
`
`
`U.S. 59, 64 (1956)). “In deciding whether abstention under
`
`the primary-jurisdiction doctrine is appropriate, [courts]
`
`consider two factors:” (1) “the expertise of the agency
`
`deferred to,” and (2) “the need for a uniform interpretation
`
`of a statute or regulation.” Sierra, 904 F.3d at 1351
`
`(internal quotation marks and citation omitted).
`
`“[C]ourts should be reluctant to invoke the doctrine of
`
`primary jurisdiction, which often, but not always, results in
`
`added expense and delay to the litigants.” Coll. Park
`
`Holdings, LLC v. RaceTrac Petroleum, Inc., 239 F. Supp. 2d
`
`1322, 1328 (N.D. Ga. 2002) (quoting Miss. Power & Light Co.
`
`v. United Gas Pipe Line Co., 532 F.2d 412, 419 (5th Cir.
`
`1976)). “In the context of cases involving state
`
`administrative schemes, the Burford abstention and primary
`
`jurisdiction doctrines are ‘different labels for the same
`
`thing.’” Id. (quoting Boyes, 199 F.3d at 1265-66).
`
`Here, the Court finds that it is capable of determining
`
`whether CareFirst submitted fraudulent bills without a prior
`
`agency determination. This is not something that is only
`
`within the AHCA’s expertise – nor does CareFirst appear to
`
`allege as much. As to CareFirst’s alleged operation in
`
`violation of the Clinic Act, the Court will be able to fashion
`
`a remedy that does not impede on the AHCA’s authority to
`
`
`
`
`
`13
`
`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 14 of 24 PageID 1692
`
`
`
`license clinics. See Haynes v. Kohl’s Dep’t Stores, Inc., 391
`
`F. Supp. 3d 1128, 1139 (S.D. Fla. 2018) (“Turning to the
`
`second justification for the primary jurisdiction doctrine,
`
`it is not apparent why any need for uniformity should serve
`
`as a basis for dismissing or staying the matter. Defendant
`
`has failed to show that the need for uniformity here outweighs
`
`this Court’s ability to fashion a remedy, if needed, which
`
`would apply only in this particular case.”).
`
`
`
`Accordingly, the Court declines to dismiss the case
`
`under the primary jurisdiction doctrine. See Allstate Ins.
`
`Co. v. Total Rehab. & Med. Ctr., Inc., No. 50 2004 CA 002497
`
`XXX MB (AA), 2012 WL 8018574, at *1 (Fla. 15th Cir. Ct. Nov.
`
`8, 2012) (declining to dismiss a case under the primary
`
`jurisdiction doctrine, without elaboration, in a case
`
`alleging that certain medical services billed were unlawful
`
`under the Clinic Act); see also Cline v. Ultimate Fitness
`
`Grp., LLC, No. 6:18-cv-771-RBD-GJK, 2019 WL 4671195, at *4
`
`(M.D. Fla. Feb. 12, 2019) (determining that application of
`
`the primary jurisdiction doctrine was unwarranted where the
`
`relevant issue in the case was within the administrative
`
`agency’s purview, but determination of that issue would not
`
`entirely dispose of the case).
`
`
`
`
`
`
`
`14
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`
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 15 of 24 PageID 1693
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`
`
`
`
`
`
`
`
`3. Burford Abstention
`
`Next, CareFirst argues that the Court should dismiss or
`
`stay this case under the Burford abstention doctrine because
`
`Plaintiffs’ claims question the AHCA and “undermine Florida’s
`
`No-Fault law.” (Doc. # 38 at 9). Plaintiffs respond that,
`
`like CareFirst’s primary jurisdiction argument, this
`
`contention is without merit because it is predicated on the
`
`false notion that Plaintiffs’ claims challenge Florida’s
`
`clinic licensing regime. (Doc. # 47 at 8).
`
`Following Burford v. Sun Oil Co., 319 U.S 315 (1943),
`
`federal courts must abstain from certain cases challenging
`
`complex state regulatory schemes. Id. at 333-34. Burford
`
`abstention “represents an extraordinary and narrow exception
`
`to a district court’s duty to adjudicate a controversy
`
`properly before it.” Quackenbush, 517 U.S. at 707. Where
`
`timely and adequate state court review is available, a federal
`
`court must decline to interfere in state administrative
`
`agencies proceedings: “(1) when there are ‘difficult
`
`questions of state law bearing on policy problems of
`
`substantial public import whose importance transcends the
`
`result in the case then at bar’; or (2) where the ‘exercise
`
`of federal review of the question in a case and in similar
`
`cases would be disruptive to state efforts to establish a
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`coherent policy with respect to a matter of substantial public
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`concern.’” New Orleans Pub. Serv., Inc. v. Council of City of
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`New Orleans, 491 U.S. 350, 361 (1989) (citations omitted).
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`Here, the Motion relies primarily on Plaintiffs’ RICO
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`claims in arguing for Burford abstention, which are not
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`presently at issue. Still, even considering the RICO claims,
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`the Court declines to abstain under Burford. This case does
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`not require the Court to second guess or disrupt Florida’s
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`PIP insurance regulatory or clinic licensing scheme. Rather,
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`the case involves a determination of whether CareFirst
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`fraudulently billed Plaintiffs for services that were not
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`medically necessary, and whether CareFirst operated in
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`violation of the Clinic Act. See Gov’t Emps. Ins. Co. v.
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`Uptown Health Care Mgmt., Inc., 945 F. Supp. 2d 284, 289
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`(E.D.N.Y. 2013) (declining to abstain from exercising
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`jurisdiction under Burford in a case alleging that medical
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`providers billed an insurer for services not lawfully
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`rendered under New York’s no-fault insurance law). Therefore,
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`the Court declines to abstain under Burford.
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`4. Colorado River Abstention
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`Next, CareFirst argues that certain parallel state court
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`proceedings demand abstention under Colorado River Water
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`Conservation District v. United States, 424 U.S. 800 (1976),
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`since “[t]his retaliatory suit intersects with sixty pending
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`county court collection suits across the state.” (Doc. # 38
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`at 11). CareFirst proffers that this suit and the state suits
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`involve “the same plaintiff (CareFirst), the same defendant
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`(GEICO), the same patients, and the same issues (entitlement
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`to reimbursement for radiology services performed for GEICO
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`insured),” making them “substantially similar.” (Id. at 11-
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`12). Plaintiffs respond that Colorado River abstention is
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`inapplicable, both because the proceedings are not
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`“parallel,” and because none of the Colorado River factors
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`favor abstention. (Doc. # 47 at 10-11).
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`“Colorado River addresses the circumstances in which
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`federal courts should abstain from exercising their
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`jurisdiction because a parallel lawsuit is proceeding in one
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`or more state courts.” Ambrosia Coal & Constr. Co. v. Pages
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`Morales, 368 F.3d 1320, 1327 (11th Cir. 2004). “To determine
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`whether abstention is merited under Colorado River, a court
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`must decide as a threshold matter whether there is a parallel
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`state action – that is, ‘one involving substantially the same
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`parties and substantially the same issues.’” Sini v.
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`Citibank, N.A., 990 F. Supp. 2d 1370, 1376 (S.D Fla. 2014)
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`(quoting Jackson-Platts v. Gen. Elec. Cap. Corp., 727 F.3d
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`1127, 1140 (11th Cir. 2013)). “There is ‘no clear test for
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`17
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 18 of 24 PageID 1696
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`deciding whether two cases contain substantially similar
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`parties and issues’; however, if there is ‘any substantial
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`doubt about whether two cases are parallel the court should
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`not abstain.’” Id. (quoting Acosta v. James A. Gustino, P.A.,
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`478 F. App’x. 620, 622 (11th Cir. 2012)).
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`Indeed, “[a]bstention from the exercise of federal
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`jurisdiction is the exception, not the rule.” Colorado River,
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`424 U.S. at 813. “Under this doctrine, only ‘exceptional’
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`circumstances constitute the ‘extraordinary and narrow
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`exception to the duty of a [d]istrict [c]ourt to adjudicate
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`a controversy properly before it.’” State Farm Mut. Auto Ins.
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`Co. v. Physicians Grp. of Sarasota, L.L.C., 9 F. Supp. 3d
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`1303, 1309 (M.D. Fla. 2014) (quoting Colorado River, 424 U.S.
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`at 813)). The district court “must find a critical reason to
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`surrender
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`jurisdiction,
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`rather
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`than
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`a
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`substantial
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`justification to exercise it.” Id.
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`Here, the Court finds that these proceedings are not
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`parallel. The parties are not the same in the federal and
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`state proceedings, in that CareFirst does not allege that Dr.
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`Desai or any of the Advanced Diagnostic Defendants are named
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`in those other proceedings. (Doc. # 38 at 11-13; Doc. # 38-
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`3); see Regions Bank v. Commonwealth Land Title Ins. Co., No.
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`11-23257-CIV, 2012 WL 1135844 (S.D. Fla. Apr. 4, 2012) (“Here,
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`18
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`the Court finds that the state court action is not truly
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`‘parallel’ because Commonwealth is not a litigant in the state
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`court proceeding.”).
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`And, as to the issues in this case, the state proceedings
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`involve collection of PIP reimbursements, while this case
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`alleges wide fraud amongst the Defendants, medically
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`unnecessary billing, and violations of the Clinic Act. The
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`Court is not convinced by CareFirst’s arguments that the
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`issues substantially overlap to an extent that would warrant
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`abstention. Cf. Id. at *4 (“While this issue may be relevant
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`to Commonwealth’s obligations under the title policy, it is
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`not substantially the same. Nor is it the only issue presented
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`here.”); see United Auto. Ins. Co. v. Fla. Wellness & Rehab.
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`Ctr., No. 08-20348-CIV-LENARD/GARBER, 2009 WL 10667729, at *7
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`(S.D. Fla. Feb. 11, 2009) (“As mentioned above, it is unclear
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`from the record before the Court whether the pending County
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`Court actions have raised the type of Civil RICO fraud
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`allegations presented in the Amended Complaint, and thus the
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`Court cannot determine that the issues in the federal and
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`state proceedings are substantially the same.”).
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`Further, CareFirst has not sufficiently demonstrated
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`that resolution of the state breach of contract cases would
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`necessarily determine whether the CareFirst Defendants were
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`engaged in widespread fraud. Accordingly, the Motion is
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`denied as to this requested relief. See State Farm, 9 F. Supp.
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`3d at 1309-10 (declining to abstain in a similar case).
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`5. Brillhart-Wilton Abstention
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`
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`Next, CareFirst argues that Plaintiffs’ claim for
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`declaratory judgment should be dismissed as “grossly
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`overbroad” under Brillhart-Wilton abstention. (Doc. # 38 at
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`16). Plaintiffs respond that “Brillhart-Wilton abstention is
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`inappropriate in cases – like this one – where a plaintiff
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`seeks both declaratory and coercive relief.” (Doc. # 47 at 13
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`(emphasis omitted)).
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`The federal Declaratory Judgment Act “gives a federal
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`court broad discretion in deciding whether to exercise
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`jurisdiction over a case when there is a parallel state court
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`case.” Mega Life & Health Ins. Co. v. Tordion, 399 F. Supp.
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`2d 1366, 1369 (S.D. Fla. 2005) (emphasis added). Brillhart-
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`Wilton abstention “is designed to assist district courts in
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`balancing state and federal actions in determining whether to
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`exercise their discretion to make a declaration of rights
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`under the Declaratory Judgment Act.” Great Lakes Ins. SE v.
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`Dunklin, --- F. Supp. 3d ----, 2021 WL 27688, at *5 (S.D.
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`Ala. Jan. 4, 2021) (citing Ameritas Variable Life Ins. Co. v.
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`Roach, 411 F.3d 1328, 1330-31 (11th Cir. 2005)).
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`“A federal court does not have such broad discretion,
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`however, when a plaintiff seeks coercive relief . . . in
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`addition to a declaration under the Declaratory Judgment
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`Act.” Mega Life, 399 F. Supp. 2d at 1369. Although circuits
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`are split on this issue, federal district courts in Florida
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`have found that the stricter Colorado River factors govern in
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`such cases. See, e.g., Id. at 1370; State Farm, 9 F. Supp. 3d
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`at 1308-09.
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`Here, Plaintiffs seek a judgment “declaring that . . .
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`CareFirst [has] no right to receive payment for any pending
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`bills submitted” to them based on its unlawful operation under
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`the Clinic Act and the fact that the MRIs were not medically
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`necessary. (Doc. # 1 at ¶¶ 152-55). However, the suit against
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`CareFirst is not just one for declaratory judgment. Indeed,
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`the declaratory judgment sought makes up just one of four
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`counts against CareFirst. (Doc. # 1). And, the Court notes
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`that it has already found the state and federal proceedings
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`not sufficiently parallel, weighing against Brillhart-Wilton
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`abstention. See Regions, 2012 WL 1135844, at *4 (“[I]f a suit
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`is not parallel to a state court suit, then the [Brillhart-
`
`Wilton abstention doctrine] does not apply, and the court
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`need not analyze the nine factors.” (quoting Sparta Ins. Co.
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`v. Smith, No. 2:11-cv-108-WHA-SRW, 2011 WL 2175103, at *2
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 22 of 24 PageID 1700
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`(M.D. Ala. June 3, 2011)). Accordingly, the Court declines to
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`abstain from exercising jurisdiction over this case on the
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`basis of Brillhart-Wilton abstention.
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`6. Rule 9(b)
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`
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`Next, CareFirst argues that the fraud alleged in the
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`complaint “lacks the specificity required by Rule 9(b).”
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`(Doc. # 38 at 17). Plaintiffs respond that the fraud
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`allegations are sufficiently particular. (Doc. # 47 at 14).
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`As noted, under Rule 9(b), the plaintiff must allege:
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`“(1) the precise statements, documents, or misrepresentations
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`made; (2) the time, place, and person responsible for the
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`statement; (3) the content and manner in which these
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`statements misled the [p]laintiffs; and (4) what the
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`defendants gained by the alleged fraud.” American Dental, 605
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`F.3d at 1291 (citation omitted).
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`
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`Here, the complaint provides a number of examples of
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`allegedly fraudulent bills for medically unnecessary MRIs
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`that were submitted to Plaintiffs. (Id. at ¶ 79). These
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`examples include the dates of the accidents that allegedly
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`led to the patients’ injuries, the dates of their MRIs, and
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`who submitted the bills to Plaintiffs. (Id.). In other
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`portions of the complaint, Plaintiffs also provide the
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`specific diagnoses that were reported following Dr. Desai’s
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`22
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`Case 8:20-cv-02419-VMC-CPT Document 52 Filed 03/12/21 Page 23 of 24 PageID 1701
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`review of the MRIs. (Id. at ¶ 85). And, attached to the
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`complaint, Plaintiffs produce a chart of over 3,100 allegedly
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`fraudulent claims submitted to