Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 1 of 8
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`CASE NO. 0:20-CV-61007-SINGHAL/VALLE
`
`SOUTH BROWARD HOSPITAL DISTRICT d/b/a
`MEMORIAL HEALTHCARE SYSTEM, on behalf of
`itself and all others similarly situated,
`
`
`
`
`v.
`
`
`ELAP SERVICES, LLC, a Pennsylvania limited
`liability company, and GROUP & PENSION
`ADMINISTRATORS, INC., a Texas corporation,
`
` Defendants.
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ORDER
`
`
`THIS CAUSE came before the Court on the Plaintiff South Broward Hospital
`
`/
`
`District’s Motion for Reconsideration of the Court’s Opinion and Order Granting Summary
`
`Judgment (DE [186]) (the “Motion”).1 Defendants filed a Response in Opposition (DE
`
`[190]) and Plaintiff filed a Reply in support of its Motion (DE [196]). A motion hearing was
`
`held on November 27, 2023. The Motion is now ripe for consideration.
`
`I.
`
`BACKGROUND
`
`On September 30, 2023, this Court granted summary judgment in favor of
`
`Defendants, ELAP Services, LLC (“ELAP”) and Group & Pension Administrators, Inc.
`
`(“GPA”), on Plaintiff South Broward Hospital District’s (“Memorial”) claims under the
`
`Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) and the common law
`
`
`1 Plaintiff filed the Motion under seal at (DE [185]). This Order applies with equal force to the sealed and
`unsealed Motion.
`
`1
`
`
`
`

`

`Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 2 of 8
`
`theory of unjust enrichment. See (Order (DE [183])). On Plaintiff’s FDUTPA claim, the
`
`Court agreed with Defendants that Plaintiff’s claims failed to demonstrate consumer harm
`
`and warranted dismissal on that basis. See id. at 23. As for Memorial’s unjust enrichment
`
`claim, the Court concluded that dismissal was proper where Plaintiff showed no direct
`
`conferral of benefits to Defendants. See id. at 26.
`
`Plaintiff seeks reconsideration of this Court’s decision only as to its FDUTPA claim.
`
`See (Mot. (DE [186])). According to Plaintiff, reconsideration is warranted for three
`
`reasons: first–a novel argument–that the plain text of the FDUTPA statute imposes no
`
`consumer-injury requirement; second, assuming a consumer-injury requirement exists
`
`(which Plaintiff now contests), Memorial meets the definition of consumer and has shown
`
`adequate injury; and third, regardless of Memorial’s status as a consumer under
`
`FDUTPA, Plaintiff has offered sufficient evidence demonstrating that Memorial patients
`
`were injured or likely to be injured.
`
`Plaintiff’s Motion is well-written, and Plaintiff’s counsel presented compelling oral
`
`argument. Nevertheless, Plaintiff has not raised issues of manifest error. Plaintiff merely
`
`invites this Court to interpret FDUTPA in a light more favorable to Memorial’s claim, which
`
`this Court respectfully declines for the reasons discussed herein.
`
`II.
`
`LEGAL STANDARD
`
`“‘Courts have distilled three major grounds justifying reconsideration: (1) an
`
`intervening change in controlling law; (2) the availability of new evidence; and (3) the need
`
`to correct clear error or manifest injustice.’” Instituto de Prevision Militar v. Lehman Bros.,
`
`Inc., 485 F. Supp. 2d 1340, 1342 (S.D. Fla. 2007) (quoting Cover v. Wal-Mart Stores, Inc.,
`
`148 F.R.D. 294, 295 (M.D. Fla. 1993)). A motion for reconsideration cannot be used “to
`
`relitigate old matters, raise argument or present evidence that could have been raised
`2
`
`
`
`

`

`Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 3 of 8
`
`prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757,
`
`763 (11th Cir. 2005). Furthermore, “[i]t is an improper use of the motion to reconsider to
`
`ask the Court to rethink what the Court already thought through – rightly or wrongly.’” Z.K.
`
`Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (quoting Above
`
`the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). “A
`
`motion for reconsideration is ‘committed to the sound discretion of the district judge.’”
`
`Garcon v. United Mut. of Omaha Ins. Co., 779 Fed. Appx. 595, 600 (11th Cir. 2019)
`
`(citations omitted).
`
`III.
`
`ANALYSIS
`
`a. FDUTPA’s Consumer Harm Requirement
`
`Plaintiff’s Motion argues, for the first time, that FDUTPA imposes no consumer
`
`harm requirement. In its Opposition to Defendants’ Motion for Summary Judgement,
`
`Plaintiff noted in no uncertain terms that “[n]on-consumers have standing to pursue
`
`FDUTPA claims, but in all cases, the plaintiff must demonstrate ‘injury or detriment to
`
`consumers.’” (Pl.’s Opp. (DE [155] at 8)) (quoting Caribbean Cruise Line, Inc. v. Better
`
`Bus. Bur. Of Palm Beach Cnty., Inc., 169 So. 3d 164, 167 (Fla. 4th DCA 2015)) (emphasis
`
`added). Plaintiff now challenges the excerpted language from Caribbean Cruise Line,
`
`Inc.–the very authority it relied upon–as dicta. See (Mot. (DE [185] at 9)). Rather than
`
`following Caribbean Cruise Line, Plaintiff contends that this Court should consider
`
`“persuasive evidence that the highest state court would rule otherwise.” See id. at 9–10
`
`(citing Bravo v. United States, 577 F.3d 1324, 1326 (11th Cir. 2009)). The “persuasive
`
`evidence” in this instance, according to Plaintiff, is the plain text of FDUTPA’s statute.
`
`See (Motion (DE [185] at 10)). Specifically, Plaintiff references the 1993 and 2001
`
`FDUTPA amendments which replaced references to “consumers” with “persons,” and
`3
`
`
`
`

`

`Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 4 of 8
`
`“made clear that there is no consumer injury requirement” in the statute. Id. Caribbean
`
`Cruise Line, Plaintiff maintains, effectively relies on stale precedent where it cites to a
`
`portion of the Florida Supreme Court’s decision in PNR, Inc. v. Beacon Property
`
`Management, Inc., 842 So. 2d 773 (Fla. 2003) (“PNR”) which quotes from Florida
`
`Supreme Court cases that predate the 2001 FDUTPA amendments. See id. at 9–10.
`
`While creative, Plaintiff’s argument fails to identify any manifest error in this Court’s
`
`recognition of a consumer harm requirement within FDUTPA. “It is an improper use of
`
`the motion to reconsider to ask the Court to rethink what the Court already thought
`
`through – rightly or wrongly.” Z.K. Marine, Inc., 808 F. Supp. at 1563 (quoting Above the
`
`Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). This Court
`
`will not reconsider a requirement within FDUTPA that even Plaintiff conceded until the
`
`instant Motion.
`
`b. Whether Memorial is a Consumer Under FDUTPA
`
`Plaintiff’s second argument is that it meets the definition of “consumer” under
`
`FDUTPA and has demonstrated consumer harm through its own injury. See (Motion (DE
`
`[185] at 11–14)). In support, Plaintiff notes that “Consumer” under FDUTPA “means an
`
`individual; child, by and through its parent or legal guardian; business; firm; association;
`
`joint venture; partnership; estate; trust; syndicate; fiduciary; corporation; any commercial
`
`entity; however denominated; or any other group or combination.” See id. at 11–12 (citing
`
`Fla. Stat. § 501.203(7)). In its Order, this Court noted that Plaintiff’s interpretation of
`
`FDUTPA–that “virtually any injury resulting from an unfair or deceptive practice occurring
`
`in trade or commerce is a ‘consumer injury’”–is too expansive for this Court to endorse.
`
`See (Order (DE [183] at 20–21). The Court further determined that record evidence cut
`
`against Plaintiff’s argument where Memorial’s corporate representative conceded that it
`4
`
`
`
`

`

`Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 5 of 8
`
`received no “benefit or anything of value” from Defendants. Id. at 21. The Order did not,
`
`as Plaintiff argues, impose a requirement that Plaintiff show it received any benefit or
`
`thing of value from Defendant to qualify as a consumer under FDUTPA. Rather, the Court
`
`identifies what it considers a central flaw in Plaintiff’s argument: Plaintiff is not an
`
`intended, or even third-party, beneficiary of Defendants’ services. To the contrary, self-
`
`funded health plans retain and consume services from Defendants. Take, for example,
`
`Plaintiff’s chart, which it included as an exhibit to its Opposition Statement of Material
`
`Facts and now cites to in the instant Motion:
`
`
`
`
`
`
`
`5
`
`
`
`

`

`Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 6 of 8
`
`(DE [156-44]). Plaintiff argues that, per this chart, Plaintiff receives appeals services and
`
`repricing services from Defendants. Crucially absent from Plaintiff’s chart, however, is
`
`the important role of the non-party self-funded health plans. This Court considers the flow
`
`of services differently:
`
`
`
`Defendants’ repricing and appeals services are seemingly conducted on behalf of
`
`the self-funded health plans that hire Defendants for their cost containment needs. While
`
`Plaintiff maintains that it “would not have collected any funds owed it but for ELAP’s
`
`services,” (Motion (DE [185] at 13)), the opposite appears to be true. But for the self-
`
`funded health plans’ retention of ELAP services, Plaintiff would still have received funds
`
`and, indeed, may have received more funds. Finally, Plaintiff’s reliance on Beacon Prop.
`
`Mgmt. v. PNR, Inc., 890 So. 2d 274, 278 (Fla. 4th DCA 2004) (“Beacon Prop. Mgmt.”) is
`
`not to the contrary. Plaintiff cites to Beacon Prop. Mgmt. to demonstrate that third-party
`
`beneficiaries of Defendants’ services are “consumers” for FDUTPA’s purposes. See
`
`(Mot. (DE [185] at 13 (citing Beacon Prop. Mgmt., 890 So. 2d at 275–76)). However, that
`
`case concerned a plaintiff who, as an assignee of a leaseholder, was allowed to step into
`
`the shoes of the leaseholder to hold the landlord defendant accountable for its actions.
`
`See 890 So. 2d at 275. Here, this Court strains to see how Plaintiff is a third-party
`
`beneficiary of Defendants’ services when the self-funded health plans pay Defendants’
`
`fees and, in exchange, receive cost containment services.
`
`
`
`6
`
`

`

`Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 7 of 8
`
`c. Whether Memorial Provided Sufficient Evidence to Demonstrate
`Consumer Detriment
`
`Third and finally, Plaintiff argues that reconsideration is merited where it has
`
`adequately shown that reasonable patients were injured or likely to be injured. See
`
`(Motion (DE [185] at 14–19)). Plaintiff maintains that consumer detriment under FDUTPA
`
`“requires a showing of ‘probable, not possible, deception’ that is likely to cause injury to
`
`a reasonable relying consumer.” Id. at 14 (citing Zlotnick v. Premier Sales Grp., Inc., 480
`
`F.3d 1281, 1284 (11th Cir. 2007)) (emphasis in original). Setting aside the fact that
`
`Zlotnick contemplates the evidentiary standard at the motion to dismiss stage, Plaintiff’s
`
`arguments do not identify any manifest error in this Court’s analysis. This Court
`
`considered Plaintiff’s arguments, including the five exhibits Plaintiffs cited as evidence of
`
`harm to ELAP members, in its original Order. See Order at 21–22. Ultimately, the Court
`
`found that the risk of harm via balance billing did not come to fruition where Plaintiff could
`
`not demonstrate that it was able to collect on the few balance bills it sent to ELAP
`
`members, where its corporate representative conceded that it had not balance billed in
`
`nearly seven years, and where Plaintiff repeatedly stated that ELAP “uniformly” protected
`
`its members from balance billing. (Pl.’s Opp. (DE [155] at 6)). In the instant Motion,
`
`Plaintiff highlights non-economic harm to ELAP members, including that ELAP members
`
`risked appointment cancellations and treatment refusal. See (Mot. (DE [185] at 15)). To
`
`the extent that Plaintiff underscores non-economic harm now, when it was originally
`
`presented in a footnote of its Opposition, the Court finds it insufficient to compel
`
`reconsideration of its original analysis. See (Pl.’s Opp. (DE [155] at 19 n.9)) (citing Pl.’s
`
`Reply SOMF (DE [156] at ¶ 43)) (“. . . in the few cases where Memorial was able to detect
`
`
`
`7
`
`

`

`Case 0:20-cv-61007-AHS Document 203 Entered on FLSD Docket 01/05/2024 Page 8 of 8
`
`ELAP’s involvement, it canceled nonemergent appointments or took other steps to avoid
`
`[Reference Based Pricing].”). Accordingly, it is hereby
`
`ORDERED AND ADJUDGED that Plaintiff South Broward Hospital District’s
`
`Motion for Reconsideration of the Court’s Opinion and Order Granting Summary
`
`Judgment (DE [185]) and (DE [186]) is DENIED.
`
`
`
`DONE AND ORDERED in Chambers in Fort Lauderdale, Florida, this 4th day of
`
`January 2024.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Copies furnished to Counsel of Record via CM/ECF
`
`
`
`
`8
`
`