Case 1:20-cv-09002-RBK-AMD Document 28 Filed 03/22/21 Page 1 of 14 PageID: 276
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`NOT FOR PUBLICATION
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`CAMDEN VICINAGE
`__________________________________
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`CHRISTINE PETRE,
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` v.
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`ALLIANCE HEALTHCARE
`MANAGEMENT, LLC, et al.,
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`Defendants.
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`__________________________________
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`KUGLER, United States District Judge:
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`Civil No. 20-09002 (RBK/AMD)
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`OPINION
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`Presently before the Court is Defendant’s Motion to Dismiss (Doc. No. 10) the
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`Complaint for failure to state a claim pursuant to Rule 12(b)(6). For the reasons set forth below,
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`Defendant’s Motion is GRANTED.
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`I.
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`BACKGROUND
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`This is a retaliatory discharge case. A former employee of a skilled nursing home alleges
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`she was discharged for refusing to engage in what she believed to be fraud. Defendants, seeking
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`dismissal of the Complaint, also believe they have spotted something amiss—an erroneous
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`allegation in the complaint which they hope, if tugged on, will unravel the whole case. Both
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`parties are wrong, but Defendants less so because they manage to pick out the deficiency in
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`Plaintiff’s complaint.
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`Before setting forth the relevant facts, we will briefly introduce the Medicare Statute and
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`the Medicare Secondary Payer provision as both are relevant to Plaintiff’s theory of the case.
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`A. Statutory and Regulatory Background
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`1
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`Subchapter XVIII of Chapter 7 of Title 42 of the United States Code is entitled “Health
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`Insurance for Aged and Disabled,” and is more commonly known as the Medicare Statute. 42
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`U.S.C. § 1395 to 1395kkk-1. The Medicare Statute consists of four tranches of benefits: (1) Part
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`A provides inpatient and hospital coverage; (2) Part B provides outpatient and medical coverage;
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`(3) Part C, inserted with the passage of the Balanced Budget Act of 1997, created the Medicare
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`Advantage Program (“MA”); and (4) Part D provides prescription drug coverage. In re Avandia
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`Mktg., Sales Practices & Prod. Liab. Litig., 685 F.3d 353, 357 (3d Cir. 2012). Part A and B,
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`commonly thought of as traditional Medicare, are fee-for-service provisions entitling eligible
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`persons to have the Center for Medicare and Medicaid Services (“CMS”) directly pay medical
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`providers for their hospital and outpatient care. Id.
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`Part C, on the other hand, allows Medicare enrollees to obtain their Medicare benefits
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`through private insurers, known as Medicare Advantage Organizations (“MAOs”), instead of
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`receiving direct benefits from the government under Part A and B. Id. CMS pays an MAO a
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`fixed amount for each enrollee, per capita. See 42 U.S.C. § 1395w-23. The MAO then
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`administers Medicare benefits for those enrollees and assumes the risk associated with insuring
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`them. In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 685 F.3d at 358. MAOs are
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`therefore responsible for paying covered medical expenses for their enrollees. Id. Part C allows
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`MAOs some flexibility as to the design of their MA programs. For instance, the MAO is required
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`to provide the benefits covered under Parts A and B to enrollees, but it may also provide
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`additional benefits to its enrollees. 42 U.S.C. § 1395w-22(a)(1)–(3).
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`The Medicare Secondary Payer (“MSP”) provision, enacted in 1980 to curb skyrocketing
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`health costs and lower Medicare disbursements, is also relevant to Plaintiff’s theory of the case.
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`The MSP provision curbs health care costs and preserves Medicare’s fiscal integrity by assigning
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`2
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`primary payment responsibility to private insurance plans in situations where private coverage
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`for healthcare costs is available to a Medicare recipient. Abate v. Wal-Mart Stores E., L.P., No.
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`1:17-CV-288-SPB, 2020 WL 7027481, at *8 (W.D. Pa. Nov. 30, 2020). In other words, the MSP
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`provision is implicated where a beneficiary is covered by both Medicare and private insurance.
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`“These private plans are therefore considered ‘primary’ under the MSP provision and Medicare
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`acts as a secondary payer responsible only for paying amounts not covered by the primary plan.”
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`Id. The provision provides in pertinent part that Medicare cannot pay medical expenses where
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`“payment has been made or can reasonably be expected to be made” by a primary plan. Fanning
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`v. United States, 346 F.3d 386, 389 (3d Cir. 2003). A “primary plan” is defined, in turn, as a
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`group health plan, large group health plan, a workmen’s compensation law or plan, an
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`automobile or liability insurance policy or plan (including a self-insured plan), or no-fault
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`insurance. 42 U.S.C. § 1395y(b)(2)(A)(ii).
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`The cost-shifting provision of the MSP provision works as follows: when a Medicare
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`recipient is covered by both private insurance and Medicare, and such private insurance falls
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`within the definition of a “primary plan,” the private insurance is the primary payer for medical
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`expenses and Medicare acts as the secondary payer responsible only for those amounts not
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`covered by the private insurance. Thus, a prerequisite to application of the MSP provision is a
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`private insurance plan that qualifies as a “primary plan.”
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`B. Factual Background
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`In October of 2019, Plaintiff Christine Petre (“Ms. Petre”) was employed as a clinical
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`liaison by Defendant Atlas Healthcare—the owner of several nursing homes located throughout
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`New Jersey. (Doc. No. 1, Compl. at ¶¶ 5, 13). She was primarily responsible for coordinating the
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`care and placement of patients in facilities owned by Defendant, such as Riverfront
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`3
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`Rehabilitation and Health Care Center (“RRHCC”), as well as ensuring that beds were available
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`and that prospective patients had insurance coverage. (Id. at ¶¶ 5, 13–14). Throughout her
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`employment, Ms. Petre was directly or indirectly supervised by the Regional Admissions
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`Director—Defendant Estefanny Penafiel (“Defendant Penafiel”)—and the co-owners,
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`Defendants Phillip Bak and Sam Goldberger. (Id. at ¶ 20).
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`Beginning in mid-March 2020, the start of the pandemic, Defendants allegedly
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`capitalized on the increase in demand for nursing home beds by expanding a fraudulent scheme
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`to disenroll prospective patients from private health insurance and enroll them in Medicare. (Id.
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`at ¶ 17). Defendants allegedly: (1) discriminated against patients that did not have Medicare; (2)
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`misrepresented to prospective patients, social workers, and hospital case managers that beds
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`were not available if the prospective patients did not have Medicare; and (3) directed Ms. Petre
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`to try to “convince prospective patients . . . to disenroll from their then applicable . . . health
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`insurance . . . and to only use Medicare” during their stay at the nursing home. (Id. at ¶ 21).
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`Medicare coverage was advantageous to Defendants because they would receive a direct fee for
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`services ranging from $600 to $800 under traditional Medicare but only $200 to $400 under
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`private insurance plans. (Id. at ¶ 35(C)). Therefore, Defendants had a financial incentive to
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`maximize the number of patients that were covered by Medicare and would make “any
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`representation possible” even though the representations were often “false or misleading.” (Id. at
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`¶ 35(P), (R)(ii)). Defendants also failed to disclose to Medicare that the patients they were
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`disenrolling had primary payer insurance which was allegedly Medicare Advantage. (Id. at ¶¶
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`35(R)(iii), (C)).
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`In order to perpetuate this alleged disenrollment scheme, Ms. Petre was instructed by
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`Defendant Penafiel to convince prospective patients to disenroll from private insurance and
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`4
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`enroll in Medicare. (Id. at ¶ 29). It was indicated to Ms. Petre that this instruction came from the
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`owners “Sam and Phil.” (Id.). Even though she expressly stated that she would not try to
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`convince patients to disenroll from private insurance, believed the practice was illegal, and was
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`uncomfortable with it, she was told, “Christine you can’t say no.” (Id.). On one occasion,
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`Defendant Penafiel texted Ms. Petre the following:
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`Defendant Penafiel: All your saying is hey we just received the referral for your family
`member and we’re trying to accommodate if we have a bed. We also want to give you the
`option to disenroll your family member to start Medicare during our stay so the co-pay
`will be waived from your HMO if you choose to go that route.
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`Defendant Penafiel: Yes, we could always put the patient back in whatever plan they had
`when they go back to the community if family wants that
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`Defendant Penafiel: that’s all you have to say and if they say yes then yes if not then we
`go from there and we deny.
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`(Id. at ¶ 30). At some point, she also informed management that she believed Defendants actions
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`to be “fraudulent” and a form of “fraud.” (Id. at ¶ 37).
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`In addition to this allegedly fraudulent disenrollment practice, Defendants’ allegedly
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`drained Medicare through a coinsurance scheme. Once a patient switched to Medicare, they
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`became responsible to pay a coinsurance of $176 per day for any day after the first 21 days they
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`were admitted in the nursing home. (Id. at ¶ 35(S)). Defendants allegedly told these patients to
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`“disenroll and not to worry about the $176 payment [because] . . . Defendant would just write off
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`the coinsurance not making patients pay.” (Id. at ¶ 35(S)(i)). In reality, however, Defendants
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`knew that under Medicare regulations, after they wrote three letters seeking payments from the
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`patient, if a payment plan was not made, Defendants would receive 50% of the defaulted
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`coinsurance from Medicare. (Id.).
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`After about six months on the job, Ms. Petre was informed by Defendant Penafiel that
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`ownership was “pissed” at her and recommended she “get on board” with disenrollment. (Id. at ¶
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`5
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`36). She was also told that as of April 30, if she would not participate in disenrollment, she
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`would need to resign. (Id.). She refused to resign and continued to work. (Id. at ¶ 37). By May 4,
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`2020, Ms. Petre was informed by Defendant Bak that her position no longer existed and was
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`thereafter locked out of her email. (Id. at ¶ 38). Ms. Petre received a letter dated “effective
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`5/5/2020” which stated “[w]e understand that you are not willing to perform the responsibilities
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`of the position assigned of you at this time. We reluctantly accept your resignation.” (Id. at ¶ 39).
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`Following receipt of the letter, Ms. Petre responded via email to all Defendants stating, among
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`other things, that:
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`I did not resign. . . . I believe may abrupt layoff was in retaliation to my unwillingness to
`disenroll patients from their medical insurance so they could instead admit to Atlas
`facilities under their Medicare benefits. My continual stating of my not being comfortable
`using a patient’s willingness to disenroll from their insurance as a top criteria that the
`company was using when assessing a patient referral was met with anger and annoyance
`from leadership. I made it clear that I found this practice to be unethical, potentially
`fraudulent, and most likely not in the best interest of the patients in regards to their
`medical coverage following their stay at an Atlas facility.
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`(Id. at ¶ 40).
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`C. Procedural History
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`On June 19, 2020, Plaintiff brought a retaliatory discharge action against the Defendants
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`in state court for violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”), the
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`ant-retaliation provision of the False Claims Act (“FCA”), and for wrongful discharge in violation
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`of public policy. (Doc. No. 1). Defendants removed the case to federal court on July 16, 2020, and
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`then moved to dismiss the complaint on August 6. (Doc. No. 10).
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`II.
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`LEGAL STANDARD
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`A. Motion to Dismiss
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`Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to
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`state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
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`accept all factual allegations as true, construe the complaint in the light most favorable to the
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`plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
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`may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
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`2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a
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`complaint survives a motion to dismiss if it contains enough factual matter, accepted as true, to
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`“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`570 (2007).
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`To make this determination, courts conduct a three-part analysis. Santiago v. Warminster
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`Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the Court must “tak[e] note of the elements a
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`plaintiff must plead to state a claim.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
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`Second, the Court should identify allegations that, “because they are no more than conclusions,
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`are not entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 680). “Threadbare
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`recitals of the elements of a cause of action, supported by mere conclusory statements, do not
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`suffice.” Id. (quoting Iqbal, 556 U.S. at 678). Finally, “when there are well-pleaded factual
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`allegations, a court should assume their veracity and then determine whether they plausibly give
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`rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 679). A complaint cannot survive
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`a motion to dismiss where a court can only infer that a claim is merely possible rather than
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`plausible. Id.
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`III. DISCUSSION
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`A. False Claims Act
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`Plaintiff claims Defendants violated § 3730(h)(1) when they fired her for refusing to
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`engage in the allegedly fraudulent disenrollment scheme. Her theory is that the disenrollment
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`scheme caused an economic loss to the federal government because the private plans were often
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`primary payers under the Medicare Secondary Payer statute while Medicare was the secondary
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`payer, covering only excluded costs. Therefore, by disenrolling prospective patients from private
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`insurance plans and enrolling them in Medicare, Defendants caused the government to become a
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`primary payer thereby covering more medical expenses than it otherwise would have as a
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`secondary payer. Defendants attack her underlying theory and latch on to her allegation in the
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`complaint that the “private insurance plans” patients were disenrolled from was Medicare
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`Advantage. According to Defendants, Plaintiff’s theory is incorrect as a matter of law because
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`switching between Medicare Advantage and traditional Medicare is not a violation of the
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`Medicare Secondary Payer provision as Medicare Advantage plans are not “primary plans”
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`under 42 U.S.C. § 1395y(b)(2)(A)(ii). Therefore, Defendants argue that Plaintiff’s retaliation
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`claim must be dismissed because there is not a distinct possibility that a viable FCA action could
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`be filed.
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`Section 3730(h)(1) of the False Claims Act provides:
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`Any employee, contractor, or agent shall be entitled to all relief necessary to make that
`employee, contractor, or agent whole, if that employee, contractor, or agent is discharged,
`demoted, suspended, threatened, harassed, or in any other manner discriminated against
`in the terms and conditions of employment because of lawful acts done by the employee,
`contractor, agent or associated others in furtherance of an action under this section or
`other efforts to stop 1 or more violations of this subchapter.
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`31 U.S.C. § 3730(h)(1). To prove retaliation under the FCA, a plaintiff must show (1) that he
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`engaged in protected conduct (i.e., acts done in furtherance of an action under § 3730), and (2)
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`that he was discriminated against because of his protected conduct. DiFiore v. CSL Behring,
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`LLC, 879 F.3d 71, 76 (3d Cir. 2018).
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`In addressing what activities constitute “protected conduct,” the “case law indicates that
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`‘protected [conduct]’ requires a nexus with the in furtherance of ‘prong of [a False Claims Act]
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`action.’” Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 187 (3d Cir. 2001). This inquiry
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`involves determining “whether [plaintiff's] actions sufficiently furthered ‘an action filed or to be
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`filed under’ the [False Claims Act] and, thus, equate to ‘protected [conduct].’” Id. Because
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`conduct is protected if taken in furtherance of an action “filed or to be filed,” employees need not
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`actually file a False Claims Act suit to assert a cause of action under § 3730. Dookeran v. Mercy
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`Hosp. of Pittsburgh, 281 F.3d 105, 108 (3d Cir. 2002). Nor are employees required to develop a
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`winning FCA case to be afforded whistleblower protection. Id. Rather, courts require that there
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`be a distinct possibility that a viable FCA action could be filed. Id.; see Dookeran v. Mercy
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`Hosp. of Pittsburgh, 281 F.3d 105, 108 (3d Cir. 2002) (granting summary judgment in favor of
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`defendants on the section 3730(h)(1) retaliation claim because there was not a distinct possibility
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`that a viable FCA action could be filed since no “claim” had been made on the government
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`within the meaning of section 3729).
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`Defendants’ argument is legally correct but factually inaccurate. While we agree with
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`Defendants that switching Medicare Advantage to Medicare is not a violation of the MSP
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`provision,1 Plaintiff alleges more than just the disenrollment scheme. Therefore, unlike
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`1 Plaintiff alleges, in pertinent part, that Defendants violated the False Claims Act by directing her to convince
`prospective in-patient applicants to disenroll from a private insurance plan when that insurance plan was the
`“primary payer,” and Medicare was the secondary payer. (Id. at ¶¶ 25–28). The net result of this scheme, according
`to Plaintiff, is an economic loss to the federal government because it is covering all medical costs as the primary
`payer instead of the excluded costs it would have covered as a secondary payer. (Id.). Plaintiff’s theory hinges on the
`assumption that applicants were disenrolled from insurance plans that constitute “primary plans” under 42 U.S.C. §
`1395y(b)(2)(A)(ii). In other words, this theory makes sense only if the private insurance plans were actually
`“primary plans” under the MSP statute because by failing to disclose “primary plan” status, Defendants are making
`Medicare pay more than it otherwise would have as a secondary payor. However, as alleged, Plaintiff’s theory fails
`because Medicare Advantage is not a primary plan within the meaning of 42 U.S.C. § 1395y(b)(2)(A)(ii); that is
`Medicare Advantage is not a group health plan, large group health plan, a workmen’s compensation law or plan, an
`automobile or liability insurance policy or plan (including a self-insured plan), or no-fault insurance. Indeed, the
`cases are legion which show that Medicare Advantage Organizations are not primary payers but secondary. For
`instance, both the Third and Eleventh Circuits have concluded that an MAO may sue a primary payer under the
`MSP private cause of action when the “primary plan . . . fails to provide primary payment.” Humana Med. Plan, Inc.
`v. W. Heritage Ins. Co., 832 F.3d 1229, 1236 (11th Cir. 2016); In re Avandia Mktg., Sales Practices & Prod. Liab.
`Litig., 685 F.3d 353, 357 (3d Cir. 2012). Logically, if the MAO is suing the primary plan for failure to provide the
`primary payment, the MAO could not be the primary plan. See Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832
`F.3d 1229, 1236 (11th Cir. 2016) (explaining the operation of § 1395y(b)(2)(A) which “defines ‘primary plan’ and
`bars any Medicare payment—including an MAO payment—when there is a primary plan.”).
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`Defendants, we are not certain that Plaintiff would be precluded from showing there is a distinct
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`possibility that a viable FCA action could be filed. U.S. ex rel. Drescher v. Highmark, Inc., 305
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`F. Supp. 2d 451, 457 (E.D. Pa. 2004) (noting that because the Supreme Court has held that the
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`FCA “is intended to reach all types of fraud, without qualification, that might result in financial
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`loss to the Government” and “reaches beyond ‘claims’ which might be legally enforced, to all
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`fraudulent attempts to cause the Government to pay out sums of money,” the term “false or
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`fraudulent claim” should be construed broadly). Nevertheless, we need not and do not decide this
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`issue because we agree with Defendants’ second point—Plaintiff has failed to adequately allege
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`that she engaged in “protected conduct” and that Defendants were on notice of her “protected
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`conduct.”
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`“Protected conduct” includes “investigation for, initiating of, testimony for, or assistance
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`in” an FCA suit. Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176, 186 (3d Cir.2001); 31
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`U.S.C. § 3730(h). It also encompasses internal reports of FCA violations. Hutchins, 253 F.3d at
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`187. Protected activity does not, however, include “an employee's investigation of nothing more
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`than his employer's non-compliance with federal or state regulations.” Id. at 187–88.
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`Once a plaintiff has shown that he was engaged in “protected conduct,” he must show
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`that he was discriminated “because of” his “protected conduct.” Hutchins, 253 F.3d at 188. “To
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`meet this requirement, a plaintiff must show his employer had knowledge that he was engaged in
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`‘protected conduct’ and that the employer retaliated against him because of that conduct.” Id.
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`The Third Circuit has adopted the holding of several other courts of appeals that “the knowledge
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`prong of § 3730 liability requires the employee to put his employer on notice of the ‘distinct
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`possibility’ of [FCA] litigation.” Id. This notice of a “distinct possibility” of FCA litigation “is
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`essential because without knowledge an employee is contemplating a False Claims Act suit,
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`‘there would be no basis to conclude that the employer harbored § 3730(h)’s prohibited
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`motivation, i.e., retaliation.’” Id. (citing Mann v. Olsten Certified Healthcare Corp., 49
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`F.Supp.2d 1307, 1314 (M.D.Ala.1999)). An employer may be on notice of such a “distinct
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`possibility” of litigation “when an employee takes actions revealing the intent to report or assist
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`the government in the investigation of a [FCA] violation.” Hutchins, 253 F.3d at 189; see also id.
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`at 188 n.8 (noting that while “the ‘protected conduct’ and notice requirements are separate
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`elements of a prima facie case of retaliation under § 3730 ... the inquiry into these elements
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`involves a similar analytical and factual investigation.”).
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`For instance, we dismissed a section 3730(h) retaliation claim because the plaintiffs never
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`connected their complaints of wrongful activity with fraud on the government. U.S., ex rel.
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`LaPorte v. Premier Educ. Grp., L.P., No. CIV. 11-3523 RBK/AMD, 2014 WL 5449745, at *13
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`(D.N.J. Oct. 27, 2014). Plaintiffs Amaya and Moody worked in an administrative capacity for the
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`Harris School of Business and alleged that Premier Education Group (“PEG”), the owner of the
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`Harris School of Business, made false claims in order to participate in Federal student aid
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`financial aid programs. Id. at *1. They claimed that PEG falsified student records in order to
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`receive more program funding than they were eligible to receive by changing grades from failing
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`to passing, falsifying attendance records of students who were no longer in attendance, and
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`falsifying financial aid records. Id. at *2. After the plaintiffs were fired, they brought retaliation
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`claims under section 3730(h) arguing that they were terminated for engaging in “protected
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`conduct.” Id. at *11. They claimed that the letters they wrote to the vice president of PEG
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`informing him of misconduct, including improper grade changes, advancing unqualified
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`students, and failure to dismiss students not meeting the satisfactory academic progress standard,
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`constituted “protected conduct.” Id. at *12. We held that the plaintiffs had not adequately alleged
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`they engaged in protected conduct because there was no suggestion that “they were investigating,
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`initiating, testifying for, or assisting with a FCA action when they alerted” the vice president to
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`the alleged wrongdoing. Id. at *13. Likewise, they did not allege that they mentioned a pending
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`or future FCA action or threatened to report PEG’s activities to the government. Id. Therefore,
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`we dismissed the plaintiffs’ retaliation claim because they failed to connect the wrongful activity
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`complained of with fraud on the government. Id.
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`As alleged, Plaintiff has failed to show that she engaged in “protected conduct.” Of all
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`the allegations in the Complaint, only two can be construed as “protected conduct”: (1) Plaintiff
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`expressly stated that she believed the disenrollment scheme to be illegal (Doc. No. 1, Cmpl. at ¶
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`9); and (2) Plaintiff expressly stated to management that she believed “[d]efendants’ actions and
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`directives to be ‘fraudulent’ and a form of ‘fraud.’” (Id. at ¶ 9). Just like the plaintiffs in LaPorte,
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`Plaintiff does not connect her reports of wrongful conduct with fraud on the government.
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`Nowhere does Plaintiff allege that she “was investigating, initiating, testifying for, or assisting
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`with a FCA action” when she alerted Defendants of their allegedly fraudulent conduct. Nor does
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`she even remotely suggest that she might initiate an FCA action or report Defendants’ wrongful
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`conduct to the government. She merely uses the word “fraud” which is not enough. Quint v. Thar
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`Process, Inc., No. CIV.A. 11-116, 2011 WL 4345925, at *15 (W.D. Pa. Sept. 15, 2011)
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`(dismissing an employee’s FCA retaliation claim even though he told his employer that its
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`actions were fraudulent because an employee’s investigation of what he believes to be non-
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`compliance with the law in insufficient); Campion v. Ne. Utilities, 598 F. Supp. 2d 638, 658
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`(M.D. Pa. 2009) (dismissing a section 3730(h) retaliation claim even though the employee
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`reported his concern about mischarging the government to his employer because he did not
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`inform his supervisor that he was concerned the misconduct would cause the government to lose
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`Case 1:20-cv-09002-RBK-AMD Document 28 Filed 03/22/21 Page 13 of 14 PageID: 288
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`funds or that he might report the activities to the government). Therefore, as alleged, Plaintiff has
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`failed to state a claim for retaliation under § 3730(h).
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`Plaintiff’s argument to the contrary, that Defendants were aware she was going to report
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`them for fraud because they threatened to terminate her, is not supported by the Complaint.
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`Plaintiff’s argument is based on the following quote:
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`[b]y the end of April 2020, Plaintiff was informed by Defendant Penafiel that ownership
`(referencing Defendant Bak) was ‘pissed’ at her and that Plaintiff better ‘get on board’
`with disenrollment. Plaintiff was further told, as of April 30, 2020, she needs to resign if
`she was not going to commit to making the company money and would not participate in
`the disenrollment and use of Medicare as a primary payer approach of Defendants.
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`Even under the most liberal pleading standards, we cannot infer from this quote that Defendants’
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`knew Plaintiff was going to report them for fraud. At most, it suggests Defendants were
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`frustrated with Ms. Petre’s failure to perform her assigned responsibilities.2
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`Therefore, we find that Plaintiff has failed to state a plausible claim for relief under 31
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`U.S.C. § 3730(h) and Count III of the Complaint is dismissed without prejudice. Likewise,
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`because the only remaining claims arise out of state law, we decline to exercise supplemental
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`jurisdiction over these claims. Hall-Wadley v. Maint. Dep't, 386 F. Supp. 3d 512, 519 (E.D. Pa.
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`2019). Plaintiff’s state law claims for wrongful termination and violation of the Conscientious
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`Employee Protection Act will therefore be dismissed without prejudice as well. Absent a curative
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`amendment to her federal claim, Plaintiff’s state law claims, Counts I and II of the Complaint,
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`are remanded to the Superior Court of New Jersey, Camden County Law Division.
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`IV. CONCLUSION
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`For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. An appropriate
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`order follows.
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`2 As Defendants note, the email Plaintiff sent to Defendants post-termination is not material to the § 3730(h)
`analysis. At most, it enhances the optics of Plaintiff’s case but performs no work from a legal standpoint.
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`Case 1:20-cv-09002-RBK-AMD Document 28 Filed 03/22/21 Page 14 of 14 PageID: 289
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`Dated: 3/22/2021
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`s/ Robert B. Kugler
`ROBERT B. KUGLER
`United States District Judge
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