United States of America et al v. American Professional Ambulance Corp et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.March 7, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW BRYAN CAVE LLP Anne Redcross Beehler (CBN 312125) 3161 Michelson Drive, Suite 1500 Irvine, CA 92612-4414 Telephone: (949) 223-7185 Facsimile: (949) 437-8785 anneredcross.beehler@bryancave.com BRYAN CAVE LLP Cliff Stricklin (admitted pro hac vice) Michael J. Hofmann (admitted pro hac vice) Laura S. Perlov (admitted pro hac vice) 1700 Lincoln Street, Suite 4100 Denver, CO 80203 Telephone: (303) 861-7000 Facsimile: (303) 866-0200 E-Mail: cliff.stricklin@bryancave.com michael.hofmann@bryancave.com laura.perlov@bryancave.com Attorneys for Defendant DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION United States of America Ex rel. OSWELDO GARCIA, an individual Plaintiff/Relator, v. AMERICAN PROFESSIONAL AMBULANCE CORP., DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS, TZIPPY CARE, INC. D/B/A WESTERN CONVALESCENT HOSPITAL, and CANOGA HEALTHCARE INC. D/B/A WEST HILLS HEALTH AND REHABILITATION CENTER, Defendants. Case No. 2:12-CV-10186-DSF-MRW NOTICE OF MOTION AND MOTION OF DEFENDANT DaVITA HEALTHCARE PARTNERS INC. TO DISMISS THE COMPLAINT UNDER FED. R. CIV. P. 8(a), 9(b), AND 12(b)(6) Date of Hearing: April 10, 2017 Time of Hearing: 1:30 p.m. Before: Hon. Dale S. Fischer Location: Courtroom 7D Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 1 of 14 Page ID #:434 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 2 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD AND THE CLERK OF THE COURT: PLEASE TAKE NOTICE that on April 10, 2017, at 1:30 p.m. in the above- captioned Court, located at First Street Courthouse, 350 West 1st Street, Courtroom 7D, Los Angeles, California, the Honorable Dale S. Fischer presiding, Defendant DaVita Healthcare Partners Inc., now known as DaVita, Inc., (“DaVita”) will, and hereby does, move this Court pursuant to Rules 8(a), 9 (b), and 12(b)(6) of the Federal Rules of Civil Procedure for an Order dismissing the Complaint of Plaintiff/Relator Osweldo Garcia (“Plaintiff’) for failure to state a claim upon which relief can be granted. This Motion is based on this Notice of Motion, the accompanying Memorandum of Points and Authorities, all pleadings and papers filed in this action, the oral argument of the parties, and such other and further matters as the Court may consider. This Motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on February 27, 2017. DATED: March 7, 2017 BRYAN CAVE LLP Michael J. Hofmann /s/ Michael J. Hofmann Michael J. Hofmann Attorneys for Defendant DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 2 of 14 Page ID #:435 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 1 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW MEMORANDUM OF POINTS AND AUTHORITIES Defendant DaVita Healthcare Partners Inc., now known as DaVita, Inc., (“DaVita”) respectfully submits this Memorandum of Points and Authorities in Support of its Motion to Dismiss Under Fed. R. Civ. P. 8(a), 9(b), and 12(b)(6). For the reasons explained below, the threadbare complaint, which barely even mentions DaVita, fails to allege sufficient facts to state a plausible claim that DaVita violated the “false records” provision of the False Claims Act, 31 U.S.C. § 3729(a)(1)(B), or “conspired” to violate the False Claims Act. The complaint also fails to satisfy Rule 9(b)’s requirement to plead with particularity the circumstances of any supposed fraud. I. Introduction and Summary of the Argument This is a False Claims Act (“FCA”) case, brought by a private party under the Act’s qui tam provisions. Enacted in 1863, the False Claims Act “was originally aimed principally at stopping the massive frauds perpetrated by large contractors during the Civil War.” United States v. Bornstein, 423 U. S. 303, 309 (1976). The Act imposes civil liability on “any person who . . . knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; . . . ” or conspires to commit such a violation. See 31 U. S. C. §3729(a). The FCA “contains a qui tam provision that permits private persons (known as “relators”) to bring civil actions on behalf of the United States and claim a portion of any award.” U.S. ex rel. Ebeid v. Lungwitz, 616 F.3d 993, 995 (9th Cir. 2010) (citation omitted). “Congress has repeatedly amended the Act, but its focus remains on those who present or directly induce the submission of false or fraudulent claims.” U.S. ex rel. Escobar v. Universal Health Servs., Inc., 136 S. Ct. 1989, 1996 (2016) (citation omitted). The complaint was first filed under seal in 2012 and the federal government declined to intervene on January 19, 2017. See ECF 41. The complaint was then Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 3 of 14 Page ID #:436 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 2 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW unsealed and served on DaVita. The 107-paragraph complaint barely mentions DaVita. See generally ECF 1 (“Complaint for Violations of the False Claims Act”). The complaint instead focuses on defendant American Professional Ambulance Corporation (“American Ambulance”), accusing American Ambulance of billing Medicare and Medicaid for medically unnecessary ambulance transportation of dialysis patients. See Complaint, pp. 9-17, ¶¶ 48-86. The complaint also accuses American Ambulance of obtaining after-the-fact physician certifications of medical need, though the complaint admits that “the presence (or absence) of a physician’s order for a transport by ambulance does not necessarily prove (or disprove) whether the transport was medically necessary.” See id., pp. 7-8, ¶ 39. The complaint contains just two (2) paragraphs’ worth of substantive factual allegations against DaVita. See Complaint, p. 11, ¶ 53; id., p. 18, ¶ 88. Paragraph 53 alleges that Michele Freeman (a doctor) and Adelwisah Torres (a nurse) signed, dated, and faxed physician certifications for “patient C.S. of Los Angeles” to American Ambulance on December 14 and 15, 2010, after C.S. had been transported. Id., p. 11, ¶ 53. Paragraph 53 further alleges, without any detail, that “no medical necessity existed to justify reimbursement for ambulance transportation for patient C.S.” Id. Finally, the complaint alleges on “information and belief,” without any supporting factual allegations, that Dr. Freeman and Nurse Torres “are employed by DaVita.” Id., p. 11, ¶ 53. Paragraph 88 is even less informative. See Complaint, p. 18, ¶ 88. Paragraph 88 does not mention any specific patient. It also omits any allegation that ambulance transportation was not “medically necessary.” See Complaint, p. 18, ¶ 88. Paragraph 88 simply alleges that Dr. Freeman and Nurse Torres “signed and dated” physician certifications on December 15, 2010, and faxed them to American Ambulance on December 16, 2010, even though the ambulance transportation had occurred before December, 2010. Id. Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 4 of 14 Page ID #:437 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 3 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW From these two paragraphs, the complaint asserts that DaVita violated Section 3729(a)(1)(B) of the False Claims Act by knowingly making, using, or causing to be made or used a “false record or statement material to claims for payment by the United States Medicare and Medicaid Programs.” See Complaint, p. 21, ¶ 103. The complaint also alleges that DaVita “conspired” to violate the False Claims Act. Id., p. 22, ¶ 106. The complaint should be dismissed, because its allegations against DaVita are not sufficient under Rule 8(a) and 9(b). II. Argument A. Applicable Rule 8(a) and 9(b) Legal Standards Rules 8(a) and 9(b) both apply to complaints brought under the False Claims Act. See U.S. ex rel. Cafasso v. General Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir. 2011). Rule 8(a) requires a “short and plain statement of the claim showing that the pleader is entitled to relief,” see Fed. R. Civ. P. 8(a)(2), which means that the complaint must contain “sufficient factual content to state a claim to relief that is plausible on its face.” Landers v. Quality Comms., Inc., 771 F.3d 638, 641 (9th Cir. 2015), citing and quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A “complaint that offers labels and conclusions,” a “formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement” is not sufficient under Rule 8(a). Landers, 771 F. 3d at 641 (citation and quotation omitted; alteration in original). Rule 9(b) requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” See Fed. R. Civ. P. 9(b). As the Ninth Circuit has held, Rule 9(b) requires the plaintiff to plead the “who, what, when, where, and how” of the fraud alleged, as well as to “set forth what is false or misleading about a statement, and why it is false.” See Ebeid, 616 F.3d at 998 (citation and quotation omitted). As explained below, the allegations against DaVita are not sufficient under Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 5 of 14 Page ID #:438 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 4 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW either Rule 8(a) or 9(b). B. The Complaint Fails to Plausibly Allege that DaVita Knowingly Made a False Record That Was Material to a False Claim Submitted by American Ambulance Section 3729(a)(1)(B) of the False Claims Act makes it unlawful to “knowingly make, use, or cause to be made or used, a false record or statement material to a false or fraudulent claim.” See 31 U.S.C. § 3729(a)(1)(B). Under the Act, a record or statement can be “false” if it is either not true at all, or is a “half-truth[]-[a] representation that state[s] the truth only so far as it goes, while omitting critical qualifying information[.]” See Escobar, 136 S. Ct. at 2000. Under the Act, to act “knowingly” means “that a [defendant] has actual knowledge of the information, acts in deliberate ignorance of the truth or falsity of the information, or acts in reckless disregard of the truth or falsity of the information.” Escobar, 136 S.Ct. at 1996 (internal quotations omitted); see also 31 U.S.C. § 3729(b)(1)(A). Under the Act, a record or statement is “material” only if it has “a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” See 31 U.S.C. § 3729(b)(4). Under the Act, “the materiality standard is demanding.” Escobar, 136 S.Ct. at 2003. Materiality “look[s] to the effect on the actual or likely behavior of the recipient of the alleged misrepresentation.” Id., at 2002 (alteration in original; citation omitted). A record or statement is not “material” simply because “the Government designates compliance with a particular statutory, regulatory, or compliance requirement as a condition of payment,” or because “the Government would have the option to decline to pay if it knew of the defendant’s noncompliance” with regulatory requirements. Id., at 2003. In evaluating materiality, it is relevant whether the government has designated a regulatory requirement to be a “condition of payment,” and whether the government pays claims even when it knows the Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 6 of 14 Page ID #:439 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 5 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW regulatory requirement was not followed. Id., at 2003. In this case, the complaint fails to properly allege that DaVita knowingly made any false record which was material to the government’s decision to pay American Ambulance’s claims. i. Paragraph 53’s Allegations are Not Sufficient Under Rule 8(a) or 9(b) As noted above, paragraph 53 alleges that Michele Freeman (a doctor) and Adelwisah Torres (a nurse) signed, dated, and faxed physician certifications for “patient C.S. of Los Angeles” to American Ambulance on December 14 and 15, 2010, after C.S. had been transported. Id., p. 11, ¶ 53. Paragraph 53 further alleges, without any detail, that “no medical necessity existed to justify reimbursement for ambulance transportation for patient C.S.” Id. The complaint appears to suggest that these physician certifications violated Medicare and Medicaid regulations because (i) C.S.’s ambulance transportation was not medically necessary, as required by 42 C.F.R. § 410.40(d)(1), and (ii) the physician certifications for C.S.’s transportation were not signed before the transportation, as required by 42 C.F.R. § 410.40(d)(2). The complaint’s allegations are exactly the kind of “naked assertions devoid of further factual enhancement” that are not sufficient under Rule 8(a). Landers, 771 F.3d at 641. Even taking as true the “information and belief” allegation that Dr. Freeman was actually “employed” by DaVita-which DaVita believes is factually incorrect-the complaint fails to state a false record claim. With respect to medical need, the complaint merely asserts that C.S.’s ambulance transportation was not medically necessary, without offering a single fact to support that assertion. See Complaint, p. 11, ¶ 53. The complaint does not allege any facts about C.S.’s condition, his or her ability to get out of bed, his or her ability to walk, or his or her ability to sit in a chair or wheelchair. Id., p. 11, ¶ 53; id., p. 7, ¶ 47 (listing ability to “get up from bed,” ability to “ambulate,” and ability “to sit in a Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 7 of 14 Page ID #:440 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 6 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW chair or wheelchair” as factors determining whether patient is “bed-confined” for purposes of ambulance transportation). Moreover, even assuming that C.S.’s transportation was not medically necessary, the complaint does not allege any facts plausibly alleging that either Dr. Freeman or Nurse Torres actually knew, deliberately ignored, or recklessly disregarded that information. Paragraph 53 thus fails to satisfy even Rule 8(a)’s pleading requirement with respect to the medical need for C.S.’s ambulance transportation. For much the same reason, paragraph 53 also fails Rule 9(b)’s heightened pleading requirement-it does not allege with any detail “what is false” about C.S.’s physician certification, or “why it is false.” Ebeid, 616 F.3d at 998. A mere, conclusory assertion that a statement “in fact” was not true is not enough to satisfy Rule 9(b)’s demanding specificity requirement. With respect to signing physician certifications after the transportation, the complaint is equally deficient. Remarkably, the complaint does not even identify a “false record or statement” relating to the signature dates. The complaint expressly alleges that Dr. Freeman and Nurse Torres “signed and dated” the certifications on December 14 and 15, 2010, and faxed them to American Ambulance on December 16, 2010, for transportation occurring from April to October, 2009. See Complaint, p. 11, ¶ 53. In other words, the certifications contained the actual dates they were signed and dated; they were not back-dated. Id. Accordingly, there was no “false record” concerning the dates the certifications were signed. Moreover, the plaintiff cannot show that pre-transportation certification was material to the government’s decision to pay American Ambulance. First, the complaint does not allege that the pre-transportation certification requirement was material to the government’s payment decisions. See Complaint, p. 19, ¶ 94 (alleging that medical need, but not pre-transportation certification, was material to the government’s decision to pay). Second, the complaint could not plausibly allege that pre-transportation Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 8 of 14 Page ID #:441 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 7 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW certification was material to the government’s payment decision. As the complaint itself alleges, the government’s own Medicare Benefit Policy Manual expressly provides that “the presence (or absence) of a physician’s order for a transport by ambulance does not necessarily prove (or disprove) whether the transport was medically necessary.” See Complaint, pp. 7-8, ¶ 39; see also Medicare Benefit Policy Manual: Chapter 10-Ambulance Services, Section 10.2.4 (“Documentation Requirements”), available at https://www.cms.gov/Regulations-and- Guidance/Guidance/Manuals/Downloads/bp102c10.pdf . (Because the complaint refers to Medicare’s Benefit Policy Manual, the court can consider it on a motion to dismiss. See, e.g., Marder v . Lopez, 450 F.3d 445, 448 (9th Cir. 2006)). If the government will pay for medically necessary ambulance transportation if no physician’s certification exists at all, it logically would not refuse to pay simply because the certification was made later. “[I]f the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.” Escobar, 136 S.Ct. at 2003. ii. Paragraph 88’s Allegations Are Not Sufficient Paragraph 88 is even less informative than paragraph 52. See Complaint, p. 18, ¶ 88. Paragraph 88 does not mention any specific patient. See id. Paragraph 88 simply alleges that Dr. Freeman and Nurse Torres “signed and dated” physician certifications on December 15, 2010, and faxed them to American Ambulance on December 16, 2010, even though the ambulance transportation had occurred before December, 2010. Id. As with paragraph 53, these allegations are not sufficient to show that the physician certifications were either “false” or “material” to the government’s decision to pay. Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 9 of 14 Page ID #:442 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 8 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW C. The Complaint Fails to Plausibly Allege a Conspiracy Claim Against DaVita The complaint also alleges that DaVita “conspired” with American Ambulance, Tzippy Care, Inc. and Canoga Healthcare Inc. to violate the False Claims Act. See Complaint, p. 22, ¶ 106. This claim should also be dismissed. The most basic requirement of any conspiracy claim is an agreement. See Twombly, 550 U.S. at 553-54. A complaint asserting that a conspiracy existed must therefore plead sufficient facts to plausibly suggest that an agreement existed. Id., at 556; see also Baumer v. Pachl, 8 F.3d 1341, 1346-47 (9th Cir. 1993) (affirming dismissal where complaint lacked “facts pled sufficient” to infer an agreement); Crowe v. Henry, 43 F.3d 198, 206 (5th Cir. 1995) (“While Crowe has pled the conclusory allegation that the defendants ‘conspired,’ nowhere does he allege facts implying any agreement.”). Here, the complaint lacks any factual allegations of agreement between DaVita and the other defendants. See generally Complaint. Indeed, the complaint does not attempt to allege an agreement; instead, it alleges that a conspiracy existed “by virtue of the acts described” in the complaint. See Complaint, p. 22, ¶ 106. None of those “acts,” however, is the “act” of entering into an agreement, which is what a conspiracy claim requires. See, e.g., Montgomery v. City of Ardmore, 365 F.3d 926, 940 (10th Cir. 2004) (holding that a complaint which “merely alleged many unlawful acts,” without “any specific facts evincing an agreement among the various defendants,” was not sufficient to state a conspiracy claim). Accordingly, the conspiracy claim should be dismissed. Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 10 of 14 Page ID #:443 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B R Y A N C A V E L L P 3 1 6 1 M IC H E L S O N D R IV E , S U IT E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 853061.2 9 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW III. Conclusion For these reasons, DaVita respectfully requests that the complaint be dismissed with respect to DaVita. Respectfully submitted this 7th day of March, 2017. BRYAN CAVE LLP Michael J. Hofmann /s/ Michael J. Hofmann Michael J. Hofmann Attorneys for Defendant DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 11 of 14 Page ID #:444 PROOF OF SERVICE -1- Case No. CV 12-10186 DSF (MRWx) 851883.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to this action; my current business address is 3161 Michelson Drive, Suite 1500, Irvine, CA 92612 On March 7, 2017, I served the foregoing document(s) described as: NOTICE OF MOTION AND MOTION OF DEFENDANT DaVITA HEALTHCARE PARTNERS INC. TO DISMISS THE COMPLAINT UNDER FED. R. CIV. P. 8(a), 9(b), AND 12(b)(6) on the interested parties in this action on the attached service list. BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ ECF system. Participants in the case who are not registered CM/ ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed March 7, 2017, at Irvine, CA. /s/ Michael J. Hofmann Michael J. Hofmann Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 12 of 14 Page ID #:445 PROOF OF SERVICE -2- Case No. CV 12-10186 DSF (MRWx) 851883.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST David A. Thorpe Dietrich Siben Thorpe LLP 9595 Wilshire Boulevard Suite 900 Beverly Hills, CA 90212 david@dstlegal.com Edward P. Dietrich Matthew P Siben Dietrich Siben Thorpe LLP 2173 Salk Avenue Suite 250 Carlsbad, CA 92008 edward@dstlegal.com; matthew@dstlegal.com John J P Howley John Howley Attorney at Law 350 Fifth Avenue 59th Floor New York, NY 10118 jhowley@johnhowleyesq.com Attorneys for Plaintiff Pamela Louise Johnston Elizabeth Liliedahl-Allen Foley and Lardner LLP 555 South Flower Street Suite 3500 Los Angeles, CA 90071 pjohnston@foley.com; eliliedahlallen@foley.com Attorneys for Defendant American Professional Ambulance Corp. Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 13 of 14 Page ID #:446 PROOF OF SERVICE -3- Case No. CV 12-10186 DSF (MRWx) 851883.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mark Anders Johnson Hooper Lundy and Bookman 101 West Broadway, Suite 1330 San Diego, CA 92101 619-744-7300 mjohnson@health-law.com Attorneys for Defendant Tzippy Care Inc. Linda A. Kontos Brian Villarreal Brent A Whittlesey Office of U S Attorney - Civil Fraud Section 300 North Los Angeles Street Room 7516AA Los Angeles, CA 90012 brent.whittlesey@usdoj.gov; USACAC.Civil@usdoj.gov; brian.villarreal@usdoj.gov Case 2:12-cv-10186-DSF-MRW Document 68 Filed 03/07/17 Page 14 of 14 Page ID #:447 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA ex rel. OSWALDO GARCIA, an individual, Plaintiff/Relator, vs. AMERICAN PROFESSIONAL AMBULANCE CORP., DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS, TZIPPY CARE, INC. D/B/A WESTERN CONVALESCENT HOSPITAL, and CANOGA HEALTHCARE INC. D/B/A WEST HILLS HEALTH AND REHABILITATION CENTER, Defendants. Case No. CV 12-10186 DSF (MRWx) [PROPOSED] ORDER GRANTING MOTION TO DISMISS OF DEFENDANT DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS Date of Hearing: April 10, 2017 Time of Hearing: 1:30 p.m. Before: Hon. Dale S. Fischer Location: Courtroom 7D Action Filed: Nov. 29, 2012 Trial Date: Not Set Case 2:12-cv-10186-DSF-MRW Document 68-1 Filed 03/07/17 Page 1 of 5 Page ID #:448 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Motion of Defendant DaVita Healthcare Partners Inc. D/B/A DaVita Airport Dialysis (“DaVita”) to dismiss the Complaint of Plaintiff/Relator Oswaldo Garcia (“Garcia”), pursuant to Rules 8(a), 9(b), and 12(b)(6) of the Federal Rules of Civil Procedure, came on for hearing on April 10, 2017 in Courtroom 7D of the above-captioned Court. The Court, having read and considered DaVita’s Motion, and all papers submitted by the parties in support thereof and in opposition thereto, and having heard and considered the oral argument of counsel, and good cause having been shown, IT IS HEREBY ORDERED THAT: 1. DaVita’s Motion to Dismiss under Fed. R. Civ. P. 8(a), 9 (b), and 12(b)(6) is GRANTED in its entirety; and 2. Garcia’s Complaint shall be, and hereby is, DISMISSED as against DaVita. IT IS SO ORDERED. Dated: _______________, 2017 THE HONORABLE DALE S. FISCHER UNITED STATES DISTRICT JUDGE Case 2:12-cv-10186-DSF-MRW Document 68-1 Filed 03/07/17 Page 2 of 5 Page ID #:449 PROOF OF SERVICE -1- Case No. CV 12-10186 DSF (MRWx) 851883.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to this action; my current business address is 3161 Michelson Drive, Suite 1500, Irvine, CA 92612 On March 7, 2017, I served the foregoing document(s) described as: [PROPOSED] ORDER GRANTING MOTION TO DISMISS OF DEFENDANT DAVITA HEALTHCARE PARTNERS, INC. D/B/A DAVITA AIRPORT DIALYSIS on the interested parties in this action on the attached service list. BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ ECF system. Participants in the case who are not registered CM/ ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed March 7, 2017, at Irvine, CA. /s/ Michael J. Hofmann Michael J. Hofmann Case 2:12-cv-10186-DSF-MRW Document 68-1 Filed 03/07/17 Page 3 of 5 Page ID #:450 PROOF OF SERVICE -2- Case No. CV 12-10186 DSF (MRWx) 851883.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST David A. Thorpe Dietrich Siben Thorpe LLP 9595 Wilshire Boulevard Suite 900 Beverly Hills, CA 90212 david@dstlegal.com Edward P. Dietrich Matthew P Siben Dietrich Siben Thorpe LLP 2173 Salk Avenue Suite 250 Carlsbad, CA 92008 edward@dstlegal.com; matthew@dstlegal.com John J P Howley John Howley Attorney at Law 350 Fifth Avenue 59th Floor New York, NY 10118 jhowley@johnhowleyesq.com Attorneys for Plaintiff Pamela Louise Johnston Elizabeth Liliedahl-Allen Foley and Lardner LLP 555 South Flower Street Suite 3500 Los Angeles, CA 90071 pjohnston@foley.com; eliliedahlallen@foley.com Attorneys for Defendant American Professional Ambulance Corp. Case 2:12-cv-10186-DSF-MRW Document 68-1 Filed 03/07/17 Page 4 of 5 Page ID #:451 PROOF OF SERVICE -3- Case No. CV 12-10186 DSF (MRWx) 851883.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mark Anders Johnson Hooper Lundy and Bookman 101 West Broadway, Suite 1330 San Diego, CA 92101 619-744-7300 mjohnson@health-law.com Attorneys for Defendant Tzippy Care Inc. Linda A. Kontos Brian Villarreal Brent A Whittlesey Office of U S Attorney - Civil Fraud Section 300 North Los Angeles Street Room 7516AA Los Angeles, CA 90012 brent.whittlesey@usdoj.gov; USACAC.Civil@usdoj.gov; brian.villarreal@usdoj.gov Case 2:12-cv-10186-DSF-MRW Document 68-1 Filed 03/07/17 Page 5 of 5 Page ID #:452