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

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.May 22, 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 1822834.3 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. OSWALDO 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 AMENDED COMPLAINT UNDER FED. R. CIV. P. 8(a), 9(b), AND 12(b)(6) Date of Hearing: June 26, 2017 Time of Hearing: 1:30 p.m. Before: Hon. Dale S. Fischer Location: Courtroom 7D Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 1 of 12 Page ID #:607 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 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 June 26, 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 Amended Complaint of Plaintiff/Relator Oswaldo Garcia (“Relator’) 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 May 15, 2017. DATED: May 22, 2017 BRYAN CAVE LLP Cliff Stricklin /s/ Cliff Stricklin Cliff Stricklin Attorneys for Defendant DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 2 of 12 Page ID #:608 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 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). The amended complaint should be dismissed, because the relator has failed to cure the defects that required that his first complaint be dismissed. I. Argument With respect to DaVita, this False Claims Act case concerns the ambulance transport of a single patient, called “C.S.” in the amended complaint. See Amended Complaint, Dkt. 82, ¶ 53. The amended complaint alleges that five physician certifications concerning C.S.’s ambulance transport were “false record[s] or statement[s]” under the Act. Id., ¶ 112. The amended complaint alleges that these physician certifications were “false” because (i) C.S.’s ambulance transport was not medically necessary and he or she could have been transported by other means and (ii) the physician certifications were signed after C.S.’s ambulance transport, not before. Id., ¶¶ 53-62. On the basis of these allegations, the amended complaint alleges that DaVita violated the “false records or statements” provision of the Act, see 31 U.S.C. § 3729(a)(1)(B), and “conspired” to violate the Act, see 31 U.S.C. § 3729(a)(1)(C). See Amended Complaint, ¶¶ 111-116. The Court previously dismissed the relator’s original complaint. See Order Granting Defendant DaVita Healthcare Partners Inc.’s Motion to Dismiss (“Order”) (Dkt. 76). Because the amended complaint fails to fix the defects that the Court has already identified, the amended complaint should likewise be dismissed. A. The Amended Complaint Does Not Plausibly Allege that DaVita Made a False Record or Statement About C.S.’s Need for Ambulance Transport Despite express guidance from the Court, the amended complaint still fails to allege sufficient facts to state a plausible claim that patient C.S.’s ambulance Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 3 of 12 Page ID #:609 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 2 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW transport was not medically necessary. See Order, at 4 (holding that the “allegations that ambulance transport was not medically necessary fail to satisfy federal pleading standards.”); Landers v. Quality Comms., Inc., 771 F.3d 638, 641 (9th Cir. 2015) (holding that a complaint must contain “sufficient factual content to state a claim to relief that is plausible on its face”) (citation and quotation omitted). Like the first complaint, the amended complaint provides no “facts relating to C.S.’s circumstances” that would show that C.S. did not need ambulance transport. See Order, at 4. All the amended complaint adds are two assertions-made on “information and belief”- that the medical necessity certifications were “false.” See Amended Complaint¸¶¶ 61-62. That supposed “information,” however, is not alleged in the amended complaint, and neither is the basis for the alleged “belief.” The physician certifications themselves-which the relator attached to his complaint only after being directed by the Court to do so-tend to show that C.S. did need ambulance transport, stating that C.S. was “unable to get up from bed [without] assistance, unable to ambulate, and unable to sit in a chair/wheelchair for the duration of the transport.” See Amended Complaint, ¶ 61, Exhibit A thereto. The amended complaint contains no contrary factual allegations. Accordingly, the amended complaint fails to plausibly allege any facts showing that any statement about the medical necessity of C.S.’s ambulance transport was “false.” Moreover, because the amended complaint fails to even plausibly allege under Rule 8 that C.S. did not need medical transport, the amended complaint cannot satisfy Rule 9(b), which requires the relator to “set forth what is false and misleading about a statement, and why it is false.” See U.S. ex rel. Ebeid v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (citation and quotation omitted). The amended complaint simply does not explain “why” the statement that “C.S. required ambulance transport” was “false.” The amended complaint also fails to allege that Dr. Freeman or Nurse Torres “knowingly” made any supposedly false statement or record about medical Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 4 of 12 Page ID #:610 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 3 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW necessity. See 31 U.S.C. § 3729(b)(1)(A) (requiring scienter for False Claims Act liability). (Remarkably, the amended complaint continues to allege that Dr. Freeman was a DaVita employee, even though, like the original complaint, it provides no facts to support that allegation.) Without providing any information about C.S.’s medical condition, the amended complaint cannot plead a plausible inference that either Dr. Freeman or Nurse Torres actually knew, deliberately ignored, or recklessly disregarded the supposed “fact” that C.S. did not need ambulance transport. B. The Amended Complaint Does Not Plausibly Allege That DaVita Made a False Record or Statement About Prior Authorization of Ambulance Transport The amended complaint also fails to allege that DaVita made a “false record or statement” about when C.S.’s physician certifications were signed. The amended complaint does not allege that the certifications were fraudulently backdated or that an incorrect date was written on the form. Instead, the allegation is that the certification forms were signed with the correct date, but were completed after the transportation had already occurred. See Amended Complaint, ¶¶ 53, 59-60. Now that the relator has attached the certifications to his amended complaint, the Court’s prior intuition has been confirmed: “after seeing the dates of service and signature on the certification statements - one would understand that the certifications occurred after the ambulance services rather than the other way around.” See Order, at 5; see also Amended Complaint, Exhibit A thereto. In other words, the amended complaint itself shows that DaVita made no “misrepresentation about compliance” with the “pre-authorization” requirement. See U.S. ex rel. Escobar v. Universal Health Servs., Inc., 136 S. Ct. 1989, 1996 (2016). The False Claims Act does not impose liability for making accurate records and statements or truthful “representations about compliance.” Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 5 of 12 Page ID #:611 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 4 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW The Supreme Court recently decided a similar question about what it means for a statement to be “false.” See Midland Funding, LLC v. Johnson, -- U.S. --, 2017 WL 2039159 (May 15, 2017). The Fair Debt Collection Practices Act forbids “a debt collector from asserting any ‘false, deceptive, or misleading representation’ . . . to collect, or attempt to collect, a debt.” Midland Funding, 2017 WL at * 3 (citations omitted). In Midland Funding, a debt collector (Midland Funding) “filed a written statement . . . that the debtor owed the debt collector money.” Id., at * 3. Significantly, however, the “statement made clear that the 6-year statute of limitations governing collection of the claimed debt had long since run.” Id. The Supreme Court held that “filing a proof of a claim that on its face indicates that the limitations period has run does not fall within the scope of” the Fair Debt Collection Practices Act’s prohibition of “false, deceptive, or misleading” representations. Id., at * 4 (emphasis added). Here, too, the physician certifications disclosed “on [their] face” that the certifications “occurred after the ambulance services rather than the other way around.” See Order, at 5. Making an accurate record that “on its face” discloses a supposed defense to payment is no more “false” under the False Claims Act than it is under the Fair Debt Collections Practices Act. Because DaVita made no “misrepresentation about compliance” with a regulatory requirement, DaVita cannot be liable under the Act. See Escobar, 136 S. Ct. at 1996 (emphasis added). Moreover, the relator cannot plausibly allege that when the certifications were signed was material to the government’s decision to pay APA; instead, medical necessity is the controlling consideration. Medicare’s own 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 Amended Complaint, ¶ 39 (citing and quoting the Medicare Benefit Policy Manual, at § 10.21). Accordingly, even if no physician’s order exists or can be found, Medicare still determines whether the Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 6 of 12 Page ID #:612 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 5 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW transport was “medically necessary.” Because Medicare will pay even without a physician’s order, it makes little sense for the relator to argue that an untimely order bars payment. Worse, the relator’s “materiality” case rests on a contradiction: he alleges that the government paid for C.S.’s ambulance transport, see Amended Complaint, ¶ 55, even though C.S.’s physician certifications themselves fully disclosed that “the certifications occurred after the ambulance services rather than the other way around.” See Order, at 5. If the government paid in the face of an accurate representation which disclosed non-compliance with a regulatory requirement, then the regulatory requirement is not material. See Escobar, 136 S. Ct. at 2003 (holding that “if 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.”); U.S. ex rel. Kelly v. Serco, Inc., 846 F.3d 325, 334 (9th Cir. 2017) (affirming summary judgment on materiality grounds where the government paid the claims despite knowing of the contractual violation). In this case, given the relator’s own allegations, no doubt can exist that the government had “actual knowledge” that a regulatory requirement was violated. Escobar, 136 S. Ct. at 2003. The five physician certifications themselves show that they were signed after C.S. was transported. See Amended Complaint, Exhibit A thereto. The only plausible inference is that the certifications’ timing was not material to the government. Under the Act, “[t]he materiality standard is demanding.” Escobar, 136 S. Ct. at 2003. A false 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). 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). Moreover, a record or statement is not “material” simply because “the Government designates compliance with a particular Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 7 of 12 Page ID #:613 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 6 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW 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. The amended complaint’s allegations and exhibits show that the untimely physician certifications in this case do not meet this demanding materiality standard. C. As to DaVita, The Amended Complaint Fails to Plausibly Allege a Conspiracy Finally, the amended complaint fails to plausibly allege that DaVita joined a “conspiracy” with APA or the other defendants. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-54 (2007); Baumer v. Pachl, 8 F.3d 1341, 1346-47 (9th Cir. 1993); Crowe v. Henry, 43 F.3d 198, 206 (5th Cir. 1995). Because the Act has no special scienter rule for a conspiracy claim, the usual conspiracy requirements apply: the relator must show that DaVita joined an agreement to make false records or statements with the “specific intent” to defraud the government. See Ocasio v. United States, 136 S.Ct. 1423, 1429 (2016); U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 343 (5th Cir. 2008). The amended complaint falls short in both respects. First, the only “agreement” sketched in the amended complaint is an agreement to provide physician certifications for patient C.S. See Amended Complaint, ¶¶ 54-57. The relator, however, has not plausibly alleged that DaVita falsely certified medical necessity for C.S., or even that APA asked for a false certification of medical necessity. See Amended Complaint, ¶¶ 54-57. Nor has the relator plausibly alleged that DaVita made a “false record or statement” about the timing of C.S.’s physician certifications. Instead, DaVita made an accurate record about when the certifications were signed, which (according to the relator) should have led the government not to pay APA. None of this provides a sufficient factual basis to infer an agreement between APA and DaVita to submit physician certifications for patients who did not need ambulance transport, or to make false Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 8 of 12 Page ID #:614 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 7 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW records about when physician certifications were signed. Second, the amended complaint’s allegations do not support a plausible inference that DaVita had “a specific intent to defraud the government” when it provided the five certifications for patient C.S. City of Houston, 523 F.3d at 343. Giving APA physician certifications which disclosed on their face that the pre- authorization regulation had not been followed would hardly advance APA’s supposed scheme to defraud the government by fooling it about regulatory compliance. And it provides no plausible basis to infer that DaVita specifically intended to defraud the government. II. Conclusion The amended complaint should be dismissed, because it does not identify any knowingly false statement or record made by DaVita. The amended complaint fails to plead sufficient facts to plausibly allege that C.S.’s ambulance transport was not medically necessary, or that Dr. Freeman or Nurse Torres knew that supposed fact. The amended complaint also fails to plausibly allege that DaVita made a false record or statement about the pre-authorization of C.S.’s ambulance transport, as distinct from an accurate record showing that C.S.’s transport was not pre- authorized. Finally, the amended complaint fails to plausibly allege that these five physician certifications show a conspiracy between DaVita and the other defendants. In the end, the relator mistakes imperfect regulatory compliance for fraud against the government. They are not the same thing, and the False Claims Act is “not . . . a vehicle for punishing garden-variety breaches of contract or regulatory violations.” Escobar, 136 S. Ct. at 2003. The relator has had five years to state a claim against DaVita based on five certifications for one patient. Because he has failed to do so, the amended complaint should be dismissed with prejudice. Respectfully submitted this 22nd day of May, 2017. Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 9 of 12 Page ID #:615 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 I T E 1 5 0 0 IR V IN E , C A 9 2 6 1 2 -4 4 1 4 1822834.3 8 DEFENDANT DAVITA HEALTHCARE PARTNERS’S MOTION TO DISMISS THE COMPLAINT CASE NO. 2:12-cv-10186-DSF-MRW BRYAN CAVE LLP Cliff Stricklin /s/ Cliff Stricklin Cliff Stricklin Attorneys for Defendant DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 10 of 12 Page ID #:616 IR01DOCS\851902.1\0381392 PROOF OF SERVICE 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 ya 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 l if o r n ia 9 2 6 1 2 -4 4 1 4 PROOF OF SERVICE CCP 1013a(3) Revised 5/1/88 (USDC Case No. 2:12-cv-10186-DFS-MRW) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is: 3161 Michelson Drive, Suite 1500, Irvine, CA 92612-4414. On May 22, 2017, I caused the following document(s) described as: NOTICE OF MOTION AND MOTION OF DEFENDANT DAVITA HEALTHCARE PARTNERS INC. TO DISMISS THE AMENDED COMPLAINT UNDER FED. R. CIV. P. 8(a), 9(b), AND 12(b)(6) to be served on all interested parties in this action by: David A. Thorpe, Esq. DIETRICH SIBEN THORPE LLP 9595 Wilshire Blvd., Ste. 900 Beverly Hills, CA 90212 Tel: (310) 300-8450 Fax: (760) 579-7369 david@dstlegal.com Attorneys for Plaintiff/Relator Oswaldo Garcia Edward P. Dietrich, Esq. Matthew P. Siben, Esq. DIETRICH SIBEN THORPE LLP 2173 Salk Avenue, Suite 250 Carlsbad, CA 92008 Tel: (760) 579-7368 Fax: (760) 579-7369 edward@dstlegal.com matthew@dstlegal.com Attorneys for Plaintiff/Relator Oswaldo Garcia John J P Howley, Esq. LAW OFFICES OF JOHN HOWLEY 350 Fifth Avenue, 59th Floor New York, NY 10118 Tel: (212) 601-2728 Fax: jhowley@johnhowleyesq.com Attorneys for Plaintiff/Relator Oswaldo Garcia Brent A. Whittlesey AUSA - Office of U S Attorney Civil Fraud Section 300 N. Los Angeles St., Room 7516AA Los Angeles, CA 90012 Tel: (213) 894-2445 Fax: (213) 894-7819 brent.whittlesey@usdoj.gov Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 11 of 12 Page ID #:617 IR01DOCS\851902.1\0381392 2 PROOF OF SERVICE 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 ya 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 l if o r n ia 9 2 6 1 2 -4 4 1 4 Linda A. Kontos AUSA - Office of U S Attorney Civil Division 300 N. Los Angeles St., Room 7516 Los Angeles, CA 90012 Tel: (213) 894-3986 Fax: USACAC.Civil@usdoj.gov Pamela Louise Johnston Elizabeth Liliedahl-Allen Foley and Lardner LLP 555 South Flower Street, Ste. 3500 Los Angeles, CA 90071-2300 Tel: (213) 972-4632 Fax: (213) 486-0065 pjohnston@foley.com eliliedahlallen@foley.com Attorneys for Defendant American Professional Ambulance Corp. Mark Anders Johnson Hooper Lundy and Bookman PC 101 W. Broadway, Ste. 1200 San Diego, CA 92101 Tel: (619) 744-7300 Fax: (619) 230-0987 mjohnson@health-law.com Attorneys for DefendantsTzippy Care Inc dba Western Convalescent Hospital and for Defendant Canoga Healthcare Inc. dba West Hills Health and Rehabilitation [ ] BY CM/ECF NOTICE OF ELECTRONIC FILING: I caused said document(s) to be served by means of this Court’s electronic transmission of the Notice of Electronic filing through the Court’s transmission facilities, to the parties and/or counsel who are registered CM/ECF Users set forth in the service list obtained from this Court. [ ] FEDERAL - I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on May 22, 2017, at Irvine, California. /s/ Anne Redcross Beehler Anne Redcross Beehler Case 2:12-cv-10186-DSF-MRW Document 83 Filed 05/22/17 Page 12 of 12 Page ID #:618 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: June 26, 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 83-1 Filed 05/22/17 Page 1 of 4 Page ID #:619 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 Amended 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 June 26, 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 WITH PREJUDICE 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 83-1 Filed 05/22/17 Page 2 of 4 Page ID #:620 IR01DOCS\851902.1\0381392 PROOF OF SERVICE 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 ya 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 l if o r n ia 9 2 6 1 2 -4 4 1 4 PROOF OF SERVICE CCP 1013a(3) Revised 5/1/88 (USDC Case No. 2:12-cv-10186-DFS-MRW) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is: 3161 Michelson Drive, Suite 1500, Irvine, CA 92612-4414. On May 22, 2017, I caused the following document(s) described as: [PROPOSED] ORDER GRANTING MOTION TO DISMISS OF DEFENDANT DAVITA HEALTHCARE PARTNERS INC. D/B/A DAVITA AIRPORT DIALYSIS to be served on all interested parties in this action by: David A. Thorpe, Esq. DIETRICH SIBEN THORPE LLP 9595 Wilshire Blvd., Ste. 900 Beverly Hills, CA 90212 Tel: (310) 300-8450 Fax: (760) 579-7369 david@dstlegal.com Attorneys for Plaintiff/Relator Oswaldo Garcia Edward P. Dietrich, Esq. Matthew P. Siben, Esq. DIETRICH SIBEN THORPE LLP 2173 Salk Avenue, Suite 250 Carlsbad, CA 92008 Tel: (760) 579-7368 Fax: (760) 579-7369 edward@dstlegal.com matthew@dstlegal.com Attorneys for Plaintiff/Relator Oswaldo Garcia John J P Howley, Esq. LAW OFFICES OF JOHN HOWLEY 350 Fifth Avenue, 59th Floor New York, NY 10118 Tel: (212) 601-2728 Fax: jhowley@johnhowleyesq.com Attorneys for Plaintiff/Relator Oswaldo Garcia Brent A. Whittlesey AUSA - Office of U S Attorney Civil Fraud Section 300 N. Los Angeles St., Room 7516AA Los Angeles, CA 90012 Tel: (213) 894-2445 Fax: (213) 894-7819 brent.whittlesey@usdoj.gov Case 2:12-cv-10186-DSF-MRW Document 83-1 Filed 05/22/17 Page 3 of 4 Page ID #:621 IR01DOCS\851902.1\0381392 2 PROOF OF SERVICE 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 ya 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 l if o r n ia 9 2 6 1 2 -4 4 1 4 Linda A. Kontos AUSA - Office of U S Attorney Civil Division 300 N. Los Angeles St., Room 7516 Los Angeles, CA 90012 Tel: (213) 894-3986 Fax: USACAC.Civil@usdoj.gov Pamela Louise Johnston Elizabeth Liliedahl-Allen Foley and Lardner LLP 555 South Flower Street, Ste. 3500 Los Angeles, CA 90071-2300 Tel: (213) 972-4632 Fax: (213) 486-0065 pjohnston@foley.com eliliedahlallen@foley.com Attorneys for Defendant American Professional Ambulance Corp. Mark Anders Johnson Hooper Lundy and Bookman PC 101 W. Broadway, Ste. 1200 San Diego, CA 92101 Tel: (619) 744-7300 Fax: (619) 230-0987 mjohnson@health-law.com Attorneys for DefendantsTzippy Care Inc dba Western Convalescent Hospital and for Defendant Canoga Healthcare Inc. dba West Hills Health and Rehabilitation [ ] BY CM/ECF NOTICE OF ELECTRONIC FILING: I caused said document(s) to be served by means of this Court’s electronic transmission of the Notice of Electronic filing through the Court’s transmission facilities, to the parties and/or counsel who are registered CM/ECF Users set forth in the service list obtained from this Court. [ ] FEDERAL - I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on May 22, 2017, at Irvine, California. /s/ Anne Redcross Beehler Anne Redcross Beehler Case 2:12-cv-10186-DSF-MRW Document 83-1 Filed 05/22/17 Page 4 of 4 Page ID #:622