United States of America et al v. Davita Healthcare Partners Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.December 19, 2016

1 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 David W. Skaar (State Bar No. 265377) HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, California 90067 Telephone: (310) 785-4600 Fax: (310) 785-4601 david.skaar@hoganlovells.com Michael C. Theis (pro hac vice) Emily M. Lyons (pro hac vice) Lacy G. Brown (pro hac vice) HOGAN LOVELLS US LLP 1200 Seventeenth Street, Suite 1500 Denver, Colorado 80202 Telephone: (303) 899-7300 Fax: (303) 899-7333 michael.theis@hoganlovells.com emily.lyons@hoganlovells.com lacy.brown@hoganlovells.com Attorneys for Defendants DAVITA HEALTHCARE PARTNERS, INC. and TOTAL RENAL CARE, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION UNITED STATES OF AMERICA EX REL NASRIN YOUSEFMORROWATTI, Plaintiff, v. DAVITA HEALTHCARE PARTNERS INC. and TOTAL RENAL CARE, INC., Defendants. Case No. CV 2:15-cv-5225-SJO (PJWx) DEFENDANTS DAVITA HEALTHCARE PARTNERS INC. AND TOTAL RENAL CARE, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS RELATOR’S SECOND AMENDED COMPLAINT PURSUANT TO Fed.R.Civ.P. 8, 9(b), 12(b)(1) & 12(b)(6), 31 U.S.C. § 3730(b)(2) & 28 U.S.C. § 1367; MEMORANDUM OF POINTS AND AUTHORITIES Date: January 17, 2017 Time: 10:00 a.m. Place: Courtroom 1, 2nd Floor Judge: Hon. S. James Otero Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 1 of 20 Page ID #:1449 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 TO THE COURT, ALL PARTIES AND COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on January 17, 2017 at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 1 of the above-captioned Court located at 312 North Spring Street, Los Angeles, California 90012, before the Honorable S. James Otero, Defendants DaVita Healthcare Partners Inc. (“DaVita”) and Total Renal Care, Inc. (“TRC”), by and through their attorneys of record, will, and hereby do, move pursuant to Rules 8(a), 9(b), 12(b)(1), and 12(b)(6) of the Federal Rules of Civil Procedure, 31 U.S.C. § 3730(b)(2), and 28 U.S.C. § 1367 for an order dismissing Relator Nasrin Yousefmorrowatti’s Second Amended Complaint, EFC No. 74, (“SAC”). Since Relator has now had three opportunities to amend the Complaint, and has failed to comply with the Court’s explicit instructions regarding such amendments, DaVita respectfully requests that the SAC be dismissed with prejudice. The Motion is based on the following grounds: First, in contravention of Rule 8 and Rule 9(b) and the Court’s orders, ECF Nos. 61, 64, 73, the SAC (1) is “confusing, distracting, ambiguous, and unintelligible”; (2) “includes block quotations from legal authorities”; (3) fails to “clearly identify the specific Medicare regulations allegedly violated by Defendants' conduct”; (4) fails to “be organized in a logical manner using comprehensible language”; and (5) names a “bevy” of defendants and “includes claims on which relief cannot be granted.” ECF No. 61. Second, the SAC was not filed under seal or served on the United States as required by 31 U.S.C. § 3730(b)(2) (the “False Claims Act” or “FCA”). The SAC names numerous defendants not named in the original qui tam complaint and alleges new facts and circumstances not alleged in the original complaint. The addition of these new defendants and new claims for relief arguably implicates the FCA’s requirements that a qui tam complaint be filed under seal, that the relator serve a copy of the complaint and a written disclosure of material evidence on the Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 2 of 20 Page ID #:1450 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 United States, and that the United States have an opportunity to intervene or decline to intervene after investigating the relator’s allegations. See 31 U.S.C. § 3730(b)(2). Third, the SAC alleges various statutory violations and state common law claims that a qui tam relator does not have standing to assert and the Court does not have subject matter jurisdiction to entertain. The Motion will be based upon this Notice of Motion and Motion; the attached Memorandum of Points and Authorities; the attached Declaration of David W. Skaar (“Skaar Decl.”); the complete files and records of this action; and such other matters and arguments as may come before the Court, including those raised in connection with reply briefing and oral argument relating to this Motion. Pursuant to L.R. 7-3, DaVita’s counsel attempted to contact Relator on December 12, 2016, to discuss the substance of this Motion but was not permitted to leave a message. Skaar Decl. at ¶ 2. Relator’s caregiver returned the call, indicating that Relator was ill and unable to speak. Id. at ¶ 3. DaVita’s counsel wrote an e-mail to Relator outlining the bases for this Motion. Ex. A to Skaar Decl. at ¶3. On December 13, 2016, Relator requested by e-mail that DaVita provide the authorities on which this Motion relies. Id. at 3-4. DaVita provided such authorities on December 15, 2016. Id. at 2-3. Dated: December 19, 2016 HOGAN LOVELLS US LLP /S/ David W. Skaar David W. Skaar Michael C. Theis (pro hac vice) Emily M. Lyons (pro hac vice) Lacy G. Brown (pro hac vice) Attorneys for Defendants DaVita HealthCare Partners, Inc. and Total Renal Care, Inc. Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 3 of 20 Page ID #:1451 i 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 TABLE OF CONTENTS PAGE INTRODUCTION ......................................................................................................1 PROCEDURAL HISTORY .......................................................................................1 ARGUMENT AND AUTHORITIES ........................................................................5 I. Failure to Comply with Rule 8 and the Court’s Orders ...................................5 II. Failure to Comply with the Procedural Requirements of the FCA................10 III. Lack of Standing and Subject Matter Jurisdiction .........................................11 CONCLUSION.........................................................................................................12 Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 4 of 20 Page ID #:1452 ii 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 TABLE OF AUTHORITIES Page(s) Federal Cases Bains v. Pac. Gas & Elec. Co., No. EDCV 16-823-GHK (KK), 2016 WL 3129610 (C.D. Cal. June 2, 2016).................................................................................................................. 6 Binsack v. Lackawanna Cnty. Prison, 438 F. App’x 158 (3d Cir. 2011)........................................................................... 7 Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001)............................................................................... 9 Boparai v. Shinseki, No. 1:12-cv-00789-LJO-JLT, 2012 WL 4755040 (E.D. Cal. Oct. 4, 2012) ...................................................................................................................... 7 United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir. 2011)........................................................................... 8, 9 East Bay Mun. Util. Dist. v. Balfour Beatty Infrastructure, Inc., Case No. 13-cv-02032-WHO, 2014 WL 2611312 (N.D. Cal. June 11, 2014).............................................................................................................. 10 United States ex rel. Griffith v. Conn., No. 11-157-ART, 2013 WL 3935074 (E.D. Ky. July 30, 2013) ........................ 10 Hardin v. American Elec. Power, 188 F.R.D. 509 (S.D. Ind. 1999) ........................................................................... 6 Hatch v. Reliance Ins. Co., 758 F.2d 409 (9th Cir. 1985) ................................................................................. 8 Knapp v. Hogan, 738 F.3d 1106 (9th Cir. 2013)............................................................................... 9 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ............................................................................................ 12 Kuehl v. FDIC, 8 F.3d 905 (1st Cir. 1993) ..................................................................................... 6 Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 5 of 20 Page ID #:1453 iii 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 Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993) .............................................................................................. 5 United States ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242 (9th Cir. 1995) ................................................................................. 11 McHenry v. Renne, 84 F.3d at 1179-80 ................................................................................................ 8 Nevijel v. North Coast Life Ins. Co., 651 F.2d 671 (9th Cir. 1981) ................................................................................. 8 United States ex rel. Phipps v. Comprehensive Cmty. Dev. Corp., 152 F. Supp. 2d 443 (S.D.N.Y. 2001) ................................................................. 12 United States ex rel. Repko v. Guthrie Clinic, P.C., 557 F. Supp. 2d 522 (M.D. Penn. 2008) .......................................................11, 12 Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004)............................................................................. 12 Schmidt v. Herman, 614 F.2d 1221 (9th Cir. 1980)............................................................................... 9 State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, No. 15-513, 2016 WL 7078622 (U.S. Dec. 6, 2016) .......................................... 10 Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993 (9th Cir. 2010) ............................................................................... 10 Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) ............................................................................................ 11 Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771 (7th Cir. 1994) ................................................................................... 6 In re Westinghouse Sec. Litig., 90 F.3d 696 (3d Cir. 1996) .................................................................................... 6 Federal Statutes 18 U.S.C. § 1035....................................................................................................... 11 18 U.S.C. § 1347....................................................................................................... 11 Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 6 of 20 Page ID #:1454 iv 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 28 U.S.C. § 1367....................................................................................................... 12 31 U.S.C. § 3730(b)(2) ...................................................................................1, 10, 12 42 U.S.C. § 1320a-7a(a)(1) ...................................................................................... 11 42 U.S.C. § 1395nn................................................................................................... 11 Rules L. Civ. Rule 7-3 .......................................................................................................... 2 Federal Rules of Civil Procedure 8....................................................................passim Federal Rules of Civil Procedure 8(a) ................................................................1, 8, 9 Federal Rules of Civil Procedure 8(a)(2) ...........................................................2, 6, 8 Federal Rules of Civil Procedure 8(d)(1) ................................................................... 6 Federal Rules of Civil Procedure 9(b)...............................................................passim Federal Rules of Civil Procedure 10(c) ...................................................................... 9 Federal Rules of Civil Procedure 11........................................................................... 7 Federal Rules of Civil Procedure 12(b)(1) ............................................................... 13 Federal Rules of Civil Procedure 12(b)(6) ........................................................... 2, 13 Federal Rules of Civil Procedure 41(a) .................................................................... 13 Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 7 of 20 Page ID #:1455 1 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 INTRODUCTION DaVita Healthcare Partners Inc. and Total Renal Care, Inc. (“Defendants”) and this Court have provided Relator with numerous opportunities-with explicit instruction from the Court-to plead her claims in accordance with the Federal Rules of Civil Procedure. Relator has repeatedly failed to comply with Rules 8(a) or 9(b), or with the Court’s specific Orders. This iteration of the complaint again fails to include paragraph numbers or even designate the causes of action or types of relief sought. Furthermore, although Relator’s SAC names new defendants and incorporates new theories of relief, Relator failed to file the SAC under seal or serve it on the United States pursuant to 31 U.S.C. § 3730(b)(2). Finally, Relator alleges various statutory violations and state common law claims that a qui tam Relator does not have standing to assert. Relator has not pleaded any basis for the Court to exercise subject matter jurisdiction over these claims. Relator’s inability to articulate her claims and repeated disregard for the Rules and the Court’s orders warrant dismissal with prejudice. PROCEDURAL HISTORY On July 10, 2015, Relator filed a complaint against Defendants under the qui tam provisions of the FCA. ECF No. 1. On March 11, 2016, the United States filed a notice informing the Court of its decision not to intervene. ECF No. 10. After receiving this notice, Relator’s former counsel filed a Motion to Withdraw on April 25, 2016, ECF No. 12, and the Court conditionally granted that motion on May 5, 2016. Order, ECF No. 13. The United States filed a brief on May 13, 2016, suggesting dismissal of the action on the grounds that Relator could not proceed pro se in a False Claims Act qui tam case. Brief, ECF No. 19. Relator, who is an attorney licensed with the state of California, was subsequently admitted to this Court and entered her notice of appearance as counsel for Relator on July 6, 2016. Notice, ECF No. 32. Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 8 of 20 Page ID #:1456 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 On August 22, 2016, counsel for Defendants conferred in person with Relator pursuant to L.R. 7-3 regarding Defendants’ intention to file a motion to dismiss the original complaint pursuant to Federal Rules of Civil Procedure 8(a)(2), 9(b) and 12(b)(6). The parties stipulated that Relator would file an amended complaint by September 12, 2016, and the Court granted the stipulated request on August 26, 2016. Order, ECF No. 45. Relator sought an extension, and the Court ordered Relator to file an amended complaint by September 19, 2016. Order, ECF No. 49. Relator did not file her amended complaint by September 19, and Defendants filed their Motion to Dismiss on September 21, 2016. ECF No. 50. Relator responded to Defendants’ Motion to Dismiss and sought a further extension of time to file her amended complaint. ECF Nos. 52, 53. On October 6, 2016, the Court granted Relator’s motion for an extension of time, ordering her to file her amended complaint by October 19, 2016. Order, ECF No. 56. The Court further ordered that the amended complaint must “specify the particular regulations allegedly violated by Defendants.” Id. On October 19, 2016, Relator filed a 239-page First Amended Complaint (“FAC”) that attempted to name additional defendants and expanded on the original allegations significantly, although it did not allege any specific counts or causes of action. ECF No. 59. The following day, on October 20, 2016, the Court dismissed Relator’s FAC on its own initiative for failure to comply with Rule 8. ECF Nos. 60, 61. The Court found Relator’s FAC to be “confusing, distracting, ambiguous, and unintelligible” as well as “lengthier and [clearly] less comprehensible than [Relator’s] original Complaint.” Order at 1-2, ECF No. 61 (quoting Bains v. Pac. Gas & Elec. Corp., No. ED cv-16-823-GHK (KK), 2016 WL 3129610, at *3). The Court noted that filing such lengthy and opaque pleadings prejudiced Defendants and may show bad faith. Id. at 1. The Court granted Relator leave to file a Second Amended Complaint provided that “it may only be brought against DaVita and TRC, and must (1) Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 9 of 20 Page ID #:1457 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 clearly identify the specific Medicare regulations allegedly violated by Defendants' conduct; (2) describe the conduct constituting such alleged violations with the particularly required under Rule 9(b); and (3) be organized in a logical manner using comprehensible language.” Id. The Court’s order specifically cautioned Relator that the Court would “not entertain a Second Amended Complaint that includes block quotations from legal authorities” and that the Court would not be well-disposed to grant Relator further leave to amend if the Second Amended Complaint “remain[ed] incomprehensible or includ[ed] claims on which relief cannot be granted.” Id. Relator moved for reconsideration of the Court’s October 20 Order seeking, among other relief, that the Court permit her to title her Second Amended Complaint as a First Amended Complaint and permit her to add additional parties and claims. ECF No. 62. On October 31, 2016, the Court granted Relator’s requested relief, allowing her to title her Second Amended Complaint as a First Amended Complaint. ECF No. 64. The Court again cautioned Relator that it would not entertain a newly filed First Amended Complaint “that includes ‘detailed facts, definitions and descriptions, regulations, and exhibits, including authorities that would have cited and justified the name of the additional Plaintiff's, Defendants, coconspirator, supplemental jurisdiction and etc.’ that work to render the document ‘confusing, distracting, ambiguous, [or] unintelligible.’” Id. (quoting Schmidt v. Herman, 614 F.2d 1221, 1224 (9th Cir. 1980). The Court again cautioned Relator that she “must take care to set forth her allegations in a clear, organized manner that references-but does not necessarily quote from-the regulations and/or authorities allegedly violated by defendants' conduct.” Id. On November 10, 2016, Relator filed her Renewed First Amended Complaint (“RFAC”). ECF No. 67. Again, Relator did not comply with Rules 8 and 9(b), or the Court’s October 20 and October 31 Orders, ECF Nos. 61, 64; the RFAC is 238-pages-with another 55 pages of exhibits-making it longer than her Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 10 of 20 Page ID #:1458 4 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 prior complaint, without curing the dense, confusing and unintelligible content of the pleading. Relator attempted to “supplement” her RFAC with 15 out-of-time documents filed on November 15. ECF Nos. 68-71. These supplemental filings were rejected by the Court, ECF No. 72, and the Court noted that these filings would not have corrected the numerous deficiencies in RFAC. Order, ECF No. 73 at 3. On November 16, 2016, the Court again dismissed Relator’s pleading with leave to amend. Id. at 4-5. In its November 16 Order, the Court instructed Relator that her Second Amended Complaint must “be a short and plain statement that is logically organized, divided into a description of the parties, a chronological factual background, and a presentation of enumerated legal claims, each of which lists the liable Defendants and legal basis therefor.” Id. at 4 (internal quotation marks omitted). The Court also noted that “[d]ismissal is particularly appropriate where, as here, Relator is represented by counsel and disregarded the Court's explicit instructions set forth both in the First Dismissal Order and in a number of other minute orders.” Id. at 4. At 29 pages, Relator’s SAC-which is actually the fourth complaint that Relator has filed in this action-is considerably shorter than her previous amended complaints. SAC, ECF No. 74. But it does not contain individually numbered paragraphs; it does not allege the basis for the Court’s subject matter jurisdiction; it references exhibits that were not attached or filed with the SAC; it quotes at length from unidentified sources; it abruptly ends midsentence; it is not signed by counsel; and it does not allege any readily apparent legal claim, count, or cause of action. The SAC still incorporates sentence fragments, nested paragraphs, highlighting, headers and block quotations that make the document incomprehensible. Id. DaVita’s counsel attempted to contact Relator on December 12, 2016, to discuss the substance of this Motion but was not permitted to leave a message. Skaar Decl. at ¶ 2. Instead, Relator’s caregiver returned the call, indicating that Relator was ill and unable to speak. Id. at ¶ 3. As a result, DaVita’s counsel wrote Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 11 of 20 Page ID #:1459 5 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 an e-mail to Relator outlining the bases for this Motion. Id. at ¶ 4; Ex. A to Skaar Decl. at 4. On December 13, 2016, Relator responded and stated that she was unable to discuss the Motion but requested that DaVita provide the authorities on which this Motion relies by e-mail. Skaar Decl. at ¶ 6; Ex. A to Skaar Decl. at 3-4. DaVita provided such authorities on December 15, 2016. Skaar Decl. at ¶ 7; Ex. A to Skaar Decl. at 2-3. On December 16, 2016, Relator responded to counsel’s e- mail by claiming that she thought the SAC was “longer than 29 pages . . . and [was] numbered.” Skaar Decl. at ¶ 9; Ex. A to Skaar Decl. at 2. As a result, counsel forwarded the SAC to Relator and informed Relator that Defendants would be responding to the SAC by their deadline on December 19, 2016. Skaar Decl. at ¶ 9; Ex. A to Skaar Decl. at 1. On December 19, 2016, Relator responded claiming that she “made a mistake and filed an incorrect second amended Complaint.” Skaar Decl. at ¶ 10; Ex. A to Skaar Decl. at 1. Counsel responded later on December 19, 2016 that Defendants intended to comply with deadline to respond to the SAC. Skaar Decl. at ¶ 11; Ex. A to Skaar Decl. at 1. In light of the shortcomings of the Relator’s SAC, Defendants’ repeated attempts to inform Relator of these shortcomings, Relator’s inability or refusal to properly state a legal claim and comply with the Federal Rules of Civil Procedure and the Orders of this Court, Defendants respectfully request that the Court dismiss Relator’s SAC with prejudice. ARGUMENT AND AUTHORITIES I. Failure to Comply with Rule 8 and the Court’s Orders The Federal Rules of Civil Procedure employ a notice-based pleading system rather than a fact-based pleading system. See Leatherman v. Tarrant Cnty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, (1993); FED. R. CIV. P. 8. A complaint is supposed to provide the opposing party “fair notice of what the [ ] claim is and the grounds upon which it rests.” Leatherman, 507 U.S. at Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 12 of 20 Page ID #:1460 6 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 28 168 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, rather than requiring a plaintiff to plead all of the facts underlying the alleged claim, the Rules simply require “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2). Rule 8(d)(1) supplements 8(a)(2) by requiring that “[e]ach allegation must be simple, concise, and direct.” Rule 8(d)(1). “Taken together [these two requirements] underscore the emphasis placed on clarity and brevity by the federal pleading rules.” In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir. 1996) (quoting 5 Wright & Miller Federal Practice and Procedure: Civil 2d § 1217, 169 (1990 & Supp.1999)); see also Vicom, Inc. v. Harbridge Merchant Servs., Inc., 20 F.3d 771, 775 (7th Cir. 1994) (noting that “[t]he primary purpose of [Rule 8(a)(2) and Rule 8(d)(1)] is rooted in fair notice”). If a complaint violates Rule 8(a)(2) and 8(d)(1), “such that a great deal of judicial energy would have to be devoted to eliminating the unnecessary matter and restructuring the pleading,” the court may strike the entire pleading. Hardin v. American Elec. Power, 188 F.R.D. 509, 511 (S.D. Ind. 1999); see, e.g., In re Westinghouse Sec. Litig., 90 F.3d at 706 (affirming dismissal of complaint with prejudice for failing to comply with Rule 8); Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993) (noting district court’s power to dismiss a case for failing to comply with Rule 8). “A complaint may be dismissed for violating Rule 8 even if ‘a few possible claims' can be identified and the complaint is not 'wholly without merit.’” Bains v. Pac. Gas & Elec. Co., No. EDCV 16-823-GHK (KK), 2016 WL 3129610, at *3 (C.D. Cal. June 2, 2016) (quoting McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996)). On December 5, 2016, Relator filed yet another indecipherable and incoherent complaint that fails to comport with Rule 8 and the Court’s explicit instruction. ECF No. 74. While Relator’s SAC is considerably shorter than her prior complaints, the SAC fails to meet even the most basic requirements of the Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 13 of 20 Page ID #:1461 7 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 Rules. Specifically, the SAC: (1) does not contain individually numbered paragraphs; (2) contains no description of the basis for the Court’s subject matter jurisdiction; (3) references exhibits that were not attached or filed with the SAC; (4) quotes at length from unidentified sources; (5) abruptly ends midsentence; (6) is not signed by counsel, as required by Rule 11; and (7) does not allege any readily apparent legal claim, count, or cause of action other than in the most elliptical of terms. It is impossible for Defendants to respond to the SAC. The allegations are convoluted, disorganized, and unintelligible at best. Defendants are put in the position of attempting to scrutinize the allegations to ascertain whether there is any relevant material to which Defendants could respond in any meaningful fashion. As recognized by the Court’s October 20, October 31, and November 16 Orders, ECF Nos. 61, 64, and 73, Relator’s use of block quotes from statutes, regulations, and administrative manuals, varying font types and sizes, inconsistent usage of bold, underlined, and highlighted text, and reference to exhibits that were not filed does little to articulate a cognizant legal claim. It does, however, make the reading of the SAC a “Herculean challenge” and impose an unfair burden on the litigants and the Court. Order Dismissing Relator’s First Amended Compl. 3, ECF No. 73. It would consume an inordinate and unfair amount of resources to require the Defendants and this Court to sift through the SAC, attempt to glean the relevant portions, differentiate among the various listed co-defendants and surmise as to how they might be liable under the law. Dismissal under Rule 8 is warranted where a complaint “[leaves] the defendants having to guess what of the many things discussed constituted [a cause of action].” Binsack v. Lackawanna Cnty. Prison, 438 F. App'x 158, 160 (3d Cir. 2011). A complaint should be dismissed under Rule 8 where it “fails to identify the specific causes of action for which the [claimant] seeks relief.” Boparai v. Shinseki, No. 1:12-cv-00789-LJO-JLT, 2012 WL 4755040, at *1 (E.D. Cal. Oct. 4, 2012). Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 14 of 20 Page ID #:1462 8 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 In United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011), the Ninth Circuit affirmed dismissal of a 733-page complaint, without leave to amend, for failing to state a “short and plain statement of the claim” as required by Rule 8(a)(2). The court reasoned that a complaint of this magnitude would tax the entire course of the litigation because neither the opposing party nor the court could focus on disputed issues or tailor discovery accordingly: Prolix, confusing complaints . . . impose unfair burdens on litigants and judges. . . . Defendants are . . . put at risk that . . . plaintiffs will surprise them with something new at trial which they reasonably did not understand to be in the case at all, and that res judicata effects of settlement or judgment will be different from what they reasonably expected . . . . The judge wastes half a day in chambers preparing the “short and plain statement” which Rule 8 obligated plaintiffs to submit. He then must manage the litigation without knowing what claims are made against whom. This leads to discovery disputes and lengthy trials, prejudicing litigants in other case who follow the rules, as well as defendants in the case in which the prolix pleading is filed. Id. at 1059 (citing McHenry v. Renne, 84 F.3d at 1179-80). Relator’s SAC remains equally confusing, unintelligible, and prejudicial to Defendants as her previous complaints. Several Ninth Circuit opinions have upheld a Rule 8 dismissal where the complaint was confusing, repetitive, ambiguous, or unintelligible, particularly where, as is the case here, the claimant had already been given multiple opportunities to amend. See, e.g., McHenry v. Renne, 84 F.3d at 1177-80 (upholding a Rule 8(a) dismissal of a 53-page complaint that was “argumentative, prolix, replete with redundancy, and largely irrelevant”); Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) (upholding a Rule 8(a) dismissal of a complaint that “exceeded 70 pages in length, [and was] confusing and conclusory”); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981) (dismissing 24-page complaint with 24 pages of addenda and holding that Rule 8(a) is violated when a complaint is excessively “verbose, confusing and Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 15 of 20 Page ID #:1463 9 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 almost entirely conclusory”); Schmidt v. Herrmann, 614 F.2d 1221, 1224 (9th Cir. 1980) (upholding a Rule 8(a) dismissal of “confusing, distracting, ambiguous, and unintelligible” 30-page complaint). As the Court noted in its November 16 Order, the Court has repeatedly instructed Relator on how she can satisfy Rule 8(a) and has given her numerous opportunities to correct the deficiencies in her pleadings. ECF No. 73. The Court has also pointed out the need for Relator to plead the elements of a violation of the False Claims Act with the particularity required by Rule 9(b). See Order, ECF No. 61 at 2; see also Cafasso, 637 F.3d at 1054 (holding that a complaint alleging a violation of the False Claims Act must the heightened pleading standards of Rule 9(b)). “[A]fter an incomprehensible complaint is dismissed under Rule 8 and the plaintiff is given, but fails, to take advantage of the leave to amend, ‘the judge [is] left with [ ] a complaint that, being irremediably unintelligible, [gives] rise to an inference that the plaintiff could not state a claim.’” Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (quoting Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011)). “When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.” Id. 1/ In addition to failing to comply with the Rule 8 pleading standards, Relator does not even come close to the heightened pleading standard under Rule 9(b). Rule 9(b) applies in this case because the “FCA is an anti-fraud statute,” FCA claims must be pled with particularity under Rule 9(b). Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001). An FCA plaintiff must “state with particularity the circumstances constituting fraud or mistake,” including “the who, 1/ To the extent the SAC can be construed to reassert the legal claims asserted in the original qui tam complaint, Defendants contend that it fails to state a claim for relief under the FCA, on the grounds stated, and based on the authorities cited, in Defendants’ Motion to Dismiss, ECF No. 50, which is hereby incorporated by reference pursuant to Rule 10(c) of the Federal Rules of Civil Procedure. Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 16 of 20 Page ID #:1464 10 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 what, when, where, and how” of the alleged fraud. Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010). Relator’s confusing and unintelligible SAC does not come close to meeting this heightened standard and also should be dismissed for failure to meet the specificity required under Rule 9(b). II. Failure to Comply with the Procedural Requirements of the FCA Relator’s SAC names numerous new defendants and makes numerous new allegations not contained in the original sealed qui tam complaint served on the United States. The courts recognize that, after the United States has declined to intervene in a qui tam case, a relator may be permitted to file an amended complaint that is substantially similar to the original qui tam complaint. Cf. East Bay Mun. Util. Dist. v. Balfour Beatty Infrastructure, Inc., Case No. 13-cv-02032-WHO, 2014 WL 2611312, at *3-*4 (N.D. Cal. June 11, 2014) (allowing amendment because amended complaint was “substantially similar” to the original and surveying cases on the issue). But where the amended complaint attempts to add new defendants and new claims for relief not asserted in the original complaint, some courts have been reluctant to allow amendment without requiring compliance with the sealed filing and other procedural requirements of the FCA. See 31 U.S.C. § 3730(b)(2); United States ex rel. Griffith v. Conn., No. 11-157-ART, 2013 WL 3935074, at *3 (E.D. Ky. July 30, 2013) (“If an amended complaint adds new defendants, claims, or substantial details, the seal requirement applies”). The United Supreme Court has recently held that a violation of the sealed filing requirements does not necessarily mandate dismissal. But whether dismissal is an appropriate sanction for failure to comply with the seal requirements is “left to the sound discretion of the district court.” State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, No. 15- 513, 2016 WL 7078622, at *8 (U.S. Dec. 6, 2016). Relator’s SAC and two prior amended complaints publicly alleged a host of new alleged violations of the FCA against numerous new defendants. Relator made these allegations public without any discernible factual basis, and without filing the Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 17 of 20 Page ID #:1465 11 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 complaints under seal or permitting the United States to investigate. With respect the newly added individual defendants, Relator names DaVita employees both by name and generally. SAC at 2, ECF No. 74. These individuals cannot decipher from the face of the SAC what claims she is alleging against the individual defendants. Moreover, the individual defendants cannot even proffer a guess at which claims she is lodging against them because she does not allege any facts that would support their involvement in the overall case. This obtuse approach to adding defendants is fundamentally unfair to these individuals and gives them no notice of claims Relator attempts to bring against them. Defendants respectfully submit that these new claims should be dismissed on the grounds that the circumstances allow an inference of bad faith and willfulness on Relator’s part in failing to comply with the procedural requirements of the Act. Cf. United States ex rel. Lujan v. Hughes Aircraft Co., 67 F.3d 242, 245-46 (9th Cir. 1995) (holding that the court may consider whether the government was actually harmed by the disclosure, the nature of the violation, and the presence or absence of bad faith or willfulness, in determining the appropriate sanction for a violation of the seal). III. Lack of Standing and Subject Matter Jurisdiction Although Relator’s SAC does not clearly articulate a recognizable claim for relief or cause of action, it references claimed violations of Social Security Act § 1128A(a)(1) (codified at 42 U.S.C. § 1320a-7a(a)(1)) and criminal violations of 18 U.S.C. § 1035 and 18 U.S.C. § 1347. Unlike the FCA, these statutes do not contain citizen suit provisions that allow commencement of an action on behalf of the United States. Relator does not have standing to pursue such claims. See, e.g., United States ex rel. Repko v. Guthrie Clinic, P.C., 557 F. Supp. 2d 522, 529 (M.D. Penn. 2008) (holding that qui tam relator does not have standing to pursue a claim for a violation of the Stark Law, 42 U.S.C. § 1395nn, or common law theories of unjust enrichment and payment by mistake); see generally Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 773 (2000). Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 18 of 20 Page ID #:1466 12 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 Similarly, Relator’s SAC references various “torts,” which are described only as “Fraud and Misrepresentation; Intentional Infliction of Emotional Distress; Professional Negligence; Breach of Contract and Specific Performance.” SAC at 5. Because Relator has not alleged the necessary elements of each of these so-called “torts,” it is unclear what conduct gives rise to these claims. To the extent Relator asserts these common law claims on behalf of the United States, however, again, she does not have standing to do so. See Repko, 557 F. Supp. 2d at 529; United States ex rel. Phipps v. Comprehensive Cmty. Dev. Corp., 152 F. Supp. 2d 443, 451-52 (S.D.N.Y. 2001) (“While the FCA gives a relator the right to bring an action for a violation of the FCA, the FCA does not give relators the right to assert common law claims on behalf of the United States.”) (internal quotation marks omitted). Finally, to the extent Relator asserts these claims on her own behalf, she has not pleaded facts sufficient to invoke the Court’s subject matter jurisdiction. Federal courts are courts of limited jurisdiction, and Relator has the burden to plead sufficient facts to show that the court has jurisdiction over the subject matter of the lawsuit. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Relator’s SAC contains no facts to suggest that there is any independent basis for the Court to exercise subject matter jurisdiction over these “torts.” Indeed, all indications are to the contrary. Absent original jurisdiction, Relator bears the burden to establish that the Court can, and should, exercise supplemental jurisdiction over these claims. 28 U.S.C. § 1367. Relator has failed to make any such showing. CONCLUSION Relator’s SAC fails to comply with the requirements of Rules 8 and 9(b) of the Federal Rules of Civil Procedure, the Court’s Orders, and 31 U.S.C. § 3730(b)(2) and 28 U.S.C. § 1367. Relator has been given multiple opportunities to correct the deficiencies in her complaint and has repeatedly failed to do so. Further, Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 19 of 20 Page ID #:1467 13 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 this Court has given Relator notice and the opportunity to voluntarily dismiss this Action pursuant to Rule 41(a) of the Federal Rules of Civil Procedure on two different occasions, but Relator continues to file deficient, frivolous, and inarticulate complaints. October 31, 2016 Minute Order Dismissing First Amended Compl. at 2, ECF No. 64; December 5, 2016 Order Dismissing Relator’s First Amended Compl. at 4, ECF No. 73. Defendants respectfully request that the Court dismiss with prejudice Relator’s SAC pursuant to Rules 12(b)(1) and 12(b)(6). Respectfully submitted, Dated: December 19, 2016 HOGAN LOVELLS US LLP /S/ David W. Skaar David W. Skaar Michael C. Theis (pro hac vice) Emily M. Lyons (pro hac vice) Lacy G. Brown (pro hac vice) Attorneys for Defendants DaVita HealthCare Partners, Inc. and Total Renal Care, Inc. Case 2:15-cv-05225-SJO-PJW Document 75 Filed 12/19/16 Page 20 of 20 Page ID #:1468 HOGAN LOVELLS US LLP ATTO RN EY S AT LA W LOS A NG EL ES DECLARATION OF DAVID W. SKAAR ISO DEFENDANTS’ MOTION TO DISMISS 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 HOGAN LOVELLS US LLP David W. Skaar (State Bar No. 265377) 1999 Avenue of the Stars, Suite 1400 Los Angeles, California 90067 Telephone: (310) 785-4600 Facsimile: (310) 785-4601 david.skaar@hoganlovells.com HOGAN LOVELLS US LLP Michael C. Theis (pro hac vice) Emily M. Lyons (pro hac vice) 1200 Seventeenth Street, Suite 1500 Denver, Colorado 80202 Telephone: (303) 899-7300 Facsimile: (303) 899-7333 michael.theis@hoganlovells.com emily.lyons@hoganlovells.com Attorneys for Defendants DAVITA HEALTHCARE PARTNERS, INC. and TOTAL RENAL CARE, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UNITED STATES OF AMERICA EX REL NASRIN YOUSEFMORROWATTI, Plaintiff, v. DAVITA HEALTHCARE PARTNERS, INC., and TOTAL RENAL CARE, INC., Defendants. Case No. 2:15-CV-05225-SJO (PJWx) DECLARATION OF DAVID W. SKAAR IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS RELATOR’S SECOND AMENDED COMPLAINT Date: January 17, 2017 Time: 10:00 a.m. Judge: Hon. S. James Otero Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 1 of 9 Page ID #:1469 HOGAN LOVELLS US LLP ATTO RN EY S AT LA W LOS A NG EL ES - 2 - DECLARATION OF DAVID W. SKAAR ISO DEFENDANTS’ MOTION TO DISMISS 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 I, David W. Skaar, declare as follows: 1. I am an attorney at law duly licensed to practice before all the courts of the State of California. I am a senior associate with the law firm of Hogan Lovells US LLP, counsel of record for Defendants DaVita Healthcare Partners, Inc. and Total Renal Care, Inc. (“DaVita”) in the above-captioned matter. I submit this declaration in support of DaVita’s motion to dismiss the Second Amended Complaint in this matter (the “Motion”). If called as a witness, I could and would testify competently about each of the matters stated herein. 2. Pursuant to Local Civil Rule 7-3, on December 12, 2016, I called Relator’s counsel, Ms. Nasrin Morrowatti, to discuss the bases for this Motion. I received a recorded message indicating that Ms. Morrowatti’s voicemail had not been set up, and indicating that I could not leave a message. 3. A short time later, I received a message from Ms. Morrowatti’s caretaker. Based on his message, I understood that Ms. Morrowatti was ill and unable to speak about this matter. 4. Later the same day, I sent Ms. Morrowatti an e-mail outlining the bases for the Motion. 5. At about 5:30 p.m. on December 12, 2016, Ms. Morrowatti left a voice message for me, indicating that she might be available to discuss this matter during the afternoon on December 13, 2016. 6. On December 13, 2016, I received an e-mail from Ms. Morrowatti indicating that she could not talk, but requesting that I provide a more detailed explanation of the bases for the Motion. 7. On December 15, 2016, I sent Ms. Morrowatti an e-mail with a further explanation of the bases for the Motion. 8. On December 16, 2016, I received an e-mail from Ms. Morrowatti indicating that she was still sick but that she would look into the authorities that I had provided. Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 2 of 9 Page ID #:1470 HOGAN LOVELLS US LLP ATTO RN EY S AT LA W LOS A NG EL ES - 3 - DECLARATION OF DAVID W. SKAAR ISO DEFENDANTS’ MOTION TO DISMISS 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 9. Based on Ms. Morrowatti’s December 16, 2016, e-mail, in particular her statements about her Second Amended Complaint being “longer than 29 pages” and being “numbered,” I believed that Ms. Morrowatti was unclear regarding the document that she filed as the Second Amended Complaint. Therefore, on December 16, 2016, I responded to Ms. Morrowatti’s e-mail and attached a copy of the Second Amended Complaint, ECF No. 74. I also informed Ms. Morrowatti that we would be responding to the Second Amended Complaint no later than December 19, 2016. 10. On December 19, 2016, Ms. Morrowatti responded to my e-mail and claimed she “made a mistake and filed an incorrect second amended Complaint” and that she would “be more than happy to stipulate and not raise an objection if you file your motion after Dec. 19.” 11. On December 19, 2016, I replied and told Ms. Morrowatti that today is DaVita’s deadline to respond to the Second Amended Complaint, and DaVita intended to comply. Also, I noted that if Relator needed additional relief, she would have to seek that relief from the Court. 12. A true and correct copy of my e-mail correspondence with Ms. Morrowatti between December 12, 2016, and December 19, 2016, is attached hereto as Exhibit A. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 19, 2016, in Los Angeles, California. /S/ David W. Skaar David W. Skaar Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 3 of 9 Page ID #:1471 EXHIBIT A Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 4 of 9 Page ID #:1472 1 From: Skaar, David W. Sent: Monday, December 19, 2016 11:02 AM To: ni nashnash Cc: Theis, Michael C.; Lyons, Emily M.; Brown, Lacy G. Subject: RE: Morrowatti/DaVita Nasrin, I appreciate your message. Today is the deadline the Court set for us to respond to the SAC, and we intend to comply with that order. If you need additional relief based on the fact that you again filed a complaint by mistake, your request will need to be directed to the Court. Thanks, David From: ni nashnash [mailto:iliveforjustice@gmail.com] Sent: Monday, December 19, 2016 8:45 AM To: Skaar, David W. Subject: Re: Morrowatti/DaVita Dear David: Hi, thank you for sending me the document, it seems I have made a mistake and filed an incorrect second amended Complaint some and not the one I had indente to. As I stated in my previous e-mail, I was making a good faith attempt to resolve the issues, but you seem to be interested in filing the motion to dismiss regardless, as you stated in your e-mail, your dead line is Dec. 19. If your dead line is Dec. 19, because of procedure, I will be more than happy to stipulate and not raise an objection if you file your motion after Dec. 19, just incase we are not able to resolve the issues and you if you have to file your dismissal. Any ways, my apology, my inadvertent mistake is due to the severe sleepiness caused by low vitamin D, high urea, and infection, and medication. Please e-mail me and let me know Thanks, Nasrin On Fri, Dec 16, 2016 at 3:58 PM, Skaar, David W. wrote: Nasrin, I’m sorry to hear that you haven’t been feeling well. Our deadline to respond to your Second Amended Complaint is Monday, 12/19, and we intend to meet that deadline. I have attached a copy of your Second Amended Complaint, so that you can see for yourself the problems that I identified in my prior email. Thank you, David Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 5 of 9 Page ID #:1473 2 From: ni nashnash [mailto:iliveforjustice@gmail.com] Sent: Friday, December 16, 2016 3:53 PM To: Skaar, David W. Subject: Re: Morrowatti/DaVita David Hi, thank you, I have been having a full blown infection lingering for the past few weeks, and has caused me to feel sleepy and chills, I am now on antibiotics, hopefully, will be better in a few days, once it kicks in. Danny is assisting me typing this e-mail, as I am resting still half way sleep, sure I would like to discuss the issues, you said 29 pages, but as recall the second amended complaint was longer than 29 pages and had resolved some of the issues you have raised, and was numbered, so I have to see why 29 pages and why it is not numbered. In regards to the authorities you have cited I have to check the authorities and get back with you and if those authorities support your position, I will make a good faith attempt to resolve it and if I am authorized to remove them, but to my knowledge, the "seal" is not jurisdictional, besides you are assuming that such facts were not disclosed. From what I recall, I made a distinction between the Relator and Plaintiff as they relate to the FCA and common law claims. That being said, I will check the authorities you have cited, and the second amended Complaint and will address and discuss the issues if you are available on Sunday or Monday let say before noon or any time next week. Please e-mail me and let me know. Thanks, Nasrin On Thu, Dec 15, 2016 at 12:30 PM, Skaar, David W. wrote: Nasrin, Thank you for your e-mail. I hope you are well. Per your request, some of the authorities supporting our motion are outlined below: • Rule 8, Rule 9(b) and the Court’s prior orders provided specific instructions for any subsequently filed complaint, including to (i) omit “block quotations from legal authorities,” (ii) “clearly identify the specific Medicare regulations allegedly violated by Defendants,” (iv) organize the complaint “in a logical manner using comprehensible language,” (v) use paragraph numbers, and (vi) omit “confusing, distracting, ambiguous, and unintelligible” language. Your Second Amended Complaint does not comply with these instructions. Among other things, the allegations are not numbered, the complaint does not explain who the various parties are and how they can be liable, the complaint does not explain how the Court can have jurisdiction over your non-FCA claims, and the complaint still uses highlighting, headers and Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 6 of 9 Page ID #:1474 3 block quotations that make the document incomprehensible. In addition, although the complaint is has been edited down to 29 pages, it cuts off mid-sentence, and does not state any causes of action or prayer for relief. • 31 USC § 3730(b)(2) requires that a qui tam complaint be filed under seal and served, with a written disclosure of material evidence, on the United States. Although the original complaint was purportedly filed and served in this manner, the new complaint - which seems to contain new theories of relief, and which names a host of new defendants - was not. • The Second Amended Complaint seems to allege various non-FCA statutory violations and a variety of state common law claims. However, the complaint does not explain whether you are asserting these claims on your behalf or on behalf of the United States. Under either scenario, the complaint also fails to explain how the Court could have jurisdiction over these claims. Please let me know if you would like to talk about any of these issues. Thank you, David From: ni nashnash [mailto:iliveforjustice@gmail.com] Sent: Tuesday, December 13, 2016 4:02 PM To: Skaar, David W. Subject: Re: Morrowatti/DaVita Dec. 13, 16 Hi, David, called you yesterday and left a voice that I will contact you late afternoon Dec. 13, 16, sorry I missed your call yesterday, I was sleeping in very bad shape for the past few weeks, very tired, cold with extr me chill and all I want to do is to sleep, so Danyy called you, ok, right now I can not concentrate and have shortness of breath pls forgive my writing if I do not make sens, ok, so for 8a I thought I made the 2nd amended Complaint shorter, I will review again and contact you in a few days if I am still alive, on the other issues you raised pls give me the authority and I will review the law and get back to you in a few days, in short I thought I removed UCLA and Noridian as FCA and only sue on individual b sis and I thought in my 2nd amended Complaint I made it clear and a distinction that I was acting as a Relator for the FCA and an individual Plaintiff for the State Law Tort, Contract etc., but there is jurisdiction f r Medical as I explained before, I am too weak to go over it now, forgive me, but cite the authorities on every issue you are raising, the 8a I will review but others pls email me, I will explain my phone right now I do not have energy. Thanks, Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 7 of 9 Page ID #:1475 4 Nasrin,p.s., if I do not make it it was nice meeting you be and well today and every day Happy New Year On Mon, Dec 12, 2016 at 4:18 PM, Skaar, David W. wrote: Dear Nasrin, I tried to call you today to discuss the most recent omplaint that you filed in the DaVita case, but I received a recording indicating that your voicemail is not setup. Sometime later, I received a voicemail from a gentleman named Danny, who identified himself as your caretakr. Based on his message, it sounded like you are nable to discuss this matter. Nevertheless, I attempted to call him back to get more information, but again I received the same recording and was not permitted to leave a m ssage. I was trying to call you to discuss our forthcoming motion to dismiss, which will be made on the grounds that (1) the complaint still does not comply with FRCP Rule 8 or the Court’s orders regarding your prior complaints; (2) the complaint, which contains new theories of recovery and new defendants, should have been filed under seal and served on the government, and it was not; a d (3) it is unclear whether the new statutory and common law tort theories are asserted in your individual capacity or as a relator on behalf of the United States, but in any event, the claims would fail for lack of standing or f r lack of jurisdiction. We expect to file our motion no later than December 19th. I hope that we will have an opportunity to discuss these matters soon. Please give me a call if you are able to do so. Regards, David Skaar Senior Associate Hogan Lovells US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Tel: +1 310 785 4600 Direct: +1 310 785 4676 Fax: +1 310 785 4601 Email: david.skaar@hoganlovells.com www.hoganlovells.com Please consider the environment before printing this e-mail. Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 8 of 9 Page ID #:1476 5 About Hogan Lovells Hogan Lovells is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP. For more information, see www.hoganlovells.com. CONFIDENTIALITY. This email and any attachments are confidential, except where the email states it can be disclosed; it may also be privileged. If received in error, please do not disclose the contents to anyone, but notify the sender by return email and delete this email (and any attachments) from your system. Case 2:15-cv-05225-SJO-PJW Document 75-1 Filed 12/19/16 Page 9 of 9 Page ID #:1477