Opinion

United States of America v. Naples HMA, LLC

Court
District Court, M.D. Florida
Filed
Apr 13, 2020
Cited by
0 cases
Authority
More cited than 19.7%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

UNITED STATES OF AMERICA, ex

rel. and ANDREA SCHULTZ,

Plaintiffs,

v. Case No: 2:17-cv-237-FtM-29MRM

NAPLES HEART RHYTHM

SPECIALISTS, P.A. and

KENNETH PLUNKITT, Doctor,

Defendants.

OPINION AND ORDER

This matter comes before the Court on review of defendant’s

Motion to Dismiss (Doc. #32) filed on July 29, 2019. Plaintiff

filed a Response in Opposition (Doc. #34) on August 11, 2019. For

the reasons set forth below, the motion is denied.

I.

This case arises out of an alleged years-long scheme to

defraud the government healthcare programs Medicare and Medicaid.

Relator Andrea Schultz (Relator) filed a qui tam Complaint (Doc.

#1) on May 4, 2017. The Government declined to intervene in this

case on January 1, 2019 (Doc. #2), and Relator filed an Amended

Complaint (Doc. #21) on July 3, 2019. The Amended Complaint

asserts claims against defendants Naples Heart Rhythm Specialists,

P.A. (NHRS) and Dr. Kenneth Plunkitt (Dr. Plunkitt) under the False

Claims Act and the Florida False Claims Act.

According to the Amended Complaint (Doc. #21): Relator is a

registered nurse (RN) and is employed by Naples HMA, LLC (HMA).1

(Doc. #21, ¶ 8.) Dr. Plunkitt is a physician who is “Board

Certified in internal medicine-cardiovascular disease and internal

medicine-clinical cardiac electrophysiology.” (Id. ¶ 10.) As

part of her HMA employment, Relator works in the cardiac

catheterization lab at Physicians Regional Medical Center (PRMC),

where she “has regularly worked alongside” Dr. Plunkitt. (Id. ¶

8.)

Since the beginning of her time working at PRMC, Relator

witnessed Dr. Plunkitt submit “false claims to Medicare and

Medicaid for [] unnecessary and dangerous lead extractions and

pocket revisions performed by [Dr. Plunkitt] for pecuniary gain

and not medical necessity.” (Id. ¶ 25.) A lead is a “special

wire that delivers energy from a pacemaker or [implantable

cardioverter-defibrillator] to the heart muscle.” (Id. ¶ 28.)

Unnecessary lead extractions can be dangerous because leads “that

have been in place for many years can become very attached to the

heart and blood vessel walls, making them difficult to remove.”

1 HMA was named as a defendant in the initial qui tam

Complaint, but was voluntarily dismissed by Relator on May 31,

2019. (Doc. #15).

(Id. ¶ 32.) According to the “Chief Medical Consultant for the

California Correctional Health Care Services Office of Legal

Affairs . . . the extraction of defibrillator leads is not

routinely performed in the absence of an infection, particularly

when . . . the leads have been in place for an extended period.”

(Id. ¶ 36.)

Dr. Plunkitt has performed “lead extractions on the

overwhelming number of patients where [Relator] worked alongside

him regardless of whether there was an infection or not.” (Id. ¶

37.) In working alongside Dr. Plunkitt during such procedures,

Relator witnessed “many patients’ cardiac tissue ripped out of

their pericardium in large chunks.” (Id. ¶ 38.)

Dr. Plunkitt performed lead extractions on patients RB, CL,

IG, TP, and DO (collectively, the Representative Patients). (Id.

¶ 38.) These lead extractions were medically unnecessary because

Relator “saw firsthand that there was no infection or other adverse

symptom being caused by the implanted leads, and there was nothing

documented by [Dr. Plunkitt] in the patient charts” indicating the

need for lead extractions. (Id. ¶ 40.) When Dr. Plunkitt

performed lead extractions on the Representative Patients, he

pulled the leads out “with a great deal of force” because the leads

were “anchored into the [P]atients’ heart tissue.” (Id. ¶ 38.)

As part of her employment, Relator had access to Dr.

Plunkitt’s patient records and NHRS’ billing forms. (Id. ¶ 46.)

Relator observed Dr. Plunkitt fill out billing forms for the

Representative Patients’ “unnecessary lead removals.” (Id.)

Relator observed that the NHRS biller picked up the completed

billing forms, and Relator overheard that she “was instructed to

bill those [] codes.” (Id.) Relator also observed that the

Representative Patients’ “unnecessary lead extractions were

included in the PRMC procedure notes, which means that they were

automatically billed for by NHRS.” (Id.) Relator observed Dr.

Plunkitt engage in such billing for medically unnecessary lead

extractions for “hundreds more” patients. (Id.) In performing

some unnecessary lead extractions that resulted in a patient’s

cardiac tissue being ripped out, Dr. Plunkitt “would quickly remove

the heart tissue from [the] coil before [Relator] was able to

capture a photograph of the patients’ cardiac tissue having been

ripped from the patients’ beating heart.” (Id. ¶ 38.)

Relator also witnessed Dr. Plunkitt engage in the medically

unnecessary “implantation of defibrillators and pacemakers.” (Id.

¶ 53.) Relator observed that Dr. Plunkitt “frequently begins to

implant a defibrillator and then performs his own study in an

attempt to justify the implantation of the defibrillator after the

fact and justify the billing.” (Id. ¶ 57)(emphasis in original.)

Dr. Plunkitt “collected reimbursement on thousands of claims to

Medicare and Medicaid for the medically unnecessary

implantations.” (Id. ¶ 66.)

II.

In deciding a Rule 12(b)(6) motion to dismiss, the Court must

accept all factual allegations in a complaint as true and take

them in the light most favorable to plaintiff, Erickson v. Pardus,

551 U.S. 89 (2007), but “[l]egal conclusions without adequate

factual support are entitled to no assumption of truth,” Mamani v.

Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).

“Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal,

556 U.S. at 678. “Factual allegations that are merely consistent

with a defendant’s liability fall short of being facially

plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted). Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,

a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679.

To survive dismissal in a False Claims Act action, a complaint

must comply with Rule 9(b), which provides that “a party must state

with particularity the circumstances constituting fraud.” Fed. R.

Civ. P. 9(b); United States ex rel. Clausen v. Lab. Corp. of Am.,

290 F.3d 1301, 1308 (11th Cir. 2002). The complaint “must allege

the details of the defendants [sic] allegedly fraudulent acts,

when they occurred, and who engaged in them.” Id. (quotation and

citations omitted).

III.

Any person who “knowingly presents, or causes to be presented,

a false or fraudulent claim for payment or approval” or who

“knowingly makes, uses, or causes to be made or used, a false

record or statement material to a false or fraudulent claim” is

liable under the False Claims Act. 31 U.S.C. § 3729(a)(1)(A)-(B).

The False Claims Act “is the primary law on which the federal

government relies to recover losses caused by fraud . . . [and]

creates civil liability for making a false claim for payment by

the government.” McNutt ex rel. United States v. Haleyville Med.

Supplies, Inc., 423 F.3d 1256, 1259 (11th Cir. 2005). The Act’s

purpose is “to increase private citizen involvement in exposing

fraud against the government . . . .” Cooper v. Blue Cross & Blue

Shield of Fla., Inc., 19 F.3d 562, 565 (11th Cir. 1994). “Private

citizens, called qui tam relators, are authorized to bring FCA

suits on behalf of the United States.” United States v. AseraCare,

Inc., 938 F.3d 1278, 1284 (11th Cir. 2019)(citing 31 U.S.C. §

3730(b)). For her services, a relator is entitled to a substantial

percentage of the recovery. 31 U.S.C. § 3730(d). “In the

healthcare context, a False Claims Act violation typically

involves billing for services not provided or not medically

necessary.” United States v. HPC Healthcare, Inc., 723 F. App’x.

783, 788 (11th Cir. 2018)(citing United States ex rel. Sanchez v.

Lymphatx, Inc., 596 F.3d 1300, 1302 (11th Cir. 2010) (per curiam);

Clausen, 290 F.3d at 1303).

The Florida False Claims Act likewise “authorizes a private

person or the State [of Florida] to initiate a civil action against

a person or company who knowingly presents a false claim to the

State for payment.” Barati v. State, 198 So. 3d 69, 72 (Fla. 1st

DCA 2016). The Florida False Claims Act “mirrors the federal False

Claims Act and is subject to the same pleading standard” noted

infra. United States v. All Children's Health Sys., Inc., No.

8:11-CV-1687-T-27EAJ, 2013 WL 1651811, at *5 (M.D. Fla. Apr. 16,

2013).

A. Count I: § 3729(a)(1)(A) Claim

Count I asserts a claim against Dr. Plunkitt under 31 U.S.C.

§ 3729(a)(1)(A) of the False Claims Act. In essence, Relator

asserts that Dr. Plunkitt presented claims for payment to Medicare

and Medicaid which were false because a portion of his services

was not medically necessary.

Section 3729(a)(1)(A) applies to “any person who-- (A)

knowingly presents, or causes to be presented, a false or

fraudulent claim for payment or approval . . . .” 31 U.S.C. §

3729(a)(1)(A). With respect to information, the term “knowingly”

“(A) mean[s] that a person . . . (i) has actual knowledge of the

information; (ii) acts in deliberate ignorance of the truth or

falsity of the information; or (iii) acts in reckless disregard of

the truth or falsity of the information; and (B) require[s] no

proof of specific intent to defraud . . . .” 31 U.S.C. §

3729(b)(1)(A)-(B). The term “claim” “(A) means any request or

demand, whether under a contract or otherwise, for money or

property . . . that (i) is presented to an officer, employee, or

agent of the United States . . . .” 31 U.S.C. § 3729(b)(2)(A).

Dr. Plunkitt argues he is entitled to dismissal of Count I

because (1) Relator’s assertion that Dr. Plunkitt performed

medically unnecessary procedures is premised on “unqualified and

unsupported opinions;” and (2) Relator failed to plead this claim

with particularity, as required by Rule 9(b). (Doc. #32, pp. 11-

12.) The Court finds that neither is a basis for dismissal.

(1) Allegedly Unqualified Expert Opinions

In the Amended Complaint, Relator asserts that “rarely is it

truly medically necessary to perform a lead extraction unless the

lead has caused an infection,” and the “infection rate is just 1-

3%.” (Doc. #21, ¶ 36.) Relator further asserts that unnecessary

lead extractions are dangerous when a patient’s lead has “been in

place for an extended period” because removal may “put a patient

at greater risk of an adverse health event.” (Id.) Relator relies

on “Chief Medical Consultant for the California Correctional

Health Care Services Office of Legal Affairs, Dr. Bennett Feinberg”

as support for these assertions. (Id.) As to the Representative

Patients, Relator alleges the lead extractions were medically

unnecessary because she observed (1) there was no infection; (2)

there were no “other adverse symptom[s] being caused by the

implanted leads”; and (3) their medical charts did not indicate

any need to perform such lead extractions. (Id. ¶ 40.)

Dr. Plunkitt first argues that the Court should disregard

these alleged facts because under Fla. Stat. § 766.102(5)(a)-(b)

Relator and Dr. Feinberg are “not permitted to offer expert

opinions about the standard of care applicable to Dr. Plunkitt.”

(Doc. #32, p. 11.) This argument is misplaced. Section

766.102(5)(a)-(b) of the Florida Statutes govern who may provide

expert opinion testimony in a state-law medical malpractice

lawsuit. The present case is not a medical malpractice case. The

Court is aware of no legal basis – and Dr. Plunkitt cites to none

- to apply Fla. Stat. § 766.102 to the review of a federal False

Claims Act complaint. The Court therefore denies this portion

of Dr. Plunkitt’s motion to dismiss.

Citing to various medical journal articles, Dr. Plunkitt also

disputes Relator’s assertions as to the lead infection rate and

other medical definitions. In disputing these allegations and

relying on his own medical sources, Dr. Plunkitt argues he is

entitled to dismissal because “the entire premise” of Relator’s

medical claims is wrong. (Doc. #32, p. 13.) At this stage of the

proceedings, however, the Court may not resolve the parties’

disputes as to the underlying medical literature. See Iqbal, 556

U.S. at 679 (“When there are well-pleaded factual allegations, a

court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.”).

Even if the Court were to reject Relator’s assertion that the

lead infection rate is 1-3% and adopt Dr. Plunkitt’s contention

that the rate is “as high as 7%,” that would not negate the bases

of relator’s allegations that Dr. Plunkitt performed medically

unnecessary lead extractions. As noted infra, Relator alleges

that Dr. Plunkitt’s lead extractions were medically unnecessary

because (1) there was no infection present (which is the primary

reason lead extractions are conducted), (2) the leads were not

causing any adverse symptoms, and (3) the medical charts provided

no reason for performing such extractions. The Court therefore

denies this portion of Dr. Plunkitt’s motion to dismiss.

(2) Whether Relator Pled Count I with Particularity

As the text of § 3729(a)(1)(A) makes clear,

[t]he submission of a false claim is “the sine

qua non of a False Claims Act violation.”

Clausen, 290 F.3d at 1311. “Because it is the

submission of a fraudulent claim that gives

rise to liability under the False Claims Act,

that submission must be pleaded with

particularity and not inferred from the

circumstances.” Corsello, 428 F.3d at 1013.

Therefore, unless a relator alleges with

particularity that false claims were actually

submitted to the government, our precedent

holds that dismissal is proper.

United States v. HPC Healthcare, Inc., 723 F. App’x. 783, 789 (11th

Cir. 2018).

To plead a Section 3729(a)(1)(A) claim with sufficient

particularity, a complaint must “allege the ‘who,’ ‘what,’

‘where,’ ‘when,’ and ‘how’ of fraudulent submissions to the

government.” Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th

Cir. 2005). A relator may not “merely [] describe a private scheme

in detail but then [] allege simply and without any stated reason

for h[er] belief that claims requesting illegal payments must have

been submitted, were likely submitted or should have been submitted

to the Government.” Clausen, 290 F.3d at 1311. Thus, a complaint

must contain “some indicia of reliability . . . to support the

allegation of an actual false claim for payment being made to the

Government.” Id. (emphasis in original).

Dr. Plunkitt argues that Relator has failed to “allege

reliable, detailed information to identify a single false or

fraudulent claim that Dr. Plunkitt submitted.” (Doc. #32, p. 16.)

The Court disagrees.

In the Amended Complaint, Relator alleges that she observed

Dr. Plunkitt perform unnecessary lead extractions and “personally

add[]” billing codes for such procedures on the Representative

Patients’ billing forms. (Doc. #21, ¶ 46.) The Amended Complaint

includes the dates Dr. Plunkitt performed the allegedly

unnecessary procedures on the Representative Patients, and the

Amended Complaint has attached photographs of medical equipment

used on the Representative Patients; in those photographs, the bag

containing such medical equipment includes the date of the

Representative Patients’ admittance and their redacted names and

dates of birth. The Amended Complaint also alleges Relator

observed that (1) such forms were given to NHRS’ biller, who

Relator overheard “was instructed to bill those [] codes” and (2)

the “unnecessary lead extractions were included in the PRMC

procedure notes, which means that they were automatically billed

for.” (Id.)

The Court finds such factual allegations, coupled with the

Amended Complaint’s attachments, provide the “the necessary

indicia of reliability that a false claim was actually submitted”

and thus satisfy Rule 9(b)’s particularity requirement. United

States ex rel. Mastej v. Health Mgmt. Assocs., Inc., 591 F. App'x

693, 704 (11th Cir. 2014). Although Relator has not provided

specific details for each allegedly unnecessary medical procedure

(Relator alleges Dr. Plunkit performed hundreds of unnecessary

lead extractions and defibrillator and pacemaker implantations),

Dr. Plunkitt is not entitled to dismissal because the Amended

Complaint contains “some of [the required] information for at least

some of the claims.” Clausen, 290 F.3d at 1312 n.21.

Although Dr. Plunkitt asserts that Relator does not work “in

a position that gave her access to billing documents” and has no

“personal knowledge of or involvement in Dr. Plunkitt’s billing,”

the Amended Complaint alleges otherwise. (Doc. #32, p. 16.) The

Amended Complaint explicitly asserts that Relator “had access to

each patients’ medical records and NHRS’ billing form,” and Relator

has attached a billing form to the Amended Complaint. (Doc. #21,

¶ 46); (Doc. #21-6.) The Court thus accepts such well-pleaded

facts as true and will not resolve disputed issues of fact at this

stage of the proceedings. Iqbal, 556 U.S. at 679 (“When there are

well-pleaded factual allegations, a court should assume their

veracity.”). The allegations in the Amended Complaint, unlike in

the cases relied upon by Dr. Plunkitt, United States ex rel. Atkins

v. McInteer, 470 F.3d 1350, 1353 (11th Cir. 2006), United States

v. LifePath Hospice, Inc., No. 8:10-CV-1061-T-30TGW, 2016 WL

5239863, at *1 (M.D. Fla. Sept. 22, 2016), are sufficient under

Rule 9(b). Unlike those cases, the instant pleading does not

merely contain conclusory allegations that Dr. Plunkitt submitted

false claims to the government. Instead, the Amended Complaint

alleges that Relator observed Dr. Plunkitt personally add billing

codes for the allegedly unnecessary lead extractions, that she

overheard the NHRS biller “was instructed to bill those CPT codes,”

and that she observed that the extractions “were included in the

PRMC procedure notes, which means that they were automatically

billed for by NHRS.” (Doc. #21, ¶ 46.) Collectively, these

alleged first-hand observations – which were not present in

LifePath and Atkins - provide the required indicia of reliability

to support Relator’s assertion that Dr. Plunkitt actually

submitted false claims to the government.

Courts have found similar allegations sufficient to satisfy

Rule 9(b)’s particularity requirement. In United States v. R&F

Properties of Lake Cty., Inc., 433 F.3d 1349, 1360 (11th Cir.

2005), a nurse practitioner alleged a medical facility submitted

false medical claims to the government. Although she had no

personal involvement in billing and her belief was based upon a

“personal discussion with [the facility’s] office administrator”

who had knowledge about the billing practices, the court found

such “allegations [were] sufficient to explain why [she] believed

[the facility] submitted false or fraudulent claims.” Id. at 1360.

Similarly, in United States ex rel. Saldivar v. Fresenius Med.

Care Holdings, Inc., 906 F. Supp. 2d 1264, 1269 (N.D. Ga. 2012),

the relator worked for a dialysis service provider and managed the

facility’s inventory of two drugs. Based upon his observations of

the inventory, the relator believed the facility submitted

“fraudulent reimbursement claims” by “bill[ing] the government for

doses of [drugs] that it received for free.” Id. Although the

relator did not work in the billing department, the court found

the relator satisfied Rule 9(b) because his belief was based upon

his observation of the facility’s inventory documents and a

conversation with “his clinical manager inform[ing] him that those

documents were used as the basis upon which [the facility] billed

for reimbursement.” Id. at 1277.

For the foregoing reasons, the Court finds Relator has alleged

a Section 3729(a)(1)(A) claim with particularity under Rule 9(b).

Dr. Plunkitt’s motion is thus denied as to Count I.

B. Count II: § 3729(a)(1)(B) Claim

Count II asserts a claim against Dr. Plunkitt under §

3729(a)(1)(B) of the False Claims Act. Section 3729(a)(1)(B)

imposes liability on any person who “knowingly makes, uses, or

causes to be made or used, a false record or statement material to

a false or fraudulent claim . . . .” Dr. Plunkitt argues the

elements of a claim under Section 3729(a)(1)(B) include that the

government pay out money or forfeit moneys due. (Doc. #32, p.

20)(citing United States ex rel. Bernier v. Infilaw Corp., 347 F.

Supp. 3d 1075, 1085 (M.D. Fla. 2018)). Dr. Plunkitt moves to

dismiss this claim, arguing Relator failed to allege that “the

government ever paid [] a [fraudulent] claim.” (Doc. #32, p. 20.)

In Bernier, the court cited a prior version of the False

Claims Act, which was previously codified at 31 U.S.C. §

3729(a)(2). That version of the Act imposed liability on any

person who “knowingly ma[de], use[d], or cause[d] to be made or

used, a false record or statement to get a false or fraudulent

claim paid or approved by the Government.” 31 U.S.C. § 3729(a)(2)

(2006). To plead a claim under that version of the Act, a complaint

had to allege that a false statement actually “caus[ed] [] the

government to pay out money or forfeit moneys due.” Urquilla-Diaz

v. Kaplan Univ., 780 F.3d 1039, 1045 (11th Cir. 2015).

“On May 20, 2009, Congress enacted the Fraud Enforcement and

Recovery Act of 2009 (‘FERA’), Pub. L. No. 111–21, 123 Stat. 1617

(2009), which amended the FCA and re-designated 31 U.S.C. §

3729(a)(1) as 31 U.S.C. § 3729(a)(1)(A) and 31 U.S.C. § 3729(a)(2)

as 31 U.S.C. § 3729(a)(1)(B).” United States ex rel. Phalp v.

Lincare Holdings, Inc., 857 F.3d 1148, 1154 (11th Cir. 2017).2

This current version of the False Claims Act imposes liability on

any person who “knowingly makes, uses, or causes to be made or

used, a false record or statement material to a false or fraudulent

claim.” 31 U.S.C. § 3729(a)(1)(B). Because Congress has omitted

the statutory language that a false statement must actually cause

the government “to pay out money,” the previous pleading standard

is no longer applicable under the current version of the False

Claims Act. See United States ex rel Patel v. GE Healthcare,

Inc., No. 8:14-CV-120-T-33TGW, 2017 WL 4310263, at *8 (M.D. Fla.

Sept. 28, 2017)(“[T]he Court is not persuaded that the requirements

under § 3729(a)(2) are applicable to the . . . claims brought under

§ 3729(a)(1)(B).”).

2 This iteration of the False Claims Act applies to Relator’s

claims, as she asserts Dr. Plunkitt’s allegedly violative conduct

occurred after the 2009 amendment.

To state a claim under Section 3729(a)(1)(B) – the

applicable version of the False Claims Act - a complaint must

allege that “(1) the defendant made (or caused to be made) a false

statement, (2) the defendant knew it to be false, and (3) the

statement was material to a false claim.” Lincare Holdings, Inc.,

857 F.3d at 1154. A false statement is “material” if it has “a

natural tendency to influence, or be capable of influencing, the

payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4).

Since government payment is not an element of a claim under Section

3729(a)(1)(B), Dr. Plunkitt’s motion to dismiss Count II is

denied.3

C. Count III: Fla. Stat. § 68.082 Claim

Count III asserts a claim against Dr. Plunkitt under Fla.

Stat. § 68.082(a)-(b) of the Florida False Claims Act. These

provisions of the Florida False Claims Act impose liability on any

person who:

3 Dr. Plunkitt also argues he is entitled to dismissal of

Count II because “the opinions on which she bases her claim are

wrong.” (Doc. #32, p. 21). As noted supra, however, the Court

may not resolve disputed issues of fact at this stage of the

proceedings. Additionally, Dr. Plunkitt appears to argue that

Relator has failed to plausibly allege Dr. Plunkitt knowingly made

a false representation. As noted earlier, however, the Court finds

Relator has plausibly alleged that Dr. Plunkitt submitted false

claims for reimbursement to the government. Moreover, Relator’s

general assertion that Dr. Plunkitt knowingly submitted such false

claims is sufficient at this stage of the proceedings. Fed. R.

Civ. P. 9(b) (“[K]nowledge, and other conditions of a person's

mind may be alleged generally.”).

(a) Knowingly presents or causes to be presented a false

or fraudulent claim for payment or approval; [or]

(bo) Knowingly makes, uses, or causes to be made or used

a false record or statement material to a false or

fraudulent claim.

Fla. Stat. § 68.082(a)-(b).

Dr. Plunkitt agrees that these sections of the Florida False

Claims Act mirror their federal counterparts and are subject to

the same Rule 9(b) pleading standards. Dr. Plunkitt argues he is

entitled to dismissal of Count III for the same reasons noted in

Counts I and II. Because the Court has rejected those arguments,

the Court also denies Dr. Plunkitt’s motion as to Count III.

Accordingly, it is now

ORDERED :

Defendant’s Motion to Dismiss (Doc. #32) is DENIED.

DONE AND ORDERED at Fort Myers, Florida, this 13th day of

April, 2020.

\ £,. = AA

E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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