Government Employees Insurance Co. v. AFO Imaging, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GOVERNMENT EMPLOYEES

INSURANCE CO., GEICO

INDEMNITY CO., GEICO

GENERAL INSURANCE COMPANY,

and GEICO CASULTY CO.,

Plaintiffs,

v. Case No. 8:20-cv-2419-VMC-CPT

AFO IMAGING, INC. d/b/a

ADVANCED DIAGNOSTIC GROUP,

RADIOLOGY IMAGING

SPECIALISTS, LLC d/b/a

CAREFIRST IMAGING, KEVIN

JOHNSON, CHINTAN DESAI,

ROBERT D. MARTINEZ, and

STANLEY ZIMMELMAN,

Defendants.

/

ORDER

This matter comes before the Court upon consideration of

Defendants AFO Imaging, Inc. d/b/a Advanced Diagnostic Group,

Kevin Johnson, Dr. Chintan Desai, Dr. Robert D. Martinez, and

Dr. Stanley Zimmelman’s (collectively, the “Advanced

Diagnostic Defendants’”) Motion to Dismiss (Doc. # 36), filed

on January 4, 2021. Plaintiffs Government Employees Insurance

Co., Geico Indemnity Co., Geico General Insurance Company,

and GEICO Casualty Co. responded on January 19, 2021. (Doc.

# 46). For the reasons set forth below, the Motion is denied.

I. Background

Plaintiffs are motor vehicle insurers that have

reimbursed Defendants for certain personal injury protection

insurance (“PIP insurance”) covered radiology procedures.

(Doc. # 1 at ¶¶ 1, 9). Defendants are medical diagnostic

centers and medical diagnostic center owners or directors.

(Id. at ¶¶ 10-15). Advanced Diagnostic owns and operates

multiple Florida diagnostic centers, with eight locations in

Tampa, Brandon, Lakeland, Kissimmee, Orlando, and Palm Beach

Gardens. (Id. at ¶ 10). During the relevant time periods,

Plaintiffs allege that Kevin Johnson was the owner of Advanced

Diagnostic. (Id. at ¶ 12). Dr. Chintan Desai is a radiologist

who serves or served as the medical director of Advanced

Diagnostic’s Tampa, Brandon, and Orlando locations. (Id. at

¶¶ 11, 15). Dr. Robert Martinez is a physician who serves or

served as the medical director of Advanced Diagnostic’s

Lakeland location. (Id. at ¶ 13). Dr. Stanley Zimmelman is a

physician who serves or served as the medical director of

four of Advanced Diagnostic’s locations – in Tampa, Palm Beach

Gardens, Kissimmee, and Orlando. (Id. at ¶ 14).

Plaintiffs aver that the Advanced Diagnostic Defendants

entered into two related fraudulent schemes. First,

Defendants allegedly submitted or caused to be submitted

thousands of PIP insurance charges for medically unnecessary,

falsified radiology services, namely for magnetic resonance

imaging (“MRIs”). (Id. at ¶¶ 1, 7). Second, the Advanced

Diagnostic medical centers allegedly operated in violation of

Florida law because their medical directors failed to

properly perform their duties. (Id. at ¶¶ 120-38).

In the first alleged fraudulent scheme, Plaintiffs aver

that the Advanced Diagnostic Defendants repeatedly billed

them for medically unnecessary MRIS from at least 2015 to the

present. (Doc. # 1 at ¶ 48). In support of this allegation,

Plaintiffs provide a substantial number of examples of PIP-

covered patients who were “involved in relatively minor, low-

speed, low-impact ‘fender-bender’ accidents,” and sustained

only minor, soft tissue injuries – to the extent that they

suffered any injuries at all. (Id. at ¶¶ 50-52, 53). These

patients either did not seek treatment at a hospital following

their accident or were discharged shortly thereafter without

being admitted. (Id. at ¶ 51). Following these relatively

minor accidents, the patients visited an Advanced Diagnostic

clinic, where an employee performed an MRI as an initial

diagnostic tool, despite the fact that “[i]n a legitimate

clinical setting, MRIs should not be used as an initial form

of diagnostic testing in the treatment of patients

complaining of soft tissue injuries such as sprains secondary

to automobile accidents.” (Id. at ¶¶ 55-58, 63). This is

because most “soft tissue injuries such as sprains and strains

will resolve over a period of weeks through conservative

treatment, or no treatment at all.” (Id. at ¶ 66).

Not only did a substantial number of patients involved

in these minor accidents receive MRIs, but they also received

substantially the same MRIs. (Id. at ¶ 70). The Advanced

Diagnostic Defendants “routinely purported to perform and/or

provide both cervical and lumbar MRIs with respect to

[patients] who had not been seriously injured in their

accidents, did not plausibly require both cervical and lumbar

MRIs (or any MRIs), and in any case did not require cervical

and lumbar MRIs as a first-line diagnostic test, before they

had failed a legitimate course of conservative treatment.”

(Id. at ¶ 71). This is also despite the fact that these

patients were different ages, heights, weights, were in

different physical conditions and locations within the

vehicle, and the locations of impact differed. (Id. at ¶¶ 73-

78). Plaintiffs provide a number of representative examples.

(Id. at ¶ 79). For instance:

On June 28, 2017 two Insureds – JK and KG – were

involved in the same automobile accident. JK and KG

were different ages, in different physical

condition, and experienced the impact from

different positions in the vehicle. To the extent

that they suffered any injuries at all in the

accident, their injuries were different, and

resolved at different rates. They did not require

substantially identical MRIs on the same date as

their accident. Even so, Advanced Diagnostic,

Johnson, Zimmelman, and Desai submitted bills to

GEICO for MRI scans purportedly performed on the

cervical spine and lumbar spine of both JK and KG

at AD-Kissimmee on June 28, 2017.

* * *

On March 29, 2019, two Insureds – BD and JD – were

involved in the same automobile accident. BD and JD

were different ages, in different physical

condition, and experienced the impact from

different positions in the vehicle. To the extent

that they suffered any injuries at all in the

accident, their injuries were different, and

resolved at different rates. They did not require

substantially identical MRIs on or about the same

date after their accident. Even so, Advanced

Diagnostic, Johnson, Martinez, and Desai submitted

bills to GEICO for MRI scans purportedly performed

on the cervical and lumbar spines of BD and JD at

AD-Lakeland on April 18, 2019.

(Id.).

After performing these unnecessary MRIs, Plaintiffs

allege that the Advanced Diagnostic Defendants falsely

diagnosed these patients “in order to make it appear as if

the [patients] had suffered from serious injuries as the

result of their automobile accidents, when in fact they had

not.” (Id. at ¶ 83). In support of this, Plaintiffs provide

a number of examples of Advanced Diagnostic patients who were

involved in these aforementioned minor automobile accidents,

who did not visit a hospital or were discharged without being

admitted, and were then diagnosed with serious disc bulges

and “numerous herniations at multiple levels of their spines”

at Advanced Diagnostic. (Id. at ¶ 84). The physicians made

these diagnoses despite the fact that it is “improbable that

a minor accident actually would cause a patient to suffer

from numerous bulging discs at multiple levels of his or her

spine,” and that it is equally as unlikely that this would

“occur over and over again within a large cohort of patients

being treated within a small group of related radiology

practices.” (Id. at ¶¶ 94-95). For example:

On July 19, 2018, an Insured named KM was involved

in a minor automobile accident. In keeping with the

fact that the accident was minor, KM was not

seriously injured and was discharged from the

hospital emergency room hours after arriving

without being admitted to the hospital. To the

extent that KM experienced any health issues at all

as the result of the accident, they were minor soft

tissue injuries that did not require MRIs, not disc

herniations. Even so, after purportedly taking MRIs

of KM’s cervical spine and lumbar spine at AD-

Lakeland on July 31, 2018, Advanced Diagnostic,

Johnson, Martinez, and Desai falsely reported that

KM had disc herniations at the C3-4 and L5-S1 levels

of her spine.

* * *

On August 4, 2018, an Insured named EC was involved

in a minor automobile accident. In keeping with the

fact that the accident was minor, EC was not

seriously injured and was discharged from the

hospital emergency room hours after arriving

without being admitted to the hospital. To the

extent that EC experienced any health issues at all

as the result of the accident, they were minor soft

tissue injuries that did not require MRIs, not disc

herniations. Even so, after purportedly taking MRIs

of EC’s cervical spine and lumbar spine at AD-

Orlando 2 on September 6, 2018, Advanced

Diagnostic, Johnson, Zimmelman, and Desai falsely

reported that EC had disc herniations at the C3-4,

C4-5, C6-7, L3-4, L4-5, and L5-S1 levels of her

spine.

(Id. at ¶ 86).

Additionally, Plaintiffs allege that Dr. Desai, who

worked remotely and was responsible for interpreting these

MRIs, made these diagnoses without personally examining the

patients, and without referencing those patients’ medical

records. (Id. at ¶¶ 103-04). Despite not referencing those

materials, a number of Dr. Desai’s reports indicated that

these disc herniations and bulges were caused by the

automobile accidents in question. (Id. at ¶¶ 105-06). And,

Dr. Desai allegedly interpreted sixty to seventy MRIs per day

that were then submitted to Plaintiffs, which Plaintiffs

proffer indicates that they were not properly reviewed. (Id.

at ¶¶ 110-14). Taking these allegations together, Plaintiffs

posit that the Advanced Diagnostic Defendants exaggerated

these diagnoses in order “to ensure a steady stream of

referrals to [their clinics] for medically unnecessary MRIs.”

(Id. at ¶ 88). Defendants were allegedly then enriched by

this fraud by billing Plaintiffs for these MRIs – with Dr.

Desai, Dr. Martinez, and Dr. Zimmelman as medical directors

of the various clinics, and Johnson as the purported owner.

(Id. at ¶¶ 2, 10-15, 139-40).

In the second related scheme, Plaintiffs allege that the

Advanced Diagnostic clinics operated in violation the Florida

Health Care Clinic Act’s licensing requirements. (Doc. # 1 at

¶ 122). Under Florida law, when a clinic is not “wholly owned”

by a licensed health care practitioner, it must “appoint a

medical director or clinic director.” (Id. at ¶¶ 35-39); Fla.

Stat. § 400.9935(1) (2020). The Clinic Act requires these

medical directors to accept legal responsibility for certain

activities on behalf of the clinic, including the duty to

“[c]onduct systematic reviews of clinic billings to ensure

that the billings are not fraudulent or unlawful.” Fla. Stat.

§ 400.9935(1)(g). “Upon discovery of an unlawful charge, the

medical director . . . [must] take immediate corrective

action.” Id.

Plaintiffs aver that Johnson, who is not a licensed

health care practitioner, operated the Advanced Diagnostic

clinics without these requisite medical directors. (Doc. # 1

at ¶¶ 12, 122). Johnson allegedly did not recruit legitimate

physicians to serve in those posts so that he would be able

“to use Advanced Diagnostic as a vehicle to submit a large

amount of fraudulent PIP billing to GEICO and other Florida

automobile insurers.” (Id. at ¶ 123). Instead of recruiting

physicians who would properly oversee Advanced Diagnostic’s

billing, Johnson employed Dr. Zimmelman, Dr. Martinez, and

Dr. Desai “to falsely pose at the legitimate medical

director[s]” of various clinic locations. (Id. at ¶¶ 124-27).

Plaintiffs maintain that Dr. Desai, Dr. Martinez, and Dr.

Zimmelman never performed their duties as clinic directors,

instead ceding those oversight requirements to Johnson. (Id.

at ¶ 129). Had these individuals properly served in their

roles as medical directors, Plaintiffs posit that the

purported directors would have uncovered the fraudulent

billing of the unnecessary MRIs. (Id. at ¶ 131).

Plaintiffs filed this suit on October 16, 2020. (Doc. #

1). The complaint includes the following relevant causes of

action: declaratory judgment under 28 U.S.C. §§ 2201 and 2202

against Advanced Diagnostic (Count I), violations of Section

1962(c) of the Racketeer Influenced and Corrupt Organizations

Act (“RICO”) against Johnson (Count II), violations of

Section 1962(d) of RICO against Johnson, Dr. Desai, Dr.

Martinez, and Dr. Zimmelman (Count III), violations of the

Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”)

against Advanced Diagnostic, Johnson, Dr. Desai, Dr.

Martinez, and Dr. Zimmelman (Count IV), violations of Section

772.103(3) of the Florida RICO counterpart against Johnson

(Count V), violations of Section 772.103(4) of the Florida

RICO counterpart against Johnson, Dr. Desai, Dr. Martinez,

and Dr. Zimmelman (Count VI), common law fraud against the

Advanced Diagnostic Defendants (Count VII), and unjust

enrichment against the Advanced Diagnostic Defendants (Count

VIII).

The Advanced Diagnostic Defendants moved to dismiss the

claims against them on January 4, 2021. (Doc. # 36).

Plaintiffs have responded (Doc. # 46), and the Motion is now

ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), this Court accepts as true all the

allegations in the complaint and construes them in the light

most favorable to the plaintiff. Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,

the Court favors the plaintiff with all reasonable inferences

from the allegations in the complaint. Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).

But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quotations and citations omitted). Courts are not “bound to

accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The

Court must limit its consideration to “well-pleaded factual

allegations, documents central to or referenced in the

complaint, and matters judicially noticed.” La Grasta v.

First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

The Federal Rules of Civil Procedure accord a heightened

pleading standard to claims for fraud, requiring that they be

pled with particularity. Fed. R. Civ. P. 9(b). Under Rule

9(b), the “plaintiff must allege: (1) the precise statements,

documents, or misrepresentations made; (2) the time, place,

and person responsible for the statement; (3) the content and

manner in which these statements misled the [p]laintiffs; and

(4) what the defendants gained by the alleged fraud.” Am.

Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.

2010) (quoting Brooks v. Blue Cross & Blue Shield of Fla.,

Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)).

This “requirement serves an important purpose in fraud

actions by alerting defendants to the precise misconduct with

which they are charged and protecting defendants against

spurious charges of immoral and fraudulent behavior.” W.

Coast Roofing and Waterproofing, Inc. v. Johns Manville,

Inc., 287 F. App’x 81, 86 (11th Cir. 2008) (quoting Ziemba v.

Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)).

III. Analysis

The Advanced Diagnostic Defendants move to dismiss all

claims against them, arguing that (1) the complaint is an

impermissible shotgun pleading, and that (2) it fails to state

a claim under Rule 9(b) and Rule 12(b)(6). (Doc. # 36). The

Court will address each argument as to all counts in turn.

A. Shotgun Pleading

First, Defendants argue that the complaint should be

dismissed as a shotgun pleading because it: (1)

“impermissibly incorporates, as though fully set forth

therein, each and every allegation in paragraphs 1-149 for

all thirteen counts”; (2) “brings Counts 3, 4, 6, 7, and 8

against multiple [Advanced Diagnostic Defendants] without

specifying what conduct each Defendant allegedly contributed

to the cause”; and (3) “due to its length – 94 pages, 244

paragraphs, and 13 counts – the pleading cannot be considered

a short and plain statement of the claims showing that

[Plaintiffs are] entitled to relief.” (Doc. # 36 at 7-10)

(internal quotation marks and citations omitted).

“A defendant served with a shotgun complaint should move

the district court to dismiss the complaint pursuant to Rule

12(b)(6) or for a more definite statement pursuant to Rule

12(e) on the ground that the complaint provides it with

insufficient notice to enable it to file an answer.” Paylor

v. Hartford Fire Ins. Co., 748 F.3d 1117, 1126-27 (11th Cir.

2014) (footnotes omitted). The Eleventh Circuit has

“identified four rough types or categories of shotgun

pleadings”: (1) “a complaint containing multiple counts where

each count adopts the allegations of all preceding counts”;

(2) a complaint that is “replete with conclusory, vague, and

immaterial facts not obviously connected to any particular

cause of action”; (3) a complaint that does “not separat[e]

into a different count each cause of action or claim for

relief”; and (4) a complaint that “assert[s] multiple claims

against multiple defendants without specifying which of the

defendants are responsible for which acts or omissions, or

which of the defendants the claim is brought against.” Weiland

v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1322-23

(11th Cir. 2015). “The unifying characteristic of all types

of shotgun pleadings is that they fail to . . . give the

defendants adequate notice of the claims against them and the

grounds upon which each claim rests.” Id. at 1323.

Here, the Advanced Diagnostic Defendants argue that the

complaint falls within the first and fourth categories

identified in Weiland. (Doc. # 36 at 8-10). Regarding the

first category, the Advanced Diagnostic Defendants argue that

each count impermissibly incorporates every allegation in

paragraphs 1 through 149 of the complaint. (Id. at 8).

However, this does not make the complaint a shotgun pleading,

as the complaint realleges only the facts in the body of the

complaint, not those in the preceding counts. See Barmapov v.

Amuial, 986 F.3d 1321, 1321-22 (11th Cir. Feb. 3, 2021)

(“Barmapov’s second amended complaint does not fall into the

first category because although nine of the [nineteen] counts

incorporate almost every factual allegation in the complaint,

none of them adopts the allegations in the preceding

counts.”).

Regarding the fourth category, the Advanced Diagnostic

Defendants argue that the complaint impermissibly lumps the

action of multiple defendants together. (Doc. # 36 at 8-9).

However, the Court finds that the complaint includes

sufficient factual allegations as to each Advanced Diagnostic

Defendant to place them on notice of the allegations against

them. See Cont’l 332 Fund, LLC v. Albertelli, 317 F. Supp. 3d

1124, 1140 (M.D. Fla. 2018) (“Other courts have also reached

this nuanced distinction by approving claims lodged against

multiple defendants where the activities undertaken by each

defendant were alleged.”). The complaint explains the role of

each of the Advanced Diagnostic Defendants, in that Dr. Desai

evaluated the MRIs, created patient reports on behalf of

Advanced Diagnostic, and purportedly served as medical

director for three Advanced Diagnostic locations, which would

require him to oversee those locations’ PIP insurance

billing. (Doc. # 1 at ¶¶ 15, 100). Dr. Martinez and Dr.

Zimmelman purportedly served as medical directors for five of

Advanced Diagnostic’s locations, such that they also would

have overseen those locations’ insurance billing. (Id. at ¶¶

13-14). And, Johnson, as the purported owner of all of

Advanced Diagnostic’s clinics, allegedly oversaw the entire

corporation and operated the clinics, which he utilized “as

a vehicle to submit a massive amount of fraudulent PIP billing

to GEICO.” (Id. at ¶¶ 133-34).

This therefore does not constitute a shotgun pleading

under the fourth category identified in Weiland. See FFC

Mortg. Corp. v. Red Door Title Ins. Agency, Inc., No. 13-

61132-Civ-SCOLA, 2013 WL 12138556, at *3 (S.D. Fla. Dec. 12,

2013) (“These are specific acts that are connected to specific

Defendants. The Court therefore finds that FFC has not simply

lumped the Defendants together but has provided the specific

acts attributable to Pollack and Martinez to give sufficient

notice of the allegations of fraud against them.”).

And, the Court disagrees with the argument that the

complaint is so long that is constitutes a shotgun pleading.

(Doc. # 36 at 10). Although the Court appreciates that the

complaint is ninety-four pages and 244 paragraphs long, this

is a complex civil conspiracy case, and the length does not

make it so that Defendants are unable to prepare a proper

response. See Bailey v. Janssen Pharmaceutica, Inc., 288 F.

App’x 597, 603 (11th Cir. 2008) (“Moreover, a complaint – so

long as it is minimally sufficient to put a defendant on

notice of the claims against him – will not fail for mere

surplusage.”); Snow v. Etowah Cnty. Sheriff’s Dep’t, No.

4:20-cv-00344-ACA, 2020 WL 6899168, at *4 (N.D. Ala. Nov. 24,

2020) (“Length alone does not make a shotgun pleading[.]”).

Accordingly, the Court declines to dismiss the complaint

as a shotgun pleading. See Lenz v. Michaels Org., LLC, No.

8:19-cv-2950-TPB-AEP, 2020 WL 6119376, at *3 (M.D. Fla. Oct.

16, 2020) (“Although the complaint is unnecessarily lengthy,

and incorporates all prior factual allegations, the Court

finds that the complaint is sufficient to give Defendants

notice of the claims against them. Additionally, each

Plaintiff is not required to separately plead a distinct claim

against each Defendant.”).

B. RICO and Related State Law Claims

Next, the Advanced Diagnostic Defendants argue that

Counts II, III, V, and VI should be dismissed for failure to

state a claim under the federal and Florida RICO statutes

because the complaint: (1) fails to plead the predicate acts

with particularity; (2) fails to establish the existence of

an enterprise; and (3) lacks any particularized allegations

of a conspiracy. (Doc. # 36 at 16-19).

Counts II and V allege violations of Section 1962(c) of

the federal RICO statute and its Florida counterpart against

Johnson. (Doc. # 1 at ¶¶ 156-63, 181-87). Counts III and VI

allege violations of Section 1962(d) of the federal RICO

statute and its Florida counterpart against Johnson, Dr.

Desai, Dr. Martinez, and Dr. Zimmelman. (Id. at ¶¶ 164-71,

188-95). Because the Florida counterparts mirror the federal

RICO statute, the Court will discuss the federal and state

claims in conjunction. See Jackson, 372 F.3d at 1263 (“[T]he

analysis we apply to the plaintiffs’ federal RICO claims is

equally applicable to their state RICO claims.”).

1. Section 1962(c) and Related Florida Claim

The federal RICO statute “was enacted in 1970 and

prohibits racketeering activity connected to interstate

commerce.” Cisneros v. Petland, Inc., 972 F.3d 1204, 1210

(11th Cir. 2020) (citing Ray v. Spirit Airlines, Inc., 836

F.3d 1340, 1348 (11th Cir. 2016)). The statute reaches beyond

organized crime and should “be liberally construed to

effectuate its remedial purposes.” Boyle v. United States,

556 U.S. 938, 944 (2009) (citation omitted). Section 1962(c)

of the statute makes it “unlawful for any person employed by

or associated with any enterprise engaged in, or the

activities of which affect, interstate or foreign commerce,

to conduct or participate, directly or indirectly, in the

conduct of such enterprise’s affairs through a pattern of

racketeering activity or collection of unlawful debt.” 18

U.S.C. § 1962(c).

To state a claim under RICO, Plaintiffs must plausibly

allege that Johnson: “(1) operated or managed (2) an

enterprise (3) through a pattern (4) of racketeering activity

that included at least two predicate acts of racketeering,

which (5) caused (6) injury to the business or property of

the plaintiff.” Cisneros, 972 F.3d at 1211. Here, the alleged

predicate acts are violations of Section 1341 of the federal

mail fraud statute. (Doc. # 1 at ¶ 158). Because Plaintiffs’

RICO claims are wholly based on the predicate acts of mail

fraud, their substantive RICO allegations must comply with

Rule 9(b)’s heightened pleading standard. American Dental,

605 F.3d at 1291.

The Advanced Diagnostic Defendants allege that

Plaintiffs have failed to adequately plead the second and

fourth elements of their Section 1962(c) claim – that Johnson

engaged in an (2) enterprise pertaining to (4) racketeering

activity that included at least two predicate acts of

racketeering. (Doc. # 36 at 16-19).

a. Enterprise

Under the federal RICO statute, an “enterprise” is

defined as “any individual, partnership, corporation,

association, or other legal entity, and any union or group of

individuals associated in fact although not a legal entity.”

18 U.S.C. § 1961(4). Here, Plaintiffs are not alleging that

the enterprise is an association in fact, but a corporation

– Advanced Diagnostic, Inc.1 (Doc. # 1 at ¶ 157). Plaintiffs

allege that Johnson – as owner of Advanced Diagnostic –

operates diagnostic centers that he utilized to “submit[]

thousands of fraudulent charges on a continuous basis for

over three years seeking payments that Advanced Diagnostic

was not eligible to receive” under the Florida PIP statute.

(Doc. # 1 at ¶¶ 156-58). The complaint further alleges that

enterprise “engaged in inherently unlawful acts, inasmuch as

it continues to submit and attempt collection on fraudulent

1. The Advanced Diagnostic Defendants discuss at length

whether Plaintiffs meet their burden of alleging an

enterprise as an “association in fact,” but that test is

irrelevant given that all individuals alleged to be involved

in the scheme purportedly own, serve as medical directors of,

or provide radiology services as employees of the corporate

enterprise. (Doc. # 36 at 17-19). The corporation itself –

Advanced Diagnostic, Inc. – is not named as a defendant in

any of the RICO counts, and so Defendants are sufficiently

distinct from the enterprise. (Doc. # 1 at ¶¶ 156, 181); see

Roche Diagnostics Corp. v. Priority Healthcare Corp., 407 F.

Supp. 3d 1216, 1239 (N.D. Ala. 2019) (“Clearly distinguishing

the persons and the enterprise involved here, Roche alleges

the exact type of unlawful behavior described in Kushner and

Ray. The Amended Complaint asserts that Ms. Minga – through

PHC, which she co-founded with Ms. Carson – acquired

legitimate, pre-existing pharmacies and helped create false-

front pharmacies to conduct her scheme of submitting false

test strips for adjudication; Mr. Carson, meanwhile,

allegedly helped Ms. Minga operate Priority Care with his

pharmacy business knowledge. . . . The entire enterprise,

then allegedly constituted a funnel through which she could

channel unlawful activities, with the help of Mr. Carson and

others. The court finds that Roche adequately differentiates

between the persons and the enterprise, as required by Ray.”).

billing submitted to GEICO and other insurers. These

inherently unlawful acts are taken by Advanced Diagnostic in

pursuit of inherently unlawful goals – namely, the theft of

money from GEICO . . . through fraudulent no-fault billing.”

(Id. at ¶ 161).

This is sufficient to plead the existence of an

enterprise in the form of a corporation under the RICO

statute. See Fernandez de Cordoba v. Flores, No. 17-20122-

CV-WILLIAMS/TORRES, 2018 WL 1830805, at *3 (S.D. Fla. Jan.

10, 2018) (“Such an enterprise has been adequately pled here;

the Complaint states that Gold Lion is a limited liability

company organized and existing under the laws of the United

Kingdom created for the purpose of perpetrating the fraud and

scheme upon Plancarte and possibly others. The Complaint also

states clearly that Flores worked on behalf of Gold Lion in

an effort to induce Plaintiffs to deposit money into accounts

controlled by the Defendants.” (citations omitted)), report

and recommendation adopted, No. 17-20122-CIV-WILLIAMS, 2018

WL 1811945 (S.D. Fla. Feb. 9, 2018).

b. Predicate Acts

Next, the Advanced Diagnostic Defendants argue that

Plaintiffs have not alleged the predicate acts – mail fraud

– with the particularity required by Rule 9(b). (Doc. # 36 at

16). The elements of mail fraud include: “(1) an intentional

participation in a scheme to defraud a person of money or

property, and (2) the use of the mails in furtherance of the

scheme.” United States v. Lander, 668 F.3d 1289, 1297 (11th

Cir. 2012) (citation omitted). “The gravamen of the offense

is the scheme to defraud, and any ‘mailing . . . incident to

an essential part of the scheme satisfies the mailing

element,’ even if the mailing ‘contain[s] no false

information.’” Bridge v. Phx. Bond & Indem. Co., 553 U.S.

639, 647 (2008) (quoting Schmuck v. United States, 489 U.S.

705, 712 (1989)).

As noted, because Plaintiffs’ RICO claims are based upon

mail fraud, they must comply with Rule 9(b)’s heightened

pleading standard. Drummond v. Zimmerman, 454 F. Supp. 3d

1210, 1218 (S.D. Fla. 2020). Under Rule 9(b), the plaintiff

must allege: “(1) the precise statements, documents, or

misrepresentations made; (2) the time, place, and person

responsible for the statement; (3) the content and manner in

which these statements misled the [p]laintiffs; and (4) what

the defendants gained by the alleged fraud.” American Dental,

605 F.3d at 1291 (citation omitted). “The plaintiff must

allege facts with respect to each defendant’s participation

in the fraud.” Weaver v. Nat’l Better Living Ass’n, Inc., No.

4:13-CV-2112-VEH, 2014 WL 12614481, at *19 (N.D. Ala. July 3,

2014) (citing Brooks, 116 F.3d at 1381).

Here, Plaintiffs provide a number of examples of

allegedly fraudulent bills and corresponding mailings

submitted to GEICO, which the complaint alleges were

submitted “in pursuit of inherently unlawful goals – namely,

the theft of money from GEICO and other insurers.” (Doc. # 1

at ¶ 161). In the complaint, Plaintiffs provide numerous

examples of bills for allegedly fraudulent and medically

unnecessary MRIs that were submitted to Plaintiffs from 2015

to 2019. (Id. at ¶ 79). And, attached to the complaint,

Plaintiffs include a chart of over 3,100 allegedly fraudulent

claims mailed to GEICO from August 2014 to February 2020.

(Doc. # 1-1). These include the location of the services, the

claim number, the date of the accident, the date of the

mailing, and the billed charges. (Id.). This, in conjunction

with the detailed examples, which include the persons who

performed and billed for these purportedly fraudulent MRIs,

as well as the complaint’s explanations of each individual’s

role in the scheme, why the scheme is fraudulent, and how

these claims were submitted to Plaintiffs, is sufficient

under Rule 9(b). See Drummond Co. v. Collingsworth, No. 2:15-

cv-506-RDP, 2016 WL 9980721, at *6 (N.D. Ala. Mar. 8, 2016)

(“The Complaint lays out in detail the purpose and effect of

the payments as to each witness, the genesis of those

payments, who was responsible for facilitating and/or aware

of the payments, and the specific circumstances of how each

payment was made (including date of transfer, payor, payee,

and means of sending the transfer). As such, contrary to

Defendants’ contention, Plaintiffs have pled their claims

with Rule 9(b) particularity[.]” (citations omitted)). Thus,

Plaintiffs have sufficiently alleged the predicate mail

fraud, and the Motion is denied as to Counts II and V.

2. Section 1962(d) and Related Florida Claim

The Advanced Diagnostic Defendants also argue that

Plaintiffs have failed to adequately plead their Section

1962(d) RICO and related state claims – Counts III and VI –

which were filed against Johnson, Dr. Desai, Dr. Martinez,

and Dr. Zimmelman. (Doc. # 36 at 16-21). The Advanced

Diagnostic Defendants posit that Counts III and VI should be

dismissed because: (1) Plaintiffs’ underlying RICO cause of

action is not sufficiently pled; (2) the complaint includes

“no particularized allegation of an agreement between any

Defendants . . . to violate RICO”; and (3) the complaint

features “nothing more than allegations of parallel conduct.”

(Id. at 19-21).

Section 1962(d) of the federal RICO statute “makes it

illegal for anyone to conspire to violate one of the

substantive provisions of RICO, including [Section] 1962(c).”

American Dental, 605 F.3d at 1293 (citation omitted). “The

essence of a RICO conspiracy claim is that each defendant has

agreed to participate in the conduct of an enterprise’s

illegal activities.” Solomon v. Blue Cross & Blue Shield

Ass’n, 574 F. Supp. 2d 1288, 1291 (S.D. Fla. 2008) (citation

and emphasis omitted). “A plaintiff can state a RICO

conspiracy claim by showing defendants: (1) agreed to the

overall objective of the conspiracy; or (2) agreed to commit

two predicate acts.” Cardenas v. Toyota Motor Corp., 418 F.

Supp. 3d 1090, 1102 (S.D. Fla. 2019). However, an agreement

“need not be established by direct evidence”; “it may be

inferred from the conduct of the participants.” Id. at 1103;

see also Cisneros, 972 F.3d at 1220 (“A RICO conspiracy can

be found through ‘the conduct of the alleged participants or

from circumstantial evidence of a scheme.’” (quoting United

States v. Browne, 505 F.3d 1229, 1264 (11th Cir. 2007))).

Notably, “[u]nlike racketeering claims predicated on

fraud under Section 1962(c), conspiracy claims under Section

1962(d) only need to satisfy Rule 8 pleading requirements.”

Cardenas, 418 F. Supp. 3d at 1103. “However, conclusory

allegations, accompanied by nothing more than a bare

assertion of a conspiracy, do not plausibly suggest a

conspiracy.” Blevins v. Aksut, No. 15-00120-CG-B, 2017 WL

10410658, at *11 (S.D. Ala. Oct. 27, 2017) (citation omitted).

As previously discussed, Plaintiffs have adequately pled

their underlying RICO claims to survive a motion to dismiss.

Therefore, the Court turns to the Advanced Diagnostic

Defendants’ second argument – that Plaintiffs have not

sufficiently pled the existence of a conspiracy. (Doc. # 36

at 19-20). In Count III, Plaintiffs allege that Johnson, Dr.

Desai, Dr. Martinez, and Dr. Zimmelman “knew of, agreed to

and acted in furtherance of the common and overall objective

(i.e., to defraud GEICO and other automobile insurers of

money) by submitting or facilitating the submission of the

fraudulent charges to GEICO.” (Doc. # 1 at ¶ 169). In the

body of the complaint, Plaintiffs also provide extensive

examples of these allegedly fraudulently submitted bills for

MRIs. (Id. at ¶¶ 68, 79, 86, 100, 107). According to the

complaint, during the relevant periods, Johnson was the owner

of Advanced Diagnostic, and Dr. Zimmelman, Dr. Martinez, and

Dr. Desai were medical directors of its various clinics, such

that they would be responsible for ensuring accurate billing.

(Id. at ¶¶ 12-15). This, along with the multitude of similar

serious diagnoses by Dr. Desai for apparently relatively

minor injuries, is sufficient to raise a reasonable inference

of a conspiracy to submit fraudulent bills for unnecessary

MRIs to Plaintiffs. See Bradley v. Franklin Collection Serv.,

Inc., No. 5:10-cv-01537-AKK, 2011 WL 13134961, at *9 (N.D.

Ala. Mar. 24, 2011) (“From these allegations, the court infers

that the [defendants] may have agreed to participate in the

racketeering activity. Whether plaintiffs can ultimately

prevail on this claim is an issue that is not determinative

at this juncture. Rather, the relevant inquiry here is simply

whether plaintiffs have pled a plausible claim. As it relates

to [Section] 1962(c), the answer is yes. Accordingly, the

motion is denied as to the claim that defendant conspired to

violation [Section] 1962(c) in violation of [Section]

1962(d).”).

And at this stage, the Court disagrees with the

contention that the complaint alleges nothing more than

parallel conduct. (Doc. # 36 at 20). Accordingly, the Court

declines to dismiss Counts III and VI for these reasons.

C. FDUTPA

Next, the Advanced Diagnostic Defendants move to dismiss

Count IV, Plaintiffs’ FDUTPA claim against all Advanced

Diagnostic Defendants. (Doc. # 36 at 21). Defendants argue

that Count IV should be dismissed because Plaintiffs have

failed to particularly allege their claim. (Id. at 21-22).

To state a claim under FDUTPA, a plaintiff must

sufficiently allege the following elements: “(1) a deceptive

act or unfair practice; (2) causation; and (3) actual

damages.” Kertesz v. Net Transactions, Ltd., 635 F. Supp. 2d

1339, 1348 (S.D. Fla. 2009) (quoting City First Mortg. Corp.

v. Barton, 988 So.2d 82, 86 (Fla. 4th DCA 2008)). “A deceptive

practice is one that is likely to mislead consumers, and an

unfair practice is one that ‘offends established public

policy’ or is ‘immoral, unethical, oppressive, unscrupulous

or substantially injurious to consumers.’” Bookworld Trade,

Inc. v. Daughters of St. Paul, Inc., 532 F. Supp. 2d 1350,

1364 (M.D. Fla. 2007) (quoting Rollins, Inc. v. Butland, 951

So.2d 860, 869 (Fla. 2d DCA 2006)).

When a FDUTPA claim is predicated upon fraudulent

conduct, the allegations must satisfy Rule 9(b)’s heightened

pleading standard. See Altamonte Pediatric Assocs., P.A. v.

Greenway Health, LLC, No. 8:20-cv-604-VMC-JSS, 2020 WL

5350303, at *3 (M.D. Fla. Sept. 4, 2020) (“The trend has been

for courts to apply the Rule 9(b) standard when FDUTPA claims

sound in fraud.”). To allege a deceptive or unfair practice

under Rule 9(b), the plaintiff must “state with particularity

the circumstances constituting fraud” by “identify[ing] the

precise statements, documents, or misrepresentations made;

the time and place of, and the persons responsible for, the

alleged statements; the content and manner in which the

statements misled the plaintiff; and what the defendant

gained through the alleged fraud.” Weiss v. Gen. Motors LLC,

418 F. Supp. 3d 1173, 1178-79 (S.D. Fla. 2019).

However, “[t]he particularity requirement may be relaxed

for allegations of ‘prolonged multi-act schemes.’” Burgess v.

Religious Tech. Ctr., Inc., 600 F. App’x 657, 662 (11th Cir.

2015) (citing United States ex rel. Clausen v. Lab’y Corp. of

Am., Inc., 290 F.3d 1301, 1314 n.25 (11th Cir. 2002)). This

more “relaxed standard permits a plaintiff to plead the

overall nature of the fraud and then to allege with

particularity one or more illustrative instances of the

fraud.” Id. at 663. “Even under the relaxed requirement,

however, a plaintiff is still required to allege at least

some particular examples of fraudulent conduct to lay a

foundation for the rest of the allegations of fraud.” Id.

Here, Plaintiffs’ FDUTPA claim sounds in fraud, and Rule

9(b) therefore applies. See (Doc. # 1 at ¶ 176) (“The bills

and supporting documents submitted or caused to be submitted

by Advanced Diagnostic, Johnson, Desai, Martinez, and

Zimmelman to GEICO were fraudulent[.]”). As previously noted,

Plaintiffs provide a significant number of particular

examples of these allegedly fraudulent bills. (Id. at ¶¶ 68,

79, 86, 100, 107, 114). These examples specify the alleged

misrepresentations, when they were made, and who was

responsible for the misrepresentations. (Id.). Additionally,

the complaint adequately explains how these fraudulent bills

misled Plaintiffs, and what the Advanced Diagnostic

Defendants gained through the scheme. (Id. at ¶¶ 49-67, 83-

84, 106, 122-28, 139-40). These numerous representative

examples are sufficient to survive a motion to dismiss, even

given the fact that this scheme allegedly occurred over a

number of years. See ADT LLC v. NorthStar Alarm Servs. LLC,

No. 9:18-80283-CV-DIMITROULEAS, 2018 WL 6504398, at *2 (S.D.

Fla. Sept. 19, 2018) (“Further, at the pleading stage, these

allegations of the ten specific instances of the alleged

fraudulent conduct are sufficient to support the allegation

of an overall fraudulent scheme.”).

Accordingly, Plaintiffs have sufficiently alleged a

deceptive or unfair practice under FDUTPA. See Gov’t Emps.

Ins. Co. v. Clear Vision Windshield Repair, L.L.C., No. 6:16-

cv-2077-JA-TBS, 2017 WL 1196438, at *3 (M.D. Fla. Mar. 29,

2017) (“Defendants argue that Plaintiffs fails to

sufficiently plead their fraud-based claims – RICO, FDUTPA,

FCRCPA, and common law fraud – with sufficient particularity

under Rule 9(b). But in the Complaint, Plaintiffs identify

the creators of the false insurance claims and described in

detail numerous examples of the fraudulent actions.

Plaintiffs further provide as exhibits to the Complaint an

extensive sampling of fraudulent billing[.] . . . The exhibits

list over [2,000] samples of fraudulent billing. Defendants’

agents are not identified by name, but their relationship to

Defendants is described in detail as is the time frame during

which the fraudulent conduct took place. Plaintiffs’

submissions, taken together, meet the purpose of Rule 9(b) to

give Defendants fair notice of fraud.”). Therefore, the Court

declines to dismiss Count IV for failure to plead with the

requisite particularity.

D. Common Law Fraud

Next, the Advanced Diagnostic Defendants move to dismiss

Count VII, Plaintiffs’ claim for common law fraud, again

alleging that the fraud has not been pled with particularity

under Rule 9(b). (Doc. # 36 at 22-23). Because the Court has

already held that the complaint adequately alleges the

fraudulent scheme in question, the Court declines to dismiss

Count VII for this reason.

E. Unjust Enrichment

Next, the Advanced Diagnostic Defendants move to dismiss

Count VIII, Plaintiffs’ claim for unjust enrichment because:

(1) it has not been pled with the particularity required by

Rule 9(b); (2) the equities are against Plaintiffs; and (3)

the complaint does not adequately plead facts establishing

that no adequate legal remedy exists. (Doc. # 36 at 23-24).

Because the Court has already found that the complaint is

pled with particularity, it turns to the Advanced Diagnostic

Defendants’ latter two arguments.

To state a claim for unjust enrichment under Florida

law, the plaintiff must sufficiently allege the following

elements: “(1) [the] plaintiff has conferred a benefit on the

defendant, who has knowledge thereof; (2) [the] defendant

voluntarily accepts and retains the benefit conferred; and

(3) the circumstances are such that it would be inequitable

for the defendant to retain the benefit without first paying

the value thereof to the plaintiff.” Muy v. Int’l Bus. Machs.

Corp., No. 4:19-cv-14-MW/CAS, 2019 WL 8161745, at *1 (N.D.

Fla. July 19, 2019) (quoting Agritrade, LP v. Quercia, 253

So.3d 28, 33 (Fla. 3d DCA 2017)).

“The general rule that equitable remedies are not

available under Florida law when adequate legal remedies

exist . . . does not apply to unjust enrichment claims. In re

Monat Hair Care Prods. Mktg., Sales Pracs., & Prods. Liab.

Litig., No. 18-MD-02841-GAYLES, 2019 WL 5423457, at *5 (S.D.

Fla. Oct. 23, 2019) (citation omitted). “Rather, it is only

upon a showing that an express contract exists between the

parties that the unjust enrichment . . . count fails.” Harris

v. Nordyne, LLC, No. 14-CIV-21884-BLOOM/Valle, 2014 WL

12516076, at *7 (S.D. Fla. Nov. 14, 2014). When “a plaintiff

has adequate legal remedies under theories of liability other

than a claim for breach of an express contract, those remedies

do not bar an unjust enrichment claim.” Id. (citation

omitted).

Here, Plaintiffs allege that they conferred a benefit by

paying the fraudulent bills submitted by the Advanced

Diagnostic Defendants, who were enriched by those payments.

(Doc. # 1 at ¶¶ 204-05). Plaintiffs maintain that the Advanced

Diagnostic Defendants’ retention of these payments “violates

fundamental principles of justice, equity, and good

conscience,” given the unlawful scheme. (Id. at ¶¶ 203-07).

This, combined with the facts alleged in the complaint, is

sufficient. Indeed, “Florida courts have long recognized a

cause of action for unjust enrichment to prevent the wrongful

retention of a benefit, or the retention of money or property

of another, in violation of good conscience and fundamental

principles of justice or equity.” Allstate Ins. Co. v. Vizcay,

826 F.3d 1326, 1330 (11th Cir. 2016) (quoting State Farm Fire

& Cas. Co. v. Silver Star Health & Rehab, 739 F.3d 579, 584

(11th Cir. 2013)).

As to the argument that the complaint fails to plead

facts establishing that no adequate remedy at law exists,

Plaintiffs argue that they may plead this claim in the

alternative. (Doc. # 46 at 20). The Court agrees. See Adelphia

Cable Partners, Inc. v. E & A Beepers Corp., 188 F.R.D. 662,

666 (S.D. Fla. 1999) (“Although equitable relief ultimately

may not be awarded where there exists an adequate remedy at

law, Plaintiff certainly may plead alternative equitable

relief.”). And, no party has shown that an express contract

exists that would bar a claim for unjust enrichment, nor do

Plaintiffs allege a breach of any contract. See Harris, 2014

WL 12516076, at *8 (“At best, Defendant’s argument is

premature, and cannot result in dismissal at this

juncture.”); see also James D. Hinson Elec. Contracting Co.

v. Bellsouth Telecomms., Inc., No. 3:07-cv-598-TJC-MCR, 2008

WL 360803, at *4 (M.D. Fla. Feb. 8, 2008) (“While Hinson’s

unjust enrichment and money had and received claims do seek

essentially the same relief as the fraud and FDUTPA claims,

the Court sees no reason why Hinson should not be allowed to

plead in the alternative.”). Accordingly, the Motion is

denied as to this requested relief.

F. Declaratory Relief

Finally, the Advanced Diagnostic Defendants move to

dismiss Count I, Plaintiffs’ claim for declaratory relief,

arguing that Plaintiffs have failed to allege their fraud

claims with particularity. (Doc. # 36 at 24-25). Because the

Court has already found that Plaintiffs’ fraud claims have

been adequately pled, the Court declines to dismiss Count I

for this reason.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) The Advanced Diagnostic Defendants’ Motion to Dismiss

(Doc. # 36) is DENIED.

(2) The Advanced Diagnostic Defendants’ answer to the

complaint is due by March 11, 2021.

DONE and ORDERED in Chambers, in Tampa, Florida, this

25th day of February, 2021.

igs? Ir. Mesnenly

VIR IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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