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

> District Court, M.D. Florida · February 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10106978

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106978. Public record. Not legal advice.