State Farm Mutual Automobile Insurance Company v. Lewin, D.C.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

STATE FARM MUTUAL AUTOMOBILE

INSURANCY COMPANY, and

STATE FARM FIRE AND

CASUALTY COMPANY,

Plaintiffs,

v. Case No. 8:20-cv-2428-VMC-TGW

ROBERT LEWIN, D.C., et al.,

Defendants.

/

ORDER

This matter comes before the Court upon consideration of

Defendants Robert Lewin, D.C., 1-800-411-PAIN Referral

Service, LLC, Path Medical, LLC, and Path Medical Center

Holdings, Inc.’s Motion to Dismiss (Doc. # 32), and Defendants

David Cheesman, D.O., Chintan Desai, M.D., Ralph Marino,

M.D., Tie Qian, M.D., Roger Ramos, M.D., Donald Thomas III,

M.D., Nelson Vazquez, M.D., Michael Wilensky, M.D., Brittany

Chong, D.C., Ronald Golden, D.C., William Kurzbuch, D.C.,

Frank Lassiter, D.C., Adam Lewis, D.C., Dheeraj Manocha,

D.C., Lisa Nerbonne, D.C., Kieron Parchment, D.C., Joseph

Sefick, D.C., and Sarah Vleko, D.C.’s Motion to Dismiss and

to Join and Adopt Motion to Dismiss (Doc. # 33), both filed

on January 8, 2021. Plaintiffs State Farm Mutual Automobile

Insurance Company and State Farm Fire and Casualty Company

responded to both Motions on February 5, 2021. (Doc. # 54).

With leave of Court, Defendants replied on February 24, 2021.

(Doc. # 57). For the reasons set forth below, the Motions are

granted in part and denied in part.

I. Background

This case arose out of Defendants’ alleged scheme of

fraudulently collecting personal injury protection insurance

(“PIP” insurance) benefits from Plaintiffs. (Doc. # 1 at ¶

1). Plaintiffs are insurers and Defendants are legal and

medical referral services, health care clinics, and health

care clinic owners, medical directors, and chiropractors.

(Id. at ¶¶ 1-2, 15-16). Specifically, Dr. Lewin is a

chiropractor who, at the relevant times, owned 1-800-411-

PAIN, a now dissolved legal and medical referral service for

individuals in automobile accidents, and Path Medical Center

Holdings, which owns Path Medical. (Id. at ¶¶ 2, 17-18). Path

Medical “consists of twenty-eight licensed health care

clinics located in [the] Orlando, Tampa, and South Florida

areas.” (Id. at ¶¶ 2, 19). Dr. Cheesman, Dr. Desai, Dr.

Marino, Dr. Qian, Dr. Ramos, Dr. Thomas, Dr. Vazquez, and Dr.

Wilensky are physicians who served as medical directors of

the various Path Medical clinics. (Id. at ¶¶ 2, 20-28). Dr.

Chong, Dr. Golden, Dr. Kurzbuch, Dr. Lassiter, Dr. Lewis, Dr.

Manocha, Dr. Nerbonne, Dr. Parchment, Dr. Sefick, and Dr.

Vleko are chiropractors who worked at the Path Medical

clinics. (Id. at ¶¶ 2, 29-38).

Plaintiffs aver that Defendants entered into a complex,

multifaceted scheme to exploit patients’ PIP benefits by

submitting or causing to be submitted fraudulent bills for

medically unnecessary and unlawfully rendered services. (Id.

at ¶¶ 1, 3). The scheme involved Dr. Lewin and 1-800-411-PAIN

“soliciting and steering individuals involved in auto

accidents to Path Medical through a multi-million dollar

marketing campaign that urges them to call [1-800-411-PAIN]

purportedly for legitimate legal and medical referrals.” (Id.

at ¶¶ 4, 39, 61-80). At least some of those callers were then

referred to Path Medical clinics. (Id. at ¶¶ 4, 70, 77).

Despite these referrals, Defendants allegedly caused these

patients to sign forms falsely representing that they were

not solicited by any person to seek medical services from

Path Medical. (Id. at ¶¶ 4, 78-80).

Once the individuals became Path Medical patients,

Defendants allegedly performed services on those patients

pursuant to a “predetermined protocol,” designed to provide

patients with medically unnecessary services so as to exploit

their PIP insurance benefits. (Id. at ¶ 5). The predetermined

protocol allegedly included: (1) “failing to legitimately

examine patients to determine the true nature and extent of

their injuries;” (2) “documenting a litany of diagnoses for

each patient, most often exceeding ten or more diagnoses per

patient, including predetermined findings of sprains and/or

strains, to justify a predetermined course of medically

unnecessary treatment;” (3) “falsely documenting [that]

patients had sustained an emergency medical condition . . .

as a result of their auto accident to maximize Defendants’

collection of [PIP insurance benefits];” (4) routinely

providing medically unnecessary durable medical equipment .

. . to patients;” (5) “providing the predetermined course of

treatment to patients, [consisting] of five or more

modalities on virtually every visit;” (6) “ordering medically

unnecessary x-rays and [magnetic resonance imaging

(“MRIs”);]” and (7) “performing final examinations falsely

documenting [that] nearly every discharged patient . . .

suffers from a permanent impairment, despite receiving the

extensive battery of services in the [p]redetermined

[p]rotocol.” (Id.). Path Medical would then submit bills for

these services to Plaintiffs. (Id.).

In support of this alleged predetermined protocol,

Plaintiffs provide examples of individuals who were treated

following the same accident and were subject to “the same or

nearly identical treatment” and “discharged with impairments

on or about the same date.” (Id. at ¶¶ 105-06). For example:

[P]atient E.B.A., a thirty-one-year-old female, and

patient J.G.O., a forty-two year old male, were

involved in the same auto accident on February 21,

2017. Both patients began treatment at Path

Medical-Kissimmee on the same day – February 22,

2017. On that date, Cameron Banks, D.C. prepared

Initial Exam Reports for patients E.B.A. and

J.G.O., diagnosed them with sprains/strains in

multiple regions of the spine, recommended a

predetermined course of treatment, and referred

each patient for MRIs to “rule out internal

derangement[.]” On March 1, 2017, Path Medical-Apex

performed cervical and lumbar MRIs on patients

E.B.A. and J.G.O. Desai prepared reports purporting

to document his interpretation of each patient’s

MRIs, all of which reflected “herniations” and

“bulges” of the cervical and lumbar spine. On March

29, 2017, Marino purportedly examined patients

E.B.A. and J.G.O., diagnosed them with cervical and

lumbar sprains/strains, recommended continued

treatments, and documented they had both sustained

an [emergency medical condition]. Pursuant to the

predetermined course of treatment, patients E.B.A.

and J.G.O. received the same litany of medically

unnecessary treatment modalities, which consisted

of at least five modalities across [twenty-one]

dates of service. On May 3, 2017, Marino

purportedly performed a final examination of

patients E.B.A. and J.G.O. Although neither patient

reported any pain, Marino diagnosed patients E.B.A.

and J.G.O with a cervical sprain/strain, lumbar

sprain/strain, and various “herniations” and

“bulges” of the cervical and lumbar spine, and

discharged both patients with a permanent

impairment.

(Id. (citations omitted)). Plaintiffs aver that such

uniformity of treatment is not “credible given the unique

circumstances presented by each patient, including each

patient’s physical characteristics, symptoms, history,

ability to participate in treatment, and his or her response

thereto.” (Id. at ¶ 107).

Plaintiffs also provide an exhibit with examples of

patients who were provided with MRIs, despite the fact that

they suffered only soft tissue injuries, for which “MRIs are

rarely indicated, and almost never indicated in multiple

regions of the spine and body simultaneously, especially on

a patient’s first date of treatment.” (Id. at ¶ 109; Doc. #

1-21). The complaint further provides examples of patients

for whom MRIs were medically unnecessary, as exemplified by

the fact that the MRI results were not utilized to alter the

patients’ treatment plans. (Doc. # 1 at ¶¶ 112, 114). For

instance,

M.M.B. initiated treatment at Path Medical on

February 9, 2017. Between February 9, 2017 and

February 14, 2017, Path Medical purportedly

provided hot/cold packs, chiropractic

manipulation, manual therapy, e-stim, mechanical

traction, neuromuscular reeducation, and

therapeutic exercise on each date of service. On

February 15, 2017, MRIs of patient M.M.B.’s

cervical and lumbar spine were performed at Path

Medical-Apex, which purportedly revealed disc

bulges and herniations, among other findings. After

the MRI was performed, Path Medical continued to

administer the same course of treatment.

* * *

P.C.A. initiated treatment at Path Medical on

October 17, 2017. Between October 17, 2017 and

October 22, 2017, Path Medical purportedly provided

hot/cold packs, chiropractic manipulation, manual

therapy, e-stim, mechanical traction,

neuromuscular reeducation, and therapeutic

exercise on each date of service. On October 23,

2017, MRIs of patient P.C.A.’s cervical and lumbar

spine were performed at Path Medical-Hallandale,

which purportedly revealed bulging discs, among

other findings. After the MRI was performed, Path

Medical continued to administer the same course of

treatment.

(Id. at ¶¶ 112-13 (citations omitted)). The complaint

provides support for the predetermined protocol by alleging

that the MRIs performed at Path Medical and interpreted by

radiologists Dr. Desai and Dr. Ramos “virtually always

reflect[ed] positive findings, most often consisting of

purported disc ‘herniations’ or ‘bulges.’” (Id. at ¶ 116).

Like the allegedly unnecessary MRIs, Plaintiffs aver

that Path Medical physicians also regularly ordered

unnecessary x-rays pursuant to the predetermined protocol,

“often on two or more areas of the patient’s body, despite

the lack of any legitimate, documented clinical basis to order

such x-rays in the records.” (Id. at ¶ 117). Additionally,

Plaintiffs allege that the patients were not properly

reevaluated in light of any findings from the diagnostic

imaging and the Path Medical chiropractors and medical

directors allegedly created final examination reports

indicating that patients were permanently impaired regardless

of the patients’ pain score. (Id. at ¶¶ 120-27).

Plaintiffs provide an exhibit with over 3,000 claims

that were allegedly fraudulently billed to Plaintiffs

pursuant to the predetermined protocol. (Doc. # 1-1). These

include each of the claim numbers, abbreviations of the

patients’ names, the patients’ ages, the dates of loss, the

first and last dates of service, the number of visits each

patient made to Path Medical clinics, the examining

physicians and/or chiropractors, the patients’ diagnoses and

treatments, and the amounts billed to Plaintiffs. (Id.).

In addition to the unlawful referrals and the medically

unnecessary predetermined protocol, Plaintiffs allege that

the medical directors knowingly failed “to comply with their

statutory duties under Florida law.” (Doc. # 1 at ¶ 7).

Specifically, the medical directors did not “review any

patient referral contracts or agreements between Path Medical

and [1-800-411-PAIN],” “conduct systematic reviews of Path

Medical’s bills to ensure they are not fraudulent or

unlawful,” or “take immediate, corrective action upon

discovery of an unlawful charge at Path Medical.” (Id.).

Plaintiffs initiated this suit on October 16, 2020.

(Doc. # 1). The complaint includes a claim for violation of

the Florida Patient Self-Referral Act against Dr. Lewin and

Path Medical (Count I). (Doc. # 1). Additionally, the

complaint includes the following causes of action against all

Defendants: common law fraud (Count II), violations of

Section 1962(c) of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”) (Count III), violations of Section

1962(d) of RICO (Count IV), unjust enrichment (Count V), civil

conspiracy (Count VI), aiding and abetting fraud (Count VII),

and violations of the Florida Deceptive and Unfair Trade

Practices Act (“FDUTPA”) (Count VIII). (Id.). Finally,

Plaintiffs seek a declaratory judgment under 28 U.S.C. § 2201

against Path Medical (Count IX). (Id.).

On January 8, 2021, Defendants Dr. Lewin, 1-800-411-

PAIN, Path Medical, and Path Medical Center Holdings moved to

dismiss the complaint. (Doc. # 32). That same day, the other

Defendants – the Path Medical chiropractors and medical

directors – moved to dismiss the complaint and join the

initial motion to dismiss. (Doc. # 33). Plaintiffs responded

to both Motions on February 5, 2021 (Doc. # 54), and

Defendants replied on February 24, 2021. (Doc. # 57). The

Motions are 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

In their Motion, Dr. Lewin, 1-800-411-PAIN, Path

Medical, and Path Medical Center Holdings, move to dismiss

the complaint in its entirety, arguing that (1) the complaint

is an impermissible shotgun pleading, and that (2) Plaintiffs

fail to sufficiently plead their claims under Rule 9(b) and

Rule 12(b)(6). (Doc. # 32). In their separate Motion, the

Path Medical chiropractors and medical directors move to join

and adopt those arguments. (Doc. # 33). The Court will address

each argument in turn.

A. Shotgun Pleading

First, Defendants argue that the complaint should be

dismissed as a shotgun pleading because it “is excessive [and]

disjointed” and does not sufficiently differentiate between

the actions of each Defendant. (Doc. # 32 at 30-31).

“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, Defendants argue that the entire complaint falls

within the fourth category identified in Weiland. (Doc. # 32

at 25). However, the Court finds that the complaint includes

sufficient allegations as to almost every Defendant, except

Path Medical Center Holdings, 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 these Defendants in the scheme,

in that Dr. Lewin owned and controlled both 1-800-411-PAIN

and Path Medical Center Holdings, which in turn owns a

controlling interest in Path Medical. (Doc. # 1 at ¶ 15). Dr.

Lewin devised and implemented the predetermined protocol.

(Id. at ¶ 2). 1-800-411-PAIN was “used to solicit and steer

patients to Path Medical.” (Id. at ¶ 18). Path Medical owns

the various medical clinics at issue in this case, and

“knowingly submitted, or caused to be submitted, to

[Plaintiffs] bills and supporting documentation that are

fraudulent because they represent the services were medically

necessary and lawfully rendered when, in fact, they were not

medically necessary and were not lawfully rendered.” (Id. at

¶ 19). Dr. Cheesman, Dr. Desai, Dr. Marino, Dr. Qian, Dr.

Ramos, Dr. Thomas, Dr. Vazquez, and Dr. Wilensky are medical

directors of various Path Medical clinics, such that they

would have been responsible for ensuring accurate and lawful

medical billing. (Id. at ¶¶ 21-28, 131-37). Dr. Desai and Dr.

Ramos in particular examined the patients’ MRIs. (Id. at ¶

116). Dr. Chong, Dr. Golden, Dr. Kurzbuch, Dr. Lassiter, Dr.

Lewis, Dr. Manocha, Dr. Nerbonne, Dr. Parchment, Dr. Sefick,

and Dr. Vleko worked as chiropractors at the Path Medical

clinics, and all allegedly implemented the predetermined

protocol, providing patients with medically unnecessary

services. (Id. at ¶¶ 29-38). The chart attached as an exhibit

to the complaint lists the various allegedly fraudulent

claims, and which medical director or chiropractor treated

each patient. (Doc. # 1-1).

This is sufficient and therefore does not constitute a

shotgun pleading as to those Defendants 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 Defendants’ contention

that the complaint as a whole is so “excessive” or

“disjointed” so as to constitute a shotgun pleading. (Doc. #

32 at 24). Although the Court appreciates that the complaint

is lengthy, this is a complex case, and its length does not

make it so that these 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.”).

However, as previously alluded to, the complaint does

not provide Path Medical Center Holdings with sufficient

notice as to the claims against it. Indeed, although Path

Medical Center Holdings is included in nearly every count of

the complaint, the only factual allegation as to Path Medical

Center Holdings is that it “controls, directs, and benefits

from the activities of its wholly-owned subsidiary, Path

Medical” and that it “owned controlled, directed, and

benefitted from all aspects of the [p]redetermined [p]rotocol

implemented at Path Medical.” (Doc. # 1 at ¶¶ 2, 20, 39).

Lumping Path Medical Center Holdings with the other

adequately pled Defendants does elevate these insufficient

allegations such that they satisfy Rule 8(a)’s notice

pleading requirements, let alone Rule 9(b)’s particularity

requirements. See Bentley v. Bank of Am., N.A., 773 F. Supp.

2d 1367, 1373 (S.D. Fla. 2011) (“Plaintiff . . . must treat

each Defendant as a separate and distinct legal entity and

delineate the conduct at issue as to each Defendant.”).

Accordingly, although the Court declines to dismiss the

complaint in its entirety as a shotgun pleading, the complaint

is dismissed as to Path Medical Center Holdings for failing

to provide it with adequate notice as to the basis for the

claims against it. See Synergy Real Est. of SW Fla., Inc. v.

Premier Prop. Mgmt. of SW Fla., LLC, No. 2:11-cv-707-JES-SPC,

2012 WL 4009534, at *2 (M.D. Fla. Sept. 12, 2012) (“Although

a complaint against multiple defendants is usually read as

making the same allegation against each defendant

individually, . . . factual allegations must give each

defendant ‘fair notice’ of the nature of the claim and the

‘grounds’ on which the claim rests.” (citations omitted));

see also Erickson v. Merck & Co., Inc., No. 5:17-cv-562-JSM-

PRL, 2018 WL 3626469, at *3 (M.D. Fla. Feb. 22, 2018) (“While

the Court concludes the entire Amended Complaint is not a

shotgun pleading, the Amended Complaint does contain several

counts that lump Defendants together such that they are not

provided sufficient notice.”).

B. Florida Patient Self-Referral Act

Next, Defendants argue that Count I, Plaintiffs’ claim

for violations of the Florida Patient Self-Referral Act

against Dr. Lewin and Path Medical fails as a matter of law

because: (1) the callers in this case are not patients within

the scope of the Act, (2) the complaint does not allege that

any healthcare provider made referrals, and (3) the Act does

not provide a private right of action. (Doc. # 32 at 5-8).

Because the Court agrees that the individuals who called 1-

800-411-PAIN cannot plausibly be considered patients based on

the allegations in the complaint, the Court need only address

this argument.

The Patient Self-Referral Act “prohibits physicians from

making self-referrals to facilities in which they have a

financial interest absent compliance with the statute’s

disclosure requirements.” Aarmada Prot. Sys. 2000, Inc. v.

Yandell, 73 So.3d 893, 898 (Fla. 4th DCA 2011). “The statute

seeks to avoid potential conflicts of interest with respect

to [the] referral of patients for health care services, while

recognizing that it may be appropriate for health care

providers to own entities providing health care services and

to refer patients to those entities.” Agency for Health Care

Admin. v. Wingo, 697 So.2d 1231, 1232 (Fla. 1st DCA 1997).

Under the Act, “[a] health care provider may not refer

a patient for the provision of designated health services to

an entity in which the health care provider is an investor or

has an investment interest.” Fla. Stat. § 456.053(5)(a)

(2020). The Act defines “health care providers” as including

licensed physicians and chiropractors. Id. at §

456.053(3)(i). The Act does not, however, define “patient.”

Although Defendants rely on a definition of “patient of

a group practice” and “patient of a sole provider” in the Act

for the proposition that these callers are not considered

patients, this definition is inapposite. (Doc. 32 at 6).

Indeed, the statute does not define “patient,” but the broader

phrases “patient of a group practice” and “patient of a sole

provider.” Fla. Stat. § 456.053(3)(n). This definition

explains what additional characteristics need to be met for

a patient to be considered a patient of a group practice or

sole provider. And, the definition of those phrases includes

the term patient, obviating the argument that this definition

defines “patient.” Id. (“‘Patient of a group practice’ or

‘patient of a sole provider’ means a patient who receives a

physical examination, evaluation, diagnosis, and development

of a treatment plan if medically necessary by a physician who

is a member of the group practice or the sole provider’s

practice.” (emphasis added)).

Because “patient” is not defined by the Act, the Court

turns to the word’s plain meaning. See U.S. Sec. & Exch.

Comm’n v. Big Apple Consulting USA, Inc., 783 F.3d 786, 796-

97 (11th Cir. 2015) (“When a word is not defined by statute,

we normally construe it in accord with its ordinary or natural

meaning.” (quoting Smith v. United States, 508 U.S. 223, 228

(1993)). “When examining the plain and ordinary meaning of a

statute, ‘one of the ways to figure out that meaning is by

looking at dictionaries in existence around the time of

enactment.’” United States v. Chinchilla, 987 F.3d 1303, 1308

(11th Cir. 2021) (quoting Equal Emp’t Opportunity Comm’n v.

Catastrophe Mgmt. Sols., 852 F.3d 1018, 1026 (11th Cir.

2016)); see also Glass v. Captain Katanna’s, Inc., 950 F.

Supp. 2d 1235, 1243 (M.D. Fla. 2013) (“In discerning a

statute’s plain meaning, the Florida Supreme Court ‘looks

first to the term’s ordinary definitions,’ which may be

‘derived from dictionaries.’” (citations omitted)). “The

Florida Supreme Court also examines the legislative history

of a statute when determining the statute’s meaning.” Glass,

950 F. Supp. 2d at 1243 (citing Knowles v. Beverly Enters.-

Fla., Inc., 898 So.2d 1, 10 (Fla. 2004)).

Looking at dictionaries existing when the Patient Self-

Referral Act was enacted in 1992, the Court finds that the

plain meaning of “patient” is “[o]ne under medical

treatment.” Patient, The American Heritage Dictionary of the

English Language (1st ed. 1969); accord Patient, The Random

House College Dictionary (revised ed. 1982) (defining a

“patient” as “a person who is under medical or surgical

treatment”); Patient, Oxford English Dictionary (2d ed. 1989)

(defining a “patient” as “[o]ne who is under medical treatment

for the cure of some disease or wound; one of the sick persons

whom a medical man attends; an inmate of an infirmary or

hospital” and noting that the definition of “patient” as

“[o]ne who suffers from bodily disease; a sick person” is

obsolete and that the definition that a “patient” is “[a]

sufferer; one who suffers patiently” is “[n]ow rare”). Other

courts have similarly defined “patient.” See, e.g., In re

Body Sci. LLC Pat. Litig., 167 F. Supp. 3d 152, 162 (D. Mass.

2016) (“Moreover, it lists as its first definition of patient,

‘One who receives medical attention, care, or treatment.’

Thus, to the extent that it is relevant, the dictionary

evidence before the Court clearly favors a construction of

‘patient’ as a person who is receiving medical care or

attention from a physician or other medical professional.”).

This definition of “patient” is consistent with the

Patient Self-Referral Act’s legislative history. See, e.g.,

Florida Legislature: 1992 Summary of General Legislation 42

(1992) (“This legislation provides for the regulation of

certain referrals by health care providers on two ‘tiers.’

Under the first tier a health care provider may not refer a

patient (for whom he or she provides primary care) for the

provision of designated health services[.]”). Plaintiffs do

not provide any evidence of legislative history to the

contrary. (Doc. # 54).

Here, the individuals who called 1-800-411-PAIN and were

later allegedly referred to Path Medical’s clinics do not fit

within the definition of “patient.” There is no claim in the

complaint that any of the individuals who called 1-800-411-

PAIN were under medical treatment. (Doc. # 1). The only

inference the Court can reasonably make from the allegations

in the complaint is that individuals insured by Plaintiffs

placed calls, and then some of those individuals were referred

to Path Medical clinics. See (Doc. # 1 at ¶ 77) (“To date,

State Farm has identified at least 15 State Farm Mutual and

State Farm Fire insureds who called . . . [1-800-411-PAIN]

and [were] treated at Path Medical.”). Without more, it cannot

be said that any individual who called 1-800-411-PAIN –

whether insured by Plaintiffs or not – is a patient within

the meaning of the Act.

Because these callers, as alleged, are not patients

under the Patient Self-Referral Act, these referrals do not

fall within the Act’s scope. See Fla. Stat. § 456.053(5)

(prohibiting only self-referrals of “patients”). Accordingly,

the Motion is granted as to Count I, which is dismissed

without prejudice.

C. Rule 9(b)

Next, Defendants argue that the complaint, which sounds

in fraud, should be dismissed for lack of particularity under

Rule 9(b). (Doc. # 32 at 8). Defendants also argue that the

complaint does not adequately “establish [that] any objective

falsehoods or false claims [were] submitted to [Plaintiffs].”

(Id. at 9). Because the Court has already dismissed the

complaint as to Path Medical Center Holdings, it considers

this argument only as to the remaining Defendants.

When claims sound in fraud, 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 (quoting Brooks, 116 F.3d at 1380-81). This

“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) (citation omitted).

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, a number of Plaintiffs’ claims sound in fraud

(Counts II, III, V, VII, VIII), and so Rule 9(b) heightened

standard applies to those claims. See (Doc. # 1 at ¶ 1) (“This

case involves a widespread fraudulent scheme[.]”). Plaintiffs

provide several particular examples of the allegedly

fraudulent insurance claims. (Id. at ¶¶ 87-88, 91-92, 105-

06, 112-14, 125-26). These examples include 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 Defendants

gained through the scheme. (Id. at ¶¶ 5-6, 49-60, 81-86, 90,

93-104, 107-11, 117-24).

And, Plaintiffs provide a chart listing the over 3,000

allegedly fraudulent claims submitted to Plaintiffs between

March 2017 and May 2020. (Doc. # 1-1). These include the claim

number, the abbreviation of the patient’s name, the patient’s

age, the first and last date of services, the number of the

patient’s visits to Path Medical clinics, the Path Medical

physicians or chiropractors who examined the patients, the

location of the services, the diagnoses and treatments

performed, and the amounts billed. (Id.). The representative

examples are sufficient to survive a motion to dismiss, 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.”).

As to Defendants’ argument that the complaint does not

adequately demonstrate that the medical directors and

chiropractors’ medical opinions are objectively false under

United States v. AseraCare, Inc., 938 F.3d 1278 (11th Cir.

2019), the Court begins by noting that AseraCare dealt with

review of a determination of objective falsehood following a

jury trial, not with dismissal at the pleadings stage. Id. at

1281. Even if AseraCare – a case concerning the False Claims

Act – is applicable, the Court declines to dismiss the

complaint for failure to prove that the medical opinions were

objectively false at this stage. The complaint includes

sufficient factual allegations to support Plaintiffs’

contention that these claims are fraudulent at this juncture.

D. Federal RICO Claims

Next, Defendants move to dismiss Counts III and IV,

Plaintiffs’ claims under Sections 1962(c) and 1962(d) of

RICO, respectively, because the complaint fails to adequately

plead (1) “an association-in-fact RICO enterprise” or (2) “a

pattern of racketeering through mail fraud or any other RICO

predicate act,” and because (3) “it simply concludes that the

[D]efendants conspired and confederated to commit conduct

which itself does not constitute a RICO violation.” (Doc. #

32 at 14-22 (internal quotation marks and citation omitted)).

Again, because the complaint has already been dismissed as to

Path Medical Center Holdings, the Court considers these

arguments only as to the remaining Defendants.

1. Section 1962(c)

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 Defendants: “(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

[Plaintiffs].” 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 ¶ 169). Because Plaintiffs’

RICO claims are based on the predicate acts of mail fraud,

their RICO allegations must comply with Rule 9(b)’s

heightened standard. American Dental, 605 F.3d at 1291.

Defendants allege that Plaintiffs have failed to

adequately plead the second and fourth elements of their

Section 1962(c) claim – that Defendants engaged in an (2)

enterprise pertaining to (4) racketeering activity that

included at least two predicate acts of racketeering. (Doc.

# 36 at 16-19). The Court will address each of these elements.

a. Association-in-Fact Enterprise

Under the 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). “[A]n association-in-fact enterprise must possess

three qualities: ‘a purpose, relationships among those

associated with the enterprise, and longevity sufficient to

permit these associates to pursue the enterprise’s purpose.’”

Ray, 836 F.3d at 1352 (quoting Boyle, 556 U.S. at 946). “The

purpose prong contemplates ‘a common purpose of engaging in

a course of conduct’ among the enterprise’s alleged

participants.” Cisneros, 972 F.3d at 1211 (quoting United

States v. Turkette, 452 U.S. 576, 583 (1981)). “An abstract

common purpose, such as a generally shared interest in making

money, will not suffice.” Id. “Rather, where the

participants’ ultimate purpose is to make money for

themselves, a RICO plaintiff must plausibly allege that the

participants shared the purpose of enriching themselves

through a particular criminal course of conduct.” Id.

As to the first element, the alleged common purpose is

the “defrauding [of Plaintiffs] through fraudulent claims for

[PIP] [b]enefits.” (Doc. # 1 at ¶ 167). Toward that endeavor,

Plaintiffs aver that Dr. Lewin and 1-800-411-PAIN

“solicite[d] and steer[ed] calls to Path Medical to exploit

their [PIP] [b]enefits by billing for services that were not

medically necessary and not lawful.” (Id. at ¶ 168). Dr. Lewin

“designed, oversaw, and is responsible for the

[p]redetermined [p]rotocol to exploit the [PIP] [b]enefits of

patients who [were] treated at Path Medical,” and “enabled

Path Medical to circumvent [] licensure requirements.” (Id.).

Path Medical’s medical directors, Dr. Cheesman, Dr. Desai,

Dr. Marino, Dr. Qian, Dr. Ramos, Dr. Thomas, Dr. Vazquez, and

Dr. Wilensky, as well as the chiropractors employed by Path

Medical, Dr. Chong, Dr. Golden, Dr. Kurzbuch, Dr. Lassiter,

Dr. Lewis, Dr. Manocha, Dr. Nerbonne, Dr. Parchment, Dr.

Sefick, and Dr. Vleko, “purportedly examined and treated the

patients at Path Medical and submitted, or caused to be

submitted, bills and supporting documentation to [Plaintiffs]

that were fraudulent because they were for treatment,

diagnostic imaging services, and [durable medical equipment]

that were not medically necessary and not lawfully rendered.”

(Id. at ¶¶ 168, 2). The medical directors further oversaw and

implemented the predetermined protocol and failed to review

patient referral agreements between Path Medical and 1-800-

411-PAIN or Path Medical’s billing. (Id. at ¶ 168).

Combined with the examples of repeated medically

unnecessary care provided to patients at Path Medical, this

is sufficient to demonstrate at this stage that Dr. Lewin, 1-

800-411-PAIN, Path Medical, the medical directors, and the

chiropractors acted with a common purpose of defrauding

Plaintiffs by submitting or causing to submit fraudulent

claims for reimbursement of PIP benefits. See Gov’t Emps.

Ins. Co. v. KJ Chiropractic Ctr. LLC, No. 6:12-cv-1138-PGB-

DAB, 2015 WL 12839138, at *6 (M.D. Fla. Feb. 16, 2015)

(finding that the plaintiffs had sufficiently alleged a

common purpose of fraudulently obtaining insurance benefits).

The complaint also sufficiently establishes a

relationship among those associated in the enterprise,

explaining each of the defendants’ roles in the scheme, and

considering the fact that both 1-800-411-PAIN and Path

Medical Center Holdings were owned by Dr. Lewin. (Doc. # 1 at

¶¶ 2-9, 17-39); see Continental, 317 F. Supp. 3d at 1141 (“The

Third Amended Complaint also establishes . . . a relationship

between individuals that comprised the Scheme itself. First,

it connects the acts with the Scheme’s aims by alleging

Defendants intended to defraud Continental[.] . . . Second,

it establishes each Defendant’s relationship with the Scheme

by specifying their purported actions.”). Additionally, the

complaint adequately alleges that this scheme took place over

a sufficient amount of time – particularly from at least

January 2017 through December 2018. (Doc. # 1 at ¶ 4); see

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

Supp. 3d 1216, 1241 (N.D. Ala. Sept. 27, 2019) (noting

longevity is met as long as “sufficient time has passed to

allow defendants a chance to pursue the common purpose”).

Finally, as to Defendants’ argument that the enterprise

alleged here is not sufficiently distinct from Defendants,

the Court disagrees. (Doc. # 32 at 19; Doc. # 33 at ¶ 9).

Defendants are correct that “a RICO enterprise must be an

entity separate and distinct from any individual defendant”

because “a person cannot conspire with itself.” Cisneros, 972

F.3d at 1215. Here, however, the RICO enterprise is

sufficiently distinct because it is comprised of not just

Path Medical, but also the medical directors and

chiropractors, Dr. Lewin, and, importantly, 1-800-411-PAIN.

(Doc. # 1 at ¶ 165); see Ray, 836 F.3d at 1357-58 (explaining

that outside vendors to the corporate defendant would be

distinct from the corporate enterprise, although the case was

dismissed as to those defendants for failure to allege a

common purpose). Contrary to Defendants’ argument, the Court

cannot conclude as a matter of law at this stage that 1-800-

411-PAIN is an agent of Dr. Lewin or Path Medical such that

it would not be considered a distinct entity within the

enterprise. See Lawrence Holdings, Inc. v. ASA Int’l, Ltd.,

No. 8:14-cv-1862-VMC-EAJ, 2014 WL 5502464, at *10 (M.D. Fla.

Oct. 30, 2014) (“The Court notes that questions of

distinctiveness between RICO actors and an enterprise present

‘a fact-intensive inquiry.’ . . . Thus, the Court determines

that at this time it is appropriate to deny the Motion on

this ground and allow this case to proceed to the summary

judgment stage.” (citations omitted)).

Accordingly, Plaintiffs have sufficiently alleged an

association-in-fact enterprise. See Continental, 317 F. Supp.

3d at 1140 (finding the allegation of an association-in-fact

enterprise supported where the complaint alleged facts that

the enterprise had “a purpose, relationships among those

associated with the enterprise, and longevity sufficient to

permit these associates to pursue the enterprise’s purpose”).

b. Predicate Acts

Next, Defendants argue that Plaintiffs have not alleged

the predicate acts with particularity. (Doc. # 32 at 20-21).

“To successfully allege a pattern of racketeering activity,

plaintiffs must charge that: (1) the defendants committed two

or more predicate acts within a ten-year time span; (2) the

predicate acts were related to one another; and (3) the

predicate acts demonstrated criminal conduct of a continuing

nature.” Jackson, 372 F.3d at 1264 (emphasis and citation

omitted). To allege continuing criminal activity, the

plaintiff may either allege “a series of related predicates

extending over a substantial period of time’ or ‘the threat

of continuity.’” Cisneros, 972 F.3d at 1216 (quoting H.J.

Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989)).

Here, the predicate acts are mail fraud. (Doc. # 1 at ¶

169). 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 requirements. Drummond v. Zimmerman, 454

F. Supp. 3d 1210, 1218 (S.D. Fla. 2020).

Here, Plaintiffs aver that “[t]he bills and

corresponding mailings that comprise the pattern of

racketeering activity identified through the date of [the]

[c]omplaint are described, in part, in Exhibits 1; 21-23; 30;

39-41.” (Doc. # 1 at ¶ 170). Indeed, attached to the

complaint, Plaintiffs include a chart of over 3,000 allegedly

fraudulent claims mailed to Plaintiffs from March 2017 to May

2020. (Doc. # 1-1). As previously noted, these include

identifying information, such as the claim number, the amount

billed, the date of the first and last services, and the date

of loss. (Id.). And, in their complaint, Plaintiffs provide

representative examples of allegedly fraudulent claims that

were submitted to them. (Id. at ¶¶ ¶¶ 87-88, 91-92, 105-06,

112-14, 125-26).

Taken together with the complaint’s explanation of the

entities and individuals’ roles in the scheme, why the scheme

is fraudulent, and how these claims were submitted to

Plaintiffs, these predicate acts are sufficiently pled 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)). Accordingly, the

Motion is denied as to Count III.

2. Section 1962(d)

Defendants also argue that Plaintiffs have failed to

adequately plead Count IV, their Section 1962(d) RICO claim,

because Plaintiffs “simply conclude[] that the defendants

conspired and confederated to commit conduct which in itself

does not constitute a RICO violation.” (Doc. # 32 at 22).

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) [need only] . . . 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 violations to survive a motion to

dismiss. Therefore, the Court declines to dismiss Count V as

to the remaining Defendants for this reason.

E. Civil Conspiracy

Next, Defendants argue that Count VI, Plaintiffs’ civil

conspiracy claim, fails because the complaint (1) “fails to

allege any overt acts taken by [Defendants]” and (2) does not

“adequately plead an ‘agreement’ to do an unlawful act or a

lawful act by unlawful means.” (Doc. # 32 at 22).

To plead a civil conspiracy under Florida law, the

plaintiff must sufficiently allege: (1) “an agreement between

two or more parties,” (2) “to do an unlawful act or to do a

lawful act by unlawful means,” (3) “the doing of some overt

act in pursuance of the conspiracy,” and (4) “damage to

plaintiff as a result of the acts done under the conspiracy.”

Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997).

“An agreement between two or more parties occurs when there

is an express or implied agreement of two or more persons to

engage in a criminal or unlawful act.” Gilison v. Flagler

Bank, 303 So.3d 999, 1004 (Fla. 4th DCA 2020). “Each

coconspirator need not act to further a conspiracy; each ‘need

only know of the scheme and assist in it in some way to be

held responsible for all of the acts of his coconspirators.’”

Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So.2d

1157, 1160 (Fla. 3d DCA 2008) (quoting Donofrio v. Matassini,

503 So.2d 1278, 1281 (Fla. 2d DCA 1987)).

As previously noted, the complaint includes sufficient

factual support for Defendants’ role in the conspiracy. And,

the complaint sufficiently alleges that Defendants agreed to

submit or cause to be submitted fraudulent claims to

Plaintiffs. (Doc. # 1 at ¶¶ 1-4, 182-83) (“Defendants . . .

each agreed to act and did act in furtherance of the common

and overall objective of the conspiracy to fraudulently

obtain [PIP insurance] [b]enefits[.]”). Accordingly, the

Court declines to dismiss Count VI for these reasons. See

Gilison, 303 So.3d at 1004-05 (holding that the complaint

sufficiently alleged a civil conspiracy where it provided

sufficient facts that the parties assisted in the fraud, and

that the parties had at least an implied agreement to do so).

F. Unjust Enrichment

Lastly, Defendants move to dismiss Count V, Plaintiffs’

claim for unjust enrichment, arguing that (1) “it is not

independent of wrongful conduct” and (2) “Plaintiffs have

failed to plead a direct benefit conferred on” Defendants.

(Doc. # 32 at 23).

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)).

“A number of courts hold that a claim of unjust

enrichment may not be predicated on a wrong committed by a

defendant.” AIM Recycling Fla., LLC v. Metals USA, Inc., No.

18-60292-CIV-ZLOCH, 2019 WL 1991946, at *1 (S.D. Fla. Mar. 4,

2019); see Electrostim Med. Servs., Inc. v. Lindsey, No. 8:11-

cv-2467-VMC-TBM, 2012 WL 1560647, at *4 (M.D. Fla. May 2,

2012) (“Where a plaintiff predicates their unjust enrichment

claim on wrongful conduct of a defendant, then the plaintiff’s

right of recovery, if any, arises from the wrong of the

alleged tort rather than unjust enrichment.” (citation

omitted)).

Here, Plaintiffs’ unjust enrichment claim provides that

it is based on the submission of “charges for examinations,

diagnostic imaging, and other services that were not

medically necessary and not lawfully rendered[.]” (Doc. # 1

at ¶ 179). The Court cannot differentiate this wrong from the

other torts alleged in this complaint, especially given that

each count in the complaint incorporates the same set of

paragraphs from the body of the complaint. (Id. at ¶¶ 152,

157, 164, 172, 177, 181, 186, 192, 195). And, the claim for

unjust enrichment has not been pled in the alternative. See

AIM Recycling, 2019 WL 1991946, at *2 (“Nevertheless, viewing

the pleading in the light most favorable to the non-moving

party, the Court holds that Plaintiffs’ unjust enrichment

claim is adequately pled in the alternative in anticipation

of Defendants claiming that they committed no wrong.”).

Accordingly, the Motion is granted as Count V, which is

dismissed without prejudice. See FreeStyle Slides, Inc. v.

Super Sweet Air, Inc., No. 6:17-cv-169-CEM-GJK, 2018 WL

3819073, at *5 (M.D. Fla. July 9, 2018) (“Because Plaintiff’s

unjust enrichment claim is premised on wrongful conduct

allegedly committed by Goldreyer, among others, Plaintiff’s

claim fails as a matter of law, and Goldreyer’s request for

dismissal must be granted.”).

IV. Conclusion

Dr. Lewin, 1-800-411-PAIN, Path Medical, and Path

Medical Center Holdings’ Motion to Dismiss (Doc. # 32) is

granted in part and denied in part. The Path Medical

chiropractors and medical directors’ Motion to Dismiss and to

Join and Adopt Motion to Dismiss (Doc. # 33) is granted in

part and denied in part.

The complaint is dismissed without prejudice as to Path

Medical Center Holdings for failure to provide adequate

notice as to the claims against it. Count I, Plaintiffs’ claim

for violations of the Florida Patient Self-Referral Act, is

dismissed without prejudice for failure to adequately allege

that the individuals who called 1-800-411-PAIN and were

referred to the Path Medical clinics were “patients” within

the meaning of the Act. Count V, Plaintiffs’ claim for unjust

enrichment, is dismissed without prejudice because it is

predicated solely on wrongful conduct allegedly committed by

Defendants and has not been pled in the alternative. The

Motions are denied as to any other requested relief.

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendants’ Motion to Dismiss (Doc. # 32} and Motion to

Dismiss and to Join and Adopt Motion to Dismiss (Doc. #

33) are GRANTED in part and DENIED in part.

(2) The complaint is DISMISSED without prejudice as to Path

Medical Center Holdings, Inc. Counts I and V are

DISMISSED without prejudice as to all other Defendants.

(3) Plaintiffs may file an amended complaint by May 4, 2021.

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

20th day of April, 2021.

igs? Ir. Mesnenly

VIR IA M. HERNANDEZ’*COVINGTON

UNITED STATES DISTRICT JUDGE

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