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

> District Court, M.D. Florida · April 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10107368

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- 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 …

## Opinion text

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

4l

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107368. Public record. Not legal advice.