# Omni Healthcare Inc. v. North Brevard County Hospital District

> District Court, M.D. Florida · August 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11114924

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 5, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11114924

## How later opinions describe it (automated extraction)

- noting that insiders may “have an easier time” bringing FCA claims not by virtue of their status, but because they have increased access to “information about billing practices”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

CRAIG DELIGDISH,

Plaintiff,

v. Case No: 6:22-cv-696-JSS-DCI

NORTH BREVARD COUNTY
HOSPITAL DISTRICT, GEORGE
MIKITARIAN, CHRISTOPHER
MCALPINE, ANUAL JACKSON,
SR., and HALIFAX HOSPITAL
MEDICAL CENTER TAXING
DISTRICT,

Defendants.
___________________________________/

ORDER

Defendants, George Mikitarian, Christopher McAlpine, Anual Jackson, Sr.,
North Brevard County Hospital District d/b/a Parrish Medical Center (Parrish and,
together with Mikitarian, McAlpine, and Jackson the Parrish Defendants), and
Halifax Hospital Medical Center Taxing District d/b/a Halifax Health move to
dismiss Plaintiff’s second amended complaint. (Dkts. 86, 87, 97, 99.) Plaintiff, Craig
Deligdish, opposes the motions. (Dkt. 91.) Having considered the magistrate judge’s
report and recommendation (Dkt. 108), the objections thereto (Dkts. 112–14), and the
responses to the objections (Dkts. 116–18), the court grants Defendants’ motions in
part and denies them in part.
BACKGROUND
Plaintiff is an oncologist and the principal of OMNI Healthcare, Inc., “a multi-

specialty physician group based in Brevard County, Florida.” (Dkt. 83 at 4.)
Defendant Parrish is “an independent special taxing district” in Brevard County that
operates a “community hospital[,] . . . an affiliated medical group[—]Parrish Medical
Group,” or PMG—and “related support services.” (Id.) Defendants Mikitarian,
McAlpine, and Jackson are executives at Parrish. (Id. at 4–5.) Defendant Halifax is

“a legislatively-chartered taxing healthcare organization governed by a Board of
Commissioners who are appointed by the Governor of Florida.” (Id. at 5.)
Florida’s Low-Income Pool (LIP) program “reimburses hospitals and providers
for the cost of care given to Florida’s most vulnerable patients.” (Id. at 2–3.) See Op.
Att’y Gen. Fla. 2009-06 (2009), 2009 WL 364879, at *1, 2009 Fla. AG LEXIS 7, at *4

(“In 2006, the State of Florida established the [LIP] program as one of the components
of a broad-ranging reform of the Florida Medicaid Program. The program is a joint
federal-state program requiring funding from both federal and . . . non-federal
sources.”). The Coronavirus Aid, Relief, and Economic Security (CARES) Act aims
to provide federal relief for persons negatively affected by the Covid-19 pandemic and

prohibits “physician groups [from] receiv[ing] government funding for services already
covered by other C[ovid-19] relief programs.” (Dkt. 83 at 2.) See CARES Act, Pub. L.
No. 116-136, 134 Stat. 281 (2020). The Stark Act “makes it illegal for hospitals to
compensate referring physicians based on the value and volume of referrals for
designated health services.” (Dkt. 83 at 2.) See Stark Act, 42 U.S.C. § 1395nn.
Plaintiff alleges that Halifax and Parrish entered into a pair of interlocal
agreements—the first in 2017 and the second in 2019—to unlawfully avoid returning
government funds. (Dkt. 83 at 16–20.) Plaintiff further alleges that Defendants

“colluded to defraud LIP, knowing the interlocal agreements were improper and, in
doing so, submitted false and/or fraudulent claims for payment to the United States
and the State of Florida, and/or improperly avoided an obligation to return funds to
the [g]overnment.” (Id. at 3.) Plaintiff also claims that Parrish “defrauded the
[g]overnment by requesting, receiving, and improperly retaining CARES Act funds”

and “violated the Stark [Act]” by “compensating physicians in excess of fair market
value based on the . . . volume of their referrals.” (Id. at 32, 49.)
On February 1, 2022, Plaintiff initiated this case in the Northern District of
Florida as relator of the United States and Florida. (See Dkt. 1 at 1.) The qui tam

complaint claimed violations of the Federal False Claims Act (FCA), 31 U.S.C.
§§ 3729–3733, the Florida False Claims Act (FFCA), Fla. Stat. §§ 68.081–.09, and the
Stark Act, and retaliation under the FCA in violation of 31 U.S.C. § 3730(h). (Dkt. 1
at 30–32.) On April 15, 2022, this case was transferred to this district based on the
parties’ stipulation. (See Dkts. 5, 6.) See 28 U.S.C. § 1404(a). On August 10, 2022,

Plaintiff filed an amended qui tam complaint that was largely identical to the original
with minor alterations and additions.1 (Compare Dkt. 1, with Dkt. 11.) On September

1 Prior to the filing of the second amended complaint, the parties to this case included OMNI and
John Doe (an executive at OMNI) as Plaintiffs, and Jeff Feasal and Eric Peburn (executives at Halifax)
as additional Defendants. (See Dkt. 11 at 3–5.) Deligdish appears to have been the John Doe Plaintiff.
Both were executives at OMNI, (see Dkt. 11 at 4, 30), and the court dismissed certain claims in the
6, 2023, the United States and Florida notified the court of their decision not to
intervene in this case. (See Dkt. 26.) They requested that the court “solicit [their]
written consent” before ruling on any motion to dismiss, (id. at 2), and the court

granted the request, (Dkt. 27 at 2).
Defendants moved to dismiss the amended complaint arguing, among other
things, that it was an impermissible shotgun pleading. (See Dkts. 56, 57.) The court
granted those motions in part and denied them in part. (See Dkt. 80.) As to former

plaintiff OMNI, the court dismissed the LIP-program and CARES-Act claims with
prejudice because they were precluded by the public disclosure bars of the FCA and
FFCA, but as to Plaintiff, the court permitted repleading if Plaintiff could “in good
faith[] add factual allegations supporting that he is an original source.” (Id. at 23–24,
32.) The rest of the claims were dismissed without prejudice, and while Defendants

requested dismissal with prejudice, the court was required to give Plaintiff an
opportunity to replead. (See Dkts. 56, 57, 73; Dkt. 80 at 11, 32.) See Vibe Micro, Inc. v.
Shabanets, 878 F.3d 1291, 1296 (11th Cir. 2018) (“When a litigant files a shotgun
pleading, is represented by counsel, and fails to request leave to amend, a district court
must sua sponte give him one chance to replead before dismissing his case with

prejudice on non-merits shotgun[-]pleading grounds.”). In its order dismissing the
amended complaint, the court provided detailed instructions to avoid a future shotgun

amended complaint with prejudice, but subject to repleading if Doe could add allegations “supporting
that he is an original source,” (Dkt. 80 at 23–24), which the second amended complaint alleges
Deligdish is, (Dkt. 83 at 6).
pleading. (See Dkt. 80 at 7 n.5, 11–18 & nn. 6–8, 25 n.11.) The court expressly
cautioned Plaintiff that he must “fully comply with each of th[e] order’s directives in
order to avoid a future shotgun pleading.” (Id. at 32.)

Plaintiff timely filed his second amended complaint, raising fourteen counts.
(See Dkt. 83.) Counts one through four allege violations of the FCA related to the LIP
program against all Defendants. (Id. at 36–40.) Count five alleges violations of the
FFCA against all Defendants. (Id. at 41–42.) Counts six through nine allege violations

of the FCA related to the CARES Act against “Parrish Defendants.” (Id. at 43–48.)
Counts ten through thirteen allege violations of the FCA and the Stark Act against
Parrish, (id. at 48–54), and count fourteen alleges a violation of the FCA’s anti-
retaliation provision against Parrish and Mikitarian.2 (Id. at 54–56.) Defendants move
to dismiss the second amended complaint. (See Dkts. 86, 87.) Plaintiff has filed a

response, (Dkt. 91), and Defendants, with the court’s permission, have filed replies,
(see Dkts. 92–95, 97, 99).
The court referred Defendants’ motions to dismiss to the magistrate judge for
entry of a report and recommendation. (Dkt. 94.) The magistrate judge recommends
granting the motions in part and denying them in part by dismissing counts one, two,

five through nine, and fourteen with prejudice and dismissing the remaining counts
without prejudice. (Dkt. 108 at 48.) All parties filed objections to the report and
recommendation and responses to the objections, (Dkts. 112–14; see Dkts. 116–18).

2 The second amended complaint misnumbers count fourteen as “Count IX.” (See Dkt. 83 at 54.)
While the magistrate judge was considering Defendants’ motions to dismiss,
Plaintiff filed a motion to stay discovery, which the magistrate judge denied. (Dkts.
104, 111.) Plaintiff seeks review of that order, (Dkt. 115), and the Parrish Defendants

respond to Plaintiff’s position, (Dkt. 119).
APPLICABLE STANDARDS
After conducting a careful and complete review of the findings and
recommendations, a district judge “may accept, reject, or modify, in whole or in part,

the findings or recommendations made by the magistrate” judge. 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72. With respect to non-dispositive matters, the
district judge “must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see Jordan
v. Comm’r, Miss. Dep’t of Corr., 947 F.3d 1322, 1327 (11th Cir. 2020). For dispositive

matters, the district judge must conduct a de novo review of any portion of the report
and recommendation to which a timely objection is made. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b)(3); United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir.
2009) (“A district court makes a de novo determination of those portions of a
magistrate’s report to which objections are filed.”). Even in the absence of a specific

objection, the district judge reviews any legal conclusions de novo. See Cooper-Houston
v. S. Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Ashworth v. Glades Cnty. Bd. of Cnty.
Comm’rs, 379 F. Supp. 3d 1244, 1246 (M.D. Fla. 2019).
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to “contain . . . a
short and plain statement of [a] claim showing that the [plaintiff] is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). Federal Rule of Civil Procedure 10(b) requires the plaintiff to
“state its claims . . . in numbered paragraphs, each limited as far as practicable to a
single set of circumstances.” Fed. R. Civ. P. 10(b). To “promote clarity,” Rule 10(b)

also requires the plaintiff to state “each claim founded on a separate transaction or
occurrence . . . in a separate count.” Id. “Complaints that violate either Rule 8(a)(2)
or Rule 10(b), or both, are often disparagingly referred to as ‘shotgun pleadings.’”
Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320 (11th Cir. 2015). Shotgun
pleadings “fail . . . to give the defendants adequate notice of the claims against them

and the grounds upon which each claim rests.” Id. at 1323.
In deciding a motion to dismiss for failure to state a claim, a court “accept[s]
the allegations in the complaint as true and construe[s] them in the light most favorable
to the plaintiff.” Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir. 2019). “To survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

“[D]etailed factual allegations” are generally not required, but “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
A claim sounding in fraud “must state with particularity the circumstances
constituting [the] fraud.” Fed. R. Civ. P. 9(b). To meet this particularity requirement,
the claim must set forth “(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]laintiff[]; and (4) what the defendants

gained by the alleged fraud.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d
1364, 1380–81 (11th Cir. 1997). In other words, the claim must provide “the who,
what, when[,] where, and how” of the alleged fraudulent activities. Garfield v. NDC
Health Corp., 466 F.3d 1255, 1262 (11th Cir. 2006) (quoting Gross v. Medaphis Corp., 977

F. Supp. 1463, 1470 (N.D. Ga. 1997)). However, “[m]alice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).
Under Federal Rule of Civil Procedure 16, once the court sets a schedule of case
management deadlines, the “schedule may be modified only for good cause and with
the [court]’s consent.” Fed. R. Civ. P. 16(b)(4). “This good cause standard precludes

modification unless the schedule cannot be met despite the diligence of the party
seeking the extension.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998)
(quotation omitted).
ANALYSIS
No party objects to the magistrate judge’s recommendation that counts one,

two, and fourteen be dismissed with prejudice, so the court adopts that
recommendation without further analysis. (See Dkt. 108 at 9–18, 43–48; Dkts. 112–
14.) With regard to the remainder of Plaintiff’s claims, the court first analyzes counts
three through five, counts six through nine, and counts ten through thirteen. The court
then addresses Defendants’ position that the magistrate judge erred in rejecting their
Appointments Clause argument. (See Dkt. 112 at 11; Dkt. 113 at 3.) The court
concludes by considering the magistrate judge’s order denying Plaintiff’s motion to
stay. (See Dkts. 104, 111.)

A. Counts Three Through Five—FCA and FFCA Claims

Counts three through five assert violations of the FCA and the FFCA related to
the LIP program against all Defendants. (Dkt. 83 at 38–42.) The court first considers
counts three and four together before turning to count five. The court concludes this
section by considering Halifax’s argument that these claims are barred under the FCA
and FFCA’s public disclosure bars. (See Dkt. 112 at 6–11.)
1. Count Three—Conspiracy Pursuant to 31 U.S.C. § 3729(a)(1)(C);
Count Four—Violation of 31 U.S.C. § 3729(a)(1)(G)

In count three, Plaintiff alleges that Defendants violated 31 U.S.C.
§ 3729(a)(1)(C) by conspiring to violate 31 U.S.C. § 3729(a)(1)(A), (B), and (G). (Dkt.
83 at 38–39.) In count four, Plaintiff alleges that Defendants violated 31 U.S.C.
§ 3729(a)(1)(G). (Dkt. 83 at 39–40.) The magistrate judge recommends dismissal of
both counts without prejudice. (Dkt. 108 at 18–27.)
With regard to the alleged violation of section 3729(a)(1)(G), the court’s
previous order noted that this section contains three discrete theories of liability. (See
Dkt. 80 at 25–26 & n.11.) Those theories are (1) “knowingly mak[ing], us[ing], or
caus[ing] to be made or used, a false record or statement material to an obligation to

pay or transmit money or property to the [g]overnment,” (2) “knowingly
conceal[ing] . . . an obligation to pay or transmit money or property to the
[g]overnment,” and (3) “knowingly and improperly avoid[ing] or decreas[ing] an
obligation to pay or transmit money or property to the [g]overnment.” 31 U.S.C.
§ 3729(a)(1)(G). Plaintiff was expressly directed to separate his section 3729(a)(1)(G)

claims in the second amended complaint “such that each asserted theory gets its own
count in the amended pleading.” (Dkt. 80 at 25 n.11.) Because the second amended
complaint fails to comply with the court’s clear directive, the magistrate judge
recommends that count four be dismissed. (Dkt. 108 at 23.)
Plaintiff objects, arguing that the second amended complaint “clearly limits his

legal theory [under section 3729(a)(1)(G)] to one,” obviating any “need to split up the
theories.” (Dkt. 114 at 2–6.) That is not so. Count four includes the following
allegation:
Defendants made, used, or caused to be made or used, a
false record or statement material to an obligation to pay or
transmit money or property to the [g]overnment, or
knowingly concealed or knowingly and improperly avoided
or decreased an obligation to pay or transmit money or
property to the [g]overnment.

(Dkt. 83 at 40.) This language, incorporating all three theories of liability supported
by section 3729(a)(1)(G), runs afoul of the court’s prior order. See also Weiland, 792
F.3d at 1322–23 (“The third type of shotgun pleading is one that commits the sin of
not separating into a different count each cause of action or claim for relief.”).
Turning to count three, the court first notes that this claim is subject to Rule
9(b)’s heightened pleading standard. See United States v. HPC Healthcare, Inc., 723 F.
App’x 783, 791 (11th Cir. 2018) (“Rule 9(b)’s heightened pleading standard applies to
claims brought under the conspiracy provision [of the FCA].” (citing Corsello v. Lincare,
Inc., 428 F.3d 1008, 1014 (11th Cir. 2005))). The magistrate judge recommends
dismissal of Plaintiff’s claims of conspiracy to violate sections 3729(a)(1)(A) and (B)

because “Plaintiff has not alleged that Defendants conspired to present false claims to
the [g]overnment for payment.” (Dkt. 108 at 25–26.) See Corsello, 428 F.3d at 1014
(affirming dismissal of conspiracy claim where the “bare legal conclusion” that the
defendants “conspired to defraud the [g]overnment” was not supported by “specific

allegations of any agreement or overt act”). Plaintiff does not object to this
recommendation, (see Dkt. 114), so the court adopts it without further analysis.3
With respect to Plaintiff’s claim of a conspiracy between Defendants to violate
section 3729(a)(1)(G), the magistrate judge determined that “Plaintiff alleges
facts . . . that indicate that Plaintiff could state a claim for conspiracy to commit a

violation of” that section. (Dkt. 108 at 26.) However, because Plaintiff does not clarify
which of section 3729(a)(1)(G)’s three discrete theories of liability serve as the basis for
the conspiracy count, the magistrate judge recommends that like count four, count
three be dismissed without prejudice. (Id.) Plaintiff objects on the basis that the second
amended complaint, “when considered as a whole[,] provides adequate notice as to

which factual allegations establish which theories of liability in terms of conspiracy to
violate . . . [section] 3729(a)(1)(G).” (Dkt. 114 at 6.) The court overrules this

3 While Plaintiff objects to the dismissal of count three, he argues only that this count should not be
dismissed because he has properly alleged a conspiracy to violate section 3729(a)(1)(G), not section
3729(a)(1)(A) or (B). (See Dkt. 114 at 6.)
objection for the same reason it overrules his objection as to count four—the second
amended complaint does not separate the theories of liability as the court ordered. (See
Dkt. 83 at 40.)

Defendants object to the dismissal of counts three and four without prejudice,
contending that dismissal should be with prejudice due to Plaintiff’s blatant failure to
cure the deficiencies identified by the court. (Dkt. 112 at 3–6; Dkt. 113 at 6–8.)
“[R]epeated failure to cure deficiencies by amendments previously allowed” does
furnish a basis for dismissal of a complaint without leave to amend. Foman v. Davis,

371 U.S. 178, 182 (1962). While the court previously dismissed Plaintiff’s amended
complaint based on pleading deficiencies and provided express instructions for
repleading, that was the court’s first time doing so. (See Dkt. 80.) Accordingly,
Plaintiff’s failure to cure the deficiencies in his first amended complaint with his second

amended complaint does not demonstrate a repeated failure to cure and thus does not
warrant dismissal with prejudice. Further, the magistrate judge determined that
Plaintiff’s allegations may support a claim under sections 3729(a)(1)(C) and (G). (Dkt.
108 at 23, 26–27.) See Foman, 371 U.S. at 182 (“If the underlying facts or
circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to

be afforded an opportunity to test his claim on the merits.”). Accordingly, counts three
and four are dismissed without prejudice.
2. Count Five—Violation of the FFCA
In count five, Plaintiff alleges that Defendants violated sections 68.082(2)(a)–
(c) and (g) of the FFCA. (Dkt. 83 at 41–42.) The court previously dismissed Plaintiff’s
FFCA claim, included under count two of the amended complaint, on shotgun
pleading grounds because that count was “brought under multiple subsections of
the . . . [FFCA].” (Dkt. 80 at 13.) The court expressly counseled Plaintiff not to repeat

this error. (Id. at 14 (“When repleading the [FFCA] claims . . . , Plaintiff[] shall list
each cause of action into a separately numbered count, with one legal theory per count,
and a specifically named defendant or defendants per count.” (quotation omitted)).
Because Plaintiff failed to heed this directive, the magistrate judge recommends
dismissing count five with prejudice. (See Dkt. 108 at 43.) See Bryant v. Dupree, 252

F.3d 1161, 1163 (11th Cir. 2001) (“A district court need not . . . allow an
amendment . . . where there has been . . . repeated failure to cure deficiencies by
amendments previously allowed . . . .”).
Plaintiff objects that count five gives adequate notice to Defendants and

therefore should not be dismissed. (Dkt. 114 at 5–6.) The court dismisses count five
because it does not comply with the court’s directive to separate the FFCA claims into
different counts for clarity’s sake. However, the court grants Plaintiff leave to amend
count five for the same reasons as counts three and four—the court has dismissed his
FFCA claims only once before, and his allegations may support claims under the

FFCA.
3. The Public Disclosure Bars
Halifax maintains that counts one through five should be dismissed with
prejudice because they are barred by the public disclosure bars of the FCA and FFCA.
(Dkt. 112 at 6–11.) Essentially, Halifax submits that leave to amend would be futile.
(Id.) The court overrules this objection because it agrees with the magistrate judge that
the public disclosure bars do not apply.
The FCA “prohibits lawsuits where the allegations in the complaint are

‘substantially the same’ as . . . allegations or transactions contained in public
disclosures, unless the plaintiff is an original source.” United States ex rel. Osheroff v.
Humana, Inc., 776 F.3d 805, 812 (11th Cir. 2015) (quoting 31 U.S.C. § 3730(e)(4)).
This prohibition—the FCA’s public disclosure bar—applies if “the allegations made

by the plaintiff [have] been publicly disclosed” and “the disclosed information [is] the
basis of the plaintiff’s suit,” unless “the plaintiff is an original source of that
information.” Id. (quotations omitted). The FFCA has a similar bar, and indeed, the
two bars are analyzed in the same way. See Klusmeier v. Bell Constructors, Inc., 469 F.
App’x 718, 719 n.1 (11th Cir. 2012) (“The district court found the FFCA tracked the

[FCA] and applied the same analysis for both. [The r]elators do not dispute this
conclusion, and thus, [the court’s] analysis applies equally to the [FFCA] and [FCA]
claims.”).4 For purposes of the bars, an original source includes any individual who
“has knowledge that is independent of and materially adds to the publicly disclosed
allegations or transactions, and who has voluntarily provided the information to the

[g]overnment before filing an action under this section.” 31 U.S.C. § 3730(e)(4)(B).
Plaintiff asserts that on June 17, 2021, via phone or email, he described

4 The magistrate judge did not have reason to perform a public disclosure bar analysis for count five.
(See Dkt. 108 at 34 n.13.) However, the magistrate judge noted that FFCA claims “are subject to the
same public disclosure bar analysis as FCA claims.” (Id.) Halifax agrees with this conclusion. (See
Dkt. 112 at 6 n.9.)
Defendants’ “transaction to [the United States Department of Health and Human
Services and the United States Office of the Inspector General].” (Dkt. 83 at 6.)
Halifax argues that the information Plaintiff shared was publicly disclosed in a June

22, 2021 complaint filed in Brevard County, Florida, the media coverage surrounding
that complaint, which began on June 22, 2021, and the interlocal agreements
themselves, filed with the Brevard County Clerk in 2017 and 2019. (See Dkt. 86 at 16–
18.) Plaintiff’s disclosure to the government preceded the Brevard County complaint
and the media coverage surrounding it, so the only issue is whether the disclosure

materially added to and was independent of the interlocal agreements such that
Plaintiff constitutes an original source.
The June 17, 2021, disclosure states that the interlocal agreements seemed to
violate the FCA and that
it appears that Halifax and Parrish conspired [to] game the
system whereby hospitals receive state and federal money
for providing care to low[-]income patients. In doing so,
they also appear to have conspired to launder government
money and use these monies to fund projects for which the
monies were not intended. The communications and
internal memos between the two institutions indicate that
they were aware of the risk of this conduct, understood that
it was against the law and were aware that this conduct was
done without proper authorization from government
agencies. . . . It has also come to our attention that Parrish
was advised by [its] attorneys that this conduct may have
been in violation of the law. Yet, Dr. Mikitarian[] ignored
this advice and found attorneys who suggested that Parrish
could probably “get away with it[.]”
(Dkt. 91-2 at 2–3.)5 The magistrate judge concludes that Plaintiff’s disclosure
materially adds to and is independent of the interlocal agreements, which, naturally,
did not indicate that Defendants were intending to use the interlocal agreements to

misappropriate government funds. (See Dkt. 108 at 39.)
Halifax contests this conclusion, submitting that the allegations in Plaintiff’s
disclosure are “nothing more than conjecture” and that his claims are conclusory and
fail to satisfy federal pleading standards. (See Dkt. 112 at 8–11.) First, while Plaintiff’s
disclosure is light on facts, it nevertheless materially adds to the interlocal agreements

because it claims that those agreements were knowingly being used as a mechanism to
misappropriate money and defraud the government. (See Dkt. 91-2 at 2–3.) The cases
Halifax cites to support its argument are readily distinguishable, as the relators in those
cases merely added background information regarding false claims that could already

be identified through publicly available information. (See Dkt. 112 at 10–11.) See
Osheroff, 776 F.3d at 815 (“[The relator]’s information does not materially add to the
public disclosures, which were already sufficient to give rise to an inference that the
clinics were providing illegal remuneration to patients.”); United States ex rel. Lewis v.
Walker, 438 F. App’x 885, 888 (11th Cir. 2011) (reasoning that relators were not

“original sources” where they only compiled public information “available to anyone

5 Halifax argued in its reply that the court could not consider the contents of this disclosure at the
motion to dismiss stage. (See Dkt. 96 at 2–3 & n.3.) The magistrate judge nevertheless considered the
disclosure under the incorporation by reference doctrine, (see Dkt. 108 at 36–37), and no party has
raised an objection to the application of this doctrine, (see Dkts. 112–14). In any event, the court agrees
that the doctrine applies. See Johnson v. City of Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024) (holding
that documents may be considered under the incorporation by reference doctrine if they are “central
to the plaintiff’s claims” and “undisputed”).
who wished to use it for the same purpose”); United States ex rel. Zafirov v. Fla. Med.
Assocs. LLC, No. 8:19-cv-1236-KKM-SPF, 2021 WL 4443119, at *7–8 (M.D. Fla. Sept.
28, 2021) (determining that what had been publicly disclosed was already “enough to

give rise to an inference of the same alleged fraud in th[at] case” and noting that “mere
background information that helps the public better understand or contextualize a
public disclosure is not enough to find that a relator qualifies as an original source”).
Further, Halifax provides no caselaw to support its argument that, in order to
materially add to a public disclosure, information must satisfy federal pleading

standards. (See Dkt. 112 at 10 & n.11.) To the extent that Halifax argues that the
disclosure’s allegations are not plausible, the court disagrees. To the extent that it
argues for particularity, that heightened standard does not apply to the original source
inquiry. Indeed, the Eleventh Circuit has simultaneously held that an individual

qualified as an original source but did not plead fraud with particularity. See Cooper v.
Blue Cross & Blue Shield of Fla., Inc., 19 F.3d 562, 568–69 (11th Cir. 1994). Accordingly,
Halifax’s objections are overruled as to these counts.
B. Counts Six Through Nine—Violations of the FCA
In counts six through nine, Plaintiff alleges violations of the FCA related to the

CARES Act against the “Parrish Defendants,” as that group is defined in the second
amended complaint. (Dkt. 83 at 43–48.) The court cannot determine which
Defendants this designation is intended to refer to, but Plaintiff attempts to define and
group Defendants as follows:
Halifax Hospital Medical Center Taxing District d/b/a
Halifax Health (“Halifax”), North Brevard County
Hospital District d/b/a Parrish Medical Center (“Parrish”),
George Mikitarian, Christopher McAlpine, and Anual
Jackson, Sr.[] (collectively, the “Parrish Defendants”)
(collectively “Defendants”) . . . .

(Id. at 1.) The court agrees with the Parrish Defendants and the magistrate judge that
this manner of defining the “Parrish Defendants” prevents the court from determining,
without speculation, which Defendants counts six through nine are alleged against.
(See Dkt. 87 at 22–23; Dkt. 108 at 41–43.) The “Parrish Defendants,” as per Plaintiff’s
definition, may refer to Mikitarian, McAlpine, and Jackson either alone or in addition
to Parrish. (See Dkt. 108 at 42 (“Plaintiff’s list of defined terms uses commas to
separate the defined terms from one another and to separate the individual Defendants
included in each defined term. This [practice] leaves room for ambiguity, particularly
as to whether [Parrish] is included in the ‘Parrish Defendants’ grouping for [c]ounts
[six] through [nine].” (internal citation omitted)).)
The magistrate judge notes that further confusion is caused by Plaintiff’s
including in count eight allegations against “Defendants”—a term Plaintiff defined to
include all Defendants—and by Plaintiff’s alternating between “Parrish Defendants”
and “Parrish” in count nine. (Dkt. 108 at 42–43; see Dkt. 83 at 1, 46–48.) Because the

court cannot determine which Defendants counts six through nine are asserted against,
those counts are due to be dismissed. See Weiland, 792 F.3d at 1323 (classifying as
shotgun pleadings complaints that “assert[] 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”).
Plaintiff’s objection only amplifies the confusion created by the second
amended complaint because his objection fails to clarify whether these counts are
intended to be asserted against Parrish, alone, or all the Parrish Defendants, together.

[T]he [second amended complaint] makes absolutely clear
that the CARES Act . . . claims are directed exclusively at
Parrish and the officers [Plaintiff] understands to have been the
orchestrators of the C[ARES] Act fraud. No plausible confusion
can be argued nor guesswork needed to be on notice that
the CARES Act claims are alleged against Parrish. [Plaintiff]
concedes that the allegations directed at Mikitarian,
McAlpine, and Jackson are notably less specific than those
against Parrish, but the [c]ourt can address that
deficiency . . . by dismissing those defendants while
upholding the claims against the very clear perpetrator of
the fraud, through which they acted.

(Dkt. 114 at 7–8 (emphasis added).) Plaintiff also concedes that the magistrate judge’s
confusion regarding Plaintiff’s including allegations against “Defendants” in count
eight and alternating between “Parrish” and “Parrish Defendants” in count nine is
“understandable.” (Id. at 8 (“The term ‘Defendants’ was intended to merely refer to
defendants generically (with an inadvertently capitalized ‘d[]’) . . . .”).) Inadvertent or
not, Plaintiff’s failure to clarify which claims are brought against which Defendants
warrants dismissal of counts six through nine.
Plaintiff resists this conclusion by arguing that the magistrate judge “failed to
analyze the [second amended complaint] as a whole.” (Id. at 6.) The allegations
outside of counts six through nine are irrelevant, however, because the words used
within those counts render them facially ambiguous as to which Defendants they assert
claims against. Accordingly, the caselaw relied upon by Plaintiff—dealing with
arguments that the underlying pleadings contained insufficient allegations—is
inapposite. (Dkt. 114 at 6.) See Magluta v. Samples, 375 F.3d 1269, 1273–74 (11th Cir.
2004) (“In dismissing [the plaintiff]’s due process claim . . . , the district court found

that [the plaintiff] had failed to allege facts to show that the conditions of his
confinement were imposed as a punishment.”); Aldana v. Del Monte Fresh Produce, N.A.,
Inc., 416 F.3d 1242, 1252 n.11 (11th Cir. 2005) (“[The defendant] cannot say that it
did not receive fair notice of the torture claim just because the language about lasting

mental trauma was placed in another section of the complaint.”).
However, as with counts three through five, the court dismisses these counts
without prejudice. The Parrish Defendants submit that leave to amend counts six
through nine should be denied because amendment would be futile due to the FCA’s
public disclosure bar. (Dkt. 113 at 8–9.) The magistrate judge has not considered the

Parrish Defendants’ argument regarding the public disclosure bar because their motion
failed to present that argument. (See Dkt. 108 at 35 (“In their motion to dismiss, the
Parrish Defendants devote one sentence to the public disclosure bar argument, and
that sentence incorporates Halifax’s argument.” (citing Dkt. 87 at 9)).) Accordingly,
the court does not consider the Parrish Defendant’s public disclosure bar argument,

raised improperly for the first time in their objection to the magistrate judge’s report
and recommendation. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(“[T]o require a district court to consider evidence not previously presented to the
magistrate judge would effectively nullify the magistrate judge’s consideration of the
matter and would not help to relieve the workload of the district court.” (quotation
omitted)).
C. Counts Ten Through Thirteen—Violations of the Stark Act

In counts ten through thirteen, Plaintiff alleges that Parrish violated the FCA
and the Stark Act. (Dkt. 83 at 48–54.) The Stark Act generally “prohibits doctors
from referring Medicare patients to a hospital if those doctors have certain specified
types of ‘financial relationships’ with that hospital.” United States ex rel. Mastej v. Health
Mgmt. Assocs., Inc., 591 F. App’x 693, 698 (11th Cir. 2014) (quoting 42 U.S.C.

§ 1395nn(a)(1)(A)). It further “prohibits that same hospital from presenting claims for
payment to Medicare for any medical services it rendered to such referred patients.”
Id. (citing 42 U.S.C. § 1395nn(a)(1)(B)). Because the Stark Act does not “provide [a]
private right[] of action,” Ameritox, Ltd. v. Millenium Lab’ys, Inc., 803 F.3d 518, 522
(11th Cir. 2015), Plaintiff pleads that Parrish’s violations of the Stark Act constitute

separate violations of the FCA, (see Dkt. 83 at 48–54). See Bingham v. BayCare Health
Sys., No. 8:14-cv-73-T-23JSS, 2016 WL 8739056, at *2 (M.D. Fla. Dec. 16, 2016) (“A
violation of . . . the Stark [Act] . . . can form the basis of liability under the [FCA].”).
When they are brought as FCA claims, Stark Act claims are also subject to Rule 9(b)’s
heightened pleading standard. United States ex rel. Childress v. Ocala Heart Inst., Inc., No.

5:13-cv-470-Oc-22PRL, 2015 WL 13793109, at *4 (M.D. Fla. July 2, 2015).
Because Defendants’ liability hinges on a violation of the FCA rather than on a
violation of the Stark Act, sufficient allegations regarding a false claim are necessary
for Plaintiff to properly state a claim under the Stark Act. See Mastej, 591 F. App’x at
706 (“Merely alleging a violation of the Stark [Act] . . . does not sufficiently state a
claim under the FCA. It is the submission and payment of a false Medicare claim and
false certification of compliance with the law that creates FCA liability.” (emphasis

omitted)). Accordingly, to properly allege an FCA claim under the Stark Act, a
plaintiff must “establish ‘some indicia of reliability to support the allegation of an
actual false claim for payment being made to the government.’” Id. at 707 (cleaned
up) (quoting United States ex rel. Clausen v. Lab’y Corp. of Am., 290 F.3d 1301, 1311 (11th
Cir. 2002)). This requirement may be satisfied where a plaintiff provides “detailed

information about a representative claim” or “show[s] that [the plaintiff] personally
was in a position to know that actual false claims were submitted to the government
and had a factual basis for his alleged personal knowledge.” Id. The magistrate judge
has determined that “Plaintiff fails in both respects.” (Dkt. 108 at 28.)

The magistrate judge exhaustively reviewed Plaintiff’s allegations and
determined that they are insufficient because they do “not provide ‘detailed
information about a representative claim.’” (Id. at 29 (quoting Mastej, 591 F. App’x at
707).) Plaintiff provides “no examples of patient referrals, no reliable estimates of how
many patients might have been referred under this scheme, and no examples of claims

submitted on behalf of patients impermissibly referred.” (Id.; see Dkt. 83.) Instead,
Plaintiff alleges that PMG, one of Parrish’s subsidiaries, “issued a referral directive”
and that “a PMG contract provision required physicians to ‘exclusively utilize
Hospital, its subsidiaries and affiliates, including but not limited to Parrish Health
Network for the provision of the services.’” (Dkt. 108 at 29–30 (citing Dkt. 83 at 25
and quoting Dkt. 83 at 27).) The magistrate judge disregarded all allegations regarding
PMG because Plaintiff neither asserted claims against PMG nor argued that Parrish
and PMG constitute a single entity. (See id. at 28–29.) Plaintiff does not object to the

magistrate judge’s recommendation in this regard. (See Dkt. 114.) Accordingly, the
court disregards the allegations regarding PMG.
In addition to his allegations regarding PMG’s actions, Plaintiff alleges that one
of Parrish’s physicians, Dr. Ben Nettleton, resigned due to pressure to refer within the
“Parrish network.” (Dkt. 83 at 26–27.) Plaintiff also alleges that Parrish “regularly

tracked referrals” and the revenue they generated and that one of Parrish’s doctors,
Dr. E. Wayne Mosley, received $522,168 in compensation despite costing Parrish
$591,472. (Id. at 27–28.) The magistrate judge has determined that these allegations
are insufficient to support a Stark Act claim. (Dkt. 108 at 29–32.) No allegations

connect Dr. Nettleton’s resignation to a Stark Act violation. (See Dkt. 83.) The second
amended complaint appears to insinuate that Dr. Nettleton resigned in protest of
Parrish’s referral system, (see id. at 26–27), but as the magistrate judge notes, the
referrals could have bothered Dr. Nettleton without violating the Stark Act, (Dkt. 108
at 30), and his resignation is not proof of illegality. Similarly, the magistrate judge

finds insufficient support for Plaintiff’s argument that Parrish’s referral tracking is
proof of impropriety—in fact, he reasons that such tracking “may be a normal and
reasonable business practice.” (Id. at 31–32 (quotation omitted).) Finally, the
magistrate judge concludes that the allegations regarding Dr. Mosley do not plausibly
support an improper financial relationship. (Id. at 30–31.) See United States ex rel. Raven
v. Ga. Cancer Specialists, No. 1:11-CV-994-CAP, 2016 WL 11745590, at *9 (N.D. Ga.
Apr. 1, 2016) (outlining allegations that permitted the plausible inference of an
improper financial relationship). Though Plaintiff claims that Dr. Mosley produced a

“substantial loss nearly equal to his salary” for Parrish, (Dkt. 83 at 28), the magistrate
judge reasons that this loss can just as plausibly be “due to his below average
productivity”—which Plaintiff alleges “was in the [tenth] percentile,” (id.)—as it can
be the result of an impermissible financial relationship, (Dkt. 108 at 31.) Further, even
if Plaintiff had adequately alleged a referral scheme in violation the Stark Act—which

the magistrate judge does not find, (see id. at 29–32)—merely “describing a scheme is
insufficient to plead an FCA violation.” (Id. at 32.) See Clausen, 290 F.3d at 1311
(“Without the presentment of [a false] claim, while the practices of an entity that
provides services to the [g]overnment may be unwise or improper, there is simply no

actionable damage to the public fisc as required under the [FCA].”).
Absent details of a representative claim, Plaintiff’s Stark Act claims could only
survive dismissal if he “provide[d] the required indicia of reliability by showing that
he personally was in a position to know that actual false claims were submitted to the
government and had a factual basis for his alleged personal knowledge.” Mastej, 591

F. App’x at 707. Plaintiff’s statements that he is the principal of OMNI and served as
a medical director at Parrish with medical staff privileges, (Dkt. 83 at 4), are
insufficient because it is the actual information obtained, rather than the position the
plaintiff held, that is relevant to this inquiry. See Clausen, 290 F.3d at 1314 (noting that
insiders may “have an easier time” bringing FCA claims not by virtue of their status,
but because they have increased access to “information about billing practices”);
compare Mastej, 591 F. App’x at 708 (determining that the plaintiff had sufficiently
alleged insider status where he “did not base his knowledge on rumors or mere

conjecture,” but rather alleged that “he had direct information about [the defendant]’s
billings, revenues[,] and payor mix, and he was in the very meetings where Medicare
patients and the submission of claims to Medicare were discussed”), with United States
ex rel. Atkins v. McInteer, 470 F.3d 1350, 1359 (11th Cir. 2006) (“[The plaintiff] does not

profess to have firsthand knowledge of the defendants’ submission of false claims. He
is a psychiatrist responsible for the provision of medical care, not a billing and coding
administrator responsible for filing and submitting the defendants’ claims for
reimbursement.”). Because Plaintiff does not allege that his role granted him access
to information regarding Parrish’s billings or submission of claims to the government,

his Stark Act claims are due to be dismissed. See Hopper v. Solvay Pharms., Inc., 588
F.3d 1318, 1328 (11th Cir. 2009) (“Improper practices standing alone are insufficient
to state a claim under either [section] 3729(a)(1) or (a)(2) absent allegations that a
specific fraudulent claim was in fact submitted to the government.”).
Plaintiff’s objection to the magistrate judge’s recommendation is unavailing.

He faults the magistrate judge for finding that the foregoing factual allegations fail to
state a claim, but he fails to provide additional reasoning or to adduce any authority
to overcome the magistrate judge’s determination. (See Dkt. 114 at 9–11.) Such
conclusory assertions, divorced from analysis or legal support, are not entitled to de
novo review. See McCullars v. Comm’r, Soc. Sec. Admin., 825 F. App’x 685, 694 (11th
Cir. 2020) (affirming the district court’s overruling of objections to a report and
recommendation where the plaintiff “made conclusory
objections[] . . . unaccompanied by legal analysis”). Even if they were, Plaintiff

merely argues that his allegations are sufficient to allege a violation of the Stark Act—
he does not establish that his allegations sufficiently plead a violation of the FCA. (See
Dkt. 114 at 9–11.) See Mastej, 591 F. App’x at 706.
The Parrish Defendants also object, arguing that dismissal of these claims
should be with prejudice. (Dkt. 113 at 9–11.) They assert that Plaintiff should not “be

given yet a fourth opportunity to add to his threadbare, conclusory allegations.” (Id.
at 10 (emphasis omitted).) While the court has dismissed these claims once before, it
did so on shotgun pleading grounds and did not reach the merits of the claims. (See
Dkt. 80 at 11–18.) Given that Plaintiff cured the pleading defects the court previously

identified with these counts, the court agrees with the magistrate judge, (Dkt. 108 at
33–34), that Plaintiff should be given an opportunity to amend his Stark Act claims.
See Corsello, 428 F.3d at 1014 (noting that while courts “need not” permit amendment
where the plaintiff has failed to cure deficiencies by amendments previously allowed,
amendment should generally be “give[n] . . . freely ‘when justice so requires’” (quoting

Fed. R. Civ. P. 15(a))).
The Parrish Defendants argue in the alternative that leave to amend should be
denied because amendment would be futile “given [Plaintiff’s] inability to identify a
Stark [Act] violation with any particularity.” (Dkt. 113 at 10–11.) However, dismissal
with prejudice for futility is only appropriate where a more carefully drafted complaint
could not state a claim. See Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007)
(“Leave to amend a complaint is futile when the complaint as amended would still be
properly dismissed or be immediately subject to summary judgment for the

defendant.”). That Plaintiff’s previous complaints have failed to state a claim does not
foreclose the possibility that an amended complaint could state a claim. The Parrish
Defendants’ argument to the contrary, that a qui tam plaintiff cannot supplement their
pleadings with information gleaned during discovery, (Dkt. 113 at 11), rests only on
an unpublished Eleventh Circuit decision, Bingham v. HCA, Inc., 783 F. App’x 868, 870

(11th Cir. 2019), that was recently overruled, see United States ex rel. Sedona Partners LLC
v. Able Moving & Storage Inc., No. 22-13340, 2025 WL 2087871, at *8 (11th Cir. July
25, 2025) (“[A] district court has the discretion to dismiss a relator’s complaint before
or once discovery has begun, but it may not disregard a relator’s allegations solely

because those allegations were obtained in discovery.”). Because the Parrish
Defendants fail to show that amendment would be futile, their objection is overruled.6
In summary, counts three through thirteen are dismissed without prejudice. As
no party has objected to the magistrate judge’s recommendation that counts one, two,
and fourteen be dismissed with prejudice, the court adopts that portion of the

6 The Parrish Defendants’ parallel objection—that all claims against Mikitarian, McAlpine, and
Jackson “should be dismissed with prejudice because, given three prior opportunities, [Plaintiff] has
failed to allege with particularity any instances where any of [those Defendants] personally submitted
a false claim or caused a false claim to be submitted to the government, as required by the [FCA],”
(Dkt. 113 at 5)—is overruled for the same reason. Plaintiff’s failure to include sufficient allegations to
state a claim as to these Defendants in his prior pleadings does not mean that he cannot include
sufficient allegations to state a claim against them in a future pleading, and thus, the Parrish
Defendants have failed to demonstrate that Plaintiff’s claims against these Defendants are futile. See
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).
recommendation in full.
D. Appointments Clause

In their motions to dismiss, Defendants include brief arguments that Plaintiff’s
appointment as a relator is unconstitutional. (See Dkt. 86 at 26; Dkt. 87 at 9–10.) See
United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293, 1322 (M.D.
Fla. 2024) (reasoning that the appointment of relators under the FCA’s qui tam
provision violates the Appointments Clause to the United States Constitution).

Defendants cite no binding authority to support their arguments, however. (See Dkt.
86 at 26; Dkt. 87 at 9–10.) As the magistrate judge observes, “the current consensus
among federal courts is that qui tam lawsuits are constitutional.” (Dkt. 108 at 8
(quoting Cochise Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262, 272 (2019)
(“A relator is neither appointed as an officer of the United States nor employed by the

United States.” (internal citation omitted))).) See United States ex rel. Butler v. Shikara,
748 F. Supp. 3d 1277, 1294–97 (S.D. Fla. 2024) (determining that the FCA’s qui tam
provision does not violate the Appointments Clause). Defendants object to this
determination by merely reiterating the arguments presented to the magistrate judge,
which the court agrees are unavailing, and thus, their objections are overruled. (See

Dkt. 112 at 11; Dkt. 113 at 2–3 & n.1.)
E. Motion to Stay
While the magistrate judge was considering Defendants’ motions to dismiss,
Plaintiff moved to stay discovery pending resolution of the motions or, in the
alternative, sought a twelve-month extension of the discovery deadline. (Dkt. 104.)
After recommending that all of Plaintiff’s claims be dismissed, either with or without
prejudice, (Dkt. 108), the magistrate judge denied the motion to stay, determining that

a stay was not warranted given that the motions to dismiss were not dispositive of all
Plaintiff’s claims, (Dkt. 111 at 1–3). The magistrate judge also determined that
Plaintiff’s request to extend the discovery deadline—which was, in effect, a motion to
amend the court’s case management and scheduling order—“fail[ed] to cite, let alone
satisfy,” the relevant standard. (Id. at 3–4.) Plaintiff seeks review of that order. (Dkt.

115.) Because this order resolves the pending motions to dismiss, the court determines
that Plaintiff’s request to stay discovery pending resolution of those motions is moot.
The court also agrees with the magistrate judge that Plaintiff’s request to extend the
discovery deadline was due to be denied and thus affirms the magistrate judge’s order.
Plaintiff argues that “during part of the discovery period, there was no operative

complaint pursuant to which to issue discovery requests” because the court dismissed
the amended complaint without prejudice on September 19, 2024. (Dkt. 115 at 7.)
This argument essentially restates the position he took in his motion before the
magistrate judge, where he asserted that the current discovery deadline was adopted
“before the initial motions to dismiss were filed and the first amended complaint was

dismissed,” at which time “the [c]ourt would not have anticipated that the amended
complaint would be dismissed and a second amended complaint followed by a motion
to dismiss would later be filed.” (Dkt. 104 at 6.) This argument is unavailing because
complaints are routinely dismissed and district courts generally expect that the parties
will nevertheless diligently prepare to litigate the claims they have elected to bring. It
is for that reason that the filing of a dispositive motion does not, without more, warrant
a stay of discovery. See Hansen v. Smith, No. 6:25-cv-117-ACC-LHP, 2025 WL

1677717, at *1 (M.D. Fla. June 13, 2025) (“Normally, the pendency of a motion to
dismiss will not justify a unilateral motion to stay discovery pending resolution of the
dispositive motion. Such motions for stay are rarely granted.” (alteration adopted)
(quoting Middle District Discovery (2021) § I.E.4)). Indeed, the court’s scheduling
order expressly advises the parties that “the pendency of a dispositive motion, such as

a motion to dismiss . . . , does not stay the deadline for completion of discovery,” and
that “[p]arties who elect to forego discovery on the merits of any claim or defense due
to the pendency of a dispositive motion or for any other reason, without leave of [the
c]ourt, will not be entitled to an extension of the deadlines set forth in this order.”
(Dkt. 53 at 2.)

Plaintiff also raises new arguments in his objection in an attempt to satisfy Rule
16’s good cause standard. (See Dkt. 115 at 7–8.) Because these arguments are not
properly before the court, they need not be considered. See Williams, 557 F.3d at 1292.
Nevertheless, the court now explains why these additional arguments are also

unavailing. Plaintiff contends that good cause exists to modify the scheduling order
because he held a “good faith belief” that the scheduling order was rendered
inoperative when the court dismissed Plaintiff’s amended complaint without
prejudice. (See Dkt. 115 at 8.) This argument is without support as to the predicate
for such a “good faith belief,” (see id.), and is directly contravened by the scheduling
order, which provides expressly to the contrary: “All parties must thoroughly review
the contents of this order, which shall govern all proceedings in this action, unless subsequently
modified by written order for good cause shown.” (Dkt. 53 at 1 (emphasis added).) Indeed,

this warning was placed at the top of the first page of the scheduling order under the
heading “PLEASE TAKE NOTE.” (Id.) The scheduling order thus provided—and
continues to provide—clear notice that dismissal of the operative complaint would not
displace the scheduling order. (See id. at 7 (“The [discovery] deadline will not be

extended absent a showing of good cause. Failure to complete discovery within the
time established by this [o]rder shall not constitute good cause for continuance.”
(citation omitted)).)
Plaintiff’s assertion that the court “has effectively foreclosed any discovery in
the case” is without merit. (Dkt. 115 at 5.) The court’s scheduling order, entered on

January 4, 2024, gave the parties until March 31, 2025, to conduct discovery—more
than a year during which Plaintiff could have sought information essential to his
claims. (Dkt. 53 at 2.) Instead, Plaintiff concedes that he has not “issued any discovery
to date.” (Dkt. 104 at 3 (emphasis added).) Plaintiff has not demonstrated due
diligence, ending the Rule 16 inquiry. See Lord v. Fairway Elec. Corp., 223 F. Supp. 2d

1270, 1277 (M.D. Fla. 2002) (“A finding of lack of diligence on the part of the party
seeking modification ends the good cause inquiry . . . .” (citing Sosa, 133 F.3d at
1418)). Plaintiff’s claims of prejudice do not alter this conclusion. (See Dkt. 115 at 6.)
See Rogers v. Hartford Life & Accident Ins. Co., No. 12-0019-WS-B, 2012 WL 2395194, at
*3 (S.D. Ala. June 22, 2012) (“[D]iligence, not lack of prejudice, is the key to the Rule
16(b)(4) inquiry.”).
CONCLUSION

Accordingly:
1. The magistrate judge’s report and recommendation (Dkt. 108) is ADOPTED
in part.
2. Defendants’ motions to dismiss (Dkts. 86, 87) are GRANTED in part and

DENIED in part. Counts one, two, and fourteen of the second amended
complaint are DISMISSED with prejudice. Counts three through thirteen are
DISMISSED without prejudice. The motions to dismiss are otherwise
DENIED.

3. The court gives Plaintiff one last opportunity to amend. On or before September
2, 2025, Plaintiff may file a third amended complaint. The court anticipates
entering a new case management and scheduling order if Plaintiff amends.
Accordingly, if Plaintiff files a third amended complaint, the parties shall file a
new case management report on or before September 19, 2025.

4. The magistrate judge’s order denying Plaintiff’s motion to stay (Dkt. 111) is
AFFIRMED.
ORDERED in Orlando, Florida, on August 5, 2025.

2 = S. sours —
NITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11114924. Public record. Not legal advice.