# Opinion

> District Court, M.D. Alabama · February 19, 2026

URL: https://www.frixlaw.com/law-library/cases/11264240

## Case

- **Full name:** United States of America and State of Tennessee, ex rel. BRANDY BRYANT and CAROL BLACKWOOD v. COMFORT CARE HOSPICE, L.L.C., et al.
- **Court:** District Court, M.D. Alabama
- **Decided:** February 19, 2026
- **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/11264240

## How later opinions describe it (automated extraction)

- concluding that the “complaint contain[ed] sufficient indicia of reliability” because the plaintiff “had direct information about . . . billings, revenues, and payor mix, and . . . was in the very meetings where Medicare patients and the submission of claims to Medicare were d…
- holding that Rule 9(b) was satisfied where the relator, a nurse employed by the defendant, had conversations about the defendant’s billing practices with the defendant’s office manager

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

UNITED STATES OF AMERICA and )
STATE OF TENNESSEE, )
ex rel. BRANDY BRYANT and )
CAROL BLACKWOOD, )
)
Plaintiffs, )
)
v. ) CIVIL CASE NO. 2:20-cv-911-ECM
) [WO]
COMFORT CARE HOSPICE, )
L.L.C., et al., )
)
Defendants. )

MEMORANDUM OPINION and ORDER
This lawsuit involves ten claims arising under the False Claims Act, 31 U.S.C.
§ 3729 (the “FCA”), and the Tennessee Medicaid False Claims Act, TENN. CODE §§ 71-5-
181 to -185 (the “TMFCA”). Defendants move to dismiss Plaintiffs’ amended complaint.
(Doc. 84). Plaintiffs oppose (doc. 87) and move to strike (doc. 86) the motion. The United
States of America has intervened for the limited purpose of responding to Defendants’
argument that the qui tam provisions of the FCA are unconstitutional. (Doc. 91). Upon
consideration, and for good cause, Plaintiffs’ motion to strike is due to be DENIED and
Defendants’ motion to dismiss is due to be GRANTED in part and DENIED in part.
I. BACKGROUND
Plaintiffs, Brandy Bryant and Carol Blackwood, are registered nurses who
previously worked for Defendants. (See doc. 82 at 3, paras. 5–6). Defendants are eight
related limited liability companies: (1) Comfort Care Hospice, L.L.C., (2) Comfort Care
Coastal Hospice, LLC, (3) Comfort Care Coastal Home Health, LLC, (4) Comfort Care
Home Health of Northeast Alabama, LLC, (5) Comfort Care Home Health of North

Alabama, LLC, (6) Comfort Care Home Health of West Alabama, LLC, (7) Comfort Care
Home Health Services, LLC, and (8) Comfort Care Hospice of Middle Tennessee, LLC
d/b/a Comfort Care Hospice of Springfield (collectively “Defendants” or “Comfort Care”).
(Id. at 3–6, paras. 7–14).
The Court begins by summarizing the Medicare hospice benefit. Next, the Court
describes Plaintiffs’ allegations and the allegations made in another lawsuit involving

Comfort Care: United States ex rel. Bonnie Brooks v. Comfort Care Hospice, LLC, No.
2:20-cv-00508-BL-CWB (July 21, 2020) [hereinafter Brooks].1 The Court concludes this
section with a brief sketch of the procedural history relevant to Defendants’ motion.
A. The Medicare Hospice Benefit
“Medicare is a federal health insurance program designed to provide medical

services, medical equipment, and supplies to persons [sixty-five] years of age and older
and to blind and disabled persons.” United States v. Whiteside, 285 F.3d 1345, 1346 (11th
Cir. 2002); see 42 U.S.C. §§ 1395–1395mmm. Medicare provides two types of care:
(1) curative care, which includes treatment intended to relieve the patient of an illness or
ailment; and (2) hospice care, which is “an approach to treatment that recognizes the

impending death of an individual warrants a change in the focus from curative to palliative

1 The Brooks allegations are relevant to Defendants’ argument that Plaintiffs’ claims are barred under the
first-to-file rule. See infra § IV.D. Accordingly, the Court takes judicial notice of the Brooks complaint.
See FED. R. EVID. 201(b) (“The court may judicially notice a fact that is not subject to reasonable dispute
because it[] . . . can be accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.”).
care for relief of pain and for symptom management.” Hospice Quality Reporting
Requirements and Process, 79 Fed. Reg. 50452, 50454 (Aug. 22, 2024).

“In order for a hospice claim to be eligible for Medicare reimbursement, the
patient’s attending physician . . . and the medical director of the hospice provider must
‘each certify in writing . . . that the individual is terminally ill . . . based on the physician’s
or medical director’s clinical judgment regarding the normal course of the individual’s
illness.’” United States v. AseraCare, Inc., 938 F.3d 1278, 1282 (11th Cir. 2019) (quoting
42 U.S.C. § 1395f(7)(A)). A patient is considered “terminally ill” if his “life expectancy

is [six] months or less.” 42 U.S.C. § 1395x(dd)(3)(A). An attending physician must certify
that a patient is terminally ill within the first ninety days of hospice care, and
recertifications are required every sixty or ninety days thereafter. 42 U.S.C. § 1395f(7)(A).
To ensure compliance with eligibility requirements, certifications must comply with
various rules. For example, they must include “[c]linical information and other

documentation that support the medical prognosis.” 42 C.F.R. § 418.22(b)(2). And “[t]he
physician must include a brief narrative explanation of the clinical findings that support[]
a life expectancy of [six] months or less,” which “must reflect the patient’s individual
clinical circumstances and cannot contain check boxes or standard language used for all
patients.” 42 C.F.R. § 418.22(b)(3). Medicare hospice benefit program participants must

also “designate an interdisciplinary group”—comprised of a physician; a nurse; a “social
worker, marriage and family therapist, or a mental health counselor”; and a “pastoral or
other counselor”—that must consult with the patient’s attending physician to prepare a
written plan of care for each patient. 42 C.F.R. § 418.56(a)–(b). That plan of care must be
individually tailored to “reflect patient and family goals,” and “must include all services
necessary for the palliation and management of the terminal illness.” 42 C.F.R. § 418.56(c).

B. Plaintiffs’ Allegations
Plaintiffs identify many patients they allege were either improperly enrolled in
hospice care, improperly recertified, or not properly discharged once determined to be
ineligible—or all three. (See doc. 82 at 23–35, paras. 70–71; accord doc. 1 at 26–38, paras.
70–71). For example, Plaintiffs allege that one patient, “J.G.C.,” has been recertified
twenty-eight times with “copied and pasted” recertification documents. (Doc. 82 at 29,

para. 71(c); see also id. at 32, para. 71(r) (“Patient E.A. was on the hospice service of
Defendants and was inappropriate. She is believed to have over [twenty-five] re-
certifications.”)). They also identify thirty-eight Alzheimer’s patients who were
improperly admitted to hospice care—because, Plaintiffs claim, such patients “routinely
lived longer than patients with other diagnoses and diseases,” and thus could generate more

profit for Defendants. (Id. at 32–35, paras. 71(s)(i)–(xxxviii); accord doc. 1 at 36–38, paras.
71(a)–(kk)). Plaintiffs similarly claim that Defendants routinely failed to develop a plan
of care for each patient admitted into hospice services. (Doc. 82 at 21, para. 65; accord
doc. 1 at 24, para. 64). To the extent plans of care were developed, Plaintiffs assert that
they were not followed. (Doc. 82 at 22, para. 66; accord doc. 1 at 24, para. 65). Plaintiffs

also argue that Defendants maintain an “aggressive practice of marketing hospice services”
to ineligible patients, especially those with Alzheimer’s. (Doc. 82 at 35–36, para. 72;
accord doc. 1 at 36, para. 71).
Plaintiffs identify a number of specific patients for whom Defendants purportedly
submitted claims for services that were either not rendered at all or inadequately rendered.

(Doc. 82 at 23–28, paras. 70(a)–(l); accord doc. 1 at 26–36, paras. 70(a)–(kk)). For
example, Plaintiffs claim records indicate they visited patients on November 22 and 23,
2018, “while they were on vacation out of the state.” (Doc. 82 at 25, para. 70(d); accord
doc. 1 at 29, para. 70(i)). Plaintiffs likewise allege that one of Defendants’ volunteers2
“had a stroke and was admitted to hospice service,” but that Defendants nevertheless
continued to record and log services provided by that volunteer “[w]hile he was a patient

on hospice service.” (Doc. 82 at 25, para. 70(e); accord doc. 1 at 31, para. 70(n)).
C. Bonnie Brooks’ Allegations
On July 21, 2020, three months before Plaintiffs initiated the instant lawsuit (see
doc. 1), Bonnie Brooks filed a separate qui tam complaint against several defendants,
including Comfort Care Hospice, L.L.C., (see doc. 1 in Brooks). Her complaint alleges a
fundamentally similar fraudulent scheme: “Defendant Comfort Care [Hospice, L.L.C.] has

defrauded the United States by submitting, or causing to be submitted, false or fraudulent
claims to Medicare for hospice patients who were not terminally ill and were thus ineligible
for the Medicare Hospice Benefit.” (Doc. 1 at 17, para. 38 in Brooks). Brooks submits that
Comfort Care Hospice, L.L.C. “also failed to provide legitimate hospice services pursuant
to legitimate individualized [p]lans of [c]are.” (Doc. 1 at 17, para. 39 in Brooks).

2 Hospice providers are required to use volunteers to lower costs and “must document the cost savings
achieved through the use of volunteers.” 42 C.F.R. § 418.78(d), (e).
She alleges that Comfort Care Hospice, L.L.C. was aided by one Dr. John Wagner,
who was “the largest referral source of hospice patients to Comfort Care’s Cullman,

Alabama Agency.” (Doc. 1 at 4, para. 5 in Brooks). Dr. Wagner is also Comfort Care
Cullman’s attending physician and medical director for all on-site hospice patients—
meaning that he “is the sole physician responsible for certifying these patients’ hospice
eligibility.” (Doc. 1 at 22, para. 49 in Brooks); see 42 C.F.R. § 418.22(c). But according
to Brooks, Dr. Wagner does not meaningfully participate in the certification and
recertification processes; “[i]nstead, Comfort Care[’s] non-physician staff is made to

attempt to perform all required medical director duties, including drafting the certification
of terminal illness narrative statements and falsifying Dr. Wagner’s signature on
certifications of terminal illness.” (Doc. 1 at 22–23, para. 50 in Brooks). According to
Brooks, Comfort Care Hospice, L.L.C. also employed “aggressive methods” to enroll
ineligible patients, encouraging employees “to solicit referrals not only from healthcare

facilities . . . but also ‘from the community’ such as from employees’ churches.” (Doc. 1
at 18–19, paras. 42–43 in Brooks).
D. Procedural History
Plaintiffs filed suit on November 9, 2020, when they filed their first (“original”)
complaint. (Doc. 1). The case remained under seal for nearly four years while the United
States investigated Plaintiffs’ claims and deliberated as to whether to intervene. (See docs.

4, 7, 10, 14, 17, 21, 26, 30). The United States ultimately declined to intervene (doc. 34),
and the complaint was unsealed (doc. 35). Defendants were served (doc. 38), appeared
(see docs. 40, 42–48), and moved to dismiss the original complaint (doc. 62). Plaintiffs
responded by seeking leave to amend. (Doc. 78). The Court granted that motion (doc. 81),
and Plaintiffs filed the amended (“operative”) complaint (doc. 82).

The operative complaint includes ten claims that fall into four buckets. First,
Plaintiffs allege Defendants violated the FCA by submitting claims for reimbursement for
non-rendered medical care (Counts One, Two, and Three). (Id. at 37–38, paras. 74–82).
Second, they claim Defendants violated the FCA by submitting claims for reimbursement
for hospice care rendered to ineligible patients (Counts Four, Five, and Six). (Id. at 38–39,
paras. 83–92). Third, they contend Defendants made false statements through “their

aggressive marketing practices” that separately violated the FCA (Count Seven). (Id. at
39–40, paras. 93–96). Fourth, Plaintiffs allege three violations of the TMFCA (Counts
Eight, Nine, and Ten). (Id. at 41–43, paras. 97–111).
Defendants move to dismiss the operative complaint in its entirety. (Doc. 84).
Plaintiffs responded in opposition (doc. 87) and separately move to strike the motion to

dismiss under Federal Rule of Civil Procedure 12(g)(2) (doc. 86). The United States has
intervened for the limited purpose of responding to Defendants’ argument that the FCA’s
qui tam provisions are unconstitutional. (Doc. 91).
II. JURISDICTION AND VENUE
The Court has original subject matter jurisdiction over Plaintiffs’ FCA claims under
28 U.S.C. §§ 1331 and 1345, and supplemental jurisdiction over Plaintiffs’ TMFCA claims

under 28 U.S.C. § 1367. Personal jurisdiction and venue are uncontested, and the Court
concludes that venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.
III. LEGAL STANDARDS
A. Motion to Dismiss
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).
B. Rule 9(b)

A claim sounding in fraud—such as an FCA claim—“must state with particularity
the circumstances constituting [the] fraud.” FED. R. CIV. P. 9(b); see United States ex rel.
Clausen v. Lab’y Corp. of Am., Inc., 290 F.3d 1301, 1308 (11th Cir. 2002). 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 from 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) (quotation omitted).

Rule 9(b) serves two purposes: (1) it ensures that defendants know “exactly what
misconduct they’ve been charged with” and (2) “protect[s] them against frivolous
lawsuits.” Olhausen v. Arriva Med., LLC, 124 F.4th 851, 861 n.11 (11th Cir. 2024). “This
second purpose is especially important in FCA cases filed by relators”3 because it operates
to ensure “that the relator’s strong financial incentive to bring an FCA claim does not
precipitate the filing of frivolous suits.” Gose v. Native Am. Servs. Corp., 109 F.4th 1297,

1317 (11th Cir. 2024) (alterations adopted and quotation omitted). All the same, courts
must “harmonize the directives of Rule 9(b) with the broader policy of notice pleading”
and so should not dismiss a complaint “if the court is satisfied (1) that the defendant has
been made aware of the particular circumstances for which she will have to prepare a
defense at trial, and (2) that [the] plaintiff has substantial pre[-]discovery evidence of those

facts.” Id. at 1318 (alteration adopted and quotations omitted).
C. Shotgun Pleading
A shotgun pleading is a complaint that fails to conform to the Federal Rules of Civil
Procedure’s pleading requirements. Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d
1313, 1320 (11th Cir. 2015). The “unifying characteristic of all types of shotgun pleadings

is that they fail to one degree or another . . . to give the defendants adequate notice of the
claims against them and the grounds upon which each claim rests.” Id. at 1323. “[A]

3 Private individuals who assert claims under the FCA’s qui tam provisions are called “relators.” See, e.g.,
United States v. AseraCare, Inc., 938 F.3d 1278, 1284 (11th Cir. 2019).
district court that receives a shotgun pleading should strike it and instruct counsel to replead
the case.” Est. of Bass v. Regions Bank, Inc., 947 F.3d 1352, 1358 (11th Cir. 2020).

D. First-to-File Bar
“When a person brings an action under [the FCA], no person other than the
Government may . . . bring a related action based on the facts underlying the pending
action.” 31 U.S.C. § 3730(b)(5). Application of this section—the first-to-file bar—has a
timing element and a substantive element. The latter asks whether the substance of two
discrete FCA actions are “related” “based on the facts underlying the pending action.” The

former asks whether, at the time the second FCA action is brought, the first, related FCA
action is “pending.”
The first-to-file bar’s focus is on the facts alleged, not the claims brought. See 31
U.S.C. § 3730(b)(5) (barring subsequent actions “based on the facts underlying the pending
action” (emphasis added)). Accordingly, “two actions are related if they incorporate the

same material elements of fraud.” Cho ex rel. States v. Surgery Partners, Inc., 30 F.4th
1035, 1042 (11th Cir. 2022) (quotation omitted). “[T]he cases must rely on the same
essential facts.” Id. (quotation omitted). To determine whether a later-filed action is
sufficiently related to a pending action, courts “compare[] the two complaints side-by-side
and ask[] whether the later complaint alleges a fraudulent scheme the government already

would be equipped to investigate based on the first complaint.” Id. (quotation omitted). A
later-filed claim will be barred so long as it is “related” to an earlier-filed claim, “even if
the allegations incorporate somewhat different details”—the claims need not be
“identical.” Id. (quoting United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 116 (D.C.
Cir. 2015)); see United States ex rel. Bernier v. Infilaw Corp., 347 F. Supp. 3d 1075, 1083
(M.D. Fla. 2018) (“Assessing relatedness is not rocket science; doing so requires

‘comparing the complaints side-by-side’ to see whether ‘the claims in the second action
incorporate “the same material elements of fraud” as the earlier action, even if the
allegations incorporate additional or somewhat different facts or information.’” (alteration
adopted) (quoting Heath, 791 F.3d at 121)).4
IV. DISCUSSION
First, the Court briefly addresses Defendants’ argument that the FCA’s qui tam
provisions are unconstitutional. Next, the Court explains why Plaintiffs’ motion to strike

is due to be denied and why their argument that Rule 12(g)(2) bars Defendants’ motion to
dismiss is similarly unavailing. Over the next three sections, the Court concludes that each
of Plaintiffs’ ten claims are due to be dismissed without prejudice.
A. Constitutionality of the Qui Tam Provision
Defendants submit that the FCA’s qui tam provisions violate the United States
Constitution. (Doc. 84 at 34–40). They submit that Plaintiffs, by virtue of the authority

granted them by the qui tam provisions, act as officers of the United States who have not
been constitutionally appointed. (Doc. 84 at 34–37); see U.S. CONST. art. II, § 2 (“[The
President] shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint . . . all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law[] . . . .”). They further claim

4 Here and elsewhere the Court cites nonprecedential authority. The Court acknowledges these cases are
nonbinding but nevertheless finds them persuasive.
that Plaintiffs’ ability to bring lawsuits on behalf of the United States absent “meaningful
mechanisms for supervision or removal” by the President runs afoul of the Vesting and

Take Care Clauses. (Doc. 84 at 37–40); see U.S. CONST. art. II, § 1 (“The executive Power
shall be vested in a President of the United States of America.”); id. § 3 (“[The President]
shall take Care that the Laws be faithfully executed[] . . . .”).
This argument largely tracks the analysis of a district judge in the Middle District
of Florida. 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 provisions violates the Appointments Clause). That case is currently on appeal to
the Eleventh Circuit, which recently held oral argument. United States ex rel. Zafirov v.
Fla. Med. Assocs., LLC, No. 24-13581 (11th Cir. Dec. 12, 2025). But, at present, there is
no binding authority that supports Defendants’ argument; rather, “the current consensus
among federal courts is that qui tam lawsuits are constitutional.” Deligdish v. N. Brevard

Cnty. Hosp. Dist., 2025 WL 2217710, at *12 (M.D. Fla. Aug. 5, 2025) (quotation omitted);
see 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)).5 Absent controlling authority, the Court will not
disregard “decades—nay, centuries—of litigation through the use of the qui tam device

5 The Court does note, however, that the FCA’s qui tam provisions have generated renewed skepticism at
the United States Supreme Court. See Wis. Bell, Inc. v. United States ex rel. Heath, 604 U.S. 140, 167
(2025) (Kavanaugh, J., and Thomas, J., concurring) (“The [FCA]’s qui tam provisions raise substantial
constitutional questions under Article II.”); accord United States ex rel. Polansky v. Exec. Health Res., Inc.,
599 U.S. 419, 449 (2023) (Thomas, J., dissenting).
under the FCA,” all of which runs directly counter to Defendants’ arguments. United States
ex rel. Butler v. Shakira, 748 F. Supp. 3d 1277, 1295 (S.D. Fla. 2024).

B. Rule 12(g)(2)
Plaintiffs move to strike Defendants’ renewed motion to dismiss, arguing that it
raises several arguments that were not made in Defendants’ first motion to dismiss and
therefore violates Federal Rule of Civil Procedure 12(g)(2). (Doc. 86 at 1). They raise the
same argument in response to Defendants’ motion. (Doc. 87 at 1–3).
Rule 12(g)(2) states that, “[e]xcept as provided in Rule 12(h)(2) or (3), a party that
makes a motion under this rule must not make another motion under this rule raising a

defense or objection that was available to the party but omitted from its earlier motion.”
But Rule 12(h)(2)(B) permits a party to raise a failure to state a claim argument in a motion
for judgment on the pleadings. Because Defendants could have raised any of their novel
arguments in such a motion, the Court can consider all of their arguments, Rule 12(g)(2)
notwithstanding. See Fernau v. Enchante Beauty Prods., Inc., 847 F. App’x 612, 620 (11th

Cir. 2021) (“[A] ‘district court’s decision to consider a successive Rule 12(b)(6) motion to
dismiss is usually harmless, even if it technically violates Rule 12(g)(2).’” (quoting Leyse
v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 321 (3d Cir. 2015))); Chevaldina v. Ctr. for
Individual Rights, 2024 WL 49695, at *1 & n.3 (11th Cir. Jan. 4, 2024) (affirming the
dismissal of a complaint “for failure to state a claim” and dismissing the plaintiff’s Rule
12(g)(2) argument because “[t]he substance of the Rule 12(b)(6) motion . . . could have
been made under Rule 12(c)”).6

C. Shotgun Pleading
Defendants assert that the operative complaint is a shotgun pleading because it
“includes ten counts against all eight Defendants without specifying which Defendants are
responsible for which acts.” (Doc. 84 at 29). A complaint asserting several claims against
multiple defendants without differentiating between them may constitute a shotgun
pleading. See Weiland, 792 F.3d at 1323 (describing as shotgun pleadings complaints that
commit “the relatively rare sin of asserting 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”). But a plaintiff may properly assert
claims against a group of related defendants collectively. See Kyle K. v. Chapman, 208
F.3d 940, 944 (11th Cir. 2000) (“The fact that defendants are accused collectively does not
render the complaint deficient. The complaint can be fairly read to aver that all defendants

are responsible for the alleged conduct.”); Sprint Sols., Inc. v. Fils-Amie, 44 F. Supp. 3d
1224, 1227 (S.D. Fla. 2014) (“[A] plaintiff may plead claims against multiple defendants

6 Other courts in this circuit have disregarded Rule 12(g)(2) arguments where, as here, the defendant’s prior
motion to dismiss was not ruled on because the plaintiff filed an amended complaint, mooting the motion
to dismiss. Roop v. Prime Rate Premium Fin. Corp., 710 F. Supp. 3d 1165, 1171 n.3 (M.D. Fla. 2024)
(“Prime Rate did not waive (under Federal Rule of Civil Procedure 12(g)(2)) the arguments brought in the
instant [m]otion to [d]ismiss by not bringing them in its previous motion to dismiss. The Court never ruled
on Prime Rate’s previous motion, which addressed a previous version of [the p]laintiffs’ [a]mended
[c]omplaint.” (internal citations omitted)); see also Burgess v. Vfinity, LLC, 2017 WL 2311753, at *6 n.6
(M.D. Fla. May 26, 2017) (“Plaintiffs also argue in their [r]esponse that the motions to dismiss should be
denied because Federal Rule of Civil Procedure 12(g)(2) prohibits the filing of successive Rule 12 motions
to dismiss. This argument fails as the previous motions to dismiss were denied as moot because an amended
complaint was filed. . . . Rule 12(g) does not apply.” (internal citations omitted)).
by referring to them collectively, for example[,] by referring to a group of defendants as
‘defendants.’” (citing Crowe v. Coleman, 113 F.3d 1536, 1539 (11th Cir. 1997))). Because

Defendants are eight related corporate entities, each of which Plaintiffs allege were
involved in a fraudulent conspiracy, the allegations involving Defendants collectively do
not render the complaint a shotgun pleading. See Roche Diagnostics Corp. v. Priority
Healthcare Corp., 407 F. Supp. 3d 1216, 1236 (N.D. Ala. 2019) (“With 44 separate
defendants, the court cannot possibly expect Roche to individually list each defendant
every time it refers to the defendants in the complaint. Such an expectation would create

an unwieldy and cumbersome complaint.”).
However, the way in which Plaintiffs attempt to define Defendants is problematic.
Plaintiffs define Defendant Comfort Care Hospice, L.L.C. as “Defendant Comfort Care.”
(Id. at 3, para. 7). But they then choose to use that same term as a shorthand for all
Defendants. (Id. at 6, para. 15 (“Accordingly, throughout this Complaint, Comfort Care

and the many hospice agencies operated by Comfort Care will be collectively referred to
as ‘Defendants’ or ‘Defendant Comfort Care.’”)). This despite the fact that Plaintiffs had
already defined Defendants collectively as “Comfort Care.” (Id. at 1–2). Accordingly,
Plaintiffs’ later references to “Defendant Comfort Care” are rendered ambiguous, as the
Court cannot tell without speculating whether these allegations refer to Comfort Care

Hospice, L.L.C., standing alone, or to all Defendants. (See id. at 24–25, para. 70(c); id. at
26–27, para. 70(h); id. at 29, para. 71(c)). Plaintiffs’ manner of defining the parties
introduces sufficient ambiguity such that amendment is appropriate.
Plaintiffs urge the Court not to dismiss their claims with prejudice but rather to grant
leave to amend if the Court determines that the operative complaint is “still ambiguous.”

(Doc. 87 at 11–12). Dismissal with prejudice “on the basis of . . . mere technicalities” is
only proper in limited circumstances, including where there has been “repeated failure to
cure deficiencies by amendments previously allowed.” Foman v. Davis, 371 U.S. 178,
181–82 (1962). Plaintiffs have only amended their complaint once, and they did so
voluntarily. Thus, they have not failed to cure deficiencies by amendments (plural)
previously allowed. This case is distinguishable from that cited by Defendants, Jackson v.

Bank of America, N.A., because there the court dismissed the plaintiffs’ amended complaint
with prejudice only after it had granted the defendants’ prior motion for a more definite
statement. 898 F.3d 1348, 1358 (11th Cir. 2018). Moreover, the Court finds that Plaintiffs
responded in good faith to the deficiencies highlighted in Defendants’ motion to dismiss
the original complaint—the operative complaint does not contain multiple counts adopting

all the allegations that precede it or lump multiple causes of action into the same count,
like the original complaint did. (See doc. 1 at 40–47, paras. 74–114); see Jackson, 898 F.3d
at 1358–59 (“Here, after being put on notice by Defendants of the specific defects in their
complaint, the Jacksons filed an amended complaint afflicted with the same defects,
attempting halfheartedly to cure only one of the pleading’s many ailments by naming which

counts pertained to each Defendant.”).
For these reasons, dismissal with prejudice on shotgun pleading grounds is
unwarranted. However, because all of Plaintiffs’ claims are due to be dismissed without
prejudice on other grounds, Plaintiffs shall take care to address the deficiencies identified
in this Order if they choose to amend.7

D. First-to-File Bar
Defendants argue that the “majority” of Plaintiffs’ claims are due to be dismissed
under the first-to-file bar. (Doc. 84 at 13). The Court turns to that argument after resolving
three prefatory questions: Whether the first-to-file bar (1) is jurisdictional, (2) applies to
discrete claims, and (3) requires a comparison of the original or amended complaints.
1. Jurisdictional
There is a split among the circuit courts of appeals as to whether the first-to-file bar

is jurisdictional—though it’s an increasingly lopsided split in favor of finding the bar
nonjurisdictional. See United States v. Millenium Lab’ys, Inc., 923 F.3d 240, 251 (1st Cir.
2019) (nonjurisdictional); United States ex rel. Hayes v. Allstate Ins. Co., 853 F.3d 80, 86
(2d Cir. 2017) (same); In re Plavix Mktg., Sales Pracs. & Prods. Liab. Litig. (No. II), 974
F.3d 228, 233 (3d Cir. 2020) (same); United States ex rel. Bryant v. Cmty. Health Sys.,

Inc., 24 F.4th 1024, 1036 (6th Cir. 2022) (same); Stein v. Kaiser Found. Health Plan, Inc.,
115 F.4th 1244, 1247 (9th Cir. 2024) (same); Heath, 791 F.3d at 121 (same); but see United
States ex rel. Rosales v. Amedisys N.C., L.L.C., 128 F.4th 548, 561 (4th Cir. 2025)

7 Defendants also argue that the operative complaint is a shotgun pleading because it “contains a swath of
irrelevant assertions seemingly unrelated to any specific cause of action.” (Doc. 84 at 30–31). The Court
does not find that the operative complaint suffers from this defect. See Cramer v. Florida, 117 F.3d 1258,
1261 (11th Cir. 1997) (discerning a shotgun pleading where the complaint was “so disorganized and
ambiguous that it [wa]s almost impossible to discern precisely what . . . the[] appellants [we]re claiming”).
(jurisdictional);8 United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d
371, 376–77 (5th Cir. 2009) (same); United States ex rel. Little v. Triumph Gear Sys., Inc.,

870 F.3d 1242, 1246 (10th Cir. 2017) (same).
The majority position is supported by the first-to-file bar’s text, which does not
clearly state that the bar is jurisdictional. See 28 U.S.C. § 3730(b)(5) (“When a person
brings an action under this subsection, no person other than the Government may intervene
or bring a related action based on the facts underlying the pending action.”); see also
Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023) (“We treat a rule as jurisdictional

only if Congress clearly states that it is.” (quotation omitted)). This is especially poignant
as the FCA elsewhere clearly creates jurisdictional bars. See 28 U.S.C. § 3730(e); Kucana
v. Holder, 558 U.S. 233, 249 (2010) (“Where Congress includes particular language in one
section of a statute but omits it in another section of the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

(alteration adopted) (quotation omitted)). Without guidance from the Eleventh Circuit, the
Court sides with the majority—the first-to-file bar is not jurisdictional.
Nevertheless, a claim barred by the first-to-file rule should still be dismissed without
prejudice because § 3730(b)(5) only operates to bar actions related to “pending” actions.
So “an earlier suit bars a later suit while the earlier suit remains undecided but ceases to

bar that suit once it is dismissed.” Kellogg Brown & Root Servs., Inc. v. United States ex

8 Though the Fourth Circuit found the first-to-file bar jurisdictional because the panel was bound by prior
precedent it noted that the Fourth Circuit is part of “a rapidly shrinking minority of circuits taking that
view.” United States ex rel. Rosales v. Amedisys N.C., L.L.C., 128 F.4th 548, 561 (4th Cir. 2025).
rel. Carter, 575 U.S. 650, 662 (2015). Of course, some other impediment—res judicata or
the statute of limitations, for example—may independently operate to bar the later suit, but

the first-to-file bar has no effect on actions filed after the earlier-filed claim is no longer
pending.
2. Discrete Claims
A threshold issue lies implicit in Defendants’ briefing. Looking to the text of the
first-to-file bar, it would appear that it operates to bar actions from being brought while an
earlier-filed and related action remains pending. And an “action” generally refers to an

entire lawsuit, rather than to discrete claims comprising that lawsuit. See Action, BLACK’S
LAW DICTIONARY (12th ed. 2024) (“A civil or criminal judicial proceeding; esp.,
lawsuit.”). That’s how the Eleventh Circuit defines the term in the context of a voluntary
dismissal under Federal Rule of Civil Procedure 41, which governs the dismissal of
“actions.” Perry v. Schumacher Grp. of La., 891 F.3d 954, 958 (11th Cir. 2018) (“It is clear

from the text [of Rule 41(a)(1)(A)] that only an ‘action’ may be dismissed. There is no
mention in the Rule of the option to stipulate dismissal of a portion of a plaintiff’s lawsuit—
e.g., a particular claim—while leaving a different part of the lawsuit pending before the
trial court.” (emphases in original)). But Defendants appear to silently assume that the
first-to-file bar can be applied to individual claims, rather than to the entire action. (See

doc. 84 at 13 (“The majority of Relators’ Amended Complaint must be dismissed under
the first-to-file bar because its claims overlap with another, earlier-filed qui tam suit against
Comfort Care.” (first emphasis added))). Plaintiffs, on the other hand, seem to think that
all of their claims rise or fall together. (See doc. 87 at 30 (“The differences [between
Brooks’ and Plaintiffs’ complaints] are certainly significant and numerous enough to defeat
dismissal of the subsequently filed Bryant-Blackwood Complaint.”)).

Defendants’ interpretation—the intuitive interpretation—is the right one. Circuit
courts of appeals have long noted that “the draftsmanship of the qui tam statute has its
quirks.” United States ex rel. Merena v. Smithkline Beecham Corp., 205 F.3d 97, 101 (3d
Cir. 2000) (Alito, J.). One of these quirks is “that the statute is based on the model of a
single-claim complaint even though many qui tam actions involve multiple claims.” United
States ex rel. Lovell v. AthenaHealth, Inc., 56 F.4th 152, 159 (1st Cir. 2022) (quotation

omitted); see United States ex rel. Conyers, 108 F.4th 351, 357 n.7 (5th Cir. 2024) (“[T]he
FCA frequently uses the terms ‘action’ and ‘claim’ interchangeably, since the statute is
based on the model of a single-claim complaint.” (quotation omitted)). Because strict
compliance with the text of the FCA would produce absurd results, courts have historically
overlooked some of these “quirks”—especially as it relates to the apparent conflation of

“actions” and “claims.” See Merena, 205 F.3d at 102 (“The statute authorizes a qui tam
plaintiff to bring a civil action for a violation of [§] 3729, but surely such a plaintiff may
bring an action containing multiple claims, each of which alleges a separate violation of
[§] 3729.” (quotation omitted and emphasis in original)).
The long and the short of this diversion is that, although the first-to-file bar speaks

of “actions,” “when it is asserted that a later-filed complaint contains claims that are based
on the facts underlying certain claims in a pending multi-count complaint, the court must
conduct a claim-by-claim analysis in order to determine if [§] 3730(b)(5) applies.” Id.
Accordingly, much of Plaintiffs’ response to Defendants’ motion is unpersuasive;
because Plaintiffs appeared to believe that the first-to-file bar operated globally, many of

their arguments are made at too high a level of generality to be convincing. For example,
Plaintiffs attempt to distinguish their complaint from Brooks’ complaint. (Doc. 87 at 30–
33). Relatedly, Plaintiffs do not make much of an effort to distinguish their complaint from
Brooks’ with regard to the plan of care allegations—they reference Brooks’ allegations
regarding plans of care (doc. 87 at 18, 20, 22, 31 n.7), but their attempt to distinguish the
complaints is at such a high level that details like the plan of care allegations are essentially

omitted (see id. at 30–33). This high level of generality renders Plaintiffs’ submission
unavailing throughout.9
3. Complaint
Plaintiffs in the instant action have amended their complaint once (doc. 82), as has
Brooks, (see doc. 51 in Brooks). The parties suggest that the Court should compare

Plaintiffs’ operative complaint with Brooks’ original complaint, the idea apparently being
that the question is whether Plaintiffs’ live claims are barred by Brooks’ original
allegations. (See doc. 84 at 13–17; doc. 87 at 12–33). That’s more or less how the first-to-
file bar analysis proceeds in other circuits. See, e.g., Rosales, 128 F.4th at 557 (“[A] district

9 Similarly unavailing is Plaintiffs’ argument that their complaint is not related to Brooks’ because Brooks,
unlike Plaintiffs, alleges violations of the Anti-Kickback statute. (See doc. 87 at 32); Cho ex rel. States v.
Surgery Partners, Inc., 30 F.4th 1035, 1044 (11th Cir. 2022) (dispensing with the plaintiffs’ “argument that
their FCA conspiracy claim” was “unrelated” to a pending action that “alleged only substantive FCA
violations . . . in short order,” and determining that the conspiracy claim was barred because it was “based
on the same fraudulent scheme that was alleged in the” pending action, so “the government would have
been equipped to investigate both substantive FCA violations and any conspiracies stemming from, or
derivative to, the same scheme”).
court applying the [FCA]’s first-to-file rule should analyze all properly filed complaints
claim-by-claim to determine which relator was the first to bring a specific claim, or to bring
that claim against a particular defendant.”). But the Eleventh Circuit has determined that

the first-to-file bar requires a comparison of the original complaints. See Cho, 30 F.4th at
1042–43 & n.4. Accordingly, the Court compares the allegations in Brooks’ original
complaint with Plaintiffs’ original complaint—though the Court notes that the distinction
between Plaintiffs’ original and operative complaints is a technical one, as the factual
allegations are essentially identical.

4. Application of the First-to-File Bar
Plaintiffs do not dispute that Brooks was pending when they brought this action—
nor could they, as their original complaint was filed several months after the Brooks
complaint. (Compare doc. 1, with doc. 1 in Brooks). Thus, the Court limits its analysis to
the relatedness inquiry. Defendants argue that three of the fraudulent schemes Plaintiffs

identify are related to, and thus barred by, the claims asserted by Brooks: Defendants’ (1)
admission, certification, and recertification of ineligible hospice patients (Counts Four,
Five, and Six); (2) failure to properly execute and follow plans of care (Counts One, Two,
and Three); and (3) fraudulent marketing practices (Count 7). The Court examines each
scheme in turn.

a. Ineligible Hospice Patients
In Brooks’ original complaint, she alleges that Comfort Care Hospice, L.L.C.
“defrauded the United States by submitting, or causing to be submitted, false or fraudulent
claims to Medicare for hospice patients who were not terminally ill and were thus ineligible
for the Medicare Hospice Benefit.” (Doc. 1 at 17, para. 38 in Brooks). Indeed, this scheme
is central to her complaint, which includes allegations related to, and expanding upon, the

scheme. (See, e.g., doc. 1 at 18, para. 41 in Brooks (“Defendant Comfort Care [Hospice,
L.L.C.] knowingly and deliberately admits non-terminal, ineligible[] patients to its hospice
rolls. To that end, Comfort Care—primarily through Chief Operating Officer Lisa Teel—
set aggressive census goals and implemented procedures designed to ensure those goals
were met. These aggressive census goals and procedures are enforced on all Comfort Care
agencies and therefore cause the submission of false claims throughout Comfort Care’s

agencies.” (emphasis added)); id. at 19, para. 43 in Brooks (“[M]any people that are
referred to Comfort Care Hospice [L.L.C.] . . . are not actually terminally ill; nevertheless,
Comfort Care admits those patients to its end-of-life hospice care rolls. . . . [T]hese
patients are continually recertified for hospice care despite clear medical evidence that
these patients are not declining and are therefore non-terminal and ineligible for the

Medicare Hospice Benefit.”)). Brooks also identified specific individuals who were
improperly certified and recertified for hospice benefits spanning a four-year period from
2016 through July 2020, when her complaint was filed. (Doc. 1 at 20–21, para. 47 in
Brooks). Dr. Wagner is a central figure in these allegations, permitting others to apply his
signature to the required paperwork without “exercis[ing] clinical judgment in certifying

patient[s’] terminal prognos[e]s.” (Doc. 1 at 22, para. 50 in Brooks).
Likewise, Plaintiffs allege in their original complaint that Defendants have been
“systematically enrolling ineligible patients in hospice care and fraudulently submitting
claims for payments to Medicare and Medicaid for providing this heightened level of health
care.” (Doc. 1 at 8, para. 17). They further allege that Defendants “are currently defrauding
the United States, including the States of Alabama and

Tennessee, . . . by . . . systematically targeting and enrolling non-qualified persons as
patients under the hospice benefit guidelines as prescribed by Medicare and Medicaid,” as
well as “regularly re[]certifying patients who[] are not terminal but instead chronic or are
still receiving curative care from providers that were unaware that the patient was enrolled
in a hospice program.” (Id. at 21, para. 59; see also id. at 25, paras. 68–69). As part of this
scheme, Plaintiffs allege that Defendants specifically targeted Alzheimer’s patients, all of

whom were “believed to be inappropriate for hospice care, but [who] were admitted and
billed by the Defendants for extended periods of time.” (Id. at 36, para. 71; see also doc.
82 at 28 (“The Relators have witnessed the fraudulent activities and schemes of the
Defendants regarding enrollment, re-enrollment, and lack of discharge of ineligible
patients.”)).

Plaintiffs argue that the fraudulent scheme Brooks identified is “very narrow and
distinct,” claiming that Brooks’ allegations are “based around the Cullman Agency and Dr.
Wagner.” (Doc. 87 at 19). They therefore attempt to magnify Dr. Wagner’s and Lisa Teel’s
involvement. (See id. at 19–24). But that overlooks the fact that Brooks’ original complaint
expressly alleges that the conduct was occurring at “all Comfort Care agencies,” resulting

in the “submission of false claims throughout Comfort Care’s agencies.” (Doc. 1 at 18,
para. 41 in Brooks).
The relatedness of the complaints, at least in this regard, is apparent. Both allege
that a specific entity (Comfort Care Hospice, L.L.C.) was committing a specific type of
fraud (knowingly certifying and recertifying ineligible patients for hospice care) in a
specific state (Alabama). Indeed, even the relevant time periods are similar. (Compare

doc. 1 at 26–38, paras. 70–71 (allegations ranging from 2015 through 2019), with doc. 1 at
20–21, 25, 27, paras. 47, 56, 59 in Brooks (describing allegations between 2016 and 2020)).
The minor distinctions Plaintiffs try to draw between their lawsuit and Brooks’ cannot
untether the two. See Cho, 30 F.4th at 1044 (“Taken as a whole, both complaints allege
the same essential . . . scheme . . . . Based on the [pending action], the government was
already alerted to that scheme, and would have been equipped to investigate whether any

corporate affiliates or investors connected to Surgery Partners and Logan Labs were
participants.”); United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163, 169 (2d Cir.
2018) (“Though Wood’s allegations may be more detailed than those asserted in [the
pending action], the two cases in essence alleged very similar kickback schemes.”); United
States ex rel. Robertson v. Millenium Physician Grp., 2023 WL 2022228, at *5 (M.D. Fla.

Feb. 15, 2023) (“[W]hile . . . there are differences between the two complaints, there are
myriad, essential facts in common [such] that these complaints must be deemed ‘related’
for the FCA’s first-to-file rule.”). Accordingly, Counts Four, Five, and Six are barred by
the first-to-file bar.
b. Plans of Care

In Brooks’ original complaint, she alleged that Comfort Care Hospice, L.L.C.,
“failed to provide legitimate hospice services pursuant to legitimate individualized [p]lans
of [c]are developed by and supervised by a physician-led Interdisciplinary Group as
required by Medicare.” (Doc. 1 at 17, para. 39 in Brooks). These allegations were related
both to her claims that the defendants were improperly enrolling ineligible patients into
hospice care, (see doc. 1 at 26, para. 57 in Brooks; doc. 1 at 30–31, para. 69 in Brooks),

and that the defendants’ lack of proper plans of care deprived their patients of adequate
care, (see doc. 1 at 24, para. 54 in Brooks (“Comfort Care [Hospice, L.L.C.] resoundingly
failed to provide physician oversight and supervision . . . , including not providing
legitimate plans of care, which endangered patients and resulted in false claims for payment
because legitimate hospice services were not provided.”); doc. 1 at 37, para. 81(c) in
Brooks (“Defendant Comfort Care [Hospice, L.L.C.] and Defendant Wagner created and

used fraudulently devised plans of care, thereby depriving patients of valid hospice
care[] . . . .”)).
Turning to Plaintiffs’ original complaint, they allege that “Defendants did not
provide a written plan of care for each individual admitted to a hospice program.” (Doc. 1
at 24, para. 64 (quotation omitted)). And even to the extent that some of their patients do

receive individual plans of care, Plaintiffs allege that “Defendants systematically fail to
follow” them. (Id. at 24, para. 65). These allegations are related both to Plaintiffs’ claims
that Defendants improperly enroll patients into hospice care without the required plans of
care, (see id. at 24, para. 66), as well as their claims that Defendants fail to provide care
more broadly, (see id. at 43, para. 93; id. at 44, para. 95; see also doc. 82 at 21–22, paras.

65–66; id. at 37, paras. 76, 79). After carefully comparing the complaints side-by-side, the
Court has little difficulty discerning that these allegations are related, too.
However, which claims are barred as a result of that relation is a different question.
The plan of care allegations form part of the basis for Plaintiffs’ claims under Counts Four,
Five, and Six—the improper enrollment of ineligible patients into hospice care, which are
barred. However, the plan of care allegations are also used to support Plaintiffs’ claims of

non-rendered medical care under Counts One, Two, and Three. (See doc. 82 at 37, para. 76
(“Defendants falsely claimed that patients are treated according to their plans of
care . . . . By submitting claims based on non-rendered care, . . . Defendants submitted
false and fraudulent claims for payment to the Government.”)). Nevertheless, there may
be some daylight between Plaintiffs’ and Brooks’ claims as it relates to non-rendered or
inadequate medical care. Brooks’ allegations in that vein appear to be limited to her plan

of care allegations, whereas Plaintiffs seem to allege more broadly that the care rendered
to hospice patients was inadequate. (See doc. 1 at 26, para. 70 (“The Relators have
witnessed the fraudulent activities and schemes of the Defendants as Defendants urged all
employees to grow the income stream of Defendants by admitting as many patients as
possible and by not providing required services.”); id. at 28–29, para. 70(f)–(i); accord doc.

82 at 23, para. 70 (“The Relators have witnessed the fraudulent activities and schemes of
the Defendants regarding the billing of government programs[] . . . for inadequate or non-
performed medical care.”); id. at 37, para. 79 (claiming that Defendants made “false
statements” that were “material to the presentment of . . . false claims,” “including that
proper medical care was rendered, patients’ plans of care were followed, chaplain services

were provided, and volunteer hours were provided”)). Insofar as these allegations go to a
fraudulent scheme that is “broader, more pervasive, or distinct,” any claims they could
support may not be barred by the first-to-file rule. Cho, 30 F.4th at 1043.
To be sure, the distinction between the related plan of care allegations and Counts
One, Two, and Three, if any, is minimal. However, as mentioned, the parties’ briefing on

this issue is not entirely on point—both parties look to Plaintiffs’ operative complaint rather
than their original complaint, and Plaintiffs attempt to distinguish their complaint as a
whole from Brooks’ rather than go claim-by-claim. Because of this, and because Plaintiffs’
complaint suffers from other deficiencies, the Court does not find that Counts One, Two,
and Three are barred at this time.

c. Fraudulent Marketing Practices
In her complaint, Brooks included a reference to the “aggressive methods” Comfort
Care Hospice, L.L.C. used to source patient referrals, noting that employees were
“encouraged to solicit referrals not only from healthcare facilities . . . but also ‘from the
community’ such as from employees’ churches.” (Doc. 1 at 18–19, para. 42–43 in Brooks).
These allegations were part of her broader claim that Comfort Care Hospice, L.L.C. was

enrolling ineligible patients into the Medicare hospice benefit. (See doc. 1 at 19, para. 43
in Brooks (“Due to the motivation of these incentives, and to the lack of legitimate medical
oversight . . . , many people that are referred to Comfort Care . . . through these aggressive
methods are not actually terminally ill[] . . . .”)). Likewise, Plaintiffs here allege that
Defendants “aggressively market hospice services to non-terminal patients and admit and

discharge patients based solely upon profitability, rather than upon medical necessity.”
(Doc. 1 at 36, para. 71). This similarly feeds into their claim that Defendants’ marketing
practices are intended to, or at least have the desired effect of, enrolling ineligible patients.
(See id. at 39, para. 72 (“[A]lmost all of Defendant Comfort Care’s patients are referred by
sources other than treating physicians—primarily through direct-to-patient marketing—
and . . . treating physicians rarely play more than a passive role in hospice

admission . . . .”)). It also supports Plaintiffs’ standalone FCA claim in Count Seven for
“fraudulent marketing practices,” in which Plaintiffs allege that Defendants used
“aggressive marketing practices,” which included “false or fraudulent statements,” to
induce ineligible patients into hospice care. (Doc. 82 at 40, paras. 94–95). Because Count
Seven “rel[ies] on the same essential facts” and involves “a fraudulent scheme the
government already would be equipped to investigate based on the [Brooks] complaint,” it

is barred. Cho, 30 F.4th at 1042 (quotations omitted).
Plaintiffs’ attempts to avoid this conclusion are unsuccessful. They argue that they
“donate a sizable portion of their complaint towards alleging the tasteless marketing
procedures and practices of Comfort Care,” whereas Brooks made “a single passing
reference to marketing.” (Doc. 87 at 32). Even if it’s true that Plaintiffs make more of

Comfort Care’s allegedly fraudulent marketing than Brooks did, that does not change the
fact that the government would have been equipped to investigate the marketing based on
Brooks’ complaint, as Plaintiffs do not include allegations that the marketing scheme they
identify is broader, distinct, or more pervasive than that alleged by Brooks. Similarly, that
Plaintiffs (in the operative complaint) attempt to narrow these allegations to focus on

Alzheimer’s patients specifically misses the point, as the caselaw holds that narrow
allegations are generally subsumed by—and thus related to—broad allegations. See Cho,
30 F.4th at 1043 (noting with approval that other circuits had found broad allegations to
bar subsequently filed narrow allegations, and vice versa). And Plaintiffs’ argument that
Brooks’ marketing allegations “do[] not concern direct to patient marketing” (doc. 87 at
32) is simply inaccurate, (see doc. 1 at 18–19, para. 42 in Brooks (“Employees[] . . . are

encouraged to solicit referrals . . . ‘from the community’ such as from employees’
churches.”)). The fact that these allegations are the basis for a discrete claim in Plaintiffs’
operative complaint is of no moment. See supra n.12.
For these reasons, the Court determines that Plaintiffs’ fraudulent marketing
allegations are related to Brooks’. Count Seven is therefore barred.

E. Failure to State a Claim
Defendants assert that all of Plaintiffs’ claims—for one reason or another—fail to
state a claim. Because Counts Four, Five, Six, and Seven are barred, the Court does not
consider Defendants’ arguments that they also fail to state a claim. However, the Court
finds that Counts One, Two, Three, Eight, Nine, and Ten fail to state a claim and are
therefore due to be dismissed.

1. Counts One and Two
Defendants argue that Plaintiffs fail to plausibly allege the submission of a false
claim (doc. 84 at 17–21), which is “the sine qua non of a[n FCA] violation,” Clausen, 290
F.3d at 1311. A plaintiff bringing a claim under §§ 3729(a)(1)(A) or (B)—as Plaintiffs do
in Counts One and Two—must “plead with particularity that an actual claim has been

submitted.” Olhausen, 124 F.4th at 859. This requires them to provide in the complaint
“some indicia of reliability . . . to support the allegation of an actual false claim for
payment being made to the government.” Clausen, 290 F.3d at 1311 (emphasis in original).
[T]he particularity standard in qui tam actions requires the
relator to allege the actual submission of a false claim. We
have said this over and over. It is not enough to plead generally
that false claims were submitted, nor may a relator merely
point to improper practices of the defendant to support the
inference that fraudulent claims were submitted because
submission cannot be inferred from the circumstances. Rather,
the relator must allege the who, what, where, when, and how
of fraudulent submissions.

Olhausen, 124 F.4th at 860–61 (quotation modified). To satisfy this standard, the plaintiff
may submit “billing data or a representative sample claim proving that allegedly false
claims were actually submitted.” Id. at 861. Or, if they are an insider, they may include
allegations sufficient to show that they enjoyed “direct, first-hand knowledge” that false
claims were submitted. Id. at 866; accord United States ex rel. Walker v. R & F Props. of
Lake Cnty., Inc., 433 F.3d 1349, 1360 (11th Cir. 2005) (holding that Rule 9(b) was satisfied
where the relator, a nurse employed by the defendant, had conversations about the
defendant’s billing practices with the defendant’s office manager).10
Plaintiffs’ conclusory allegations as to billing are manifestly insufficient. (See, e.g.,
doc. 82 at 19, para. 59 (“Defendants routinely admitted and billed Medicare for hospice
patients who plainly and objectively did not meet Medicare criteria . . . , and Defendants
falsely billed the United States for these services.”); id. at para. 60 (“Upon information,
personal knowledge, and experience shown through testimony, affidavits, census reports,
billing detail reports, and other internal documents of the Defendants, it is known and

10 This list is not exhaustive. See Olhausen v. Arriva Med., LLC, 124 F.4th 851, 861 (11th Cir. 2024)
(“[T]here is no single formula that complaints must follow. . . . The bottom line is that a relator must
provide some indicia of reliability to support the allegation of an actual false claim for payment being made
to the Government.” (emphasis in original, alteration adopted, and internal citation and quotation omitted)).
illustrated that the Defendants have and are currently defrauding the United States . . . .”)).
See Clausen, 290 F.3d at 1313 (deeming insufficient “the conclusory allegation that [the

defendant] submitted bills to the Government ‘on the date of service or within a few days
thereafter,’” reasoning that if “Rule 9(b) is to carry any water, it must mean that an essential
allegation and circumstance of fraudulent conduct cannot be alleged in such conclusory
fashion”). To be sure, Plaintiffs include detailed allegations regarding the patients
Plaintiffs allege were the subject of fraudulent claims. (See, e.g., doc. 82 at 23, para. 70(a)
(describing “Patient C.K.M.,” who was allegedly “assigned a nurse that never visited,”

despite “records . . . reflect[ing] that the nurse visited the patient as required and as
Defendants billed Medicare”)). As descriptive as these allegations are, no amount of detail
can transform them into allegations regarding claims that were actually submitted to the
government. See Clausen, 290 F.3d at 1312 (“In none of [the plaintiff’s] descriptions of
alleged schemes by [the defendant] to increase its testing and testing revenues—which are

accompanied by dozens of pages of exhibits—does [the plaintiff] provide any factual basis
for his conclusory statement tacked on to each allegation that bills were submitted to the
Government as a result of these schemes[] . . . .”).
Nor are Plaintiffs, based on the allegations in the operative complaint, the sort of
insiders courts generally ascribe credibility to regarding the submission of a false claim.

True, Plaintiffs are nurses who worked for Defendants for several years, and at this stage
the Court accepts as true that they have first-hand knowledge of the fraudulent schemes
they allege. (See doc. 82 at 20, para. 61). But Plaintiffs do not allege that they were in a
position to know that false claims really were submitted to the government, and thus, the
operative complaint falls short. Consider the following from the Eleventh Circuit:

In the case at hand, the complaint fails [R]ule 9(b) for want of
sufficient indicia of reliability to support the assertion that the
defendants submitted false claims. . . . [The plaintiff] has
described in detail what he believes is an elaborate scheme for
defrauding the government by submitting false claims. He
cites particular patients, dates[,] and corresponding medical
records for services that he contends were not eligible for
government reimbursement. . . . [But the plaintiff] fails to
provide the next link in the FCA liability chain: showing that
the defendants actually submitted reimbursement claims for
the services he describes. Instead, he portrays the scheme and
then summarily concludes that the defendants submitted false
claims to the government for reimbursement.

United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1358–59 (11th Cir. 2006)
(emphasis in original); see United States ex rel. Mastej v. Health Mgmt. Assocs., Inc., 591
F. App’x 693, 704 (11th Cir. 2014) (“[A] plaintiff-relator without first-hand knowledge of
the defendants’ billing practices is unlikely to have a sufficient basis for such an
allegation.”). Plaintiffs’ roles as nurses—absent more—do not suffice. Compare Atkins,
470 F.3d at 1359 (“[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.”), with Mastej, 591 F. App’x at 708 (concluding
that the “complaint contain[ed] sufficient indicia of reliability” because the plaintiff “had
direct information about . . . billings, revenues, and payor mix, and . . . was in the very
meetings where Medicare patients and the submission of claims to Medicare were
discussed”).
In short, over the course of more than a dozen pages, Plaintiffs exhaustively detail
the fraudulent scheme they allege Defendants have perpetrated. (See doc. 82 at 19–36,

paras. 60–73). But it is insufficient to meticulously outline violations of federal regulations
without also alleging the submission of false claims. Atkins, 470 F.3d at 1359 (“[The
plaintiff] fails to . . . show[] that the defendants actually submitted reimbursement claims
for the services he describes. Instead, he portrays the scheme and then summarily
concludes that the defendants submitted false claims to the government for
reimbursement.” (emphasis in original)). Accordingly, Counts One and Two fail to state a

claim, and are therefore due to be dismissed.
2. Count Three
Count Three asserts that, in violation of § 3729(a)(1)(G), Defendants, after being
reimbursed by the government for the false claims alleged in Counts One and Two,
“knowingly and improperly avoided their legal obligation to reimburse the government for

these overcharges.” (See doc. 82 at 38, paras. 81–82). But § 3729(a)(1)(G) cannot be used
merely as another avenue to seek relief already available under §§ 3729(a)(1)(A) or (B).
See United States ex rel. Wallace v. Exactech, Inc., 2022 WL 2919349, at *12 (N.D. Ala.
July 25, 2022) (“Several courts, including those in the Eleventh Circuit, have found that in
order for the concealment of an obligation to be actionable under the reverse false claim

provision [(§ 3729(a)(1)(G))], the obligation must arise independent of the affirmative
false claims that are actionable under the other FCA provisions.”); Pencheng Si v. Laogai
Rsch. Found., 71 F. Supp. 3d 73, 97 (D.D.C. 2014) (Jackson, J.) (“[B]y this logic, just
about any traditional false statement or presentment action would give rise to a reverse
false claim action; after all, presumably any false statement actionable under
[§§] 3729(a)(1)(A) or 3729(a)(1)(B) could theoretically trigger an obligation to repay the

fraudulently obtained money.” (emphasis in original)). Plaintiffs concede as much by
failing to present argument in opposition to Defendants’ motion on this point. (See doc.
87). Count Three is accordingly dismissed.
3. Counts Eight, Nine, and Ten
Counts Eight through Ten—Plaintiffs’ TMFCA claims—are woefully deficient.
Plaintiffs allege that because Defendants have submitted false claims related to their

operations in Alabama, they must be doing the same in Tennessee, where they also operate.
[Plaintiffs] have personal knowledge that Defendants commit
the alleged fraud and follow the same fraudulent schemes as
set out herein within the State of Alabama and throughout
Alabama as it is Defendants’ corporate mentality, and
Defendants’ have now expanded operations into Tennessee,
and it is believed the same conduct is ongoing as it is corporate
mentality [sic].

(Doc. 82 at 2, para. 2 (emphasis added)). But the operative complaint does not assert that
Plaintiffs have knowledge that Defendants are submitting false claims in violation of the
TMFCA—this is only an assumption. Perhaps because of this deficiency, Plaintiffs do not
incorporate any factual allegations into Counts Eight, Nine, or Ten. (See id. at 41–43, paras.
97–111). Counts Eight through Ten therefore fall well short of stating a claim and are also
subject to dismissal. See Clausen, 290 F.3d at 1310 (explaining that FCA claims are subject
to Rule 9(b) and must therefore be supported by “facts as to time, place, and substance of
the defendant’s alleged fraud,” including “details of the defendants’ allegedly fraudulent
acts, when they occurred, and who engaged in them” (quotation omitted)); United States
ex rel. Alt v. Anesthesia Servs. Assocs., PLLC, 2019 WL 7372510, at *11 (M.D. Tenn. Dec.
31, 2019) (“The elements of a claim under the TMFCA are virtually identical to those of

an FCA claim. Accordingly, the analysis of the sufficiency of the pleading is equally
applicable to both statutory claims.” (internal citations and quotations omitted)); see also
United States ex rel. Carter v. Emergency Staffing Sols., Inc., 2023 WL 2754347, at *7
(N.D. Tex. Mar. 31, 2023) (dismissing claims brought under state corollaries to the FCA
because the plaintiff made “no non-conclusory allegations about any . . . state” other than
Oklahoma,” noting that he had “utterly failed to plead specific facts regarding” those state

claims); United States ex rel. Sonyika v. ApolloMD, Inc., 2021 WL 1222379, at *12 & n.10
(N.D. Ga. Mar. 31, 2021) (same).
V. CONCLUSION
For the reasons stated, and for good cause, it is
ORDERED as follows:

1. Plaintiffs’ motion to strike (doc. 86) is DENIED.
2. Defendants’ motion to dismiss (doc. 84) is GRANTED in part and DENIED
in part.
a. Counts Four, Five, Six, and Seven are DISMISSED without prejudice
without leave to refile under the first-to-file bar. Counts One, Two, Three, Eight, Nine,

and Ten are DISMISSED without prejudice.
b. Defendants’ motion to dismiss is otherwise DENIED.
3. On or before March 6, 2026, Plaintiffs may file a second amended
complaint that fully complies with this Order and the Court’s Local Rules.
DONE this 19th day of February, 2026.
/s/ Emily C. Marks
EMILY C. MARKS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11264240. Public record. Not legal advice.