Petition for Writ of Certiorari — Ashwani Sheoran, Petitioner v. Walmart Stores East, LP, et al.

APPENDIX A

NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0275n.06

Case No. 20-2128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES

OF AMERICA and

STATE OF MICHIGAN,

ex rel.,

Plaintiffs-Relators,

ASHWANI SHEORAN, RPh;

Plaintiff-Relator/

Appellant,

v.

)

)

)

)

)

)

)

)

)

)

)

ON APPEAL

FROM THE

UNITED

STATES

DISTRICT

COURT

FOR THE

EASTERN

DISTRICT

OF MICHIGAN

)

WAL-MART STORES

EAST, LP, TOI WALKER;

DOUG HENGER;

ALFRED RODRIGUEZ;

RICHARD LOCKARD, M.D.,

Defendants-Appellees.

)

)

)

)

)

)

OPINION

2a

BEFORE: CLAY, McKEAGUE, and LARSEN,

Circuit Judges.

McKEAGUE, Circuit Judge. In 2013,

Ashwani Sheoran filed a sealed complaint under the

False Claims Act and the Michigan Medicaid False

Claims Act alleging that a doctor was writing

improper prescriptions for high dosages of opiates

and that Walmart was filling those prescriptions.

After five years, the United States and State of

Michigan declined to intervene and prosecute the

case on Sheoran’s behalf, and the district court

unsealed the complaint. The district court granted

the defendants’ motions to dismiss and denied

Sheoran’s motion for reconsideration. Sheoran

challenges the district court’s grant of the motions to

dismiss, its alleged failure to address claims under

the Michigan Medicaid False Claims Act, and its

decision not to hold oral argument for the motions.

We find Sheoran’s arguments to be without

merit and AFFIRM the judgment of the district

court.

I

In April 2012, Sheoran began working as a

full-time floater pharmacist for Walmart in

Michigan, which meant that he would work at

different pharmacies around the state. In July 2012,

Sheoran arrived to work at a Walmart in Bad Axe,

Michigan and observed a line of roughly ten

customers waiting for the pharmacy to open, all of

3a

whom were patients of Dr. Richard Lockard. Sheoran

claims that they all presented prescriptions for very

high doses of opiates, so high that one patient would

have died had he or she ‘‘actually taken” the

prescription.

Then, in August 2012, while working at the

same Walmart, Sheoran claims he received large

numbers of opiate prescriptions from Dr. Lockard’s

office and declined to fill them due to their high

doses. Sometime afterwards, Sheoran obtained one

unidentified patient’s “Medical Expenses Summary,”

which listed that patient’s prescriptions and costs

over a five-year period. Sheoran concluded that

because the cost to the patient was $1-2 for many of

the prescriptions, they must have been submitted to

Medicare or Medicaid for payment, which would

potentially trigger liability under the False Claims

Act. Claiming that this Medical Expenses Summary

was one example of thousands, he brought his

concerns to his supervisor. Walmart investigated and

found that the pharmacy was not following

Walmart’s internal procedures for filling faxed

prescriptions but did not conclude that any laws or

regulations were violated. After a meeting where

Sheoran was reprimanded for stealing the Medical

Expenses Summary (later attached to his complaint)

in violation of Walmart’s policies, he was fired on

January 21, 2013.

On February 11, 2013, about a month after he

was terminated, Sheoran filed a complaint under

4a

seal alleging False Claims Act (“FCA”) violations

against Walmart, three individual employees of

Walmart, and three doctors. After amending his

complaint, Sheoran alleged (1) presentation of false

claims under the FCA and Michigan Medicaid False

Claims [sic] Act (“MMFCA”); (2) use of false records

under the FCA and MMFCA; (3) conspiracy to violate

the FCA; and (4) retaliation under the FCA by

Walmart. After five years, the United States and

State of Michigan declined to intervene in the case,

so the district court unsealed the complaint on March

7, 2018. The Walmart defendants and one of the

doctors, Dr. Lockard, moved to dismiss, and the

district court granted their motions on August 20,

2019. Sheoran moved for reconsideration, which the

district court denied on September 28, 2020. This

appeal followed.

II

Sheoran challenges the decisions below in

three ways. The bulk of his briefing focuses on

whether the district court was incorrect in granting

the motions to dismiss. He also argues that that the

district court erred by failing to include his MMFCA

claims in its summary of claims in the orders and

that the district court abused its discretion by

waiving oral argument on the motions. We address

each argument in turn.1

1 Sheoran’s statement of issues does not address whether the

district court correctly granted the motions to dismiss, and

instead addresses only his MMFCA and oral argument claims.

5a

A. Dismissal for failure to state a claim

We review a district court’s dismissal for

failure to state a claim de novo. Yuhasz v. Brush

Wellman, Inc., 341 F.3d 559, 562 (6th Cir. 2003). Tb

survive a motion to dismiss, a complaint must

contain more than “labels and conclusions,” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007), and we

may reject “mere assertions and unsupported or

unsupportable conclusions.” Sanderson v. HCA-The

Healthcare Co., 447 F.3d 873, 876 (6th Cir. 2006).

Complaints brought under the FCA require plaintiffs

to satisfy the particularity requirements of Federal

Rule of Civil Procedure 9(b). Yuhasz, 341 F.3d at 563.

This heightened standard requires that the plaintiff

“allege the time, place, and content of the alleged

misrepresentation ...[;] the fraudulent scheme; the

fraudulent intent of the defendants; and the injury

resulting from the fraud.” United States ex rel.

Therefore, we could restrict our analysis to those two claims

alone because Federal Rule of Appellate Procedure 28(a)(5)

specifies that “[t]he appellant’s brief must contain” the issues

presented in the statement of issues; therefore, issues not

included may be dismissed as forfeited. See United States u.

Calvetti, 836 F.3d 654, 664 (6th Cir. 2016). Nonetheless, given

its importance on appeal, we will address whether the district

court correctly granted the motions to dismiss, lb the extent

that Sheoran’s briefing raises other arguments, many of which

are undeveloped and presented in only a paragraph or two, we

deem them forfeited because of Sheoran’s perfunctory treatment

of them and because they were not included in Sheoran’s

statement of issues. See id.; United States v. Johnson, 430 F.3d

383, 397 (6th Cir. 2005); United States v. Burton, 828 F. App’x

290, 293 n.l (6th Cir. 2020); Barrett u. Detroit Heading, LLC,

311 F. App’x 779, 796 (6th Cir. 2009).

6a

Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 643

(6th Cir. 2003) (quoting Coffey v. Foamex L.P., 2 F.3d

157, 161-62 (6th Cir. 1993)).

1. False claims and false records

Sheoran’s first two counts allege that the

defendants knowingly presented false claims to the

government and knowingly made false records for

use in those claims. To establish a claim under the

FCA, a plaintiff must allege that (i) the defendant

presented a claim of payment to the government, (ii)

the claim was false or fraudulent, (iii) the defendant

knew it was false or fraudulent, and (iv) the false

claim was material to the government’s payment. See

United States ex rel. Sheldon v. Kettering Health

Network, 816 F.3d 399, 408 (6th Cir. 2016). Sheoran’s

complaint falls short on all four elements.

a. Presentment

A critical component of an FCA complaint is

the allegation that a claim for payment was

presented to a government entity. See Sanderson,

447 F.3d at 878 (describing presentment as the “sine

qua non of a False Claims Act violation”). Under

Rule 9(b), specifics on presentment are required,

such as the types of employees involved and the

“specific dates” underlying the claims. United States

ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d

493, 515 (6th Cir. 2007); Sanderson, 447 F.3d at

877-78.

7a

Sheoran claims that Exhibit A of the

complaint, the Medical Expenses Summary,

establishes presentment, but that exhibit is simply a

summary of one unidentified patient’s prescriptions

and expenses. Nothing about the document indicates

that any of the entries were presented to a

government agency. Sheoran argues that because

some of the payments were for $1-2, the patient must

have received government reimbursement through

Medicare or Medicaid. But Rule 9(b) requires far

more than mere speculation. See Sanderson, 447 F.3d

at 877 (noting that plaintiffs cannot simply allege

that claims “must have been submitted, were likely

submitted, or should have been submitted to the

Government”) (quoting United States ex rel. Clausen

v. Lab’y Corp. of Am., Inc., 290 F.3d 1301, 1311 (11th

Cir. 2002)). As the district court noted, many reasons

could exist for the low costs to the patient, such as

subsidizing by private insurance companies. Because

this bare-bones assertion must be rejected, Sheoran

cannot satisfy the presentment element of his FCA

claims.

b. Falsity

The second element of an FCA claim is that

the claim submitted must be “false or fraudulent.” 31

U.S.C. § 3729(a)(1)(A), (B). Again, Sheoran relies

solely on Exhibit A to satisfy this element, claiming

that the “high doses” listed “would kill the person” if

taken as prescribed. But we must reject mere

“conclusions” and “naked assertions” in a complaint.

A

8a

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Exhibit A simply lists one patient’s prescriptions and

expenses and contains no other medical information,

and Sheoran offers none in his complaint. It is

impossible to evaluate whether the doses were too

high without more information regarding the

patient’s medical history or needs. Therefore, there is

no way to conclude that Exhibit A establishes falsity.

c. Knowledge

Next, Sheoran must sufficiently allege that the

defendants “knowingly” presented false claims or

“knowingly” created false records for false claims. 31

U.S.C. § 3729(a)(1)(A), (B); see id. § 3729(b)(1). This

is a high bar, requiring “that a defendant knows of,

or ‘acts in deliberate ignorance’ or ‘reckless disregard’

of, the fact that he is involved in conduct that

violates a legal obligation to the United States.”

United States ex rel. Harper v. Muskingum

Watershed Conservancy Dist., 842 F.3d 430, 437 (6th

Cir. 2016) (quoting 31 U.S.C. § 3729(b)). Once again,

even assuming that the prescriptions in Exhibit A

were submitted to the government, nothing in those

prescriptions would indicate to Walmart that they

were illegal, false, or fraudulent. Sheoran’s complaint

does not describe how Walmart could have concluded

the prescriptions were false or fraudulent in some

way, so he fails to satisfy this element.

d. Materiality

9a

Finally, Sheoran must show that the alleged

misrepresentation made to the government was

“material” to the government’s decision to reimburse

the claim. Universal Health Servs., Inc. v. United

States, 136 S. Ct. 1989, 2001 (2016). This

“demanding” standard should go “to the very essence

of the bargain,” as the FCA was not enacted to

punish “garden-variety” violations. Id. at 2001-03 &

n.5. Assuming that Walmart actually submitted the

claims in Exhibit A to the government, the

government would have had access to the same

knowledge that Walmart had regarding the allegedly

“high doses” of controlled substances prescribed.

Even if we accept as true Sheoran’s representation

that the prescriptions in Exhibit A were submitted to

the government and that the exhibit, on its face,

shows false or fraudulent claims, then the

government’s decision to pay those claims despite

that knowledge “is very strong evidence that those

requirements are not material.” Id. at 2003.

Therefore, Sheoran fails to satisfy this element.

2. Conspiracy

Sheoran’s third count of FCA conspiracy

against Walmart falls with the two preceding

substantive claims. Conspiracy under the FCA is

derivative of the substantive claims of submitting a

false claim to the government or creating a false

record. See 31 U.S.C. § 3729(a)(1)(C); United States

ex rel. Crockett v. Complete Fitness Rehab., Inc., 721

F. App’x 451, 459 (6th Cir. 2018). As we have

10a

concluded in the preceding section, Sheoran’s first

two counts failed to meet the pleading standards of

Rules 12(b)(6) and 9(b), which means his conspiracyclaim fails as well. See Crockett, 721 F. App’x at 459

(holding that the plaintiff’s “inability to show that

false claims were actually submitted to the

government

means

that

her

false-claims-conspiracy counts are likewise subject to

dismissal, because the existence of such false claims

is a precondition to [this] theory”).

3. Retaliation

Finally, the district court correctly dismissed

Sheoran’s retaliation claim. FCA retaliation claims

are not subject to Rule 9(b)’s heightened standards,

see id. at 460, but “a plaintiff must show: (1) he

engaged in a protected activity; (2) his employer

knew that he engaged in the protected activity; and

(3)

his employer discharged or otherwise

discriminated against the employee as a result of the

protected activity.” Yuhasz, 341 F.3d at 566.

Sheoran’s retaliation claim fails because he failed to

plead that Walmart knew he was pursuing an FCA

action. Employees “must make clear their intentions

of bringing or assisting in an FCA action” to show

retaliation. Id. at 568. Sheoran claims that he told

his superiors about the allegedly false prescriptions,

but that is not enough. Even when an employee tells

their employer that they have witnessed illegal

conduct and that other companies have incurred

FCA liability for similar conduct, that fails to

11a

establish that an employee is pursuing an FCA

action. Id. at 567; McKenzie v. BellSouth Telecomms.,

Inc., 219 F.3d 508, 518 (6th Cir. 2000) (noting that

telling an employer about their alleged regulatory

violations was not sufficient to satisfy this

requirement). Therefore, Sheoran’s retaliation claim

was properly dismissed.

B. Michigan Medicaid False Claims Act

Next, Sheoran claims that the district court

erred by failing to address his MMFCA claims when

it summarized Sheoran’s claims in its order. But

first, contrary to Sheoran’s assertions on appeal, two

of the four claims in his complaint were not brought

under the MMFCA at all. Sheoran’s conspiracy and

retaliation claims referenced only federal FCA

provisions. There can be no error in the district

court’s failure to discuss claims that did not exist.

Second, the district court addressed the other

two claims, recognizing that Sheoran brought them

under “the Michigan Medicaid False Claims Act” as

well as the federal FCA. The district court’s analysis

applied to both sets of claims, and it dismissed the

state law claims along with the federal ones.

To the extent Sheoran argues that the

MMFCA claims should have been analyzed

differently than the federal FCA claims, that

argument is contradicted by both the proceedings

below as well as precedent. Neither the complaint

nor the motion to dismiss briefing identified any

12a

distinctions between the FCA and MMFCA in this

case. And that makes sense, because the FCA and

MMFCA are identical in every relevant respect here

and are frequently analyzed in tandem. See, e.g.,

Hendricks v. Bronson Methodist Hosp., Inc., No.

1:13—CV—294, 2014 WL 3752917, at *2-7 (W.D. Mich.

July 30, 2014) (analyzing FCA and MMFCA claims

together). The federal FCA prohibits “knowingly

present [ing]” a “false or fraudulent claim” as well as

“knowingly mak[ing]” a “false record” “material” to

such a claim, 31 U.S.C. § 3729(a)(1), and the

MMFCA contains two

substantially similar

provisions, see Mich. Comp. Laws § 400.607(1), (2);

Hendricks, 2014 WL 3752917, at *2. Therefore, there

was no error in the district court analyzing both sets

of claims the same way.

C. Oral argument

Sheoran suggests that the district court issued

“confusing” orders, dismissed his claims “without a

hearing or clear understanding of the factual and

legal issues,” and thereby erred in waiving oral

argument for the motions. We review whether a

district court impermissibly decided a motion

without oral argument for an abuse of discretion.

Mann u. Conlin, 22 F.3d 100, 103 (6th Cir. 1994).

We see no abuse of discretion here. The

Federal Rules of Civil Procedure and the district

court’s local rules expressly permit deciding motions

without oral argument. Fed. R. Civ. P. 78(b); E.D.

13a

Mich. Loc. R. 7.1(f). And doing so serves many

valuable functions for the judiciary, such as allowing

district courts to “effectively manage very crowded

case dockets,” especially in instances where “the

legal issues are abundantly clear and . . . firmly

settled.” Yamaha Corp of Am. v. Stonecipher’s

Baldwin Pianos & Organs, Inc., 975 F.2d 300, 301

n.l (6th Cir. 1992). Deciding motions on the briefs

also “encourages improved brief writing” and “forces

the parties to thoroughly research the legal basis on

which their positions rest.” Id. We routinely approve

of a district court’s decision to decide motions without

oral argument and see no reason to reject the court’s

decision to do so here.

In response, Sheoran claims the orders were

“very confusing” and that the district court failed to

“understand the complex issues in this case.” But as

the analysis above demonstrates, this was a

straightforward FCA case that was properly decided

on the briefs. And the specific claims that Sheoran

makes regarding the district court’s allegedly

“confusing” analysis do not show an abuse of

discretion. For example, Sheoran claims that the

district court failed to note that FCA liability can be

established if claims are submitted “to certain third

parties acting on the Government’s behalf’ and not

just to the government itself. Sheoran’s statement of

the law is accurate, see Cochise Consultancy, Inc. v.

United States ex rel. Hunt, 139 S. Ct. 1507, 1510

(2010), but irrelevant. Sheoran did not claim that the

14a

payments were submitted to third parties, so the

district court had no reason to discuss that aspect of

the law. Later, Sheoran claims that the district

court’s use of the phrase “appears to allege” was an

“admission” that confirmed “the district court was

not confident” about what Sheoran’s complaint was

alleging and that oral argument was necessary “to

clear up the court’s confusion.” We reject Sheoran’s

invitation to parse the words of the district court so

finely or conclude that the district court was

confused based on its use of that phrase. In sum,

Sheoran’s arguments have no merit and fail to show

an abuse of discretion in the district court’s decision

to decide the motions without oral argument.

Ill

We AFFIRM the judgment of the district

court.

15a

APPENDIX B

Case No. 20-2128

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES

OF AMERICA and

STATE OF MICHIGAN,

ex rel.,

Plaintiffs-Relators,

)

)

)

)

ORDER

)

)

ASHWANI SHEORAN, RPh,

Plaintiff-Relator/

Appellant,

)

)

)

)

v.

)

)

WAL-MART STORES

EAST, LP, TOI WALKER;

DOUG HENGER;

ALFRED RODRIGUEZ;

RICHARD LOCKARD, M.D.,

Defendants-Appellees.

)

)

)

)

)

)

BEFORE: CLAY, McKEAGUE, and LARSEN,

Circuit Judges.

16a

The court received a petition for rehearing en

banc. The original panel has reviewed the petition

for rehearing and concludes that the issues raised in

the petition were fully considered upon the original

submission and decision of the case. The petition

then was circulated to the full court.* No judge has

requested a vote on the suggestion for rehearing en

banc.

Therefore, the petition is denied.

The petition, brought by Plaintiff-Appellant,

included multiple specious allegations of judicial

corruption. Plaintiff-Appellant’s counsel cites to no

evidence to substantiate these inappropriate

allegations.

Plaintiff-Appellant’s counsel is

ORDERED to show cause as to why she should not

be sanctioned for violating Federal Rule of Civil

Procedure 11(b) within twenty-one (21) days

following the filing of this order. See Fed. R. Civ. P.

11(c)(1), (3).

ENTERED BY ORDER

OF THE COURT

s/Deborah S. Hunt

Deborah S. Hunt, Clerk

*Judges White, Readier, and Murphy, recused themselves from

participation in this ruling.

17a

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA and the

STATE OF MICHIGAN, ex rel.

ASHWANI SHEORAN, RPh,

Plaintiff-Relator,

Civil Case No.

13-10568

Hon. Linda V.

Parker

v.

WAL-MART STORES EAST, LP, d/b/a

WALMART, a foreign corporation,

TOI WALKER, DOUG HENGER,

ALFRED RODRIGUEZ,

RICHARD LOCKARD, M.D.,

NAVEED MAHFOOZ, M.D., and

TAREK EZZEDDINE, M.D.,

Defendants.

OPINION AND ORDER (1) GRANTING

DEFENDANT LOCKARD’S MOTION TO

DISMISS SECOND AMENDED COMPLAINT

(ECF NO. 581 AND (2) GRANTING WALMART

DEFENDANTS* MOTION TO DISMISS SECOND

AMENDED COMPLAINT (ECF NO. 611

18a

Plaintiff-Relator

(“Relator”),

Ashwani

Sheoran, RPh, on behalf of himself, the United

States and the State of Michigan, initiated this

lawsuit on February 11, 2013, filing a qui tarn

complaint under seal against Defendants (1)

Walmart, (2) Toi Walker, (3) Doug Henger, (4) Alfred

Rodriguez, (5) Richard Lockard, M.D., (6) Naveed

Mahfooz, M.D., and (7) Tarek Ezzeddine, M.D.

(Compl., ECF No. 1.) As a matter of course, on April

16, 2013, Relator filed his First Amended Complaint

(“FAC”) against the same Defendants and alleging

the same claims. (Am. Compl., ECF No. 3.)

On December 7, 2018, Relator filed his Second

Amended Complaint (“SAC”) alleging violations of (1)

the False Claims Act (“FCA”), 31 U.S.C. § 3729 et

seq., (2) the Fraud Enforcement Recovery Act of 2009

(“FERA”), 31 U.S.C. §§ 3729-3733, (3) the Michigan

Medicaid False Claims [sic] Act (“MMFCA”), MICH.

COMP. LAWS § 400.601 et seq., and (4) the

retaliation provisions of 31 U.S.C. § 3730(h). (Sec.

Am. Compl., ECF No. 57.) The federal and state FCA

claims are against all Defendants, Sec. Am. Compl.

at 25-28, Pg. ID 589-592, while the FCA retaliation

claim is only against Walmart, id. at 28, Pg. ID 592.

On March 8, 2018, this Court unsealed the

complaints after the United States and the State of

Michigan declined to intervene. (ECF Nos. 24, 25.)

Presently before the Court are Defendant

Lockard’s and Defendants Wal-Mart Stores East, LP,

19a

Toi Walker, Doug Henger, and Alfred Rodriguez’s (the

“Walmart Defendants”) respective Motions to

Dismiss1 pursuant to Federal Rule of Civil Procedure

12(b)(6). (Lockard Dismiss Mot., EOF No. 58;

Walmart Dismiss Mot., ECF No. 61.) The Motions

have been fully briefed. (ECF Nos. 58, 61, 62, 63, 64,

65.) Finding the facts and legal arguments

sufficiently presented in the parties’ briefs, the Court

is dispensing with oral argument pursuant to Local

Rule 7.1(f). For the reasons that follow, the Court

grants both motions and dismisses all claims against

Defendant Lockard and the Walmart Defendants2.

I. Legal Standard

A motion to dismiss pursuant to Rule 12(b)(6)

tests the legal sufficiency of the complaint. RMI

Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d

1125, 1134 (6th Cir. 1996). Under Federal Rule of

Civil Procedure 8(a)(2), a pleading must contain a

“short and plain statement of the claim showing that

the pleader is entitled to relief.” To survive a motion

to dismiss, a complaint need not contain “detailed

factual allegations,” but it must contain more than

1 Defendants Tarek Ezzeddine and Naveed Mahfooz did not file

motions to dismiss but answered the complaint. (Ezzeddine

Answer, ECF No. 59; Mahfooz Answer, ECF No. 60.)

2 Any dismissal of Relator’s SAC shall be without prejudice as to

the United States. (U.S. Renewed Statement of Interest, ECF

No. 66 (citing United States ex rel. Williams v. Bell Helicopter

Textron, Inc., 417 F.3d 450, 455-56 (5th Cir. 2005) (holding that

it is improper to dismiss claims with prejudice as to the United

States in a declined qui tam case)).

20a

“labels and conclusions” or “a formulaic recitation of

the elements of a cause of action . . . Bell Atlantic

Corp. v. livombly, 550 U.S. 544, 555 (2007). A

complaint does not “suffice if it tenders ‘naked

assertions’ devoid of ‘further factual enhancement.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 557). As the Supreme Court

provided in Iqbal and Twombly, “[t]o 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.”’ Id.

(quoting Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at

556). The plausibility standard “does not impose a

probability requirement at the pleading stage; it

simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of

illegal [conduct].” Twombly, 550 U.S. at 556. In

deciding whether the plaintiff has set forth a

“plausible” claim, the court must accept the factual

allegations in the complaint as true. Erickson v.

Pardus, 551 U.S. 89, 94 (2007). This presumption is

not applicable to legal conclusions, however. Iqbal,

556 U.S. at 668. Therefore, “[tjhreadbare recitals of

the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citing

Twombly, 550 U.S. at 555).

21a

Additionally, claims brought under the FCA

have a heightened standard and must also comply

with Federal Rule of Civil Procedure 9(b). When

alleging fraud, “a party must state with particularity

the circumstances constituting fraud.” Fed. R. Civ. P.

9(b)3.

II. Factual and Procedural Background

On or about May 2012 to January 2013,

Relator worked for Walmart as a “full-time floater

pharmacist.” (SAC H1I 7, 36-37, 166.) This lawsuit

concerns observations that Relator made at various

Walmart pharmacies between July 14 and August

30, 2012. (Id. HU 41-125.)

Allegations Related to Defendant Lockard

On or about July 31, 2012, Relator was

assigned to work at a Walmart store in Bad Axe,

Michigan. (Id. 1| 73.) Upon arriving that day before 8

a.m., he observed a line of roughly ten customers

waiting for the pharmacy to open—each one a

patient of Defendant Lockard’s. (Id. UH 74, 75.)

Relator alleges that each of these patients was

of

controlled

“high

prescribed

doses”

substances—methadone, morphine sulfate, and/or

oxycodone—and that Medicare or Medicaid was used

in paying for them. (Id. HU 76-78.)

3 <

‘Malice, intent, knowledge, and other conditions of a person's

mind may be alleged generally.” Fed. R. Civ. P. 9(b).

22a

On or about August 6, 2012, while working at

the same Walmart in Bad Axe, Relator observed

“large numbers of controlled substances” prescribed

from Defendant Lockard’s office being presented to

the pharmacy, and he declined to fulfill them. (Id. 1H1

97, 100.) Relator contends that Defendant Lockard’s

prescriptions were either false, fraudulent or

submitted to the Walmart pharmacy in violation of

state and federal healthcare law. (Id.

168, 172,

176.)

Allegations Related to Walmart Defendants

Relator also alleged that, while working at

various Walmart pharmacies, he observed a

customer

attempting

to

refill prescriptions

prematurely, customers presenting allegedly “high

dose[ ]” prescriptions, a customer attempting to use a

stolen prescription pad, and customers presenting

out-of-area prescriptions. (See id.

68, 73-81, 87,

97, 114.)

Relator further alleged that he shared his

observations and suspicions with his direct

supervisor, Defendant Toi Walker, and with other

members of Walmart management, including

Defendant Doug Henger. (Id. DU 119-21.) Walmart

investigated, and on September 12, 2012, Relator

received an email stating that the investigation had

been closed. (Id.

130-131, 146.) Defendant Alfred

Rodriguez, a Walmart Human Resources Director,

sent Relator an email stating that the investigation

23a

found “that the defined practice of filling

prescriptions that are received via fax or e*scribe

were not being completed properly.” {Id. 153.)

On January 21, 2013, Relator was terminated.

{Id. 1 166.)

III. Applicable Law and Analysis

To sufficiently plead a claim under the FCA, a

plaintiff must allege that:

[1] that the defendant [made] a false

statement or create [d] a false record [2]

with actual knowledge, deliberate

ignorance, or reckless disregard of the

truth or falsity of the information; [3]

that the defendant... submitted a claim

for payment to the federal government;

... and [4] that the false statement or

record

[was]

material

to

the

Government's decision to make the

payment sought in the defendant's

claim.

U.S. ex rel. Sheldon v. Kettering Health Network, 816

F.3d 399, 408 (6th Cir. 2016) (quoting U.S. ex rel.

SNAPP, Inc. v. Ford Motor Co., 618 F.3d 505, 509

(6th Cir.2010) (“SNAPP II”)); see also United States

ex rel. Carnpie v. Gilead Sciences,Inc., 862 F.3d 890,

902 (9th Cir. 2017).

24a

Relator alleges that on two occasions while

working in the Bad Axe Walmart, he observed

patients of Defendant Lockard’s present allegedly

false or fraudulent prescriptions. His only evidence

that the prescriptions were in fact false or fraudulent

is his characterization that “these customers

presented controlled substances prescriptions for

high doses (ranging from 450, 600, 800 and 12004) of

methadone, morphine sulfate and/or oxycodone.”

Also, he provided one example of one of Defendant

Lockard’s patient’s “Medical Expenses Summary”

(Exh. A, ECF 57 at 32-37, Pg. ID 596-601.) This

document lists the patient’s prescriptions over five

years and details the date filled, drug name,

quantity, number of days’ supply, and cost paid by

the patient—along with some other information not

relevant here. (Id.) Relator argues that this exhibit is

representative “of thousands of Dr. Lockard’s alleged

patients,” and that each entry “can be considered a

separate FCA violation . . . because if the

combination of drugs prescribed in Exhibit A were

actually taken, they would kill a person.” (SAC % 77

(emphasis added).)

Defendant Lockard

The Court concludes that Relator has failed to

sufficiently plead a FCA claim against Defendant

Lockard. There is an absence of facts and evidentiary

4 The Court notes that a dosage refers to the total amount of

milligrams (mg) contained within one tablet.

25a

support to conclude that any of Defendant Lockard’s

prescriptions were false or fraudulent. Relator’s

allegations are based on his own speculations as to

Defendant Lockard’s prescribing practices with all

his patients, the proper medication dosages

necessary to treat varying patients, and the proper

administration or combination of medications for

differing patients. Accepting Relator’s claims

requires this Court to make a series of unwarranted

and wholly unsupported inferences.

First, Relator only observed a handful of

Defendant Lockard’s patients on two occasions but

argues that the customers he observed represents all

of Defendant’s Lockard’s patients. Relator alleges

this without verifying or supporting that any of

Defendant Lockard’s prescriptions exceeded that of

any particular patient’s medical needs.

Second, Relator’s only evidence to support an

inference of falsity or fraud is his characterization

that Defendant Lockard’s prescriptions were “high

doses” of controlled substances. Relator alleged

Defendant Lockard prescribed doses of methadone,

morphine sulfate and/or oxycodone from “450-1200”

mg. However, Relator’s supporting evidence:—one

patient’s Medical Expenses Summary—directly

contradicts that allegation. It showed that not one

prescription for methadone, morphine sulfate and/or

26a

oxycodone exceeded 30 mg5 over the course of five

years. (ECF No. 57 at 32-37, Pg. ID 596-601.)

Third, Relator seeks to establish that false

claims were submitted to the government because

one patient was charged between $1-2 (also shown in

Exhibit A), which demonstrates that Medicaid or

Medicare must have been used. (Id. H 78.) This is

not a specific allegation of a false claim being

submitted to the government but rather a transitive

inference without the supporting links.

Finally, the Court would need to infer that the

government relied on Defendant Lockard’s allegedly

false prescriptions in making a payment to

Defendant Lockard. But Relator has not alleged that

the government made any payments to Defendant

Lockard—nor is the Court able to infer the same.

Consequently, there are neither facts nor

evidence from which this Court could conclude or

infer that: (1) a false record was in fact made or

created, (2) Defendant Lockard submitted to the

government a false claim for payment, and (3) the

government

relied

on

Defendant

Lockard’s

submission to make a payment to him. Concluding

5 Assuming—for arguments [sic] sake—that Relator was not

referencing the concentrate (mg) but the quantity (#) of tablets,

his allegation is still rebutted by Exhibit A which shows no

prescription having a quantity over 480. (ECF No. 57 at 32—37,

Pg. ID 596-601.) This quantity was prescribed only in a few

instances, was the highest quantity of any medication

prescribed, and was always noted as a 30-days’ supply. (Id.)

27a

such would require this Court to make “unwarranted

factual inferences.” See Sheldon, 816 F.3d at 409

(quoting Debevec v. Gen. Elec. Co., 121 F.3d 707, 1997

WL 461486, at *2 (6th Cir.1997) (table)). Having

failed to satisfy the first, third, and fourth elements

of a FCA claim, Relator fails to sufficiently plead a

claim upon which relief could be granted. Because

Relator’s remaining claims are derivative or in

conjunction with his FCA claim, as discussed in

further detail below, they too fail.

Walmart Defendants

The Court concludes that Relator has failed to

sufficiently plead a FCA claim against the Walmart

Defendants. Relator wholly fails to identify any

claims that any Walmart Defendant presented to the

government, let alone sufficiently provide any factual

or evidentiary support to infer that any claim was in

Relator relies on his exhibit to

fact false.

demonstrate “specific claims” that were presented to

the government. However, Exhibit A is no more than

a summary of one unidentified patient’s prescriptions

and expenses. As discussed earlier, this cannot serve

to establish a false claim because there is no factual

or evidentiary support for the Court to conclude that

any of the entries listed demonstrate a fraudulent

prescription with an incorrect and/or improper

dosage in relation to that particular patient’s needs.

This Court cannot accept Relator’s unsupported

assertions of fraud or falsity because it cannot accept

his speculations, as a pharmacist, as to what

28a

constitutes “high doses” for unidentified patients

from whom he had no other medical information.

Neither can it accept Relator’s bare-bone assertion

that each entry shows the patient used Medicare or

Medicaid funds.

Having failed to satisfy the first, third, and

fourth elements of the FCA claim, Relator again fails

to sufficiently plead a claim upon which relief could

be granted.

Conspiracy and Retaliation

Relator’s remaining conspiracy and retaliation

claims must also fail because they are derivative of

his FCA claim.

The FCA’s conspiracy provision establishes

liability for those who “conspire [ ] to commit a

violation” of § 3729(a)(1)(A) or (B) of the Act. 31

U.S.C. § 3729(a)(1)(C). Relator’s conspiracy claim

fails simply because this Court has concluded that

Relator failed to sufficiently allege any underlying

violations of the FCA that would support it. A claim

of conspiracy to present false claims to the

government cannot survive dismissal when the

allegations are insufficient to show a false claim even

existed. See United States ex rel. Crockett v. Complete

Fitness Rehab., Inc., 721 F. App’x 451, 459 (6th Cir.

2018) (“[Plaintiff’s] lack of specification as to the

existence of any false claim also precludes her

false-claims conspiracy count.”); see also U.S. ex rel.

29a

Winkler v. BAE Sys., Inc., 957 F. Supp. 2d 856, 876

(E.D. Mich. 2013).

Additionally, Relator did not allege that

Walmart found any violation of any law or regulation

during the course of their investigation. And

Walmart’s own investigatory finding that “the

defined practice of filling prescriptions that are

received via fax or e-scribe were not being completed

properly” says nothing regarding the falsity of such

prescriptions or their knowingly fraudulent

presentation to the government for payment.

Regardless, Relator attempts to assign knowledge of

and compliance with the alleged scheme to the

Individual Walmart Defendants6 as a result of the

“multiple meetings and discussions each had with

Relator” about his suspicions and their choice to not

act on them. (ECF No. 63 at 14, Pg. ID 766.)

However, Relator’s bare-bones allegation of a

conspiracy also finds no support.

Finally, Relator’s retaliation claim fails

because he pleads no facts showing that Walmart

knew that he was pursuing an FCA claim at the time

of his discharge.

To establish a claim for retaliatory discharge

under 31 U.S.C. § 3730(h), a plaintiff must show,

among other things, that his employer knew that he

engaged in a protected activity and that his employer

discharged or otherwise discriminated against him

6 Toi Walker, Doug Henger, and Alfred Rodriguez.

30a

as a result of the protected activity.” Yuhasz v. Brush

Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003).

Relator plead neither facts establishing that

Walmart had knowledge of his intent to file an FCA

claim nor that he was discharged as a result of his

FCA claim (filed almost a month after his discharge).

Indeed, Relator relayed his suspicions concerning the

presentation of false prescriptions to the Individual

Walmart Defendants, but this does not constitute

notice of an intent to file an FCA claim. As such, the

Court concludes that Relator has failed to sufficiently

state his retaliation claim.

For the foregoing reasons, Defendant

Lockard’s Motion to Dismiss and the Walmart

Defendants’ Motion to Dismiss are granted. Relator’s

causes of action against Defendant Lockard—Counts

I—III—are dismissed, and Relator’s causes of action

against the Walmart Defendants—Counts I-IV—are

dismissed.

IV. Conclusion

Accordingly,

IT IS ORDERED, that Defendant Lockard’s

Motion to Dismiss (ECF No. 58) is GRANTED; and

IT IS FURTHER ORDERED, that the

Walmart Defendants’ Motion to Dismiss (ECF No.

61) is GRANTED; and

31a

IT IS FURTHER ORDERED, that Counts

I—III of Relator’s Second Amended Complaint (ECF

No. 57) is DISMISSED WITH PREJUDICE7

against Defendant Lockard; and

IT IS FURTHER ORDERED, that Counts

I-IV of Relator’s Second Amended Complaint (ECF

No. 57) is DISMISSED WITH PREJUDICE8

against the Walmart Defendants.

IT IS SO ORDERED.

s/ Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: August 20, 2019

7 Any dismissal of Relator’s SAC shall be without prejudice as to

the United States. (See U.S. Renewed Statement of Interest,

ECF No. 66; see also supra n. 2.)

8

Supra n. 7.

32a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA and the

STATE OF MICHIGAN, ex rel.,

ASHWANI SHEORAN, RPh,

Plaintiff-Relator,

Civil Case No.

13-10568

Hon. Linda V.

Parker

v.

WAL-MART STORES EAST, LP, d/b/a

WALMART, a foreign corporation,

TOI WALKER, DOUG HENGER,

ALFRED RODRIGUEZ,

RICHARD LOCKARD, M.D.,

NAVEED MAHFOOZ, M.D., and

TAREK EZZEDDINE, M.D.,

Defendants.

OPINION AND ORDER DENYING

PLAINTIFF-RELATOR’S MOTION FOR

RECONSIDERATION (ECF NO. 10)

33a

Plaintiff-Relator Ashwani Sheoran, RPh

(“Relator”), on behalf of himself, the United States

and the State of Michigan, initiated this lawsuit on

February 11, 2013, by filing a qui tarn complaint

under seal against Defendants Walmart, Toi Walker,

Doug Henger, and Alfred Rodriguez (collectively

“Walmart Defendants”), as well as Defendants

Richard Lockard, M.D., Naveed Mahfooz, M.D., and

Tarek Ezzeddine, M.D. (ECF No. 1.) On December 7,

2018, Relator filed his Second Amended Complaint

(“SAC”), alleging (i) presentation of false claims in

violation of the False Claims Act (“FCA”) (31 U.S.C. §

3729(a)(1)(A)), Fraud Enforcement Recovery Act of

2009 (“FERA”), and Michigan Medicaid False Claims

Act (“MMFCA”); (ii) a false record or statement

material to a false claim in violation of the FCA (31

U.S.C. § 3729(a)(1)(B)), FERA, and MMFCA; (iii)

conspiracy to defraud in violation of the FCA (31

U.S.C. § 3729(a)(1)(C)); and (iv) retaliation in

violation of the FCA (31 U.S.C. § 3730(h)). (ECF No.

57.) The first three claims are against the Walmart

Defendants, while the fourth claim is against

Walmart only. (Id. at Pg. ID 589-92.) On March 8,

2018, the Court unsealed the complaints after the

United States and the State of Michigan declined to

intervene. (ECF Nos. 24, 25.) Dr. Lockard and the

Walmart Defendants subsequently filed motions to

dismiss. (ECF Nos. 58, 61.) In an Opinion and Order

34a

entered on August 20, 2019, the Court granted both

motions. (ECF No. 68.)

Presently before the Court is Relator’s Motion

for Reconsideration, in which Relator contends the

Court committed palpable error when analyzing his

3729(a)(1) claims. (ECF No. 70.) The motion has been

briefed. (ECF Nos. 72, 73.) For the reasons that

follow, the Court denies the motion.

LEGAL STANDARD

Local Rule 7.1 provides the following standard

of review for motions for reconsideration:

Generally, and without restricting the

court’s discretion, the court will not

grant motions for rehearing or

reconsideration that merely present the

same issues ruled upon by the court,

either expressly or by reasonable

implication. The movant must not only

demonstrate a palpable defect by which

the court and the parties and other

persons entitled to be heard on the

motion have been misled but also show

that correcting the defect will result in a

different disposition of the case.

E.D. Mich. LR 7.1(h)(3). Palpable defects are those

which are “obvious, clear, unmistakable, manifest or

plain.” Mich. Dep’t of Treasury v. Michalec, 181 F.

Supp. 2d 731, 734 (E.D. Mich. 2002). “It is an

35a

exception to the norm for the Court to grant a motion

for reconsideration.” Maiberger v. City of Livonia,

724 F. Supp. 2d 759} 780 (E.D. Mich. 2010). “[A]

motion for reconsideration is not properly used as a

vehicle to re-hash old arguments or to advance

positions that could have been argued earlier but

were not.” Smith ex rel. Smith v. Mount Pleasant

Pub. Sch., 298 F. Supp. 2d 636, 637 (E.D. Mich. 2003)

(citing Sault Ste. Marie Tribe of Chippewa Indians v.

Engler, 146 F.3d 367, 374 (6th Cir. 1998)).

ANALYSIS

In his SAC, Relator alleges three causes of

action pursuant to 31 U.S.C. § 3729(a)(1) et seq. The

applicable provisions impose liability on any person

who:

(A) knowingly presents, or causes to be

presented, a false or fraudulent claim

for payment or approval;

(B) knowingly makes, uses, or causes to

be made or used, a false record or

statement material to a false or

fraudulent claim; [or]

(C) conspires to commit a violation of

subparagraph (A) [or] (B). . . .

31 U.S.C. § 3729(a)(1).

1 In 2009, Congress passed the FERA, which amended and

renumbered the liability provisions of the FCA. Because

Relator’s claims in this case involve conduct that occurred after

36a

(i) Did Defendants Violate §§ 3729(a)(1)(A) or

(B)?

In his SAC, Relator appears to allege that the

Walmart Defendants and Dr. Lockard are liable

under §§ 3729(a)(1)(A) or (B) for four reasons: the

relevant claims involved (i) “out-of-the-area

prescriptions for controlled substances” that were not

properly verified; (ii) unauthorized entry of

non-pharmacy

[Walmart]

employees

in

the

Pharmacy; (iii) faxed prescriptions bearing a

physician’s unverified electronic signature, which the

law prohibits as it concerns controlled substances

found on Schedules III-V; and (iv) prescriptions that

contained a [sic] “excessively high” quantity of

controlled substances, which “if actually taken would

kill the person” and “indicated] illegal diversion

activities.” (ECF No. 57 at Pg. ID 574, 577, 582, 590.)

Regarding the first two allegations, even

assuming they are true, Plaintiff does not allege that

the conduct led to the submission of requests for

anticipated payment to the government. See 31

U.S.C. § 3729(a)(l)(A)-(B) (requiring a “false or

fraudulent claim”); see also U.S. ex rel. Marlar v.

BWXT Y-12, L.L.C., 525 F.3d 439, 447 (6th Cir. 2008)

(“While [Relator] is correct that we have previously

held that proof of ‘presentment’ is not required for

actions under subsections [(a)(1)(B)] and [(a)(1)(C)], .

. . we have repeatedly held that proof of a false claim

the 2009 amendments, the post-2009 version of the FCA

(quoted above) applies.

37a

is required.”) For this reason, the conduct outlined in

the first two allegations do not make out claims

under §§ 3729(a)(1)(A) or (B) as to the Walmart

Defendants or Dr. Lockard.

Regarding the third allegation, the Court

accepts as true that, in an email from Rodriguez to

Henger, Rodriguez conceded “that the investigation

into Relator’s concerns about ‘the validity of

prescriptions that appeared to not have an original

signature’ was validated” and that Walmart “did find

that the defined practice of filling prescriptions that

are received via fax or e-scribe were not being

completed properly.”2 (ECF No. 57 at Pg. ID 587.)

Still, Relator does not allege that the conduct led to

claims for payment that were actually submitted to

the government and Relator has not identified a

characteristic example of such a claim submitted to

the government.3 See 31 U.S.C. § 3729 (a)(l)(A)-(B)

(requiring a “false or fraudulent claim”); see also

2 Plaintiff relies on a theory of FCA liability commonly referred

to as “implied false certification.” (See ECF No. 57 at Pg. ID

591.) Under this theory, "when a defendant submits a claim, it

impliedly certifies compliance with all conditions of payment.

But if that claim fails to disclose the defendant’s violation of a

material statutory, regulatory, or contractual requirement, . . .

the defendant has made a misrepresentation that renders the

claim 'false or fraudulent.’” Universal Health Servs., Inc. v.

United States, 136 S. Ct. 1989, 1995 (2016).

3 According to the SAC, Exhibit A “contains a list of filled

prescriptions for one person over the course of five (5) years that

if actually taken would kill the person.” (ECF No. 57 at Pg. ID

577.) Notably, Relator does not allege that Exhibit A lists

prescriptions for which Walmart received faxed prescriptions

with unverified electronic signatures.

38a

Chesbrough v. VPA, PC., 655 F.3d 461, 470 (6th Cir.

2011) (“Where a relator alleges a ‘complex and

far-reaching fraudulent scheme,’ in violation of §

3729(a)(1), it is insufficient to simply plead the

scheme; he must also identify a representative false

claim that was actually submitted.”).

Regarding the fourth allegation, Relator

argues in his Motion for Reconsideration that the

Court overlooked his allegation that the claims

associated with the prescriptions detailed in Exhibit

A were “false” because the prescriptions contained an

“excessively high” quantity of controlled substances,

which “if actually taken would kill the person.” (ECF

No. 70 at Pg. ID 821; see also ECF No. 56 at Pg. ID

577.) Even assuming that this allegation is true,

Relator’s claim fails because he has not plead with

particularity a “key fact”: “[t]he actual submission of

a specific request for anticipated payment to the

government.”

United States ex rel. Prather v.

Brookdale Senior Living Communities, Inc., 838 F.3d

750, 768-69 (6th Cir. 2016) (emphasis added). Relator

argues that Exhibit A contains a list of filled

prescriptions, for which the patient paid only $1 to

$2. (ECF No. 70 at Pg. ID 823.) Relator contends

that an affidavit attached to his Motion for

Reconsideration shows that the $1 to $2 charges

“mean that Medicare or Medicaid was used.” (Id.)

The affidavit of Amrinder Thind, a pharmacist,

states that “[t]he reason [he] know[s] that Medicare

or Medicaid was used is because the prices being

39a

charged to the allege patients were around $l-$2”

and “Pie is] not aware of any other reason for a

patient’s co-pay to be around $l-$2 except for

Medicare or Medicaid usage.” {Id. at Pg. ID 827.)

Even if the Court were to consider the Thind

Affidavit, while the fact that the patient associated

with Exhibit A paid $1 to $2 dollars for each filled

prescription may suggest that the prescriptions were

subsidized, it does not suggest that Medicare or

Medicaid—as opposed to, for example, a private

insurance company—did the subsidizing. In addition,

though Relator may have “observed a log book kept

by Walmart that contained over 5,000 records of

people who were overprescribed by Dr. Lockard,” {id.

at Pg. ID 821), Relator again fails to allege that any

of these 5,000 records are related to submissions of

specific requests for anticipated payment to the

government.

The Sixth Circuit has hypothesized that “the

requirement that a relator identify an actual false

claim may be relaxed when, even though the relator

is unable to produce an actual billing or invoice, he or

she has pled facts which support a strong inference

that a claim was submitted.” Cheshrough, 655 F.3d at

471 (citations omitted). As the Sixth Circuit has

further explained:

These cases have suggested that the

exception could be applied when a

relator

alleges

specific

personal

40a

knowledge that relates directly to

billing practices. See Chesbrough, 655

F.3d at 471. This could include “personal

knowledge that the claims were

submitted by Defendants . . . for

payment” or other “personal knowledge

of billing practices or contracts with the

government,” id. at 471-72 (internal

quotation marks omitted), as well as

“‘personal knowledge’ that was based

either on working in the defendants’

billing departments, or on discussions

with employees directly responsible for

submitting claims to the government,”

United States ex rel. Sheldon v.

Kettering Health Network, 816 F.3d 399,

413 (6th Cir. 2016).

Prather, 838 F.3d at 769. Relator does not allege to

have personal knowledge of Walmart’s billing

practices. Thus, Relator’s allegations do not meet the

requirements of this exception and his claims under

§§ 3729(a)(1)(A) and (B) as to Walmart Defendants

and Dr. Lockard fail.

(ii) Did Defendants Violate § 3729(a)(1)(C)?

To

establish

a

conspiracy

under

§

3729(a)(1)(C), the plaintiff must show that the

defendant “conspi [sic] Amrinder Thind [sic] re[d] to

commit a violation of subparagraph (A) [or] (B).”

Because Relator failed to make out claims under

41a

subsections (A) or (B), Relator has failed to plead a

conspiracy in violation of § 3729(a)(1)(C) as to Dr.

Lockard and the Walmart Defendants. United States

ex rel. Crockett v. Complete Fitness Rehab., Inc., 721

F. App’x 451, 459 (6th Cir. 2018) (explaining that the

plaintiff’s “inability to show that false claims were

actually submitted to the government means that

her . . . false-claims-conspiracy counts are likewise

subject to dismissal, because the existence of such

false claims is a precondition to [this] theory”).

CONCLUSION

Because Relator fails to demonstrate palpable

defects the correction of which would result in a

different disposition of the case, the Court denies the

Motion for Reconsideration.

Accordingly,

IT IS ORDERED that Plaintiff-Relator’s

Motion for Reconsideration (ECF No. 70) is

DENIED.

IT IS SO ORDERED.

9,1 Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: September 28, 2020