United States Ex Rel. Takemoto v. Nationwide Mutual Insurance Co.

674 F. App'x 92

• Court: Court of Appeals for the Second Circuit
• Decided: January 20, 2017
• Docket: 16-365-cv
• Status: Unpublished

Opinion

SUMMARY ORDER

Relator Kent Takemoto, a doctor who owns a Medicare Secondary Payer compliance company, appeals the dismissal of his complaint, brought pursuant to the 'False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq., which accuses various insurance industry participants, self-insured corporations, and third-party administrators (“defendants”) of failing to comply with repayment obligations under the Medicare Secondary Payer Act (“MSPA”), 42 U.S.C. § 1395y(b). Takemoto further appeals the denial of leave to amend his complaint.

We review de novo the dismissal of a complaint for failure to state a claim, accepting the alleged facts as true and drawing all reasonable inferences in plaintiffs favor. See Barrows v. Burnell, 777 F.3d 106, 111 (2d Cir. 2015). Nevertheless, “bald assertions and conclusions of law will not suffice” to avoid dismissal, Spool v. World Child Int’l Adoption Agency, 520 F.3d 178, 183 (2d Cir. 2008) (internal quotation marks omitted), nor will factual “allegations that are wholly conclusory,” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rather, a complaint must plead sufficient “factual content” to allow a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

We review the denial of leave to amend a complaint for abuse of discretion. See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 169 (2d Cir. 2015).

In applying these standards here, we assume the parties’ familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision to affirm.

1. Adequacy of the Complaint

The district court adopted the magistrate judge’s recommendation to dismiss Takemoto’s complaint insofar as it grouped defendants together and failed to plead facts as to each defendant’s obligation to repay the government, an essential element of his FCA claims. Takemoto faults the district court for failing to assume the veracity of facts alleged in the complaint, viewing allegations in isolation rather than in their totality, and incorrectly finding group pleading impermissible given defen dants’ participation in the same relevant conduct. We are not persuaded.

Even when we review the complaint’s allegations as a whole and assume the truthfulness of pleaded facts, Takemoto fails to plead plausible claims for relief because he does not allege facts admitting an inference of a reimbursement obligation on the part of any defendant. The FCA defines “obligation” as “an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.” 31 U.S.C. § 3729(b)(3). As an initial matter, this statutory language contemplates individualized pleading for each defendant of the source of the obligation. In defending his group pleading, Takemoto cites Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d at 173, but that case is distinguishable in that Takemoto’s claims are not against a “plural author [ ] implied by the nature of the representations,” e.g., where “(1) the alleged fraud is based on statements made in [securities] offering materials and (2) the complaint gives grounds for attributing the statements to the group,” id.

Here, Takemoto can only speculate that each defendant had one or more reimbursement obligations under the MSPA based on the facts that approximately 17% of the population are Medicare beneficiaries and that defendants issue settlements, judgments, or awards for “tens of thousands of claims involving Medicare beneficiaries” each year. Appellant’s App’x 44. But these facts are insufficient to give rise to a plausible inference of an obligation on the part of any defendant. For example, as defendants observe, nowhere does the complaint identify any beneficiaries for whom the Center for Medicare and Medicaid Services (“CMS”) made conditional payments, the amounts or dates of such payments, an associated settlement, and the relation of any conditional payments to any particular defendant. In the absence of such facts admitting a reasonable inference that CMS made a conditional payment on behalf of a particular defendant’s beneficiary, there is no basis for a secondary inference that a given defendant was under a reimbursement obligation to CMS. See 42 U.S.C. § 1395y(b)(2)(B)(ii) (“[A] primary plan, and an entity that receives payment from a primary plan, shall reimburse the appropriate [entity] ... if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service.”).

To the extent Takemoto seeks to avoid this conclusion by arguing that defendants’ obligation was to adopt adequate MSPA compliance procedures, he points to no authority supporting such an obligation, much less the proposition that such a claim is actionable under the FCA. The language of the statutory section under which Tak-emoto’s claims are brought, in fact, indicates otherwise insofar as it locates liability in the avoidance of an “obligation to pay or transmit money ... to the Government.” 31 U.S.C. § 3729(a)(1)(G). A compliance program is not an obligation to pay money.

In sum, Takemoto’s “allegations supply nothing but low-octane fuel for speculation” about the requisite reimbursement obligation element of his claims, which cannot defeat Rule 12(b)(6) dismissal even under the basic pleading requirements of Rule 8(a). Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 115 (2d Cir. 2013). 1 Thus, we affirm the dismissal of the complaint pursuant to Rule 12(b)(6) without further considering the sufficiency of allegations supporting the knowledge and improper avoidance elements of Tak-emoto’s claims.

2. Denial of Leave to Amend

Because Takemoto’s request to amend gave “no clue as to how the complaint’s defects would be cured,” denial of amendment was not an abuse of discretion. Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d at 190 (internal quotation marks omitted); see Wilson v. Merrill Lynch & Co., 671 F.3d 120, 140 (2d Cir. 2011). Thus, vacatur is not warranted on this ground.

3. Conclusion

We have considered all of Takemoto’s remaining arguments and conclude that they are without merit. Accordingly, the dismissal of his complaint for failure to state a claim is AFFIRMED.

1 . This court has generally held FCA claims to the higher pleading standard of Rule 9(b), "which requires that plaintiffs 'state with particularity the specific statements or conduct giving rise to the fraud claim.’ ” Bishop v. Wells Fargo & Co., 823 F.3d 35, 43 (2d Cir. 2016) (quoting Gold v. Morrison-Knudsen Co., 68 F.3d 1475, 1477 (2d Cir. 1995)). We have summarily applied this rule to reverse false claim actions for knowing concealment and avoidance. See Wood ex rel. United States v. Applied Research Assocs., Inc., 328 Fed.Appx. 744, 748 (2d Cir, 2009); see also Olson v. Fairview Health Servs. of Minn., 831 F.3d 1063, 1074 (8th Cir. 2016) (stating that reverse liability under § 3729(a)(1)(G) requires allegation of fraudulent conduct, and “it would be remarkable if relators could escape Rule 9(b)’s heightened pleading requirements for fraud by seeking recovery through subsection (a)(1)(G)”); United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., 839 F.3d 242, 258 (3d Cir. 2016) (assessing sufficiency of reverse FCA claim using Fed. R. Civ. P. 9(b)); United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 123 (D.C. Cir. 2015) (same). The magistrate judge, however, here concluded that avoidance claims under § 3729(a)(1)(G) did not involve fraud so as to be subject to Rule 9(b). Because Takemoto's pleadings are insufficient even under Rule 8(a), the district court declined to review this ruling or consider whether § 3729(a)(1)(G) avoidance equates to a fraudulent omission. See generally Merrill Lynch & Co. Inc. v. Allegheny Energy, Inc., 500 F.3d 171, 181 (2d Cir. 2007) (discussing elements of claim of fraud by omission). For the same reason, we too need not here pursue that question.