United States District Court, D. Minnesota
UNITED STATES OF AMERICA ex rel. ROBERT A. DICKEN, Plaintiff,
NORTHWEST EYE CENTER, P.A., CHRISTOPHER J. BORGEN, ERIC M. TJELLE, and SANFORD HEALTH NETWORK, a South Dakota non-profit corporation doing business in Minnesota, Defendants.
N. ERICKSEN United States District Judge
Dr. Robert A. Dicken, relator on behalf of the United States
of America, brought claims against Defendants Northwest Eye
Center, P.A., Dr. Christopher J. Borgen, and Dr. Eric M.
Tjelle (collectively, the “Northwest Defendants”)
for violations of the False Claims Act (“FCA”)
and tortious interference. Dicken also brought claims against
Sanford Health Network (“Sanford”) for
retaliation and breach of contract. Both the Northwest
Defendants and Sanford move for dismissal. For the following
reasons, the Court grants Defendants' motions with
respect to the federal claims and declines to exercise
supplemental jurisdiction over the remaining state law
STANDARD OF REVIEW
the Northwest Defendants and Sanford move to dismiss under
Fed.R.Civ.P. 12(b)(6). (See Dkt. Nos. 49, 60.) The
Northwest Defendants also move to dismiss the FCA claims
against them under Fed.R.Civ.P. 9(b). (See Dkt. No.
60.) When ruling on motions under either rule, the Court
accepts the alleged facts as true, drawing all reasonable
inferences in favor of the non-moving party. See Drobnak
v. Andersen Corp., 561 F.3d 778, 781 (8th Cir. 2009).
“This tenet does not apply, however, to legal
conclusions or ‘formulaic recitation of the elements of
a cause of action'; such allegations may properly be set
aside.” Braden v. Wal-Mart Stores, Inc., 588
F.3d 585, 594 (8th Cir. 2009); see United States ex rel.
Raynor v. Nat'l Rural Utils. Coop. Fin., Corp., 690
F.3d 951, 955-56 (8th Cir. 2012).
12(b)(6) motions, the Court evaluates whether the alleged
facts are sufficient to “state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The Court draws on
“its experience and common sense” to determine if
the factual statements nudge a claim “across the line
from conceivable to plausible.” Iqbal, 556
U.S. at 679-70. When reviewing a complaint for compliance
with Rule 9(b), the Court determines whether the plaintiff
“state[s] with particularity the circumstances
constituting fraud or mistake.” Fed.R.Civ.P. 9(b).
Amended Complaint alleges the following: Dicken is a resident
of Minnesota and has been a practicing board-certified
ophthalmologist since 1987. (See Amend. Compl.
¶¶ 14, 30, Dkt. No. 37.) Borgen and Tjelle are
optometrists and currently own and operate Northwest at its
clinic location in Thief River Falls, MN. (See Id.
started practicing in Northwest's clinic in January 1988.
(Id. ¶ 29.) In 2001 and 2002, Borgen and Tjelle
joined Northwest and took over the practice from a retiring
optometrist. (Id. ¶¶ 29, 30.) Starting
around that time, in July 2002, Dicken began practicing
separately, but continued seeing patients at Northwest's
location. (See Id. ¶ 14.) In April 2009, Dicken
started working for a multi-specialty practice called
MeritCare. (Id. ¶ 68.) When Sanford acquired
MeritCare on January 1, 2010, Dicken became a Sanford
employee. (Id.) Dicken continued to practice at
Northwest's location until Sanford relocated him in
August 2010. (See id.)
2002, Dicken began to discover that Borgen and Tjelle,
through Northwest, were submitting false claims for
reimbursement from Medicare. (See Id. ¶¶
42, 79, 84, 93.) Dicken shared patients with the Northwest
Defendants and had access to shared patient medical files.
(See Id. ¶¶ 29, 37.) After “treating
patients, going over their medical files, operating
surgically on patients, and working with [Borgen and Tjelle],
” it became clear to Dicken that the Northwest
Defendants were submitting false claims. (See Id.
¶¶ 29, 38, 51.) In making this determination,
Dicken relied on his extensive medical experience and
knowledge of CPT and ICD-9 codes, which are used for
diagnosis and billing purposes. (See Id.
¶¶ 27, 41.)
in 2008, Dicken began reporting the Northwest Defendants'
fraud to Sanford leadership and, eventually, the Government.
(See Id. ¶¶ 68, 72.) Sanford discharged
Dicken on April 30, 2011. (See Id. ¶ 68.)
Pleading FCA Claims with Particularity
brought two claims against the Northwest Defendants for
violation of the FCA. The first claim (Count I) is for fraud
and making false records and statements, under 31 U.S.C.
§ 3729(a)(1)(A)-(B). (See Amend. Compl.
¶¶ 81-104.) The second claim (Count II) is for
conspiracy to violate the FCA in the ways claimed in Count I,
under § 3729(a)(1)(C). (See Amend. Compl.
¶¶ 105-29.) Both claims must be pled with
particularity under Rule 9(b). United States ex rel.
Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 556
(8th Cir. 2006).
The FCA Fraud Claim
order to plead FCA fraud claims with particularity, relators
must plead the “time, place, and content” of the
fraud and “the details of the defendant's
fraudulent acts, including when the acts occurred, who
engaged in them, and what was obtained as a result.”
Olson v. Fairview Health Servs. of Minn., 831 F.3d
1063, 1070 (8th Cir. 2016) (quoting Joshi, 441 F.3d
at 556). This heightened degree of detail “is intended
to enable the defendant to respond specifically and quickly
to the potentially damaging allegations.” United
States ex rel. Costner v. United States, 317 F.3d 883,
888 (8th Cir. 2003).
Northwest Defendants argue that Dicken failed to plead his
FCA fraud claim with particularity under Rule 9(b) because he
did not allege specific details of a fraudulent scheme, nor
any specific examples of false claims submitted in
furtherance of the scheme. (The Northwest Defendants'
Memorandum in Support of Their Motion to Dismiss (“Nw.
Def. Br.”) 3-4, Dkt. No. 51.) Dicken responds that the
Amended Complaint alleges enough detail to put the Northwest
Defendants on notice as to which of their Medicare claims are
fraudulent, enabling an adequate defense. (See
Dicken's Memorandum in Opposition to the Northwest
Defendants' Motion to ...