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El-Khalil v. Tedeschi

United States District Court, E.D. Michigan, Southern Division

May 31, 2019

ALI EL-KHALIL, DPM, Plaintiff,
v.
ANTHONY TEDESCHI, et al, Defendants.

          OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS USEN, ZAMLUT, AND KHALIL'S MOTIONS TO DISMISS (DKTS. 39, 41, 42)

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the respective motions to dismiss of Defendants Nsima Usen (Dkt. 39), Mahmud Zamlut (Dkt. 41), and Mohammed Khalil (Dkt. 42) (the “Moving Defendants”). The issues have been fully briefed. Because oral argument will not aid the decisional process, the motion will be decided based on the parties' briefing. See E.D. Mich. LR 7.1(f)(2); Fed.R.Civ.P. 78(b). For the reasons that follow, the Court grants in part and denies in part Moving Defendants' motions.

         I. BACKGROUND

         Plaintiff Ali El-Khalil is a podiatrist, who had full privileges at Defendant Detroit Medical Center (“DMC”). Am. Compl. ¶¶ 1-2 (Dkt. 35).[1] Moving Defendants are podiatrists who have staff privileges at DMC. Id. ¶¶ 4-6.[2] Plaintiff claims that he reported Moving Defendants' various acts of health care fraud “to the Government, ” and that he subsequently lost his staff privileges in retaliation for that reporting. Id. ¶ 12. He brings three claims: retaliation in violation of the False Claims Act, 31 U.S.C. § 3729 et seq.; conspiracy to violate the retaliation provision of the False Claims Act; and tortious interference with an advantageous business relationship.

         Starting in 2008, El-Khalil had staff privileges at DMC, which must be renewed every two years. Id. ¶ 13. He has never had any type of malpractice complaint nor any type of patient complaint filed against him. Id. ¶ 14. El-Khalil also had staff privileges at Beaumont Dearborn until 2015. However, his Beaumont privileges were not renewed after he reported various staff members for committing health care fraud. Id. ¶ 17. He informed DMC that his privileges at Beaumont had not been renewed, and DMC renewed his privileges regardless. Id. ¶¶ 18-19.

         Since his renewal in 2015/2016, El-Khalil has reported to federal authorities suspected health care fraud that involved the payment of Medicare funds to the perpetrators of the fraud - Defendants and their associates.[3] Id. ¶ 20. Defendants learned of his reporting and threatened El-Khalil, telling him that he would be sorry. Id. ¶ 21. El-Khalil's privileges were suspended by DMC in January 2018, and have not been renewed. Id. ¶ 22.

         Moving Defendants have each brought separate motions to dismiss.

         II. STANDARD OF REVIEW

         On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “[t]he defendant has the burden of showing that the plaintiff has failed to state a claim for relief.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing Carver v. Bunch, 946 F.2d 451, 454-455 (6th Cir. 1991)), cert. denied, 552 U.S. 1311 (2008). To survive a Rule 12(b)(6) motion, the plaintiff must allege sufficient facts to state a claim to relief above the speculative level, such that it is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard requires courts to accept the alleged facts as true, even when their truth is doubtful, and to make all reasonable inferences in favor of the plaintiff. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555-556.

         Evaluating a complaint's plausibility is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Although a complaint that offers no more than “labels and conclusions, ” a “formulaic recitation of the elements of a cause of action, ” or “naked assertion[s]” devoid of “further factual enhancement” will not suffice, id. at 678, it need not contain “detailed factual allegations, ” Twombly, 550 U.S. at 555; see also Erickson v. Pardus, 551 U.S. 89, 93 (2007) (“[S]pecific facts are not necessary . . . .”). Rather, a complaint needs only enough facts to suggest that discovery may reveal evidence of illegality, even if the likelihood of finding such evidence is remote. Twombly, 550 U.S. at 556.

         III. ANALYSIS

         A. Retaliation/Conspiracy to Retaliate

         Moving Defendants first seek dismissal of the first two counts of the amended complaint, which allege violation of the retaliation provision of the False Claims Act and conspiracy to violate the retaliation provision of the False Claims Act. For the reasons that follow, this aspect of the motions is granted.

         The False Claims Act protects employees from retaliatory action if that ...


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