United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS USEN, ZAMLUT, AND KHALIL'S MOTIONS TO
DISMISS (DKTS. 39, 41, 42)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
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.
Ali El-Khalil is a podiatrist, who had full privileges at
Defendant Detroit Medical Center (“DMC”). Am.
Compl. ¶¶ 1-2 (Dkt. 35). Moving Defendants are
podiatrists who have staff privileges at DMC. Id.
¶¶ 4-6. 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.
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.
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. 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.
Defendants have each brought separate motions to dismiss.
STANDARD OF REVIEW
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.
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.
Retaliation/Conspiracy to Retaliate
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
False Claims Act protects employees from retaliatory action
if that ...