United States District Court, M.D. Florida, Fort Myers Division
UNITED STATES OF AMERICA and ANGELA D'ANNA, ex rel., Plaintiffs,
LEE MEMORIAL HEALTH SYSTEM and CAPE MEMORIAL HOSPITAL, INC., Defendants.
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
the Court is Relator Angela D'Anna's Motion to
Certify for interlocutory appeal (Doc. 143), along with
Defendants Lee Memorial Health System and Cape Memorial
Hospital's (collectively “Lee Health”) Motion
to Certify for interlocutory appeal (Doc. 144). Each party
opposed the other's Motion. (Docs. 145; 146). The Court
denies both Motions.
ago, the Court granted and denied in part Lee Health's
motion to dismiss (the “Order”). (Doc. 141). The
Court held the complaint plead false claims with
particularity for one group of doctors. (Doc. 141 at 6-14).
But the complaint failed to provide sufficient indicia of
reliability to satisfy Rule 9(b)'s pleading requirement
for three separate groups of doctors. (Doc. 141 at 14-20).
Unhappy with that conclusion, D'Anna wants an
interlocutory appeal. (Doc. 143). She asks the Court to
certify whether representative false claims for one group of
doctors satisfies Rule 9(b) for different groups of doctors
employed by a defendant. (Doc. 143 at 2). On the flip side,
the Court determined D'Anna plead part of the scheme with
particularity. Dissatisfied with that outcome, Lee Health
wants an interlocutory appeal. (Doc. 144). It asks the Court
to certify a two-part question-(1) what relators must allege
to plead Stark Law violations with particularity; (2) and
whether pleading one national fair market value benchmark is
enough. (Doc. 144 at 1).
“bad policy” to permit interlocutory review of
non-appealable orders because of the piecemeal effect on
cases. McFarlin v. Conseco Servs., LLC, 381 F.3d
1251, 1259 (11th Cir. 2004). That said, a district court may
allow such an appeal under three statutory conditions: (1)
the order must involve “a controlling question
law”; (2) on “which there is substantial ground
for difference of opinion”; and (3) “an immediate
appeal from the order may materially advance the ultimate
termination of the litigation.” 28 U.S.C. §
1292(b); see also McFarlin, 381 F.3d at
1257. The movant “bears the burden of showing that all
§ 1292(b) requirements are satisfied and that the case
is one of the rare exceptions in which the court should
exercise judicial discretion to grant the remedy.”
Cont'l 332 Fund, LLC v. Albertelli, No.
2:17-cv-41-FtM-38MRM, 2018 WL 3656472, at *2 (M.D. Fla. Aug.
2, 2018) (citation omitted). “If any elements are not
satisfied, the Court must deny interlocutory review.”
Short v. Immokalee Water & Sewage Dist., No.
2:18-cv-124-FtM- 99CM, 2018 WL 7048223, at *1 (M.D. Fla. Oct.
4, 2018) (alteration accepted and citation omitted).
different reasons, neither party shows why an appeal is
proper. Lee Health's Motion (Doc. 144) fails the first
factor, while D'Anna's Motion (Doc. 143) fails the
Lee Health contends the Order involves a controlling question
of law. (Doc. 144 at 7-8). A controlling question of law is
“an abstract legal issue or what might be called one of
‘pure' law.” McFarlin, 381 F.3d at
1258. These are issues the appellate court “can decide
quickly and cleanly without having to study the
record.” Id.(citation omitted). In Mamani
v. Berzain, the Eleventh Circuit refused to answer a
certified question over an order partially granting a motion
to dismiss. 825 F.3d 1304, 1312-13 (11th Cir. 2016). The
Court declined review because it required a decision on
whether the specific facts stated a claim for relief (i.e.,
reviewing the record and applying law to facts). Id.
like Mamani, Lee Health asks the Court to certify a
question on whether the complaint alleged enough facts to be
sufficient under the relevant standard. (Doc. 144 at 2-5, 7).
But the issue cannot be decided “quickly and
cleanly” without needing to study the record.
Id. at 1313. Confusingly, Lee Health concedes this
point-“only the [complaint] and relevant exhibits need
to be reviewed.” (Doc. 144 at 7). It goes without
saying, the complaint and exhibits are part of the record
that the Eleventh Circuit must examine. Even leaving that
aside, this is not a circumstance where an appellate court
can answer a pure question of law on minimal review of the
record. Like the Order, the Eleventh Circuit would need to
sift through detailed pleadings and exhibits to determine the
sufficiency of the allegations supporting doctor salaries,
fair market value, and the asserted benchmark. In short, this
is not a controlling question of law. See id.
second, D'Anna asserts an interlocutory appeal would
materially advance the termination of litigation. (Doc. 143
at 5-7). This requirement “means that resolution of a
controlling legal question would serve to avoid a trial or
otherwise substantially shorten the litigation.”
McFarlin, 381 F.3d at 1259. Put another way, the
answer to the controlling question “must substantially
reduce the amount of litigation left in the case.”
the opposite, D'Anna's interlocutory appeal could
only extend and expand the litigation. The Order limited the
scope of the case to one of several alleged schemes. (Doc.
141 at 22). Given the complexity of issues and volume of
discovery on each discrete portion, the Order likely
shortened the litigation. But D'Anna seeks to expand the
case, increasing the amount of litigation. But see
id.So even if D'Anna succeeded on appeal, the
litigation would be extended. As she notes, discovery has
yet to begin in “this five-year-old action”
because of “substantial delay.” (Docs. 143 at
7-8; 146 at 12). It cannot be seriously argued that starting
a piecemeal appeal at this point would move the case along.
See Albertelli, 2018 WL 3656472, at *4.
looks to several readily distinguishable cases. In one, a
court allowed an interlocutory appeal after dismissing a
group of co-defendants. Simmons v. United States,
351 F.Supp.2d 1365, 1365-66 (N.D.Ga. 2004). Considering a
complex and unique procedural posture, the court noted it
could not separate the allegations against the dismissed and
remaining defendants, making trial for the remaining
defendant difficult and possibly irrelevant. Id. at
1365-67. Unlike there, the Order simply dismissed the claims
in part, and-if necessary-separate trials are possible given
the discrete nature of the schemes. In another case
D'Anna cites, there was no sign that the interlocutory
appeal caused delay. See generally Tucker v.
Fearn, 333 F.3d 1216 (11th Cir. 2003). Here, however,
litigation delay over an appeal is all but guaranteed.
it is now
Relator's Motion to Certify the Court's Opinion and
Order of July 30, 2019 for Interlocutory Appeal Pursuant to
28 U.S.C. § 1292(b) (Doc. 143) is
Defendants' Motion to Certify the Court's July 30,
2019 Order for Interlocutory Review Under 28 U.S.C. ...