United States District Court, M.D. Florida, Tampa Division
UNITED STATES OF AMERICA, ex rel. MELISSA HIGGINS, Plaintiffs,
HEALTHSOUTH CORPORATION, Defendant.
VIRGINIA M . HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
cause comes before the Court pursuant to Defendant
HealthSouth Corporation's Motion to Dismiss (Doc. # 104),
filed on July 30, 2019. Plaintiff Melissa Higgins filed a
response in opposition (Doc. # 113) on August 13, 2019.
HealthSouth filed a reply in support of its Motion (Doc. #
122) on August 23, 2019. For the reasons discussed below, the
Motion is granted.
Amended Complaint, Higgins alleges that her former employer,
HealthSouth, defrauded the United States by generating
improper fees and fraudulent billings to Medicare, Medicaid,
and other public and private health insurers. (Doc. # 88 at
¶¶ 2, 30, 87-164, 194). She alleges that
HealthSouth defrauded the government by knowingly admitting
and readmitting patients to its inpatient rehabilitation
facilities that did not meet certain federal criteria and
then billing the government for unnecessary services provided
to those patients. (Id. at ¶¶ 2, 13-24,
to the Amended Complaint, Higgins formerly worked for
HealthSouth as the local and regional Director of Therapy
Operations in Arlington, Texas. (Id. at ¶¶
165-68). When she raised concerns regarding the alleged
fraudulent billing practices within the corporation, she was
stripped of her responsibilities and then forced to resign in
2011. (Id. at ¶¶ 31-34, 172-86).
2012, Higgins filed the instant qui tam action against
HealthSouth, raising several claims on behalf of the United
States under the False Claims Act, 31 U.S.C. § 3729,
et seq., and a retaliation claim under the FCA
pursuant to 31 U.S.C. § 3730(h). (Doc. # 2 at
April 1, 2019, the United States notified the Court that it
would not be intervening in the case at that time. (Doc. #
73). Accordingly, the Court lifted the seal from the
Complaint and directed that it be served upon HealthSouth.
(Doc. # 74).
24, 2019, the United States notified the Court that it would
intervene in this action for the purposes of settlement.
(Doc. # 81). Following the parties' filing of a Joint
Stipulation of Dismissal, this Court dismissed Higgins's
federal qui tam claims with prejudice, but it retained
jurisdiction to resolve Higgins's claim for retaliation
under 31 U.S.C. § 3730(h), as well as any claims for
attorneys' fees and costs pursuant to 31 U.S.C. §
3730(d). (Doc. # 87).
thereafter filed her Amended Complaint, in which she raises
two claims - a retaliation claim under the FCA, 31 U.S.C.
§ 3730(h) (Count I), and a claim for attorneys'
fees, expenses, and costs under 31 U.S.C. § 3730(d) and
(h) (Count II). (Doc. # 88 at ¶¶ 198-207). In
addition, Higgins filed a motion for attorneys' fees,
seeking attorneys' fees, costs, and expenses pursuant to
31 U.S.C. § 3730(d). (Doc. # 89). That motion is
now moves, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss Count I and those portions of Count II
that relate to the retaliation claim in Count I. (Doc. # 104
at 1). According to HealthSouth, Higgins's claims are
barred by the waiver and release contained in the Severance
Agreement she signed in connection with the termination of
her employment. HealthSouth appended a copy of the Severance
Agreement to its Motion to Dismiss. (Doc. # 104-1). Higgins
responded, and HealthSouth replied. (Doc. ## 113, 122). The
Motion is now ripe for review.
considering a motion to dismiss brought under Rule 12(b)(6),
this Court accepts as true all the allegations in the
complaint and construes them in the light most favorable to
the plaintiff. Jackson v. Bellsouth Telecomms., 372
F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors
the plaintiff with all reasonable inferences from the
allegations in the complaint. Stephens v. Dep't of
Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations omitted). In addition, courts are not
“bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478
U.S. 265, 286 (1986). Furthermore, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
if matters outside the pleadings are presented as part of a
motion to dismiss under Rule 12(b)(6), the motion must be
treated as one for summary judgment under Rule 56.
Fed.R.Civ.P. 12(d). There is, however, an exception to this
rule. “In ruling upon a motion to dismiss, the district
court may consider an extrinsic document if it is (1) central
to the plaintiff's claim, and (2) its authenticity is not
challenged.” SFM Holdings, Ltd. v. Banc of Am.
Sec., LLC, 600 F.3d 1334, 1337 (11th Cir. 2010); see
also Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th
Cir. 1999) (“[A] document central to the complaint that
the defense appends to its motion to dismiss is also properly
considered, provided that its contents are not in
although the existence of an affirmative defense usually will
not support a Rule 12(b)(6) motion, a district court may
dismiss a complaint when the complaint's “own
allegations indicate the existence of an affirmative defense,
so long as the defense clearly appears on the face of the
complaint.” Fortner v. Thomas, 983 F.2d 1024,
1028 (11th Cir. 1993) (quoting Quiller v. Barclays
Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir. 1984));
see also Banco Popular N. Am. v. M/V Triple
Play, No. 12-20188-CIV-GRAHAM, 2012 WL 12885237, at 82
(S.D. Fla. Apr. 11, 2012) (explaining that waiver is
typically an affirmative defense that may be raised in a
motion to dismiss only if it is apparent on the face of the
preliminary matter, the parties do not dispute that the
Severance Agreement is central to the plaintiff's claim
and is authentic. See SFM Holdings, 600 F.3d at
1337. Accordingly, the Court will consider ...