Washington v. Morad et al, No. 2:2015cv00868 - Document 44 (E.D. La. 2016)
Court Description: ORDER & REASONS granting 41 Motion for Default Judgment. Judgment is entered against defendants. The Court ORDERS that plaintiff shall submit summary judgment-type evidence establishing the amount of damages within twenty-one (21) days of entry of this order. Signed by Judge Sarah S. Vance on 12/12/2016. (mmm)
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Washington v. Morad et al Doc. 44 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ZONELL WASHINGTON VERSUS CIVIL ACTION NO. 15-868 MARK MORAD, ET AL. SECTION “R” (3) ORD ER AN D REASON S Plaintiff Zonell Washington m oves the Court to enter a default judgm ent against defendants Mark Morad, et al. 1 For the following reasons, the Court GRANTS plaintiff’s m otion. I. BACKGROU N D On March 19, 20 15, plaintiff brought this qui tam False Claim s Act civil action against defendants Mark Morad, Paige Okpalobi, Barbara Sm ith, J oe Ann Murthil, Latausha Dannel, Roy Berkowitz, Divini Luccioni, Christopher White, Beverly Breaux, Medical Specialists of New Orleans, Interlink Health Care Services, Memorial Hom e Health, Inc., Lakeland Health Care Services, Lexm ark Health Care, LLC, and Med Rite Pharm acy, Inc., d/ b/ a Medrite DME, Inc. 2 The com plaint alleges that the defendants defrauded the United 1 2 R. Doc. 41. R. Doc. 1. Dockets.Justia.com States by subm itting false claim s for Medicare reimbursem ent. The action seeks a judgm ent in an am ount equal to three tim es the dam ages sustained by the United States as a result of defendants’ actions, plus a civil penalty of not less than $ 5,50 0 and not m ore than $ 11,0 0 0 for each violation of the False Claim s Act, 31 U.S.C. § 3729. Defendants Interlink Health Care Services, Mark Morad, Lakeland Health Care Services, Lexm ark Health Care, Medrite DME, Mem orial Home Health, Paige Okpalobi, and Roy Berkowitz were served with a sum m ons on J anuary 29, 20 16. 3 Defendants Beverly Breaux, J oe Ann Murthil, and Latausha Dannel were served with a sum m ons on February 1, 20 16. 4 Defendants Divini Luccioni and Christopher White were served with a sum m ons on May 24, 20 16, and Defendant Medical Specialists of New Orleans was served with a sum mons on May, 27, 20 16. 5 No defendant filed any response to the sum m ons and complaint, nor did any defendant request additional tim e to respond. 6 Plaintiff sought an entry of default as to Defendants Beverly Breaux, Interlink Health Care, Mark Morad, Lakeland Health Care Services, Lexm ark 3 4 5 6 R. Doc. 41-1 at 1-3. Id. Id. Id. at 3. 2 Health Care, Medrite DME, Mem orial Hom e Health, Paige Okpalobi, Roy Berkowitz, J oe Ann Murthil, and Latausha Dannel on May 5, 20 16, 7 and the clerk entered default against those defendants on the sam e day. 8 On J une 20 , 20 16, plaintiff sought an entry of default as to the rem aining defendants, 9 and the clerk entered default against those defendants on the following day. 10 On September 20 , 20 16, the Court ordered that plaintiff show good cause within 20 days why the defendants should not be dism issed for failure to prosecute. 11 In response, plaintiff filed this m otion for default judgm ent as to all defendants. Plaintiff seeks a hearing to determ ine the am ount of dam ages pursuant to Federal Rule of Civil Procedure 55(b)(2), as well as the m axim um am ount allowed pursuant to section 3730 (d) of the False Claim s Act. II. LEGAL STAN D ARD Under Federal Rule of Civil Procedure 55(b), the Court m ay enter a default judgment against a party when it fails to plead or otherwise respond to the plaintiff's com plaint within the required tim e period. Fed. R. Civ. P. 7 8 9 10 11 R. Doc. 26. R. Doc. 27. R. Doc. 36. R. Doc. 37. R. Doc. 39. 3 55(b). A plaintiff who seeks a default judgm ent against an unresponsive defendant m ust proceed through two steps. First, the plaintiff m ust petition the court for the entry of default, which is sim ply “a notation of the party’s default on the clerk’s record of the case.” Dow Chem . Pac. Ltd. v. Rascator Mar. S.A., 782 F.2d 329, 335 (2d Cir. 1986); see also United States v. Hansen, 795 F.2d 35, 37 (7th Cir. 1986) (describing the entry of default as “an interm ediate, m inisterial, nonjudicial, virtually m eaningless docket entry”). Before the clerk m ay enter the default, the plaintiff m ust show “by affidavit or otherwise” that the defendant “has failed to plead or otherwise defend.” Fed. R. Civ. P. 55(a). Beyond that requirem ent, however, the entry of default is largely m echanical. After the defendant’s default has been entered, the plaintiff m ay request the entry of judgm ent on the default. In that context, the court deems the plaintiff's well-pleaded factual allegations adm itted. See N ishim atsu Const. Co., Ltd. v. Houston N at. Bank, 515 F.2d 120 0 , 120 6 (5th Cir. 1975). At the sam e tim e, the court does not hold the defaulting defendant “to adm it facts that are not well-pleaded or to adm it conclusions of law.” Id. The default judgm ent should not be entered unless the judgment is “supported by well-pleaded allegations and . . . ha[s] a sufficient basis in the pleadings.” W ooten v. McDonald Transit Associates, Inc., 788 F.3d 490 , 4 498 (5 th Cir. 20 15) (internal quotation m arks om itted) (citing Houston N at. Bank, 515 F.2d at 120 6). If the plaintiff’s claim is for a sum certain and the defendant has not m ade an appearance in court, the clerk m ay enter a default judgm ent. Fed. R. Civ. P. 55(b)(1). In all other cases, “the party m ust apply to the court for a default judgm ent.” Fed. R. Civ. P. 55(b)(2). No party is entitled to a default judgm ent as a m atter of right. Lew is v. Ly nn, 236 F.3d 766, 767 (5th Cir. 20 0 1) (per curiam ) (quoting Ganther v. Ingle, 75 F.3d 20 7, 212 (5th Cir. 1996)). The disposition of a m otion for the entry of default judgm ent ultim ately rests within the sound discretion of the district court. Mason v. Lister, 562 F.2d 343, 345 (5th Cir. 1977). III. D ISCU SSION A. Ju ris d ictio n Before entering judgm ent, a district court m ust “look into its jurisdiction both over the subject m atter and the parties.” Sy stem Pipe & Supply , Inc. v. M/ V Viktor Kurnatovskiy , 242 F.3d 322, 324 (5th Cir. 20 0 1) (quoting W illiam s v. Life Sav. & Loan, 80 2 F.2d 120 0 , 120 3 (10 th Cir.1986)) (quotation m arks rem oved). J udgment entered in the absence of jurisdiction 5 is void, and the Court m ust therefore refrain from entering judgment if its jurisdiction is uncertain. Here, the Court has subject m atter jurisdiction over the action under 28 U.S.C. § 1331 and 31 U.S.C. § 3732. The Court also has personal jurisdiction over all of the defendants, as the record indicates that all of the individual and corporate defendants are dom iciled in the Eastern District of Louisiana. 12 Accordingly, the Court finds that it has jurisdiction over both the subject m atter and the parties. B. En try o f D e fau lt Ju d gm e n t The record shows that all defendants were served with process, but have failed to plead or otherwise defend against plaintiff’s claim s. Indeed, the defendants have m ade no appearance at all. Although judgm ents by default are generally disfavored, see Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998), the Court finds that the defendants’ failure to appear has m ade it impossible to achieve a “just, speedy, and inexpensive disposition” of this case on the m erits. Sun Bank of Ocala v. Pelican Hom estead and Sav. Ass’n, 874 F.2d 274, 276 (5th Cir. 1989). The record does not reveal any excuse for defendants’ failure to appear. Accordingly, the plaintiff’s wellplead factual allegations are deemed adm itted. See Houston Nat. Bank, 515 12 R. Doc. 1 at 4. 6 F.2d at 120 6. If these factual allegations establish a prim a facie False Claims Act claim , then the Court will enter a default judgm ent against the defendants. Plaintiff alleges that defendants violated section 3729(a)(1)(A), (B), and (C) of the False Claim s Act. Section 3729(a)(1)(A) establishes liability for anyone who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment of approval” to any agent of the United States Governm ent. 31 U.S.C. § 3729(a)(1)(A). Section 3279(a)(1)(B) establishes liability for anyone who “knowingly m akes, uses, or causes to be m ade or used, a false record or statement m aterial to a false or fraudulent claim .” Id. § 3729(a)(1)(B). Section 3279(a)(1)(C) establishes liability for anyone who “conspires to comm it a violation of subparagraph (A), (B), (D), (E), (F), or (G).” Id. § 3729(a)(1)(C). To establish a violation of section 3729(a)(1)(A), plaintiff m ust show (1) the defendants subm itted a claim to the government, (2) the claim was false, and (3) the defendant knew the claim was false. United States v. Southland Mgm t. Corp., 288 F.3d 665, 674-75 (5th Cir. 20 0 2), aff’d en banc, 326 F.3d 669 (5th Cir. 20 0 3). The Fifth Circuit has also required that the false statement be m aterial to the government’s decision to pay in that the statements m ust “have the potential to influence the government’s 7 decisions.” U.S. ex rel. Longhi v. United States, 575 F.3d 458, 470 (5th Cir. 20 0 9). To establish a violation of section 3729(a)(1)(B), plaintiff m ust show that (1) the defendants m ade a record or statement and used the statement to get the government to pay a claim , (2) the record was false, and (3) the defendants knew the record was false. Southland Mgm t. Corp., 288 F.3d at 675. As to section 3729(a)(1)(C), the plaintiff m ust establish “(1) the existence of an unlawful agreement between defendants to get a false or fraudulent claim allowed or paid by the Governm ent and (2) at least one act perform ed in furtherance of that agreement.” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180 , 193 (5th Cir. 20 0 9) (quotation om itted). Here, plaintiff specifically alleges that defendants subm itted claim s for payment based on hom e-health visits and m edical services that were not provided. 13 Plaintiff alleges defendants knew these claim s were false. 14 Plaintiff also alleges that defendants created false records certifying that certain beneficiaries were homebound despite defendants knowing they were not homebound. 15 Finally, plaintiff alleges the defendants had an agreement to defraud the government and took m ultiple acts in furtherance 13 14 15 R. Doc. 1 at 15 ¶ 56. Id. at 16 ¶ 57. See, e.g., Id. at 13 ¶ 46. 8 of the agreem ent. 16 As plaintiff’s well-pleaded factual allegations are deemed true, the Court finds that plaintiff has established prima facie claim s for violations of the False Claims Act, sections 3729(a)(1)(A), (B), and (C). Therefore, the Court will enter a default judgm ent against defendants. C. Am o u n t o f D am age s Plaintiff requests a hearing to determ ine the am ount of dam ages. Though a default judgm ent conclusively establishes the defendants’ liability, it does not establish the am ount of dam ages. United States v. Shipco Gen., Inc., 814 F.2d 10 11, 10 14 (5th Cir. 1987). As a general rule, in the context of a default judgm ent, unliquidated dam ages are not awarded without a hearing unless the dam ages claim ed are capable of m athem atical calculation. Jam es v. Fram e, 6 F.3d 30 7, 310 (5th Cir. 1993). A sum capable of m athematical calculation is one that can be “com puted with certainty by reference to the pleadings and supporting docum ents alone.” Id. at 311 (citation om itted). Because the Court cannot com pute with certainty the dam ages by reference to the pleadings and supporting docum ents currently in the record, the Court orders plaintiff to subm it sum m ary judgment-type evidence establishing the amount of dam ages. 16 Id. at 17 ¶ 64; see generally R. Doc. 1. 9 IV. CON CLU SION For the foregoing reasons, the plaintiff’s m otion for default judgm ent is GRANTED. J udgm ent is entered against defendants. The Court ORDERS that plaintiff shall subm it sum m ary judgm ent-type evidence establishing the am ount of dam ages within twenty-one (21) days of entry of this order. New Orleans, Louisiana, this _12th _ day of Decem ber, 20 16. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 10
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