U.S. Court of Appeals for the Eleventh Circuit, 2024

FBG, LLC v. OPKO Health Inc, LLC

U.S. Court of Appeals for the Eleventh Circuit · Decided November 18, 2024

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10493 Non-Argument Calendar ____________________ FBG, LLC, Relator; a limited liability company, Plaintiﬀ-Appellant, UNITED STATES OF AMERICA, STATE OF CALIFORNIA, STATE OF GEORGIA, COMMONWEALTH OF MASSACHUSETTS, STATE OF FLORIDA, ex rel FGB, LLC., Movants-Appellants, versus OPKO HEALTH INC, LLC, a Delaware corporation, USCA11 Case: 24-10493 Document: 38-1 Date Filed: 11/18/2024 Page: 2 of 6

2 Opinion of the Court 24-10493 PHILLIP FROST, MARC D. GRODMAN, CHARLES TODD, individuals, BIOREFERENCE HEALTH, LLC, a Delaware limited liability company f.k.a. Bio-Reference Laboratories, Inc. et al.,

Defendants-Appellees.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:18-cv-00166-WWB-JBT ____________________ Before WILSON, LUCK, and BLACK, Circuit Judges.

PER CURIAM: FBG, LLC, appeals the district court’s sua sponte dismissal with prejudice of FBG’s Second Amended Complaint against OPKO Health Inc., LLC, Phillip Frost, Marc D. Grodman, Charles USCA11 Case: 24-10493 Document: 38-1 Date Filed: 11/18/2024 Page: 3 of 6

24-10493 Opinion of the Court 3 Todd, and Bioreference Health, LLC (Appellees) as an impermissi- ble shotgun pleading. After review,1 we aﬃrm the district court.

I. BACKGROUND FBG ﬁled a Complaint on January 26, 2018, asserting viola- tions of the False Claims Act (FCA), 31 U.S.C. §§ 3729, et seq., as well as state law claims for the States of Florida, Georgia, Califor- nia, and the Commonwealth of Massachusetts based on FBG’s al- legations that Appellees provided illegal kickbacks to doctors and clinics to receive more business, costing Medicare and Medicaid, and the states participating in those programs to pay for unneces- sary exams and tests. The action was ﬁled in camera and under seal to give the United States time to determine whether it would inter- vene on the FCA claims. The United States declined to intervene, and the district court unsealed the action on January 13, 2022. On February 9, 2022, the states jointly declined to intervene on their respective state law claims.

On April 25, 2022, Appellees ﬁled a joint motion to dismiss the Complaint, arguing FBG’s Complaint failed to allege plausibil- ity under Rule 8(a) and particularity under Rule 9(a). On March 24, 2023, the then-presiding district judge, Judge Brian Davis, dismissed the action as both a shotgun pleading and for failure to allege fraud with particularity, without prejudice and with leave to amend. As to the shotgun pleading, the district court stated, “[FBG’s]

1 “We review a dismissal on Rule 8 shotgun pleading grounds for an abuse of discretion.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).

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4 Opinion of the Court 24-10493 allegations are repeated, and [FBG] included claims speciﬁc to one state, such as California, and incorporates those claims into the claims brought on behalf of other states, such as Florida. Plaintiﬀ also routinely consolidates [Appellees] as a single bad actor. As such the Complaint constitutes a ‘shotgun pleading.’” Additionally, the district court stated, “[FBG] elongates the Complaint by de- scribing the history and administration of state Medicare pro- grams—which again, are incorporated in other counts regarding diﬀerent states—and reciting case law and news articles.”

On April 13, 2023, FBG ﬁled its First Amended Complaint, and on June 20, 2023, Appellees ﬁled a motion to dismiss the First Amended Complaint. On December 29, 2023, Judge Davis struck FBG’s First Amended Complaint as it constituted a shotgun plead- ing and granted leave to amend. The district court speciﬁed that “each of [FBG’s] 15 counts lumps each of the six Defendants to- gether, without specifying which Defendant committed what spe- ciﬁc act.”

On January 2, 2024, the action was reassigned to Judge Wendy Berger. FBG ﬁled a Second Amended Complaint on Janu- ary 19, 2024. On January 23, 2024, Judge Berger sua sponte dis- missed with prejudice the Second Amended Complaint, as it “con- tinues to be an impermissible shotgun pleading.” Speciﬁcally, each count of the Second Amended Complaint “adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the en- tire complaint.” As FBG’s Complaint and First Amended USCA11 Case: 24-10493 Document: 38-1 Date Filed: 11/18/2024 Page: 5 of 6

24-10493 Opinion of the Court 5 Complaint were dismissed as shotgun pleadings, the court found FBG had “ample notice of the shotgun pleading standards and the issues in its prior ﬁlings,” and dismissed the Second Amended Com- plaint with prejudice.

II. DISCUSSION The district court did not abuse its discretion when it dis- missed the Second Amended Complaint as a shotgun pleading.

When a complaint contains multiple counts, and “each count adopts the allegations of all preceding counts, causing each succes- sive count to carry all that came before and the last count to be a combination of the entire complaint,” it fails to give defendants “adequate notice of the claims against them and the grounds upon which each claim rests.” Weiland v. Palm Beach Cnty. Sheriﬀ’s Oﬀ., 792 F.3d 1313, 1321, 1323 (11th Cir. 2015). This Court condemns shotgun pleadings and has “repeatedly held that a District Court retains authority to dismiss a shotgun pleading on that basis alone.”

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1357 (11th Cir. 2018).

The district court found “each count of the Second Amended Complaint reincorporates by reference every allegation of the entire pleading.” FBG acknowledges that paragraphs 142, 153, 163, 174, 187, 200, and 213 incorporate all allegations in all causes of action that precede them, but argues that the organiza- tion of the Second Amended Complaint excuses the adoption of all allegations in each count. Our precedent supports that a com- plaint that causes each count to adopt the allegations of each pre- ceding count is a shotgun pleading. See Weiland, 792 F.3d at 1321.

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6 Opinion of the Court 24-10493 “When a litigant ﬁles a shotgun pleading, is represented by counsel, and fails to request leave to amend, a district court must sua sponte give him one chance to replead before dismissing his case with prejudice on non-merits shotgun pleading grounds.” Bar- mapov v. Amuial, 986 F.3d 1321, 1326 (11th Cir. 2021) (quotation marks omitted). FBG had suﬃcient notice of its shotgun pleading issues as the ﬁrst two complaints had been dismissed as shotgun pleadings, FBG had an opportunity to replead two times, and FBG was represented by counsel. The district court did not abuse its discretion is dismissing FBG’s Second Amended Complaint as a shotgun pleading and dismissing the action with prejudice. 2 AFFIRMED.

2 As we affirm the district court, there is no need to address FBG’s argument that the action should be reassigned to a new district judge on remand.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.