UNITED STATES of America, Plaintiff, v. DYNAMIC VISIONS, INC. and Isaiah Bongam, Defendants.
Civil Action No. 11-695 (CKK)
United States District Court, District of Columbia.
Signed 04/24/2017
In addition to these procedural issues, Ms. Darby‘s motion does not offer аny substantive reason for the Court to reconsider its prior opinion. Ms. Darby‘s motion consists of three short paragraphs, and appears to entirely address the lengthy elapsed time between this Court‘s final judgment and the filing of the motion. The D.C. Circuit has stated that “a
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff‘s Motion for Relief from Final Judgment (ECF No. 16) is DENIED.
MEMORANDUM OPINION
(April 24, 2017)
COLLEEN KOLLAR-KOTELLY, United States District Judge
This is a False Claims Act (“FCA“) suit brought by Plaintiff United States of America against home health care provider Dynamic Visions, Inc. and its sole owner and president, Isaiah Bongam (collectively “Defendants“). In its Complaint, Plaintiff alleged that between January 2006 and June 2009 Defendants submitted false or fraudulent claims to Medicaid for reimbursement for home health care services. Specifically, Plaintiff claimed that many of the patient files associated with the claims made by thе Defendants did not contain “plans of care” as required under applicable regulations, or contained plans of care that were not signed by physicians or other qualified health care workers, did not authorize all of the services that were actually rendered, or contained forged or untimely signatures. On December 6, 2016, the Court granted Plaintiff‘s Motion for Summary Judgment. Now pending before the Court is Defendant Isaiah Bongam‘s [123] Motion to Set Aside that Order. Upon consideration of the pleadings,1 the relevant legal authorities, and the record as a whole, the Court DENIES Defendant‘s Motion.
I. BACKGROUND
The Court has already set forth the factual background and procedural histоry of this case in its October 24, 2016 and December 6, 2016 Memorandum Opinions, which are incorporated by reference and made a part of this Memorandum Opinion and Order. See generally United States v. Dynamic Visions, Inc., No. CV 11-695 (CKK), 216 F.Supp.3d 1, 2016 WL 6208349 (D.D.C. Oct. 24, 2016); United States v. Dynamic Visions, Inc., No. CV 11-695 (CKK), 220 F.Supp.3d 16, 2016 WL 7115946 (D.D.C. Dec. 6, 2016). In those Memorandum Opinions and associated Orders, the Court held that Defendant Dynamic Visions was liable under the FCA for submitting false Medicaid claims to the D.C. Department of Health Care Finance (“DHCF“). The Court found that Dynamic Visions’ claims impliedly certified compliance with D.C. Medicaid regulations that required home health care services be rendered pursuant to signed “plans of care.” The Court additionally found that the services for which Defendants had billed DHCF wеre not, in fact, rendered pursuant to such plans of care. In its December 6, 2016 Memorandum Opinion and Order, the Court also pierced Defendant Dynamic Visions’ corporate veil to hold Defendant Bongam individually liable. On January 3, 2017, Defendant Bongam filed the pending Motion to Set Aside the Court‘s December 6, 2016 Order. That motion has been fully briefed аnd is ripe for resolution.
II. LEGAL STANDARD
Defendant does not state a legal authority under which his motion is brought. Plaintiff suggests, and the Court finds reasonable, that Defendant‘s motion is best construed as a motion to reconsider brought pursuant to Federal Rules of Civil Procedure 54(b) or 60(b). The Court herein sets forth the legal standards for motions brought under those Federal Rules. The Court notes that regardless of the authority for reconsideration, Defendant has not made an adequate showing to warrant the Court setting aside its December 6, 2016 Order.
Pursuant to
III. DISCUSSION
Reconsideration is not warranted under either of these standards. The Court begins by noting that Defеndant‘s Motion and Reply mostly consist of conclusory pronouncements including, among other things, that setting aside the Court‘s Order is necessary in the interests of “justice,” that Plaintiff has “misled” the Court and “fabricated” facts, that certain important evidence is being overlooked and that the Court has committed “flaw[s].” See, e.g., Def.‘s Mot. at 2-3; Def.‘s Reply at 4. Although the Court has striven to explain below why each of the distinct arguments Defendant raises do not warrant the Court reconsidering or setting aside its December 6, 2016 Order, to the extent certain assertions of Defendant‘s are not specifically addressed below, it is sufficient to say that they lacked any explanation, evidentiary basis, or lеgal support, or that they were not raised previously and accordingly will not be entertained in a motion to reconsider. See Scheduling and Procedures Order, ECF No. 35 at 4 (“arguments which should have been previously raised, but are being raised for the first time” in a motion to reconsider will not be entertained); Aygen v. D.C., 311 F.R.D. 1, 3 (D.D.C. 2015) (“Courts should deny motions for reconsidеration when it appears that ‘the losing party is using the motion as an instrumentality for arguing . . . new arguments that could have been raised prior to final judgment‘“) (quoting Lightfoot v. D.C., 355 F.Supp.2d 414, 421 (D.D.C. 2005)).
Defendant Bongam states at the outset of his Motion that Defendant “Dynamic Visions was represented by Attorney Judge Iweanoge and I didn‘t have an Attorney because I had no money at the timе since we were no longer being paid.” Def.‘s Mot. at 1. Defendant argues that “[t]he fact that I had no Attorney does take away my right to defend myself.” Id. To the extent Defendant intends this to be an argument in support of reconsideration, it is meritless because it is simply wrong: until apparently very recently, Defendant was represented in this matter by Attornеy C. Jude Iweanoge. See Entry of Appearance, ECF No. 30.
The remainder of the arguments in Defendant‘s Motion and Reply address the merits of the Court‘s conclusion that Defendant Dynamic Visions submitted false Medicaid claims to DHCF. Defendant argues, for various patient-specific reasons, that the claims were not actually improper, mostly relying on voluminous medical records thаt Defendant has now submitted. This ploy fails for a number of reasons. At the threshold, these arguments fail because the Court found that Defendant Dynamic Visions, not Defendant Bongam, submitted false claims to DHCF. Dynamic Visions does not appear to have joined this motion, see Defendant Dynamic Visions’ Consent Motion for Enlargement of Time to Respond, ECF Nо. 126 at 1 n.1 (stating “Defendant Bongam now represents himself“); Defendant Bongam‘s Motion for Extension of Time, ECF No. 127 at 1 (referring to the pending motion as “my motion to set aside“), and Defendant Bongam may not litigate on the company‘s behalf. See
In the interest of complеteness, however, the Court notes that even if it were to consider the arguments Defendant Bongam makes in this respect, Defendant‘s Motion would still be denied for many reasons. First, Plaintiff states in its Opposition that Defendant “never provided any of the documents attached to his Motion or the arguments therein” during discovery. Pl.‘s Opp‘n at 12. This alone is fatal to Defendant‘s Motion. As the Court has discussed in its previous Memorandum Opinions and Orders, the Defendants in this case continuously refused to provide Plaintiff discovery about their defenses, despite being repeatedly ordered by the Court to do so, and were eventually held in contempt of court. In the Court‘s Order holding Defendants in contempt, it stated that it had “repeatedly explained that Defendants must identify with specificity the regulations and procedures on which they will rely in support of their defense, and the specific pages within the patient files on which they will be relying.” Order, ECF No. 94 at 3-4 (emphasis in original). Defendants did not do so, and accordingly the Court ordered that “Defendants are precluded from introducing or relying upon in their response to Plaintiff‘s motion for summary judgment or at trial any and all documents not specifically identified heretofore as relevant to Defendants’ defenses to the allegations in the Complaint.” Id. at 4. Defendant may not now seek to set aside the Court‘s grant of summary judgment in Plaintiff‘s favor by finally bringing forward such documents. For this reason alone, Defendant‘s Motion fails.
Yet another problem with Defendant‘s Motion is that the arguments therein were already raised and rejected by the Court at the summary judgment stage. For example, Defendant argues that Dynamic Visions cannot be held liable for submitting false claims associated with certain Mеdicaid recipient
Similarly, to the extent Defendant insinuates in his Motion that certain plans of care at issue were “signed,” the Court also already considered this issue at the summary judgment stage. The Court found that there was no genuine issue of material fact as to Plaintiff‘s claim that the few signatures that did exist on plans of care were forged. Id. at 7. Plaintiff presented sworn affidavits from each relevant physician attesting that their signatures had been forged, and Defendants presented no evidence to dispute this other than unsubstantiated, self-serving, and conclusory denials. Id. Again, Defendant offers no reason why the Court should change its conclusion on this issue. See State of N.Y. v. United States, 880 F.Supp. 37, 38 (D.D.C. 1995) (holding that a “motion to reconsider is not simply an opportunity to reargue facts and theories upon which a court has already ruled.“).
Finally, the Court briefly notes that the arguments in Defendant‘s Reply—in addition to suffering from the problems discussed above—are also improper for the additional reason that they were raised for the first time in reply. “[I]t is a well-settled prudential doctrine that courts generally will not entertain new arguments first raised in a reply brief.” See Aleutian Pribilof Islands Ass‘n, Inc. v. Kempthorne, 537 F.Supp.2d 1, 12 n.5 (D.D.C. 2008). Despite the impropriety of raising new arguments in reply, the Court would have considered ordering Plaintiff to file a sur-reply to address these issues if it believed the arguments in Plaintiff‘s Reply had any merit. The Court has reviewed those arguments and, for all of the reasons discussed above, they do not have merit.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that Defendant Bongam has not raised any meritorious reason for the Court to reconsider or set aside its December 6, 2016 Order under any potentially relevant legal authority. Accordingly, the Court will DENY Defendant‘s [123] Motion to Set Aside Summary Judgment. The Court notes that summary judgment has only been granted as to liability—the Court has not yet entered a final judgment. The next step is to ascertain the precise amount of the judgmеnt the Court will enter against Defendants, which requires further briefing. An appropriate Order accompanies this Memorandum Opinion.
COLLEEN KOLLAR-KOTELLY
United States District Judge