United States District Court, N.D. Illinois, Eastern Division
UNITED STATES OF AMERICA and the STATE OF ILLINOIS ex rel. AMY O’DONNELL, Relator/Plaintiff,
AMERICA AT HOME HEALTHCARE AND NURSING SERVICES, LTD., d/b/a ANGELS AT HOME HEALTHCARE, Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY UNITED STATES DISTRICT JUDGE
Amy O’Donnell filed this qui tam action under
the False Claims Act (FCA), 31 U.S.C. § 3729, et
seq., and its Illinois counterpart, the Illinois False
Claims Act (IFCA), 740 ILCS § 175/1, et seq.,
on behalf of the United States and the State of Illinois.
Relator sues corporate defendants America at Home Healthcare
and Nursing Services, Ltd. d/b/a Angels at Home Healthcare
(AAH), and AAH’s purported successor, Great Lakes
Acquisition Corp. d/b/a Great Lakes Caring. Relator also sues
former AAH employees, including Kim Richards. Relator alleges
that, starting in 2006, AAH and its former employees billed
Medicare and Medicaid fraudulently, and that Great Lakes
continued AAH’s fraudulent practices after buying AAH
in early 2015.
procedural background follows below. The Court presumes
familiarity with its opinion granting Richards’ prior
motion to dismiss. Dkt. 94.
amended her complaint for the first time in 2016. Dkt. 22. In
response to Relator’s amended complaint, all defendants
moved to dismiss. Dkt. 55; Dkt. 61. Pursuant to the
Court’s standing order on motions to dismiss, the Court
advised Relator that she could either amend her complaint for
the second time or respond to the motions. Dkt. 54. Relator
chose to amend again, so the Court denied the motions without
prejudice. Dkt. 68. After Relator filed her second amended
complaint in early 2017, the defendants again moved to
dismiss. Dkt. 69; Dkt. 76; Dkt. 79. The Court dismissed
Richards from the case, but also let Relator replead. Dkt. 94
at 22, 40.
filed her third amended complaint this July. Dkt. 99. Within
days, Richards moved to dismiss the case, arguing that
Relator’s allegations failed to satisfy Federal Rule of
Civil Procedure 9(b)’s heightened requirements for
pleading fraud. Dkt. 101. AAH, Great Lakes, and the other
employee defendants later filed a motion to dismiss on
similar grounds, which Richards joined. Dkt. 113.
Memorandum Opinion and Order addresses only Richards’
motion to dismiss, which is granted with prejudice.
the FCA and IFCA are anti-fraud statutes, claims under both
must meet Rule 9(b)’s heightened pleading requirements.
United States ex rel. Gross v. AIDS Research
Alliance–Chi., 415 F.3d 601, 604 (7th Cir. 2005).
Rule 9(b) demands that claimants alleging fraud “state
with particularity the circumstances constituting
fraud.” Particularity is analogous to a
reporter’s hook: “plaintiff[s] ordinarily must
describe the who, what, when, where, and how of the fraud-the
first paragraph of any newspaper story.” Pirelli
Armstrong Tire Corp. Retiree Med. Benefits Trust v. Walgreen
Co., 631 F.3d 436, 441–42 (7th Cir. 2011)
(internal quotation marks omitted). For example, if the
alleged fraudulent scheme involves misrepresentation, the
plaintiff must state who made “the misrepresentation,
the time, place, and content of the misrepresentation, and
[how] the misrepresentation was communicated.”
United States ex rel. Grenadyor v. Ukrainian Vill.
Pharmacy, Inc., 772 F.3d 1102, 1106 (7th Cir. 2014).
course, different cases require different levels of detail
for a complaint to satisfy Rule 9(b). Pirelli, 631
F.3d at 442. A plaintiff must, however, inject
“precision and some measure of substantiation”
into fraud allegations. United States ex rel. Presser v.
Acacia Mental Health Clinic, LLC, 836 F.3d 770, 776 (7th
Cir. 2016) (internal quotation marks omitted). As this Court
said before, Rule 9(b) is also more significant in cases with
multiple defendants. Dkt. 94 at 9–10. Because fair
notice is perhaps the “most basic consideration
underlying Rule 9(b), the plaintiff who pleads fraud must
reasonably notify the defendants of their purported role in
the scheme.” Vicom, Inc. v. Harbridge Merch.
Servs., Inc., 20 F.3d 771, 777–78 (7th Cir. 1994)
(citations and internal quotation marks omitted).
Court previously dismissed Richards because Relator’s
“sweeping allegations” against her lacked Rule
9(b) particularity. Dkt. 94 at 22. Richards argues that the
third amended complaint similarly lacks Rule 9(b)
particularity. Dkt. 107. The Court agrees that
Relator’s latest effort is equally deficient under Rule
added only two new allegations that specifically address
• “Defendants AAH Healthcare, [Rachael]
Fitzpatrick, and Richards also provided
bonuses to marketers such as Defendant [Tami] Shemanske for
each certification and recertification of patients for home
health services, for the express purpose of incentivizing
illegal certifications and recertifications of ineligible