The Federal Rules of Civil Procedure (FRCP) require any party claiming fraud to provide specific allegations in their complaint. This includes lawsuits brought under the False Claims Act (FCA), which by definition include allegations of fraud. Last year, the Third Circuit Court of Appeals considered the question of how specific a plaintiff’s allegations must be in a qui tam FCA lawsuit. Foglia v. Renal Ventures Mgt., LLC, 754 F.3d 153 (3rd Cir. 2014). The court held that the plaintiff met the FRCP’s requirement of “particularity.”
The plaintiff is a registered nurse who worked for the defendant, a dialysis care services company, from March 2007 until his termination in November 2008. He filed a qui tam FCA complaint in April 2009. After the United States declined to intervene, the plaintiff filed an amended complaint, followed by a second amended complaint. He alleged that the defendant falsely certified compliance with state quality-of-care regulations, submitted fraudulent reimbursement claims for the drug Zemplar, and reused Zemplar vials intended for single use. He also claimed retaliation, although that claim was not addressed by the appellate court.
The defendant moved the district court to dismiss the second amended complaint under FRCP 12(b)(6), arguing that the plaintiff had not met FRCP 9(b)‘s heightened pleading requirements for fraud claims. The district court granted the motion and dismissed the lawsuit with prejudice. It found that the plaintiff had failed to provide a “representative sample” of false claims submitted by the defendant. Foglia, 754 F.3d at 155. The plaintiff appealed the dismissal of the claim related to overbilling for Zemplar.