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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 0:20-CV-61007-SINGHAL/VALLE

SOUTH BROWARD HOSPITAL DISTRICT d/b/a

MEMORIAL HEALTHCARE SYSTEM, on behalf of 

itself and all others similarly situated,

Plaintiff,

v. 

 

ELAP SERVICES, LLC, a Pennsylvania limited 

liability company, and GROUP & PENSION 

ADMINISTRATORS, INC., a Texas corporation,

 Defendants.

/ 

ORDER

THIS CAUSE came before the Court on the Plaintiff South Broward Hospital 

District’s Motion for Reconsideration of the Court’s Opinion and Order Granting Summary 

Judgment (DE [186]) (the “Motion”).1 Defendants filed a Response in Opposition (DE 

[190]) and Plaintiff filed a Reply in support of its Motion (DE [196]). A motion hearing was 

held on November 27, 2023. The Motion is now ripe for consideration. 

I. BACKGROUND 

On September 30, 2023, this Court granted summary judgment in favor of 

Defendants, ELAP Services, LLC (“ELAP”) and Group & Pension Administrators, Inc. 

(“GPA”), on Plaintiff South Broward Hospital District’s (“Memorial”) claims under the 

Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) and the common law 

1 Plaintiff filed the Motion under seal at (DE [185]). This Order applies with equal force to the sealed and 

unsealed Motion. 

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theory of unjust enrichment. See (Order (DE [183])). On Plaintiff’s FDUTPA claim, the 

Court agreed with Defendants that Plaintiff’s claims failed to demonstrate consumer harm 

and warranted dismissal on that basis. See id. at 23. As for Memorial’s unjust enrichment 

claim, the Court concluded that dismissal was proper where Plaintiff showed no direct 

conferral of benefits to Defendants. See id. at 26. 

Plaintiff seeks reconsideration of this Court’s decision only as to its FDUTPA claim. 

See (Mot. (DE [186])). According to Plaintiff, reconsideration is warranted for three 

reasons: first–a novel argument–that the plain text of the FDUTPA statute imposes no 

consumer-injury requirement; second, assuming a consumer-injury requirement exists 

(which Plaintiff now contests), Memorial meets the definition of consumer and has shown 

adequate injury; and third, regardless of Memorial’s status as a consumer under 

FDUTPA, Plaintiff has offered sufficient evidence demonstrating that Memorial patients 

were injured or likely to be injured. 

Plaintiff’s Motion is well-written, and Plaintiff’s counsel presented compelling oral 

argument. Nevertheless, Plaintiff has not raised issues of manifest error. Plaintiff merely 

invites this Court to interpret FDUTPA in a light more favorable to Memorial’s claim, which 

this Court respectfully declines for the reasons discussed herein. 

II. LEGAL STANDARD

“‘Courts have distilled three major grounds justifying reconsideration: (1) an 

intervening change in controlling law; (2) the availability of new evidence; and (3) the need 

to correct clear error or manifest injustice.’” Instituto de Prevision Militar v. Lehman Bros., 

Inc., 485 F. Supp. 2d 1340, 1342 (S.D. Fla. 2007) (quoting Cover v. Wal-Mart Stores, Inc., 

148 F.R.D. 294, 295 (M.D. Fla. 1993)). A motion for reconsideration cannot be used “to 

relitigate old matters, raise argument or present evidence that could have been raised 

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prior to the entry of judgment.” Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 

763 (11th Cir. 2005). Furthermore, “[i]t is an improper use of the motion to reconsider to 

ask the Court to rethink what the Court already thought through – rightly or wrongly.’” Z.K. 

Marine, Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992) (quoting Above 

the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). “A 

motion for reconsideration is ‘committed to the sound discretion of the district judge.’” 

Garcon v. United Mut. of Omaha Ins. Co., 779 Fed. Appx. 595, 600 (11th Cir. 2019) 

(citations omitted).

III. ANALYSIS

a. FDUTPA’s Consumer Harm Requirement 

Plaintiff’s Motion argues, for the first time, that FDUTPA imposes no consumer 

harm requirement. In its Opposition to Defendants’ Motion for Summary Judgement, 

Plaintiff noted in no uncertain terms that “[n]on-consumers have standing to pursue 

FDUTPA claims, but in all cases, the plaintiff must demonstrate ‘injury or detriment to 

consumers.’” (Pl.’s Opp. (DE [155] at 8)) (quoting Caribbean Cruise Line, Inc. v. Better 

Bus. Bur. Of Palm Beach Cnty., Inc., 169 So. 3d 164, 167 (Fla. 4th DCA 2015)) (emphasis 

added). Plaintiff now challenges the excerpted language from Caribbean Cruise Line, 

Inc.–the very authority it relied upon–as dicta. See (Mot. (DE [185] at 9)). Rather than 

following Caribbean Cruise Line, Plaintiff contends that this Court should consider 

“persuasive evidence that the highest state court would rule otherwise.” See id. at 9–10 

(citing Bravo v. United States, 577 F.3d 1324, 1326 (11th Cir. 2009)). The “persuasive 

evidence” in this instance, according to Plaintiff, is the plain text of FDUTPA’s statute. 

See (Motion (DE [185] at 10)). Specifically, Plaintiff references the 1993 and 2001 

FDUTPA amendments which replaced references to “consumers” with “persons,” and 

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“made clear that there is no consumer injury requirement” in the statute. Id. Caribbean 

Cruise Line, Plaintiff maintains, effectively relies on stale precedent where it cites to a 

portion of the Florida Supreme Court’s decision in PNR, Inc. v. Beacon Property 

Management, Inc., 842 So. 2d 773 (Fla. 2003) (“PNR”) which quotes from Florida 

Supreme Court cases that predate the 2001 FDUTPA amendments. See id. at 9–10. 

While creative, Plaintiff’s argument fails to identify any manifest error in this Court’s 

recognition of a consumer harm requirement within FDUTPA. “It is an improper use of 

the motion to reconsider to ask the Court to rethink what the Court already thought 

through – rightly or wrongly.” Z.K. Marine, Inc., 808 F. Supp. at 1563 (quoting Above the 

Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). This Court 

will not reconsider a requirement within FDUTPA that even Plaintiff conceded until the 

instant Motion. 

b. Whether Memorial is a Consumer Under FDUTPA 

Plaintiff’s second argument is that it meets the definition of “consumer” under 

FDUTPA and has demonstrated consumer harm through its own injury. See (Motion (DE 

[185] at 11–14)). In support, Plaintiff notes that “Consumer” under FDUTPA “means an 

individual; child, by and through its parent or legal guardian; business; firm; association; 

joint venture; partnership; estate; trust; syndicate; fiduciary; corporation; any commercial 

entity; however denominated; or any other group or combination.” See id. at 11–12 (citing 

Fla. Stat. § 501.203(7)). In its Order, this Court noted that Plaintiff’s interpretation of 

FDUTPA–that “virtually any injury resulting from an unfair or deceptive practice occurring 

in trade or commerce is a ‘consumer injury’”–is too expansive for this Court to endorse. 

See (Order (DE [183] at 20–21). The Court further determined that record evidence cut 

against Plaintiff’s argument where Memorial’s corporate representative conceded that it 

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received no “benefit or anything of value” from Defendants. Id. at 21. The Order did not, 

as Plaintiff argues, impose a requirement that Plaintiff show it received any benefit or 

thing of value from Defendant to qualify as a consumer under FDUTPA. Rather, the Court

identifies what it considers a central flaw in Plaintiff’s argument: Plaintiff is not an 

intended, or even third-party, beneficiary of Defendants’ services. To the contrary, selffunded health plans retain and consume services from Defendants. Take, for example, 

Plaintiff’s chart, which it included as an exhibit to its Opposition Statement of Material 

Facts and now cites to in the instant Motion:

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(DE [156-44]). Plaintiff argues that, per this chart, Plaintiff receives appeals services and 

repricing services from Defendants. Crucially absent from Plaintiff’s chart, however, is 

the important role of the non-party self-funded health plans. This Court considers the flow 

of services differently:

Defendants’ repricing and appeals services are seemingly conducted on behalf of 

the self-funded health plans that hire Defendants for their cost containment needs. While 

Plaintiff maintains that it “would not have collected any funds owed it but for ELAP’s 

services,” (Motion (DE [185] at 13)), the opposite appears to be true. But for the selffunded health plans’ retention of ELAP services, Plaintiff would still have received funds 

and, indeed, may have received more funds. Finally, Plaintiff’s reliance on Beacon Prop. 

Mgmt. v. PNR, Inc., 890 So. 2d 274, 278 (Fla. 4th DCA 2004) (“Beacon Prop. Mgmt.”) is 

not to the contrary. Plaintiff cites to Beacon Prop. Mgmt. to demonstrate that third-party 

beneficiaries of Defendants’ services are “consumers” for FDUTPA’s purposes. See 

(Mot. (DE [185] at 13 (citing Beacon Prop. Mgmt., 890 So. 2d at 275–76)). However, that 

case concerned a plaintiff who, as an assignee of a leaseholder, was allowed to step into 

the shoes of the leaseholder to hold the landlord defendant accountable for its actions. 

See 890 So. 2d at 275. Here, this Court strains to see how Plaintiff is a third-party 

beneficiary of Defendants’ services when the self-funded health plans pay Defendants’ 

fees and, in exchange, receive cost containment services. 

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c. Whether Memorial Provided Sufficient Evidence to Demonstrate 

Consumer Detriment

Third and finally, Plaintiff argues that reconsideration is merited where it has 

adequately shown that reasonable patients were injured or likely to be injured. See 

(Motion (DE [185] at 14–19)). Plaintiff maintains that consumer detriment under FDUTPA 

“requires a showing of ‘probable, not possible, deception’ that is likely to cause injury to 

a reasonable relying consumer.” Id. at 14 (citing Zlotnick v. Premier Sales Grp., Inc., 480 

F.3d 1281, 1284 (11th Cir. 2007)) (emphasis in original). Setting aside the fact that 

Zlotnick contemplates the evidentiary standard at the motion to dismiss stage, Plaintiff’s 

arguments do not identify any manifest error in this Court’s analysis. This Court 

considered Plaintiff’s arguments, including the five exhibits Plaintiffs cited as evidence of 

harm to ELAP members, in its original Order. See Order at 21–22. Ultimately, the Court 

found that the risk of harm via balance billing did not come to fruition where Plaintiff could

not demonstrate that it was able to collect on the few balance bills it sent to ELAP 

members, where its corporate representative conceded that it had not balance billed in 

nearly seven years, and where Plaintiff repeatedly stated that ELAP “uniformly” protected 

its members from balance billing. (Pl.’s Opp. (DE [155] at 6)). In the instant Motion,

Plaintiff highlights non-economic harm to ELAP members, including that ELAP members 

risked appointment cancellations and treatment refusal. See (Mot. (DE [185] at 15)). To 

the extent that Plaintiff underscores non-economic harm now, when it was originally 

presented in a footnote of its Opposition, the Court finds it insufficient to compel

reconsideration of its original analysis. See (Pl.’s Opp. (DE [155] at 19 n.9)) (citing Pl.’s 

Reply SOMF (DE [156] at ¶ 43)) (“. . . in the few cases where Memorial was able to detect 

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ELAP’s involvement, it canceled nonemergent appointments or took other steps to avoid 

[Reference Based Pricing].”). Accordingly, it is hereby

ORDERED AND ADJUDGED that Plaintiff South Broward Hospital District’s 

Motion for Reconsideration of the Court’s Opinion and Order Granting Summary 

Judgment (DE [185]) and (DE [186]) is DENIED. 

DONE AND ORDERED in Chambers in Fort Lauderdale, Florida, this 4th day of 

January 2024.

Copies furnished to Counsel of Record via CM/ECF

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