UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

GOVERNMENT EMPLOYEES INS. CO.; et al Case No.: 20-CV-22044-JEM

Plaintiffs,

v.

MANUEL V. FEIJOO, MANUEL V. FEIJOO, M.D., 

P.A., WE CARE MEDICAL SERVICES, INC, MANUEL

MARTINEZ VARELA, TONY NGUYEN, D.O.; NEW 

LIFE CLINICAL SERVICES, INC, ALEAN MACHADO, 

JOSE ESTEVEZ, YOANDRA RODRIGUEZ, ACCIDENT 

REHAB ASSC. INC, d/b/a AMERICAN MEDICAL & 

REHAB CENTER, ALEJANDRO VAZQUEZ, MARIA 

VAZQUEZ, ERICK SALADO, M.D., MIAMI MEDICAL

GROUP, INC., JUAN JIMENEZ, GRACIELA JIMENEZ, 

JOSE MARQUEZ, M.D., MARIA NODARSE, D.C., 

YARA VAZQUEZ and HAI UZAN

Defendants.

 /

DEFENDANT FEIJOO’s

MOTION TO DISMISS COUNT 1 OF THE AMENDED COMPLAINT

Defendants, MANUEL V. FEIJOO, and MANUEL V. FEIJOO, M.D., P.A., (collectively

“Feijoo”) move to dismiss Count 1 of Plaintiffs’ Amended Complaint, for Declaratory Relief, ¶64-

69, per the Court’s Order of March 19, 2021, ECF Doc No. 109), and in support thereof state: 

Geico’sCount 1 of the Amended Complaint fails to comply with the Court’s concerns stated

in the Court’s Order of March 19, 2021, ECF Doc No. 109. The Court noted that:

In Count I of the Complaint, GEICO seeks declaratory relief pursuant to the Declaratory

Judgment Act, 28 U.S.C. §§ 2201–02. Specifically, GEICO seeks a judgment declaring that

“Feijoo, P.A., We Care, New Life, Accident Rehab, and Miami Medical have no right to

receive payment for any pending bills submitted to GEICO.” Compl. ¶ 888 (emphasis

added). According to GEICO, there remains more than $75,000.00 in pending fraudulent

claims submitted. Id. ¶ 886. The Supreme Court has noted that “district courts possess

discretion in determining whether and when to entertain an action under the Declaratory

Judgment Act, even when the suit otherwise satisfies subject matter jurisdiction

prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 289 (1995). Courts in this Circuit

have differed as to whether allegations of this kind create a justiciable controversy under

Article III of the United States Constitution. Compare Gov’t Emps Ins. Co. v. Alternative

Med. Ctr. of Fla., Inc., No. 16-24035-CIV, 2017 WL 9360860, at *3 (S.D. Fla. June 30,

2017) (finding that there is a “substantial controversy” as to “whether GEICO is required to

Case 1:20-cv-22044-JEM Document 116 Entered on FLSD Docket 04/21/2021 Page 1 of 6
pay the allegedly fraudulent bills submitted by [defendants]”) with KJ Chiropractic Ctr.

LLC, 2013 WL 12155947, at *7–8 (finding that the majority of the declaratory relief sought

by GEICO was “addressed to injuries alleged to have occurred in the past,” and therefore

insufficient to assert a justiciable controversy under the Declaratory Judgment Act). 

For purposes of this case, the Court takes issue with a few things. First, “Plaintiffs seeks

several declarationsregarding a variety of contested legal and factual issues against differing

Defendants, all in one count.” KJ Chiropractic Ctr. LLC, 2013 WL 12155947, at *7. What’s

more, GEICO seeks blanket relief as to any of the pending claims from all Defendants,

without parsing which amount is attributed to each or how each pending claim is alleged to

be fraudulent. This violates the pleading standards set forth in Federal Rules of Civil

Procedure 8 and 10. See Fed. R. Civ. P. 10 (each claim to be stated in a separate count); see

also KJ Chiropractic Ctr. LLC, 2013 WL 12155947, at *7. As such, Count I is dismissed

without prejudice. 

Here, Geico has failed this Court’s guidance, and has merely repeated its boilerplate claims

against each Clinic, but now in five separate counts. Plaintiffs still seeks blanket relief as to any of

the pending claims without specifying how each pending claim is alleged to be fraudulent. Indeed,

Geico merely alleges:

66. Feijoo P.A has no right to receive payment for any pending bills submitted to GEICO

because: (i) Feijoo P.A. was unlawfully operated in violation ofthe Clinic Act, Patient Brokering

Act, and Self-Referral Act; (ii) the underlying Fraudulent Services were not lawfully provided

or billed to GEICO; (iii) the underlying Fraudulent Services were not medically necessary and

were provided – to the extent that they were provided at all – pursuant to pre-determined

fraudulent protocols designed solely to financially enrich Feijoo and Feijoo P.A., rather than to

treat or otherwise benefit the Insureds who purportedly were subjected to them; (iv) in many

cases, the Fraudulent Services never were provided in the first instance; and (v) the billing codes

used forthe underlying Fraudulent Services misrepresented and exaggerated the level of services

that purportedly were provided in order to inflate the charges submitted to GEICO.

67. Accordingly, GEICO requests a judgment pursuant to the Declaratory Judgment Act, 28

U.S.C. §§ 2201 and 2202, declaring that Feijoo P.A. has no right to receive payment for any

pending bills submitted to GEICO.

As this Court has already stated, this violates the pleading standards set forth in Federal Rules of

Civil Procedure 8 and 10. 

Moreover, there is no need for declaratory relief. If the claims are found by the jury to be

fraudulent, Geico does not need the Court to declare that they do not have to be paid. And if they

are not, and Geico has other grounds to challenge a claim, such as a $100 difference between a level

3 and a level four intial or follow-up evaluation 99203 vs a 99204 code, they can do though the PIP

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Case 1:20-cv-22044-JEM Document 116 Entered on FLSD Docket 04/21/2021 Page 2 of 6
system, as spelled out in Miami Medical’s Motion to Dismiss(as to Count 30) and Feijoo adopts and

incorporates herein their motion and memorandum of law. The claim for declaratory relief, if

permitted to proceed, would effectively act as injunctive relief enjoining all state court proceedings

which are presently pending or which may be filed by Miami Medical for GEICO’s denials of PIP

payments without any actual consideration. The federal Anti-Injunction Act, however, precludes such

an action. See 28 U.S.C. §2283 (“A court of the United States may not grant an injunction to stay

proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in

aid of its jurisdiction, or to protect or effectuate its judgments.”). The Court should dismiss GEICO’s

claim for declaratory relief under the Burford abstention doctrine. Federal courts “must” abstain under

Burford “(1) when there are difficult questions of state law bearing on policy problems of substantial

public import whose importance transcends the result in the case then at bar; or (2) where the exercise

of federal review of the question in a case and in similar cases would be disruptive of state efforts to

establish a coherent policy with respect to a matter of substantial public concern.” Boyes v. Shell Oil

Prods. Co., 199 F.3d 1260, 1265 (11th Cir. 2000)(quoting New Orleans Pub. Serv. v. Council of the

City of New Orleans, 491 U.S. 350, 361 (1989)). Burford abstention aims to “protect complex state

administrative processes from undue federal interference.” Id.

Here, Florida’s PIP statute provides a mechanism for State Farm to challenge any bills that

it has not yet paid. Furthermore, if the party's concern is the threat of future injury, “[t]here must be

a substantial likelihood that the plaintiff will suffer [such] future injury: a ‘perhaps' or ‘maybe’

chance is not enough.” Malowney v. Fed. Collection Dep. Group, 193 F.3d 1342, 1347 (11th Cir.

1999). “The remote possibility that a future injury may happen is not sufficient to satisfy the ‘actual

controversy’ requirement for declaratory judgments.” Malowney, 193 F.3d at 1347. Indeed, even a

“well-founded” concern is insufficient to create a justiciable controversyif it is based on speculation.

Atlanta Gas Light, supra, 68 F.3d at 415.

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Case 1:20-cv-22044-JEM Document 116 Entered on FLSD Docket 04/21/2021 Page 3 of 6
In GAF Bldg. Materials Corp. v. Robert Bosch Tools Corp., 90 F.3d 479, 481 (Fed. Cir.

1996), the Federal Circuit affirmed the dismissal of a dec action in a patent case, noting that “the

dispute was purely hypothetical and called for an impermissible advisory opinion.” See also, Black

& Decker, Inc. v. Robert Bosch Tool Corp., 371 F. Supp. 2d 965, 970 (N.D. Ill. 2005) (dismissing

a counterclaim seeking declaratory judgment that a pending patent application was unenforceable

due to inequitable conduct); Axis Surplus Ins. Co. v. Contravest Constr. Co, 921 F.Supp.2d 1338

(M.D. Fla. 2012)(dismissing dec action as premature when coverage had not yet been denied).

In this Court’s Opinion in State Farm Mut. Auto. Ins. Co. v. Performance Orthopaedics &

Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1331-32 (S.D. Fla. 2017), the Court dismissed State

Farm’s declaratory judgment action. There, the Court stated:

However, unlike the statutes undergirding the Silver Star plaintiff's unjust enrichment claim,

none of the statutes in question here provide that "[a]ll charges or reimbursement claims

made" in violation of these statutes, are "unlawful" or "noncompensable" or "unenforceable,"

Silver Star, 739 F.3d at 583. Plaintiff does not cite any authority standing for the proposition

that any services provided by a party violating one of the statutes in question are not owed

or otherwise not enforceable

Id. The same rationale should apply herein, and therefore this action should be dismissed.

Geico is simply creating extra and unnecessary work for the Court and the parties and

Geico’s First Cause of Action, should be dismissed with prejudice. 

WHEREFORE, Defendants, Dr. Feijoo and his P.A., move to dismiss Count 1.

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on April 21, 2021, e foregoing document with the Clerk of Court

using the CM/ECF system and that a copy was electronically served upon all persons on the below

service list in the mannerspecified, either via transmission of Notices of Electronic Filing generated

by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized

to receive electronically Notices of Electronic Filing

THE PIVNIK LAW FIRM

7700 N. Kendal Drive, Suite 703

Miami, FL 33156

Tel: 305-670-0095

Email: Pivniklaw@aol.com

Jpivnik@Pivniklaw.com

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Case 1:20-cv-22044-JEM Document 116 Entered on FLSD Docket 04/21/2021 Page 4 of 6
By: /s/ Jerome A. Pivnik 

 Jerome A. Pivnik, Esq.

 Fla. Bar No.: 400408

SERVICE LIST - Case No.: 20-CV-22044-JEM

For Geico Plaintiffs: 

John P. Marino (FBN 814539) 

Lindsey R. Trowell (FBN 678783) 

Kristen Wenger (FBN 92136) 

SMITH, GAMBRELL & RUSSELL, LLP 

50 North Laura Street, Suite 2600 

Jacksonville, Florida 32202 

Phone: (904) 598-6100 

Facsimile: (904) 598-6204 

ltrowell@sgrlaw.com 

jmarino@sgrlaw.com 

kwenger@sgrlaw.com 

Yonatan Bernstein

RIVKIN RADLER LLP 

926 RXR Plaza 

Uniondale, New York 11550 

Phone: (516) 357-3000 

Facsimile: (516) 357-3333 

max.gershenoff@rivkin.com 

yonatan.bernstein@rivkin.com 

For Defendants: 

MIAMI MEDICAL GROUP, INC., JUAN JIMENEZ, GRACIELA JIMENEZ, JOSE

MARQUEZ, M.D., MARIA NODARSE, D.C., YARA VAZQUEZ AND HAI UZAN 

Kenneth Schurr, Esq. 

2030 S. Douglas Rd. 

Coral Gables, FLA 33134 

305-441-9031

CounselKen@schurrlaw.com

kbsservice@schurrlaw.com

Andrew P. Baratta, Esq.

Baratta, Russell & Baratta 

3500 Reading Way

Huntingdon Valley, Pa. 19006 

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Case 1:20-cv-22044-JEM Document 116 Entered on FLSD Docket 04/21/2021 Page 5 of 6
215-914-2222 

215-914-2118 (facsimile) 

andrew@barattarussell.com 

For Defendants: 

ACCIDENT REHAB ASSOCIATES INC, d/b/a AMERICAN MEDICAL & REHAB

CENTER, ALEJANDRO VASQUEZ, MARIA VASQUEZ, and ERICK SALADO, MD., 

Ronald E. D’Anna

Florida Bar No.: 357405

D’ANNA LEGAL, PLLC

2000 Glades Road, Suite 300

Boca Raton, Florida 33431

Telephone: (561) 962-6563, (561) 866-6122

rdanna@dannalegal.com;

lheron@dannalegal.com

For Defendants: 

WE CARE MEDICAL SERVICES, INC, and MANUEL MARTINEZ VARELA

Law Offices of Carlos Cruanes, P.A.

815 N.W. 57th Avenue, Suite 401

Miami, Florida 33126

Telephone: (786) 378-8189

Facsimile: (305) 631-1816

For Defendants: 

NEW LIFE CLINICAL SERVICES, INC., ALEAN MACHADO, 

JOSE ESTEVEZ, YOANDRA RODRIGUEZ

Alexander Alvarez, Esq.

The Alvarez Law Firm

3251 Ponce de Leon Blvd, Coral Gables, FL 33134

Alex@AAlvarezlawfirm.com

Anamaire@AAlvarezlawfirm.com

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