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 

MOTION TO DISMISS AND TO STRIKE

Defendants, DR. MANUEL V. FEIJOO, and MANUEL V. FEIJOO, M.D., P.A., 

(collectively “Feijoo”) pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b) move to 

dismiss the causes of action alleged against them, and pursuant to Rule 12(f), move to strike certain 

portions of the complaint and in support thereof state: 

The Complaint filed by the Geico Plaintiffs (“Geico”) consists of 312 pages, 1133 pghs 

(excluding sup-parts), 34 causes of action against the five medical groups and 14 doctors/medical 

provider Defendants and 400 pages of exhibits. Exhibit 1 is a spread sheet of Dr. Feijoo’s bills to 

Geico going back to 2013, and is 89 pages long and summarizes 11,129 bills, entitled “RICO 

events.” Exhibits 2-5 are similar ones for the We Care, New Life, Accident Rehab and Miami 

Medical defendants. 

In short, the 34 counts allege that the Defendants violated the Florida’s Health Care Clinic 

Act, Fla. Stat. § 400.9935 (The Clinic Act), the Patient Brokering Act, Fla. Stat § 817.505 and the 

Florida’s Patient Self-Referral Act, Fla. Stat. § 456.053 (the “Self-Referral Act”); thus precluding 

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and indeed alleging it to be a crime, each time Feijoo and the other providers billed GEICO for 

treatment provided to its insureds, and in Feijoo’s case for what appear to be each and every one 

of his bills over the last seven years. See Complaint, ¶2. The gist of the allegations against the 

Defendants, including, Dr. Feijoo, and his Professional Association. can be found in ¶3, where 

Geico states that “3. Defendants fall into the following categories: 

(i) Defendant Feijoo P.A., through which the Fraudulent Services purportedly were 

performed and were billed to insurance companies, including GEICO, falsely purported to 

be a properly-exempted health care clinic under the Clinic Act, and operated in pervasive 

violation of Florida’s Clinic Act, the Patient Brokering Act, and the Self-Referral Act. 

(ii) Defendants We Care, New Life, Accident Rehab, and Miami Medical, through which 

the Fraudulent Services purportedly were performed and billed to insurance companies, 

including GEICO, falsely purported to be properly-licensed health care clinics that 

operated in compliance with the licensing and operating requirements set forth in the Clinic 

Act.

(iii) Defendant Manuel Feijoo (“Feijoo”) is a physician licensed to practice medicine in 

Florida, was the owner of Feijoo P.A., purported to perform virtually all the Fraudulent 

Services at Feijoo P.A., and also purported to perform a significant amount of the 

Fraudulent Services at We Care, New Life, Accident Rehab, and Miami Medical. 

In Section I of the Complaint, entitled “An Overview of the Pertinent Law Governing No-Fault 

Insurance Reimbursement,” Geico provides its summary of the three acts. See Complaint, pages 

12-20. In Sections I – A & B, Geico discusses Florida Motor Vehicle No-Fault Law (the “No-Fault 

Law”, Fla. Stat. §§ 627.730-627.7405), which requires automobile insurers to provide Personal 

Injury Protection benefits (“PIP Benefits”) to Insureds, and the reimbursement duties and 

obligations under the Statute. Then in Sections C-E, Geico discusses how the “No-Fault Law” (or 

PIP statute) relates to the Clinic Act, the Patient Brokering Act, and the Self-Referral Act. In 

Sections H–I, Geico discusses the requirements that insurers only have to pay for treatment that is 

medical necessary, what treatment can or cannot be billed (e.g., massage) and the requirements of 

billing on HCFA-1500 forms and in accordance with the AMA guidelines.

In Section II, entitled “Defendants’ Fraudulent Schemes” Geico attempts to allege how 

Feijoo, and the other Defendants, violated the three acts and Florida PIP law. However, the 

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complaint improperly lumps Dr. Feijoo in with the other Defendants for their billing practices 

without stating with particularity any fraud on the part of Dr. Feijoo.

In II(A) starting at page 20, ¶81, Geico purports to allege how all the Defendants violated 

The Clinic Act. Section II (A)(1) relate to Dr. Feijoo failed to supervise himself at his own clinic. 

Section II(B) alleges that the other clinics violated the Clinic Act by not having a real Medical 

Director and making fraudulent misrepresentations about the level of supervision by the doctors 

listed on the bills, including Dr. Feijoo. Section II-C, starting at page 81, purports to allege how 

all the Defendants violated The Patient Brokering Act. In Section II-D, starting at page 85 (Clearly, 

this complaint is so cumbersome it should have come with a table of contents) purports to allege 

how all the Defendants violated the Self-Referral Act.

Section II-E discusses how Defendants purportedly violated Florida’s “Billing Protocols” 

under the no fault law. II-E boils down to allegations that the doctors “upcoded” e.g., billed for an 

initial evaluation with a CPT code of 99204 that Geico feels should have been billed at a lower 

number, based on the CPT guides. E.g. ¶366. Geico even alleged that these very claims have been 

the subject of numerous PIP lawsuits between Geico and the Feijoo, (and Geico and each of the 

clinics) and although beyond the four corners of the complaint, it will be shown that these billing 

practices have already been litigated resulting in findings adverse to Geico.

The Causes of Action Against Feijoo

The first Count is a Declaratory Judgment Action against the five medical clinics: Feijoo 

P.A., We Care, New Life, Accident Rehab, and Miami Medical and is the only count against 

all the clinics. The remaining counts against the Feijoo defendants can be broken down into the 

following categories:

1. Counts 2-6 are against only the Feijoo Defendants and are for RICO, Violation of 

Fla. Stat. §501.201, Violation of Fla. Stat. §772.103(3), Common law Fraud and 

Unjust Enrichment. GEICO incorporates each and every allegation in paragraphs 

1-88, 332-520, and 873-884 into those causes.

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2. Counts 8 and 11 are against Martinez, Nguyen, and Feijoo for Violation of RICO, 

and Fla. Stat. §772.103(4), respectively, and appear to be related to allegations 

against the We Care clinic. The counts incorporates each and every allegation in 

paragraphs 1-105, 158-202, 332-338, 346-363, 521-539, and 873-884.

3. Counts 15 and 18 follow the same pattern and appear to be related to the New Life 

defendants. The counts incorporate every allegation in paragraphs 1-82, 106-122, 

157, 203-246, 339-363, 540-557, and 873-884.

4. Counts 22 and 25 follow the same pattern and appear to be related to the Accident 

Rehab defendants. The counts incorporate every allegation in paragraphs 1-82, 

123-138, 247-284, 358-363, 558-700, and 873-884.

5. Counts 29 and 32 follow the same pattern and appear to be related to the Miami 

Medical defendants. The counts incorporate every allegation in paragraphs 1-82, 

139-157, 285-331, 358-363, and 701-884.

The reality of the suit is that the medical provider Defendants have sued Geico in small 

claims court to get paid for their treatment of patients that happen to be insureds under Geico’s 

PIP coverage. Geico has for years lost most of those cases. This suit is a retaliation against the 

medical providers herein by grouping them together for unrelated patients/treatments and matters. 

Memorandum of Law

A. Motion to Dismiss

1. Legal Standard

The legal standard for motions to dismiss have been well briefed by the other defendants 

and in the sake of brevity is not repeated herein.

2. Geico Alleges A Billing Dispute But Fails To State A Plausible Claim For Fraud

Geico fails to comply with Rules 8 and Rule regarding notice pleading and stating fraud 

with particularity. Although the complaint is massive, its similar complaint in Gov't Emples. Ins. 

Co. v. A&C Med. Ctr. Servs., Corp., 2019 U.S. Dist. LEXIS 133568 (S.D. Fla. 2019)(Martinez, J.) was 

dismissed and GEICO was ordered to file a shorter version of its complaint. Unlike the complaint in 

A & C, however, Geico’s pleading deficiencies go further, particularly with regard to its averments 

directed to Dr. Feijoo and his clinic.

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GEICO’s Complaint attempts to elevate a dispute about the technical requirements of PIP 

billing into a salacious RICO conspiracy. It does so solely on the bald conclusion that a medical 

doctor who submits a bill for straightforward physical therapy services, provided under the 

doctor’s general or indirect supervision by people specially trained in the provision of such 

services, does so intending to commit criminal fraud. And in Fejioo’s case, at least with respect 

to the first six causes of action that only relate to Dr Feijoo’s patient treatment by himself in his 

own offices (in contrast to the other counts relating to his occasionally seeing patients at the other 

clinics, the allegations fail to state with particularity how he could have treated his patients by 

indirect supervision. The Complaint (even the examples) are purely legal conclusions logically 

impossible on its face. It posits that the Feijoo and his clinic, and the other Defendants must have 

committed criminal fraud because each of their records so obviously reflected unnecessary and 

unreasonable care that anyone “legitimately” reviewing any one them would have concluded 

immediately upon doing so that each was entirely fraudulent...except for the GEICO PIP adjusters 

who paid for the treatment over and over and over again.

Every cause of action alleged by GEICO is premised implausible accusations of criminal 

fraud. As detailed below, however, GEICO’s self-serving legal conclusions and circular reasoning 

fail in all respects to serve as plausible bases for alleging intentional fraud, and each one of 

GEICO’s causes of action therefore fail to state a claim as a matter of law.

3. The Clinic Act and Patients Seen by Feijoo at his Own Clinic

Feijoo adopts and incorporates herein the argument of the Miami Medical Defendants in 

their motion to dismiss, pages 9-19 and the legal arguments therein. In ¶50, Geico alleges that:

50. However, the Clinic Act provides an exemption from the clinic licensing requirements 

for: A sole proprietorship, group practice, partnership, or corporation that provides health 

care services by licensed health care practitioners . . . that is wholly owned by one or 

more licensed health care practitioners, or the licensed health care practitioners set 

forth in this paragraph and the spouse, parent, child, or sibling of a licensed health 

care practitioner if one of the owners who is a licensed health care practitioner is 

supervising the business activities and is legally responsible for the entity's compliance 

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with all federal and state laws. However, a health care practitioner may not supervise 

services beyond the scope of the practitioner's license  . 

Fla. Stat. § 400.9905(4)(g)(emphasis added). 

In ¶s 80-86, Geico makes the absurd and unsupported allegation that Feijoo PA is not exempt from 

the Clinic Act, because Feijoo failed to supervise himself and his P.A.. See ¶86 “ there is simply 

no way that Feijoo could have legitimately supervised the business activities of Feijoo P.A. to 

ensure that the billing was not fraudulent or ensure compliance with all applicable federal and state 

laws as required by the Clinic Act.” The Complaint fails to allege with particularity any fraudulent 

scheme by Feijoo with respect to patients he has seen at his own medical practice.

4. The Clinic Act and Patients Seen by Feijoo at other Clinics

As for the other clinics, Geico alleges Dr. Feijoo occasionally saw patients at We Care, 

New Life, Accident Rehab, and Miami Medical, but nowhere in the complaint does Geico allege 

with sufficient particularity how that is a fraudulent practice.

For example, (and to borrow from the motion filed by the Miami Medical Defendants) 

GEICO alleges that Miami Medical violated Florida’s Health Care Clinic Act (Fla. Stat. § 

400.9935), based on the conclusory accusation that its Medical Director, Jose Marquez, M.D. 

“never conducted systematic reviews” of Miami Medical’s billings to ensure “that the billing was 

not fraudulent or unlawful” and permitted Miami Medical to “misrepresent” the identities of the 

treating providers. See ECF 1, ¶147-150. GEICO further alleges that criminal fraud was 

committed because the doctors under whose names “virtually all” of the at issue bills were 

submitted – Feijoo and Nodarse – were “most likely” not physically present in the room when in 

each physical therapy service they had prescribed was provided by their assistants. See ECF, ¶296-

297. The heart of GEICO’s criminal indictment against Feijoo and his evaluation and or treatment 

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of patients at the Miami Medical is found in paragraphs 312-316. Therein, GEICO weaves a tale 

of statutory divination, starting with Florida’s PIP statute, moving next to the Medicare Claims 

Processing Manual, and ending with the Code of Federal Regulations. 

GEICO is certainly entitled to use this legal opinion, however self-serving it may be, to 

justify its denials of PIP bills. But GEICO goes far further, alleging that Miami Medical, by billing 

for physical therapy services under the names of Dr. Feijoo, and/or Dr. Nodarse when it appears 

that both doctors were not always physically present within the room when each such service was 

rendered by their assistants, committed intentional fraud.

Though GEICO tries to obscure reality with a sheer volume of parties and words, its entire

allegation of fraud boils down to its purely legal conclusion about the level of supervision required. 

Every “fact” pleaded by GEICO is designed solely to show that it is “improbable” that the doctors’ 

level of supervision met the definition of “direct supervision” which GEICO concludes is so 

obviously required that anyone who bills otherwise is a RICO conspirator. 

But if the level of supervision required of a licensed doctor over therapy treatments 

provided for what GEICO calls “low-severity” injuries is not in fact required to be “direct” as 

GEICO has defined it, then GEICO has failed to plausibly allege even one single false

representation, much less the grand criminal conspiracy it accuses Feijoo of masterminding – with 

himself for his own clinic, or with respect to the other clinics.

This is because, by its own pleading, GEICO concedes that the bills for We Care, Accident 

Rehab, New Life or Miami Medical’s bills were entirely accurate if, for example with respect to 

Miami Medical, Dr. Marquez, Dr. Feijoo and/or Dr. Nodarse provided an appropriate level of 

supervision. GEICO admits that every note reflecting the services provided by nonphysician 

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personnel was signed and acknowledged to have been entirely provided by the nonphysician 

personnel who performed them. GEICO could therefore never have paid a single bill under the 

false impression that Dr. Marquez, Dr. Feijoo or Dr. Nodarse had performed them personally. See

ECF 1, ¶320 (i-x). By paying Miami Medical’s bills, GEICO acknowledged that if Dr. Marquez, 

Dr. Feijoo and/or Dr. Nodarse provided an appropriate level of supervision, whatever that may be, 

then all of Miami Medical’s were perfectly accurate and GEICO has failed to allege a plausible 

basis even to deny a single bill. 

But even if GEICO’s self-serving legal conclusion and definition concerning “direct” 

supervision is ultimately determined to be correct, its allegation of knowing fraud cannot be 

considered plausible. GEICO has, at best, only alleged facts to support an inference that Dr. 

Marquez, Dr. Feijoo and/or Dr. Nodarse were not physically in the room while some undefined 

number of more than 23,000 billed services were provided. GEICO has not plead any facts as to 

the level of supervision the doctors actually provided, nor any facts to demonstrate that Miami 

Medical knew they were billing incorrectly (if they even were). 

Accordingly, all claims against the Feijoo Defendants premised on violation of the Clinic 

Act should be dismissed for failing to state fraud with particularity.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient 

factual matter, which, if accepted as true, would state a claim to relief that is plausible on its face. 

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 

draw the reasonable inference that the defendant is liable for the misconduct alleged. The court, 

however, is not bound to accept as true a legal conclusion stated as a “factual allegation” in 

the complaint. Asbury v. Slider, 2020 WL 871097, at *2 (M.D. Fla. Feb. 21, 2020), citing Ashcroft 

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v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2))(emphases added).

The “plausibility standard requires that the allegations be more than merely conceivable.” 

Pavic v. Laser Spine Inst., LLC, No. 8:13-CV-02578-EAK, 2014 WL 2707953, at *1 (M.D. Fla. 

June 13, 2014), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Application of this 

standard follows two analytical principles. First, the court will not presume the truth of a 

complaint's legal conclusions. Second, a complaint's well-pleaded factual allegations must allow 

the court to infer the plausibility, rather than the mere possibility, that the plaintiff is entitled to 

the relief sought.” Pavic v. Laser Spine Inst., LLC, No. 8:13-CV-02578-EAK, 2014 WL 2707953, 

at *1 (M.D. Fla. June 13, 2014) (emphasis added). 

The implausibility of GEICO’s FDUTPA claims in this case is demonstrated by its 

admitted failure to conduct itself as a reasonable consumer would have under the same 

circumstances. Cluck-U Chicken, Inc. v. Cluck-U Corp., 2017 WL 10275957, at *9 (M.D. Fla. 

June 6, 2017), citing Cold Stone Creamery, Inc. v. Lenora Foods I, LLC, 332 F. App'x 565, 567 

(11th Cir. 2009). GEICO’s own Complaint establishes that a consumer acting reasonably in the 

same circumstances would not have been deceived by either Dr. Feijoo or and of the physicians 

from the other clinics whose name appearing in box 31 of the HCFA forms submitted by Feijoo 

PA, or by the other Clinics. 

Exhibit 1 to GEICO’s Complaint purports to identify over 11,000 individual services 

provided at Feijoo’s Clinic (and thousands of other services at the other clinics) each one of which 

it alleges to have been fraudulently billed. However, in characterizing the fraud alleged to have 

been committed with respect to each of these services, GEICO repeatedly adds the caveats “in 

many cases” and “to the extent they were provided at all.” (See Complaint generally). These 

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caveats create multiple theories of fraud with respect to each date of service and render the entire 

Complaint insufficiently specific. See Urdaneta v. JP Morgan Chase Bank, N.A., 2010 WL 

11504729, at *2 (S.D. Fla. Jan. 22, 2010)(“By proposing alternative theories, Plaintiffs fail to state 

their fraud claim with specificity.”). A complaint is adequate if it contains "a short and plain 

statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)2. When 

a complaint indiscriminately lumps all defendants together, it fails to comply with Rule 8. See 

Lane v. Capital Acquisitions & Mgmt., Co., No. 04-60602 CIV, 2006 WL 4590705, at *5 (S.D. 

Fla. Apr. 14, 2006) ("By lumping all the defendants together in each claim and providing no factual 

basis to distinguish their conduct, the Complaint fails to satisfy the minimum standard of Rule 8). 

While a complaint against multiple defendants may be "read as making the same allegation against 

each defendant individually," the "factual allegations must give each defendant 'fair notice' of the 

nature of the claim and the 'grounds' on which the claim rests." George & Co., LLC 

v. Alibaba.com, Inc., No. 2:10-cv-719-FtM-29DNF, 2011 WL 6181940 at * 2 (M.D. Fla. Dec. 13, 

2011) (citations omitted). In addition to satisfying Rule 8(a), a complaint asserting a fraud claim 

must also satisfy the heightened pleading requirements of Rule 9(b), stating "with particularity the 

circumstances constituting fraud." Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 

2008); see also Edward J. Goodman Life Income Trust v. Jabil Circuit, Inc., 594 F.3d 783, 789 

(11th Cir. 2010) (citations omitted). Rule 9(b) is satisfied where the complaint states:

(1) precisely what statements were made in what documents or oral representations or 

what omissions were made, and (2) the time and place of each such statement and the 

person responsible for making (or, in the case of omissions, not making) same, and 

(3) the content of such statements and the manner in which they misled the plaintiff, 

and (4) what the defendants obtained as a consequence of the fraud.

Mizzaro, at 1237. Geico’s complaint that Feijoo violated the Clinic Act, wither with respect 

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to patients he saw at his own clinic (Counts 1-6) or patients he saw at the other Defendants’ Clinics 

(Counts 8, 11 – the We Care clinic; Counts 15 and 18 - the New Life clinic, Counts 22 and 25

- the Accident Rehab defendants as well as Counts 29 and 32 – Miami Medical) are not plausible 

on their face and not stated with particularity and should be dismissed).

5. Alleged Violations of The Patient Brokering Act, Fla. Stat § 817.505

In Section II-C, starting at page 81, the complaint purports to allege how all the Defendants 

violated The Patient Brokering Act. Subsection C-1 discusses how the We Care defendants, 

including Feijoo, are alleged to have violated the Act. The remaining subsections are identical 

other than changing the names of the Clinic. The Complaint alleges that Florida’s Patient 

Brokering Act, Fla. Stat. § 817.505, broadly prohibits any person from offering, paying soliciting, 

or receiving any commission, bonus, rebate, kickback, or bribe – directly or indirectly, in cash or 

in kind – or from engaging in any fee-splitting arrangement of any type whatsoever, to either 

induce a patient referral or in exchange for a patient referral ¶59. So, for example, in ¶334, it is 

alleged that Feijoo routinely referred patients to the We Care Clinic in exchange for compensation. 

As stated above, what is lacking overall, and particularly with respect to Dr. Feijoo are allegations 

stating this fraudulent conduct with particularity as required by Rule 9.

If this were a criminal indictment, the State would have to allege what remuneration Dr. 

Feijoo allegedly received, his intent to violate the statute, and the details of the alleged fee-splitting 

arrangement. As an example, a complaint that was found to have satisfied the requirements of 

pleading violation of the statutes is found in State Farm Mut. Auto. Ins. Co. v. Performance 

Orthopaedics & Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1331-32 (S.D. Fla. 2017) wherein 

Judge Moore denied a motion to dismiss several similar counts (though he granted it as to the 

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declaratory judgment count and as to certain individual medical providers). There the Court noted 

the allegations were:

This scheme consisted of two allegedly “unlawful referral arrangements,” id. ¶ 121. The 

first such arrangement (the “Metropolitan Arrangement”) took place from early 2012 

through April 2014. Id. ¶ 6. During that time, Calhoun, a medical practice which 

specialized in orthopedic treatment and surgery, referred patients to Metropolitan, a 

surgical facility where Calhoun’s physicians would perform surgery. Id. ¶ 6. Prior to 

treatment, Calhoun required each patient to execute a Letter of Promise (or “LOP”), which 

provided that Calhoun would be paid from any settlement, judgment, or verdict rendered 

in connection with the patient’s personal injury claim. Id. ¶ 60; see also id. ¶¶ 39–40. For 

each referred surgical procedure performed on Calhoun’s patients, Calhoun paid 

Metropolitan an all-inclusive pre-arranged price in full satisfaction of the patient’s surgical 

facility charges. Id. ¶ 6....typically pre-negotiated and based on a price list that assigned a 

specific dollar amount to particular procedures. Id. Despite this pre-arranged price, 

however, Metropolitan prepared and sent invoices to Calhoun which reflected an amount 

for Metropolitan’s services that “greatly exceeded” the amount Calhoun actually paid...

That level of particularity is absent in the subject complaint and it must be dismissed.

6. Alleged Violations of The Florida’s Patient Self-Referral Act, Fla. Stat. § 456.053

In Section II-D, starting at page 85, the complaint purports to allege how all the Defendants 

violated the Self-Referral Act. The complaint alleges Florida’s Patient Self-Referral Act, Fla. Stat. 

§ 456.053, prohibits health care providers from referring patients for certain designated health care 

services to any entity in which the health care provider is an investor or has an investment interest. 

¶63. Pursuant to the Self-Referral Act, clinics and other health care providers may not submit any 

claim for payment to any insurer for services rendered pursuant to an unlawful self-referral. See 

Fla. Stat. § 456.053(5)(c). ¶66. Here, the allegations with respect to Dr. Feijoo and any self-referral 

are conclusory and lack the requisite specificity.

7. Alleged Violations of PIP Statute Billing Protocol

The Court should abstain from litigating what is essentially a billing and coding dispute. 

The issue has been litigated in state court whether an initial evaluation should have been billed at 

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a 99204 code, or a 99203. To the extent that Geico is trying to allege that there is a fraudulent 

scheme to “up-code” bills the complaint is insufficient. Moreover, it is insufficient as to the 

allegations with respect to Feijoo and his own clinic, but it is woefully insufficient as to the Counts 

involving the counts that lump Dr. Feijoo in with the other Defendants, merely because he saw 

patients at their clinic.

Rule 9(b) requires that in alleging fraud a “party must state with particularity the 

circumstances constituting fraud.” Fed. R. Civ. P. 9(b). “Where multiple defendants are involved, 

the complaint must contain sufficient, specific allegations with respect to each defendant rather 

than lumping all defendants together.” Gov’t Employees Ins. Co. v. KJ Chiropractic Ctr. LLC 

2014 WL 12617566, at 3 (M.D. Fla. Mar. 6 2014). The complaint fails to do so as to each count 

involving Feijoo as noted below. In a nearly identical case, GIECO v. MLS Medical Group, LLC, 

et all, (Disc Ct. N.J Dec. 6, 2013) the Court dismissed Geico’s declaratory judgment action. The 

Court held:

Even assuming there is a basis for subject matter jurisdiction over the declaratory judgment 

claim, the Court will, in its discretion, decline to exercise its power to adjudicate the claim 

for a declaratory judgment under 28 U.S.C. § 2201. 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)... Heeding 

the PIP statute and governing caselaw, this Court will, in its discretion, decline to entertain 

GEICO’s claim for a declaratory judgment that MLS is not entitled to payment on its 

pending PIP claims.

A copy of the Opinion is annexed hereto as Exhibit 1. The Court also dismissed the RICO counts. 

The Court held:

Insofar as the mail fraud consists of the submission of claims to GEICO based on false 

diagnoses, non-treatment, and/or the provision of medically unnecessary treatment or tests, 

the RICO claim suffers from same deficiencies discussed by the Court above in connection 

with its analysis of the IFPA claim. The Amended Complaint describes, generally, the 

standard handling of GEICO-insured patients: patients are referred to MLS pursuant to an 

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alleged kickback arrangement and present for treatment even though they mostly have 

minor or non-existent injuries and then GEICO “routinely” bills under CPT codes that 

overstate the severity of the injury and/or correspond to medically unnecessary tests and 

treatment. It alleges that this misconduct applies to “virtually every case” and “almost 

every instance.” (See, e.g., Am. Compl. at ¶¶ 50-56.) Missing from the Amended 

Complaint are factual allegations of fraud tailored to why any individual diagnosis or 

treatment and its corresponding billing were false.

Id at p. 18-19. As to similar allegation of violation of statutes identical to Florida’s Self Referral 

Act or Patient brokering act, the Court stated at P. 19:

The generation of business by a doctor’s office through patient referrals by other doctors 

does not, without more, raise even an inference of unlawful activity, and GEICO’s 

assertion that the lease payments made by GEICO to referring physicians were simply 

kickbacks in disguise is purely conclusory. Other than GEICO’s broadbrush allegations 

that most of the patients seen by MLS through this referral arrangement were not as 

seriously injured as the CPT codes corresponding to diagnosis and treatment would reflect, 

or in some cases not injured at all, no facts support its characterization of the payments as 

kickbacks. Simply attaching this label to ostensible referral fees or lease payments does 

not transform the payments into bribery, and it does not suffice to plead with particularity 

that any MLS bill, submitted by mail to GEICO, establishes the commission of mail fraud

8. Count 1 - Declaratory Judgment

As stated by the 11th Circuit, “In all cases arising under the Declaratory Judgment Act, 28 

U.S.C. § 2201 . . . the threshold question is whether a justiciable controversy exists.” Atlanta Gas 

Light Co. v. Aetna Cas. and Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995). “The party who invokes 

a federal court’s authority must show, at an ‘irreducible minimum,’ that at the time the complaint 

was filed, he has suffered some actual or threatened injury resulting from the defendant’s conduct, 

that the injury fairly can be traced to the challenged action, and that the injury is likely to be 

redressed by favorable court disposition.” Id. In Atlanta Gas, the Eleventh Circuit concluded that 

there was no case or controversy between the parties at the time the complaint was filed and, 

therefore, ordered dismissal of the action. 68 F.3d at 415-16.

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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 controversy if it is based on 

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

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 a similar case, 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 

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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. 

Although Geico tries to avoid the defect in Performance and purports to claim that none of 

the bills are compensable, attempting to align itself with Silver Star, it has not shown that every 

bill is not compensable for the reasons stated above, i.e. that its complaint fails allege to allege a 

violation of the subject statutes: Regarding the Clinic Act, with respect to Counts 1-6, that that 

Feijoo is not exempt from the Clinic Act, and as to the remaining counts where Feijoo is only 

alleged to have occasionally seen patients at the other clinics a doctor does not have to be in the 

room the entire time that another physician or provider performs a treatment. The alleged 

violations of the Self-Referral Act and Patient Brokering act allegations are likewise insufficient.

In a nearly identical case, GIECO v. MLS Medical Group, LLC, et all, (Disc Ct. N.J Dec. 

6, 2013) the Court dismissed Geico’s declaratory judgment action as Geico could avail itself of 

the billing protocols under New Jersey’s PIP Statute holding, “Heeding the PIP statute and 

governing caselaw, this Court will, in its discretion, decline to entertain GEICO’s claim for a 

declaratory judgment that MLS is not entitled to payment on its pending PIP claims.”

9. Counts 2-6 - Counts 2-6 are against only the Feijoo Defendants and are for 

violations of RICO, §501.201, §772.103(3), Common law Fraud and Unjust Enrichment. GEICO 

incorporates every allegation in paragraphs 1-88, 332-520, and 873-884 into those causes. These 

counts relate to patients Feijoo evaluated and treated at his own clinic. As stated above, the counts 

fail to state fraud with particularity with respect to violation of the Clinic Act, or other Acts, and 

fail the plausibility requirements. Additionally, Counts 2-6 fail to meet the pleading requirements 

as set forth below.

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a. Count 2 - RICO

Count 2 essentially alleges that Feijoo used his Professional Association as a criminal 

enterprise “based upon the use of the United States mails to submit or cause to be submitted 

thousands of fraudulent charges on a continuous basis for over seven years seeking payments that 

Feijoo P.A. was not eligible to receive under the No-Fault Law because: (i) Feijoo P.A. was 

unlawfully operated in violation of the 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 the Feijoo P.A.” Complaint ¶889-893. ¶892 states that “A representative sample 

of the fraudulent bills and corresponding mailings submitted to GEICO that comprise, in part, the 

pattern of racketeering activity identified through the date of this Complaint are described, in part, 

in the chart annexed hereto as Exhibit “1”. 

To state a claim under this section, the plaintiff must establish "first, that the defendant 

committed a pattern of RICO predicate acts under 18 U.S.C. [section] 1962; second, that the 

plaintiff suffered injury to business or property; and, finally, that the defendant's racketeering 

activity proximately caused the injury." Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 705 

(11th Cir. 2014) (citations omitted; alteration added). 

As stated above, Gecio has failed to allege with sufficiency the violations of the Clinic Act, 

the Patient Brokering Act and the Self-Referral Act, as well as the alleged violation of billing 

protocols under Florida’s No Fault law to establish mail and wire fraud under RICO either in 

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Counts 2-6 pertaining to Feijo’s clinic, or with respect to the remaining counts as to Feijoo’s seeing 

patients at the other clinics.

b. Counts 8, 11, 15, 18, 22, 25, 29 and 32.

Each of the above counts attempt to allege violation of RICO, and Fla. Stat. §772.103(4), 

against Feijoo acting with the purported principals of the four other medical practices: We Care, 

New Life, Accident Rehab, and Miami Medical. As above, Geico has failed to allege with 

sufficiency the violations of the Clinic Act, the Patient Brokering Act and the Self-referral Act, as 

well as the alleged violation of billing protocols under Florida’s No Fault law to establish mail and 

wire fraud under RICO or FDUPTA, etc.

Similar deficiencies resulted in the dismissal of RICO counts in the case, Joseph v. Bernstein, et 

al, U.S. Disc. Ct., Case No. 13-24355-Civ.Altonga (S. Disc. Fla. Aug. 19. 2014) ECF 39 where 

the Court held:

Counts I and II do not satisfy Rule 8 because Plaintiff's allegations indiscriminately lump 

all five Defendants together. In Count I, Plaintiff alleges American Group engaged in 

various financial transactions. (See Am. Compl. ¶¶ 30-41). Plaintiff then claims all 

Defendants "participated, either directly or indirectly" and "conspired amongst each other" 

to engage in this activity without articulating the factual basis for each Defendant's 

liability. (Id. ¶¶ 42-43). Similarly, in Count II, Plaintiff alleges all Defendants invested or 

conspired to invest the proceeds of the racketeering activity without explaining the factual 

basis for each one's liability. (See id. ¶¶ 49-50). By lumping all Defendants together, 

Plaintiff has not "give[n] each defendant 'fair notice' of the nature of the claim and the 

'grounds' on which the claim rests." George & Co., LLC, 2011 WL 6181940, at *2 (citation 

omitted; alteration added).... Even if Plaintiff had alleged qualifying predicate acts, he has 

failed to show how these acts demonstrate a continuing pattern of criminal conduct. 

Although Plaintiff claims Defendants "conducted or participated, either directly or 

indirectly . . . [in] a pattern of racketeering activity" (Am. Compl. ¶ 42), "legal conclusions 

masquerading as facts will not prevent dismissal." Jackson, 372 F.3d at 1262 (internal 

quotations marks and citations omitted).

On June 3, 2019, Chief Judge Moore dismissed a claim by State Farm alleging FDUTPA 

violations as the result of a physician’s submissions of allegedly incorrectly coded bills and did so 

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pursuant to the heightened pleading requirements for fraud. State Farm argued that it need not 

prove fraud to prevail at trial on its FDUTPA claim. Judge Moore rejected this argument. (See

Judge Moore’s Memorandum in State Farm v. Feijoo, et. al., 18-cv-23329, ECF Doc. #56). This 

same reasoning obviously applies equally to GEICO’s unjust enrichment claim, as it, too, is based 

upon an alleged unified course of fraudulent conduct.

Accordingly, the Complaint should be dismissed in its entirety.

B. Motion to Strike

Federal Rule of Civil Procedure 12(f) permits district courts to strike from a pleading “any 

redundant, immaterial, impertinent, or scandalous matter.” On a motion to strike, a court has broad 

discretion. Badilo v. City of Deerfield Beach, No. 13-60057-CIV, 2013 WL 3762338, at *1 (S.D. 

Fla. July 16, 2013) (Rosenbaum, J.). Regardless of the Court’s ruling on the motions of dismiss of 

these and the other Defendants, the complaint is replete with allegations that are redundant, 

immaterial, impertinent, or scandalous matter that should be stricken and not be allowed in any 

amendment. For example, in ¶8, it is alleged: “8. Defendants’ fraudulent schemes are the latest in 

a long line of insurance fraud scams aimed at Florida consumers and insurers. They are part of an 

insurance fraud epidemic that – in 2014-2015 alone – led to almost 1,200 convictions in Florida. 

See Florida Department of Financial Services, Division of Insurance Fraud Annual Report for 

Fiscal Year 2014-2015.” This allegation does nothing to further the causes of action, and simply 

attempts to paint Dr. Feijoo and the other medical providers as criminals. Similarly, in ¶s 16-19, 

it is alleged:

16. Defendant Machado resides in and is a citizen of Florida. Machado purported to be the 

owner of New Life, and used New Life as a vehicle to submit fraudulent no-fault insurance 

billing to GEICO and other insurers. 

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17. Machado has a history of involvement in insurance fraud schemes. 

18. For example, on October 1, 2019, Machado was arrested in Miami and charged by the 

Miami-Dade State Attorney’s Office with Insurance Fraud, Grand Theft, Patient 

Brokering, and Organized Scheme to Defraud in connection with his activities as the owner 

of Professional Medical Practice, a physical therapy clinic in Miami. 

19. The alleged crime involved Machado offering to pay motor vehicle accident victims 

$2,500.00 to lie to insurance companies about receiving physical therapy services that were 

never provided in the first instance.

Although 16-19 do not directly relate to Feijoo, because Geico has grouped Feijoo in with New 

Life, they impact him and are not relevant to Counts 15 and 18 are against Machado, Rodriguez, 

Estevez, and Feijoo for Violation of RICO, and §772.103(4), related to allegations against the New 

Life clinic. The same rationale applies to ¶32-36.

32. For example, on March 30, 2011, the State of Florida Department of Health 

(“Department of Health”) filed an administrative complaint with the State of Florida Board 

of Chiropractic Medicine in a case entitled Department of Health vs. Maria Teresa Nodarse, 

D.C., (the “Nodarse Action”). 

33. The Department of Health alleged, among other things, that: (i) Nodarse was a 

supervising physician of record of a certified chiropractic physician’s assistant named 

Maria de las Mercedes Fuentes (“Fuentes”) from December 2004 through May, 2006 at 

Santa Clara Medical Center, Inc. (“Santa Clara”); ii) The State Attorney for the Eleventh 

Judicial Circuit in Miami-Dade County, Florida charged Fuentes with one count of patient 

brokering and two counts of false/fraudulent insurance claims in connection with her work 

at Santa Clara. Fuentes pled guilty to all three counts; (iii) The crimes to which Fuentes 

pled guilty were directly related to her duties at Santa Clara while under the supervision of 

Nodarse. 

34. Based on these allegations, the Department of Health filed the Nodarse Action against 

Nodarse for failing to provide the necessary supervision to Fuentes. 

35. On August 2, 2011, the Nodarse Action settled, which required Nodarse, among other 

things, to practice under the indirect supervision of another chiropractic physician for one 

year. 

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36. Upon information and belief, Nodarse’s history of alleged involvement in an insurance 

fraud scheme – which can be located by prospective employers, referral sources, and 

patients through a simple internet search – has made it substantially more difficult for her 

to obtain...

Id. These allegations are included to make Dr. Nordase look bad for allegedly not supervising 

Fuentes in an earlier matter; that anyone associated with Dr. Nordase must a crook and thus these 

allegations are scandalous and immaterial to any of the claims made by Geico. 

Additionally, all averments that related to medical treatment and bills of Feijoo that are 

barred by the applicable statutes of limitations, some dating back to 2013, should be stricken as 

immaterial. In ¶381, for example, the complaint alleges 

381. (i) On July 22, 2013, an Insured named JR was involved in an automobile accident. 

The contemporaneous police report indicated that the airbags in JR’s vehicle did not 

deploy, and that JR’s vehicle was drivable following the accident. The police report further 

indicated that JR was not injured in the accident. In keeping with the fact that JR was not 

seriously injured in the accident, JR did not visit any hospital emergency room following 

the accident. To the extent that JR experienced any health problems at all as the result of 

the accident, they were of low severity. Even so, following a purported initial examination 

of JR by Feijoo on July 23, 2013, Feijoo P.A. and Feijoo billed GEICO for the initial 

examination using CPT code 99204, and thereby falsely represented that JR presented with 

moderately to highly severe health problems as the result of the accident. 

There are numerous other examples. Although Geico can be permitted to allege two or more 

predicate acts, it purports to do so without having to go back seven years.

Striking allegations from a pleading “is a drastic remedy” that is not appropriate “unless 

the matter sought to be omitted has no possible relationship to the controversy, may confuse 

the issues, or otherwise prejudice a party.” Blake v. Batmasian, 318 F.R.D. 698, 700-01 (S.D. 

Fla. 2017) (Marra, J.) (Emphasis added; citations omitted); see also Gonzalez v. Sunrise Lakes 

Condominium Apartments Phase III, Inc. 4, No. 06-61575, 2007 WL 2364050, at *4 (S.D. Fla. 

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Aug. 14, 2007) (Cooke, J.) (internal quotations and citations omitted). “Prejudice results when the 

matter complained of has the effect of confusing the issues or where it is so lengthy and complex 

that it places an undue burden on the responding party.” Blake, 318 F.R.D. at 700 (internal 

quotations and citations omitted).

A motion to strike is appropriately granted if “the matter sought to be omitted has no 

possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.” 

Valentine v. Legendary Marine FWB, Inc., 309CV334/MCR/EMT, 2010 WL 1687738, at *1 (N.D. 

Fla. 2010). Under Rule 12(f), allegations are “immaterial” if they have “no important relationship 

to the claim or defense,” and are “impertinent” if they do “not relate to the issue in question.” 

Farrell v. Florida, 2:15-CV-41-FTM-38CM, 2015 WL 3454227, at *1 (M.D. Fla. 2015).

That is the case herein. Here, the above referenced allegations are immaterial, impertinent, 

or scandalous matter and should be stricken.

CONCLUSION 

GEICO’s massive complaint fails to state a cause of action and, as well-stated by the coDefendant, Miami Medical, it is designed to avoid Florida’s PIP procedures on billing disputes, 

and instead threaten medical provider who accept auto accident patients with professional and 

personal ruin by a massive federal lawsuit accusing them of criminal fraud unless they hew to 

GEICO’s standard. GEICO’s Complaint should be dismissed in its entirety, and should it be 

allowed to re-plead to strike the allegations referred to above that are immaterial and scandalous.

WHEREFORE, Defendants, Dr. Feijoo and his P.A., move to dismiss the complaint and to 

strike those allegations referred to above.

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CERTIFICATE OF GOOD FAITH CONFERRAL

In accordance with the Local Rules, the undersigned did confer with opposing counsel 

regarding the motion to strike but was unable to resolve any issues related to that aspect of this 

motion.

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on Aug 3, 2020, I have filed the 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 manner specified, 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

By: /s/ Jerome A. Pivnik 

 Jerome A. Pivnik, Esq.

 Fla. Bar No.: 400408

Case 1:20-cv-22044-JEM Document 38 Entered on FLSD Docket 08/03/2020 Page 23 of 25
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SERVICE LIST

For 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: 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: ALEJANDRO VASQUEZ, MARIA VASQUEZ, ACCIDENT REHAB 

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

Case 1:20-cv-22044-JEM Document 38 Entered on FLSD Docket 08/03/2020 Page 24 of 25
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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: Miami Medical Group, Inc., Juan Jimenez, Graciela Jimenez, Jose 

Marquez, M.D., Maria Nodarse, D.C., Yara Vazquez and Hai Uzan 

(hereinafter collectively “Miami Medical”) 

Kenneth Schurr, Esq. 

2030 S. Douglas Rd. 

Coral Gables, FLA 33134 

Andrew P. Baratta, Esq.

Baratta, Russell & Baratta 

3500 Reading Way 

Huntingdon Valley, Pa. 19006 

215-914-2222 

215-914-2118 (facsimile) 

andrew@barattarussell.com 

For Defendants: New Life Clinical Services, Inc.

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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