UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-61208-CIV-ALTMAN/Hunt

SIMPLIFIED IMAGING & DIAGNOSTICS,

SIMPLIFIED IMAGING SOLUTIONS LLC

d/b/a IMAGING SOLUTIONS (SIS),

Plaintiff,

vs.

PETER ROUVELAS, M.D., P.C.,

Defendant.

_____________________________________/

DEFENDANT PETER ROUVELAS, M.D., P.C.'S

MOTION TO DISMISS COMPLAINT

COMESNOWDefendant PeterRouvelas, M.D., P.C., through the undersigned counsel, and

pursuant to Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1332 files this Motion to

Dismiss Complaint and states:

Background Facts

1. Plaintiff Simplified Imaging&Diagnostics,Simplified ImagingSolutions,LLC, d/b/a

Simplified Imaging Solutions ("SIS"), is a medical services company providing personnel and

equipment to medical practices.

2. SIS is a resident of the State of Florida.

3. Defendant, Peter Rouvelas, M.D., P.C. ("Rouvelas"), is a New York professional

corporation providing physician services to its patients specializing in cardiology.

4. Rouvelas is a resident of the State of New York, and provides no medical or other

services in the State of Florida. None of its providers are licensed to practice in Florida.

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5. SIS filed in the Southern District ofFlorida on the basis of diversityjurisdiction under

28 U.S.C. § 1332, claiming an amount in controversy of $151,767.00.

6. SIS's single-count complaint is predicated on an alleged breach of contract by

Rouvelas and contains no other claims or basis for relief.

Facts Related to the Damages under the Contract

7. In February2018, the parties entered into aServices andMaintenance Agreement (the

"Agreement") under which SIS was to provide certain personnel, equipment, and materials for

cardiac diagnostic testing. [Doc. 4-1, p. 2]. SIS was also to provide quality control, accreditation,

license maintenance, and equipment service and repair. [Id.]. This contract is the one under which

SIS brought suit. There are no other agreements to which SIS and Rouvelas are parties.

8. The Agreement contained a fee schedule purportedly obligatingRouvelas to conduct

a minimum of 350 tests per contract year. [Id., at p. 3]. If Rouvelas did not conduct the requisite

number of tests, SIS would impose a per test penalty for each test below the quota.

9. The Agreement contemplates two (2) types of tests being performed and supported

by SIS: "nuclear stress tests"; and "plain stress tests." Under the clear and unambiguous language

of the Agreement, Rouvelas was not required to order or perform any minimum number of either

nuclear or plain stress tests, just 350 tests annually. Rouvelas could satisfy its annual testing quota

through the ordering of only nuclear stress tests, only plain stress tests, or a combination thereof.

10. Since Rouvelas could satisfy the testing quota through the ordering and performance

of just plain stress tests, SIS's damages for breach are limited to its compensation for unperformed

"plain stress tests" up to the 350 test annual quota.

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11. The contract sets the "remedy" for missing the quota as the "monetary equivalent as

per below" (listing a range of per test fees based on type and volume). [Doc. 4, p. 3]. Again, by its

plain terms, if the contract permits the quota to be satisfied by conducting only plain stress tests, then

the quota shortfall can be satisfied byRouvelas paying thirty-two dollars ($32.00), the compensation

owed to SIS for each plain stress test, for each test below the 350 test annual minimum

12. The maximum quota shortfall amount to which SIS was entitled on an annual basis

was 350 tests times thirty-two dollars ($32.00) per test. While it may have been nice for SIS to

receive compensation for the more expensive nuclear stress tests, the fact remains Rouvelas was not

obligated to order or perform any nuclear stress tests. 

13. Notwithstanding issues of unjust enrichment and unlawful liquidated damages

provisions, had Rouvelas not performed any tests whatsoever over the three year term of the

Agreement, SIS would be entitled to receive a maximum of $33,600.00. That number is calculated

by multiplying 350 tests per year for three years (1050 tests, total) by the $32.00/test quota makeup

amount.

14. Pursuant to 28 U.S.C. § 1332, this Court only has diversity jurisdiction over claims

with at least $75,000.00 at issue. The maximum amount in controversy under the Agreement is

$33,600.00, less than the jurisdictional threshold to invoke the Court's diversity jurisdiction. 

Consequently, the Complaint should be dismissed.

Facts Related to Failure to Satisfy Condition Precedent

15. Section VI(1) of the Agreement requires a party claiming a breach give notice of the

breach and an opportunity to cure that breach within ten (10) calendar days. Specifically, it states:

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Default, Notice and Cure. Upon either party

asserting the existence of a breach of the terms of this

agreement by the other party, notice via certified mail

(return receipt requested) shall be provided by the

non-breaching party to the breaching party specifying

the nature of the purported breach. The purported

breaching party shall have 10 calendar days from the

receipt of the notice of breach within which to cure

the breach. Notice shall be conclusively deemed

received by the purported breaching party on the 3rd

business day after the date of the mailing of the

notice. During the 10-day cure period SIS may elect

to suspend their performance of the provisions of

Agreement [sic] not related to non-disclosure of

Proprietary or Confidential information.

[Doc. 4, pp. 4-5].

17. The Complaint charges a failure to meet the annual 350 test quota for the

periods from:

a. February 17, 2018 through February 16, 2019;

b. February 17, 2019 through February 16, 2020; and

c. February 17, 2020 through February 16, 2021.

[Doc. 1, p. 2].

18. SIS never provided notice of breach and an opportunity to cure for any of the periods

described above. 

19. SIS did, however, send Rouvelas a letter dated March 2, 2020, making a demand for

an alleged testing quota shortfall for the period between July 2018 and July 2019. SIS claimed

damages of $23,652.00. This amount resulted from an alleged shortfall of 108 tests multiplied by

the highest pricing level, $219.00. See Exhibit (1).

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20. According to the Complaint, the period of July 2018 through July 2019 is not a valid

quota window and the notice should not be seen to satisfythe conditions precedent in the Agreement. 

Or, alternatively, the notice evidences a quota period which contradicts and invalidates that in the

Complaint and this matter should be dismissed.

21. In either event, SIS failed to satisfy the conditions precedent to filing the present suit

and it should be dismissed.

SIS's Failure to Plead Valid Breach of Contract

22. The Agreement states that fees to SIS do not begin to accrue until the date on which

Rouvelas's cardiac testing lab is accredited and performs its first procedure. [Doc. 3, p. 3].

23. Rouvelas' lab was not up and running until July 18, 2018, largely because SIS failed

to assist with the credentialing process, failed to be present for inspections, and failed to provide

working equipment.

24. The alleged time periodsin the Complaint contemplate services beginning on the date

the parties signed the Agreement, February 17, 2018. They did not start on that date.

25. Consequently, the Complaint fails to allege an actual breach of the Agreement as it

fails to accuratelyspecifyintervals during which Rouvelas was purportedlyobligated to perform 350

tests.

Memorandum of Law

I. SIS Failed to Plead Facts Sufficient to Establish Diversity Jurisdiction

A plaintiff asserting diversity jurisdiction always bears the burden of establishing the amount

in controversy once it has been put in question. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th

Cir. 2002) ("[T]he party invoking the court's jurisdiction bears the burden of proving, by a

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preponderance of the evidence, facts supporting the existence of federal jurisdiction."); see also

Rosenboro v. Kim 994 F.2d 13, 17 (D.C. Cir. 1993).

In determining whether the jurisdictional amount is satisfied, the Court is not bound by SIS's

representations regarding its claim, nor must it assume that SIS is in the best position to evaluate the

damages it seeks. Earl v. Diebold, 2015 U.S. Dist. LEXIS 23052 (S.D. Ala. Feb. 5, 2015) (citing

Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 771 (11th Cir. 2010)). Eleventh Circuit precedent

permits district courts to make "reasonable deductions, reasonable inferences, or other reasonable

extrapolations" from the pleading to determine whether the amount in controversy requirement for

diversity jurisdiction is met. Roe v. Michelin North America Inc., 613 F.3d 1058, 1062 (11th Cir.

2010). "[C]ourts may use their judicial experience and common sense in determining whether the

case stated in a complaint meets federal jurisdictional requirements." Id.

If, from the face of the pleadings, it is apparent that SIS cannot recover the amount of

damages it claimed, the Court must dismiss. Rosenboro, 994 F.2d at 16-17. Here, the Complaint

claims $151,767.00 in damages through the use of a calculation that directly contradicts the plain

language of the underlying contract. As stated above, the Agreement evidences a penalty of $32.00

per test under the 350 annual test requirement. SIS can, at best, claim no more than $33,600.00 in

damages, less than half of the jurisdictional requirement under 28 U.S.C. § 1332. That number

assumes Rouvelas performed absolutely no tests, which is not true, nor alleged in the Complaint.

Furthermore, even if SIS were entitled to a higher amount per unperformed test, it failed to

properly allege its entitlement to those damages. SIS claimed periods of entitlement from February

17, 2018 through February 16, 2019; February 17, 2019 through February 16, 2020; and February

17, 2020 through February 2021. The Agreement specifies that the period for counting tests does

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not start until Rouvelas successfully established its cardiac testing laboratory and performed its first

paid test. That did not occur until July 18, 2018, meaning the period of time SIS used to measure

damages in the Complaint is plainly erroneous and invalid. Moreover, the "February to February"

measurement period is contrary to SIS's own demand sent to Rouvelas on March 2, 2020, wherein

SIS claimed a July to July measurement period. See Exhibit (1).

Based on the foregoing, the Court should dismiss this case for lack of jurisdiction because

SIS failed to carry its burden to prove the amount in controversy requirement of 28 U.S.C. § 1332.

II. SIS Failed to State a Claim for Relief Under 12(b)(6), F.R.C.P.

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the

Court usuallymust accept the factual allegations in SIS's Complaint as true and take them in the light

most favorable to SIS. See Erickson v. Pardus, 551 U.S. 89 (2007). To satisfy the pleading

requirements of Federal Rule of Civil Procedure 8, a complaint must contain a short and plain

statement showing an entitlement to relief, and the statement must "give the defendant fair notice

of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A.,

534 U.S. 506 (2002); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Dura Pharms.,

Inc. v. Broudo, 544 U.S. 336 (2005). 

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed

factual allegations, SIS, nonetheless is obligated to provide the grounds for its entitlement to relief

with more than labels, conclusions, or a formulaic recitation of the elements of a cause of action.

Twombly, 550 U.S. at 554-55. "Factual allegations must be enough to raise a right to relief above the

speculative level on the assumption that all of the complaint's allegations are true." Id. at 1965.

Plaintiff must plead enough facts to state a plausible basis for the claim. Id.

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SIS attached a copy of the Agreement between it and Rouvelas to the Complaint. [Doc. 4-1,

pp. 1-7]. A copy of a written instrument attached as an exhibit to the pleading is a part of the

pleading for all purposes, including Rule 12(b)(6) motions to dismiss. See Fed. R. Civ. P. 10(c);

Solis-Ramirez v. U.S. Dep't of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985). "[W]hen the exhibits

contradict the general and conclusoryallegations of the pleading, the exhibits govern."Griffin Indus.,

Inc. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007). So, while courts must generally accept the

allegations in the complaint as true when considering a motion to dismiss, acceptance is not

necessarily absolute when contradicted by an exhibit or attachment to the pleading. Id.

a. SIS Failed to State a Claim for Breach of Contract

SIS's failure to plead the jurisdictional amount in controversy is also a failure to plead a

cognizable breach of contract. The Agreement does not obligate Rouvelas to pay SIS anything at

all, or to conduct any tests, until Rouvelas' cardiac stress testing lab was credentialed, certified, and

processing patients. The Complaint fails to allege the date on which Rouvelas' lab was up and

running. The lab clearly could not be operational on the date the parties signed the Agreement since

Rouvelas had yet to: purchase a Digirad 2020 camera from SIS; SIS had not yet "assisted with

obtaining ICANL Accreditation"; receive its Radioactive Material License. [Doc. 4-1, p. 2].

Consequently, the February to February windows used to determine the purported breaches and to

calculate the ensuing damages are inaccurate and contradicted by facts of the case and the plain

language of the Agreement. The Court need look no further than SIS's March 2, 2020, demand letter

to determine that Rouvelas owed no compensation to SIS beginning in February 2018. See Exhibit

(1). The demand letter identifies the period for establishing the testing quotas as July to July, not

February to February. The discrepancies in SIS's allegations, the terms of the Agreement, and its

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own attempts to collect on the alleged breach amount to a fatal flaw in the Complaint warranting

dismissal.

SIS's fundamental claim in the Complaint is that Rouvelas' alleged failure to conduct 350

cardiac stress tests annually is a breach of the Agreement. That is an erroneous interpretation of the

contract's terms and contradicted by its plain language. The Agreement obligates Rouvelas to

conduct 350 cardiac stress tests annually. If, in a given year, Rouvelas did not meet that quota, it

would be obligated to paySIS a predetermined amount for each test below the quota. [Doc. 4-1, p.3]. 

Not meeting the quota does not amount to a breach of contract. Failing to pay the per test fee for the

shortfall is the breach.

The Complaint only alleges Rouvelas did not meet the 350 annual test threshold. It does not

allege SIS invoiced Rouvelas for a shortfall and that Rouvelas failed to pay. 

b. SIS Failed to Satisfy Conditions Precedent to Suit

A defendant may deny the occurrence or performance of a condition precedent in a motion

to dismiss, but it must do so with particularity. Bloodworth v. Colvin, 17 F. Supp. 3d 1245 (N.D. Ga.

Jan. 14, 2014). Once a defendant denies the occurrence of conditions precedent with particularity,

the burden of proving the condition has been satisfied falls on the plaintiff. Jackson v. Seaboard

Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982). Section VI(1) of the Agreement requires

a party claiming a breach give notice of the breach and an opportunity to cure that breach within ten

(10) calendar days. Specifically, it states:

Default, Notice and Cure. Upon either party

asserting the existence of a breach of the terms of this

agreement by the other party, notice via certified mail

(return receipt requested) shall be provided by the

non-breaching party to the breaching party specifying

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the nature of the purported breach. The purported

breaching party shall have 10 calendar days from the

receipt of the notice of breach within which to cure

the breach. Notice shall be conclusively deemed

received by the purported breaching party on the 3rd

business day after the date of the mailing of the

notice. During the 10-day cure period SIS may elect

to suspend their performance of the provisions of

Agreement [sic] not related to non-disclosure of

Proprietary or Confidential information.

[Doc. 4-1, pp. 4-5].

The Complaint charges a failure to meet the annual 350 test quota for three periods from:

a. February 17, 2018 through February 16, 2019;

b. February 17, 2019 through February 16, 2020; and

c. February 17, 2020 through February 16, 2021.

[Doc. 1, p. 2].

Although SIS alleged in paragraph 7 of the Complaint that it satisfied all conditions

precedent to filing suit, or that they were otherwise waived, it offers no specific averments or

evidence substantiating that claim. SIS never provided notice of breach and an opportunity to cure

for any of the periods described above. SIS was required to plead more than a formulaic recitation

of the elements of a cause of action in order to satisfy its pleading obligations. Twombly, 550 U.S.

at 554-55. 

SIS cannot establish all of the elements essential to its breach of contract claim, namely

compliance with the Agreement's notice and opportunity to cure requirements. "Under Florida law,

when a written contract requires notice as a condition precedent to maintaining suit, that condition

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must be met absent a valid excuse." S. Broad. Group v. Gem Broad., 145 F.Supp.2d 1316, 1325

(M.D. Fla. June 7, 2001) (citing Eglin Village v. Barnett Nat'l Bank, 86 So. 2d 271, 272 (Fla. 1956)).

Not only did SIS not give notice of a breach of any of Rouvelas' obligations for a February

to February period, the Complaint seeks damages for a supposed anticipatory breach. As a matter

of law, SIS cannot satisfy its obligation to provide notice and an opportunity to cure a breach that

has not yet occurred. Even assuming Rouvelas ran no tests between February 2020 and the date SIS

brought suit, Rouvelas cannot be in breach of the agreement until February 2021, at the earliest. 

Even then, Rouvelas would have the right to avoid a breach by paying the monetary penalty for not

meeting the cardiac stress test quota for the previous year. The Agreement does not contemplate a

breach occurring until Rouvelas is invoiced for a quota shortfall and refuses to pay it for a period of

at least ten (10) calendar days following receipt of the demand. Merely missing the quota is not a

breach. Failing to pay the quota shortfall after notice, however, is.

The Complaint is devoid of any facts which would amount to an anticipatory breach. In fact,

the Complaint states, with respect to its claim for anticipatory breach:

13. Between February 17, 2020 and February 16,

2021, Defendant failed to conduct 350 [tests]

annually. Indeed, Defendant has anticipatory [sic]

breached the contract.

[Doc. 1, p. 2].

Leaving aside the fact that beginning on March 7, 2020, in response to the COVID-19

pandemic, New York Governor Andrew Cuomo issued Executive Orders 202, 202.10, and 202.25

which suspended the performance of elective procedures, including the cardiac stress tests at issue

in this case, through May 29, 2020, making it impossible for Rouvelas to perform for nearly three

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months, there is no allegation in the Complaint that Rouvelas indicated it would not perform any

stress tests or that it would refuse to honor any part of the Agreement. "An anticipatory breach of

contract occurs before the time has come when there is a present duty to perform as the result of

words or acts evincing an intention to refuse to perform in the future." Dragon Jade Int'l, Ltd. v.

Ultroid, LLC, 2018 U.S. Dist. LEXIS 20943 *12 (M.D. Fla. Jan. 23, 2018) (quoting Alvarez v.

Rendon, 953 So. 2d 702, 709 (Fla. 5th DCA 2007)). A repudiation "may be evidenced by words or

voluntary acts but the refusal must be distinct, unequivocal, and absolute." Mori v. Matsushita Elec.

Corp. of Am., 380 So. 2d 461, 463 (Fla. 3d DCA 1980).

SIS alleged no facts which indicate Rouvelas repudiated its obligations under the Agreement. 

The Complaint bears no allegation Rouvelas spoke or acted in a way which indicated it

unequivocally and absolutely would not perform. In fact, its time to perform will not arise until

February 2021, at the earliest. Absent a patent repudiation, no cause of action for anticipatorybreach

can lie. Mori, 380 So. 2d at 463.

WHEREFORE,Defendant Peter Rouvelas, M.D., P.C., respectfullyrequeststheCourt enter

an order dismissing this action and awarding Defendant its attorneys' fees and costs pursuant to the

terms of the Agreement.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have filed this document electronicallywith the Clerk of Court

via the CM/ECF System, which automatically serves all counsel of record, this 10th day of August

2020.

/s/ Lance O. Leider

___________________________________

LANCE O. LEIDER, J.D., LL.M.

Florida Bar No.: 96408

Primary E-mail: LLeider@TheHealthLawFirm.com

Secondary e-mail: CourtFilings@TheHealthLawFirm.com

TRIAL COUNSEL/LEAD ATTORNEY

ATTORNEY TO BE NOTICED

GEORGE F. INDEST III, J.D., M.P.A., LL.M.

Florida Bar No.: 382426

Primary e-mail: GIndest@TheHealthLawFirm.com

Secondary e-mail: CourtFilings@TheHealthLawFirm.com

TRIAL COUNSEL/LEAD ATTORNEY

ATTORNEY TO BE NOTICED

ATTORNEYS FOR DEFENDANT

PETER ROUVELAS, M.D., P.C.

Exhibits: (1) Letter from SIS to Rouvelas, dated March 2, 2020

LOL/pa

S:\2600-2699\2670\001\410-Pleadings-Drafts & Finals\Motion to Dismiss-1a.wpd

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