UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

UNITED STATES OF AMERICA, 

ex rel. ROBERT V. SMITH, 

 Plaintiff, 

v. Case No. 3:20cv3678/MCR/EMT 

JAY A. ODOM and OKALOOSA COUNTY, 

BOARD OF COMMISSIONERS, 

 Defendants. 

______________________________________/ 

DEFENDANT JAY A. ODOM’S MOTION FOR LEAVE TO FILE REPLY 

MEMORANDUM TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ 

MOTION TO DISMISS 

 Comes now, Defendant Jay A. Odom (“Odom”), by and through his attorneys 

of record, and pursuant to N.D. Fla Local Rule 7.1(I), moves this Honorable Court 

for leave to file a Reply Memorandum to Plaintiffs’ Memorandum in Opposition to 

Defendants’ Motion to Dismiss (“Opposition”). ECF No. 68. 

Given the unique nature of qui tam actions and the need to prevent litigants 

from filing opportunistic and parasitic lawsuits under the FCA, Defendant Odom 

respectfully requests that the Court grant leave to file a reply to Plaintiffs’ 

Opposition to Defendants’ Motion to Dismiss. See Schindler Elevator Corp. v. 

United States ex rel. Kirk, 563 U.S. 401, 413 (2011). Indeed, a Motion to Dismiss 

in a qui tam action based on public disclosures is similar to a Motion for Summary 

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Judgment, in which a reply is allowed under the local rules of this Court. See Local 

Rules 7.1(I) and 56.1(D). Specifically, in both types of motions, the Court is 

required to look outside of the pleadings and review additional evidence to make its 

ruling. See U.S. ex rel. Gilbert v. Virginia College, LLC, 305 F. Supp. 3d 1315 (N.D. 

Ala. 2018) (court analyzing additional evidence to determine if Relator’s claims 

were previously publicly disclosed). Therefore, under the current circumstances, a 

reply brief is appropriate. 

Plaintiffs’ Opposition contains numerous misstatements of fact and case law, 

as well as mischaracterizations of the arguments raised in Odom’s Motion to 

Dismiss. In such reply brief, Odom seeks to briefly address the misstated facts and 

law raised in Relator’s Opposition, including but not limited to: 

1. Relator erroneously claims that he did not name the State of Florida as 

a party to the original Complaint, contrary to his own specific 

allegations in Paragraphs 11, 13-14, 42, and 102-109 of the original 

Complaint. 

2. Relator mischaracterizes the importance and evidence of the news 

media as publicly disclosed information and its broad application to bar 

FCA cases such as this one. 

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3. Relator’s Opposition appears to improperly retract the Amended 

Complaint’s allegations admitting that Relator previously disclosed his 

allegations to the press, prior to notice to the Government. 

4. Relator neglects to address the prong of the public disclosure bar 

requiring a relator to possess independent knowledge that materially 

adds to the public disclosure. 

5. Relator fails to demonstrate that he has alleged fraud with the requisite 

particularity, in that the Amended Complaint fails to allege specific 

people, places, dates, content, and/or how Defendant Odom allegedly 

misled the Government (who already had knowledge of the situation 

concerning FBOs at DTS) into accepting fraudulent claims. 

6. Relator erroneously claims that Odom applied the former version of the 

False Claims Act instead of the current version. 

WHEREFORE, Defendant Odom respectfully requests that the Court grant 

leave to file a reply to Plaintiffs’ Opposition to Defendant’s Motion to Dismiss, and 

for such other relief as the Court may deem appropriate. 

Dated: December 5, 2022. 

Respectfully Submitted, 

 Counsel for Jay A. Odom 

 A. Benjamin Gordon 

 A. Benjamin Gordon, III 

Florida Bar No. 528617 

 Anne N. Izzo 

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 Florida Bar No. 1016166 

 AnchorsGordon, P.A. 

 2113 Lewis Turner Blvd., Suite 100 

 Fort Walton Beach, Florida 32547 

 Phone: (850) 863-1974 

 Fax: (850) 863-1591 

 Email: bgordon@anchorsgordon.com 

 aizzo@ahncorsgordon.com 

 cyndi@anchorsgordon.com 

 and 

 By: /s/ Nathaniel Hunt 

 Peter J. Kirsch 

 Nathaniel Hunt 

 Sarah Wilbanks 

 KAPLAN KIRSCH & ROCKWELL LLP 

 1675 Broadway, Suite 2300 

 Denver, CO 80202 

 (303) 825-7000 

 (303) 825-7005 Facsimile 

 pkirsch@kaplankirsch.com 

 swilbanks@kaplankirsch.com 

 nhunt@kaplankirsch.com 

 Co-counsel for Defendant Jay Odom 

 Appearing Pro Hac Vice 

LOCAL RULE 7.1(F) CERTIFICATION 

 Pursuant to Local Rule 7.1(F), the instant Motion contains 496 words. 

LOCAL RULE 7.1(B) CERTIFICATION

 Pursuant to Rule 7.1(B), N.D. Fla. Loc. R., as this Motion for Leave does not 

raise an issue but rather seeks leave from the Court, counsel for Defendant did not 

consult with Relator’s counsel. Undersigned counsel, however, assumes that 

Relator’s counsel would oppose such motion if consultation was required. 

CERTIFICATE OF SERVICE 

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 I CERTIFY that a that a true and correct copy of the foregoing has been 

electronically filed on the CM/ECF system for the Northern District of Florida, 

which will send notification of such filing to the following attorneys of record: 

Michael Schofield, Clark Partington, 125 East Intendencia Street, Pensacola, Florida 

32591-3010, and Elizabeth Billhimer, Clark Partington, 4100 Legendary Drive, 

Suite 200, Destin, Florida 32541, attorneys for Relator; and to Lynn Hoshihara, 

Nabors Giblin & Nickerson, P.A., 1500 Mahan Drive, Suite 200, Tallahassee, 

Florida 32308, attorneys for Okaloosa County, and to David M. Sobotkin, U.S. 

Department of Justice, Commercial Litigation Branch, 175 N. Street, NE, 

Washington, DC 20002, attorney for the United States of America, this 5th day of 

December, 2022. 

 A. Benjamin Gordon 

 A. Benjamin Gordon, III 

Florida Bar No. 528617 

 Anne N. Izzo 

 Florida Bar No. 

 AnchorsGordon, P.A. 

 2113 Lewis Turner Blvd., Suite 100 

 Fort Walton Beach, Florida 32547 

 Phone: (850) 863-1974 

 Fax: (850) 863-1591 

 Email: bgordon@anchorsgordon.com 

 aizzo@anchorsgordon.com 

 cyndi@anchorsgordon.com 

 and 

 By: /s/ Nathaniel Hunt 

 Peter J. Kirsch 

 Nathaniel Hunt 

 Sarah Wilbanks 

 KAPLAN KIRSCH & ROCKWELL LLP 

 1675 Broadway, Suite 2300 

 Denver, CO 80202 

 (303) 825-7000 

 (303) 825-7005 Facsimile 

 pkirsch@kaplankirsch.com 

 swilbanks@kaplankirsch.com 

 nhunt@kaplankirsch.com 

 Co-counsel for Defendant Jay Odom

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