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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

UNITED STATES OF AMERICA 

AND THE STATE OF FLORIDA, 

ex rel. ROBERT V. SMITH, 

Qui Tam Plaintiff, 

v. CASE NO.: 3:20-cv-03678/MCR/EMT 

JAY A. ODOM; OKALOOSA 

COUNTY, BOARD OF COUNTY 

COMMISSIONERS, 

 Defendants. 

__________________________________________________________________ 

PLAINTIFF’S RESPONSE TO MARCH 15, 2021 ORDER 

__________________________________________________________________ 

NOW INTO COURT, comes Plaintiff, United States of America and the 

State of Florida, ex rel. Robert V. Smith (“Smith”), by and through his undersigned 

counsel, files this Response to the Court’s March 15, 2021 Order and to Show Cause 

Why Seal on the Amended Complaint is Proper. In support thereof, Plaintiff, Smith 

states as follows: 

1. On February 26, 2021, Plaintiff filed an Unopposed Motion for 

Extension of time to File Amended Complaint (“Motion to Extend”). The Motion 

to Extend was made in good faith and not for purposes of delay.

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2. On March 1, 2021, the Court granted Plaintiff’s Motion to Extend. As 

a result, Plaintiff’s Amended Complaint was due to be filed on or before March 12, 

2021. 

3. On March 12, 2021, Plaintiff filed his Amended Complaint under seal. 

4. On March 15, 2021, the Court entered an Order requiring Plaintiff to 

“advise the Court as to whether the Complaint should be stayed and/or remain under 

seal for 60 days pursuant to Florida law or otherwise show cause why the seal on the 

Amended Complaint is proper at this stage of the proceedings.” 

5. Plaintiff’s Amended Complaint added the State of Florida as a party. 

Plaintiff has served the sealed Amended Complaint on the State of Florida pursuant 

to the Florida False Claims Act. § 68.083(3), Fla. Stat. 

6. A complaint filed pursuant to the Florida False Claims Act is filed 

under seal. §§ 68.083(2), (5), Fla. Stat. While under seal, the State of Florida has 

time to investigate the allegations contained in the sealed Amended Complaint and 

determine whether to intervene in this action. § 68.083(3), Fla. Stat. (“The 

department, or the Department of Financial Services under the circumstances 

specified in subsection (4), may elect to intervene and proceed with the action, on 

behalf of the state, within 60 days after it receives both the complaint and the 

material evidence and information.”). Moreover, the State of Florida may, for good 

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cause shown, request the Court to extend the time during which the Amended 

Complaint remains under seal pursuant to §68.083(2). § 68.083(5), Fla. Stat. 

7. Because the State of Florida was added a party and is allowed time to 

investigate and to decide whether to intervene, the Amended Complaint is properly 

sealed pursuant to the Florida False Claims Act. §§ 68.083(2), (5); see also United 

States ex rel. Klusmeier v. Bell Constructors, Inc., No. 08-80442-CIV, 2009 WL 

10667472, at *1 (S.D. Fla. Nov. 17, 2009), aff'd sub nom. Klusmeier v. Bell 

Constructors, Inc., 469 F. App'x 718 (11th Cir. 2012) (granting motion to file First 

Amended Complaint under seal and serve the State of Florida where 

First Amended Complaint included additional allegations as well as a claim for 

violation of the Florida False Claims Act). 

8. In addition, because the Amended Complaint contains substantive new 

claims and additional allegations, retaining the Amended Complaint under seal will 

allow the United States an opportunity to review and consider whether intervention 

is appropriate. See, United States ex rel. Davis v. Prince, 766 F. Supp. 2d 679, 684-

85 (E. D. Va. 2011) (holding the statutory requirement that “complaint” be filed 

under seal also applied to amended complaints and thus requires full compliance 

with Section 3730(b), including re-sealing the complaint, but determining relator’s 

complaint did not substantially differ from original complaint rendering sealing 

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requirement moot);1 see also, United States v. Lincare Holdings, Inc., No. 10-21094-

CIV, 2014 WL 11860706, at *3–4 (S.D. Fla. Mar. 26, 2014) (noting holding in Davis 

v. Prince but holding that Defendants were not entitled, as a matter of law, to 

dismissal of the Relators' Second Amended Complaint for failure to file that pleading 

under seal); United States ex rel. Saldivar v. Fresenius Medical Care Holdings. Inc., 

2013 U.S. Dist. LEXIS 136970 (N.D. Ga. Sept. 17, 2013) (discussing division 

among district courts regarding the application of Section 3730(b)(2) to amended 

complaints but finding no statutory bar to proceed, despite fact that relator's third 

amended complaint not filed under seal). 

9. Because the Amended Complaint added the State of Florida as a party 

pursuant to the Florida False Claim Act and contains substantive new claims and 

additional allegations from the original Complaint, the Amended Complaint should 

remain sealed pursuant to Florida law and federal law. 

 

1

 But see, United States ex rel. Milam v. Regents of the Univ. of Cal., 912 F. 

Supp. 868, 890 (D. Md. 1995) (court found no requirement that amended complaint 

be filed under seal); United States ex rel. Branch Consultants, LLC v. Allstate Ins., 

668 F. Supp. 2d 780, 803 (E.D. La. 2009) (rejecting argument that FCA sealing 

requirement was jurisdictional or that it applied to amended complaints, noting that 

the amended complaint “alleges the same type of fraudulent conduct as the original 

complaint”); Wisz ex rel. United States v. C/HCA Dev., Inc., 31 F. Supp. 2d 1068 

(N.D. Ill. 1998) (rejecting argument that statute's sealing requirements apply to 

subsequently filed complaints, and finding that FCA sealing requirements are 

procedural and not jurisdictional).

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WHEREFORE, Plaintiff, Smith respectfully requests that this Court continue 

to maintain the Amended Complaint under seal until the State of Florida and the 

United States have an opportunity to investigate and consider whether to intervene 

pursuant to the federal False Claims Act and the Florida False Claims Act. 

 Respectfully submitted this 22nd day of March, 2021. 

/s/ Amelia H. Beard 

AMELIA H. BEARD 

Florida Bar No. 84286 

MICHAEL J. SCHOFIELD 

Florida Bar No. 373656 

ELIZABETH C. BILLHIMER 

Florida Bar No. 0121986 

CLARK PARTINGTON 

1414 County Highway 283S, Ste. B. 

Santa Rosa Beach, Florida 32459 

(850) 650-3304 telephone 

(850) 650-3305 facsimile 

abeard@clarkpartington.com 

mschofield@clarkpartington.com 

ebillhimer@clarkpartington.com 

wlemon@clarkpartington.com 

Attorneys for Robert V. Smith 

CERTIFICATE OF SERVICE 

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

served by electronic mail via the Court’s transmission of the Notice of Electronic 

Filing to the following, this 22nd day of March, 2021: 

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A. BENJAMIN GORDON, III, ESQUIRE 

Anchors Gordon, P.A. 

2113 Lewis Turner Blvd., Suite 100 

Fort Walton Beach, FL 32547 

(850) 863-1974 

(850) 863-1591 Facsimile 

bgordon@anchorsgordon.com 

cyndi@anchorsgordon.com 

SARAH WILBANKS, ESQUIRE 

NATHANIEL H. HUNT, ESQUIRE 

PETER J. KIRSCH, ESQUIRE 

Kaplan Kirsch & Rockwell LLP 

1675 Broadway, Suite 2300 

Denver, CO 80202 

(303) 825-7029 

(303) 825-7005 Facsimile 

swilbanks@kaplankirsch.com 

nhunt@kaplankirsch.com 

pkirsch@kaplankirsch.com 

COUNSEL FOR DEFENDANT 

JAY A. ODOM 

GREGORY T. STEWART, ESQUIRE 

LYNN M. HOSHIHARA, ESQUIRE 

KERRY A. PARSONS, ESQUIRE 

Nabors, Giblin & Nickerson, P.A. 

1500 Mahan Drive, Suite 200 

Tallahassee, Florida 32308 

(850) 224-4070 

(850) 224-4073 Facsimile 

gstewart@ngnlaw.com 

lhoshihara@ngnlaw.com 

kparsons@ngnlaw.com 

legal-admin@ngnlaw.com 

COUNSEL FOR DEFENDANT 

OKALOOSA COUNTY, BOARD OF COUNTY COMMISSIONERS 

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And by email to 

DAVID M. SOBOTKIN, ESQUIRE 

Trial Attorney 

U.S. Department of Justice 

Civil Division, Fraud Section 

Post Office Box 261 

Ben Franklin Station 

Washington, D.C. 20044 

(202) 353-1291 

David.m.sobotkin@usdoj.gov 

ATTORNEY FOR PLAINTIFF 

UNITED STATES OF AMERICA 

And by regular U.S. mail to the State of Florida 

ASHLEY MOODY, ATTORNEY GENERAL 

Office of the Attorney General 

State of Florida 

PL-01 The Capitol 

Tallahassee, FL 32399-1050 

And 

JIMMY PATRONIS, Chief Financial Officer 

Florida Department of Financial Services 

200 East Gaines Street 

Tallahassee, FL 32399 

/s/ Amelia H. Beard 

AMELIA H. BEARD 

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