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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/ZCB

JAY A. ODOM; OKALOOSA 

COUNTY, BOARD OF COUNTY

COMMISSIONERS,

Defendants.

__________________________________________________________________

PLAINTIFFS’ OPPOSITION TO DEFENDANT, JAY ODOM’S MOTION 

FOR LEAVE TO FILE REPLY MEMORANDUM TO PLAINTIFFS’ 

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

__________________________________________________________________

Plaintiffs, United States of America and the State of Florida, ex rel. Robert V. 

Smith (“Relator”), by and through undersigned counsel, files this Opposition to 

Defendant, Jay Odom’s (“Odom”) Motion For Leave to File Reply Memorandum to 

Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (“Odom’s Motion for 

Leave”). In support of his Opposition, Relator states:

Pursuant to Local Rule 7.1(I) “[a] party ordinarily may not file a reply 

memorandum in support of a motion.” Rather, a Court may grant leave to file a 

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reply memorandum in support of a motion only “in extraordinary circumstances.” 

Reply briefs in this district are generally disfavored. No extraordinary circumstances 

exist to warrant a reply. 

Odom does not explain how his need for a reply constitutes “extraordinary 

circumstances.” Tellingly, Odom does not even use the words “extraordinary 

circumstances” when explaining the basis for seeking to file a reply. See Powell v. 

S.-Owners Ins. Co., No. 3:17CV749/MCR/CJK, 2018 WL 7348023, at *3 (N.D. Fla. 

May 22, 2018) (“Plaintiff has failed to show that ‘extraordinary circumstances’ 

warrant the filing of a reply memorandum.”). 

Here, Odom seeks a second bite at the apple to raise issues that should have 

been raised in his Motion to Dismiss or to improperly expound on arguments already 

raised in Odom’s Motion to Dismiss. In other words, there are no “extraordinary 

circumstances” that warrant a reply. Relator will be prejudiced if the Court allows 

a reply. 

Moreover, it appears that Odom is using his Motion for Leave to File a Reply 

as an improper short cut to make arguments without regard to whether leave will be 

granted to file a Reply. The Court should not consider the proposed basis for the 

Reply as set out in the Motion for Leave, because those issues were already 

addressed or should have been addressed on filing the Motion to Dismiss. For 

example, 

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 On the issue of whether the State of Florida was a party to the earlier 

Complaint, Odom was aware before filing his Motion to Dismiss that 

the State of Florida was not a “party” to the earlier Complaint. Indeed, 

the State of Florida was not named in the “Parties” section of the earlier 

Complaint and was not served with Summons and the earlier 

Complaint. Thus, under Supreme Court precedent, the State of Florida 

was not a “party” to the earlier Complaint.

 On the issue of the importance and evidence of news media, the Court 

without a reply is capable of discerning applicable law related to news 

media under the 2010 amendments of the False Claims Act.

 On the issue of disclosure of allegations to the press, there was no 

admission that Smith previously disclosed his allegations to the press 

prior to notice to the Government.

 On the issue of independent knowledge, Smith specifically addressed

his independent knowledge that “materially adds” to the public 

disclosure.

 On the issue of pleading with requisite particularity, this issue was 

raised in Odom’s Motion to Dismiss and specifically addressed in 

Smith’s Opposition. Odom now seeks to re-hash the same arguments 

in his proposed reply. 

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 On the issue of applying the former version of the False Claims Act, an 

analysis of the law cited in the Motion to Dismiss reflects that Odom 

improperly relied on the former versions of the False Claims Act. 

Moreover, Odom’s Motion to Dismiss was brought pursuant to Rule 12(b)(6). 

Odom’s effort to analogize his Motion to Dismiss to a motion for summary judgment 

in order to try to secure a reply brief under Local Rule 7.1(I) is improper. Odom did 

not bring his Motion to Dismiss pursuant to Local Rule 56.1(D), which would allow 

a party to file a reply memorandum. 

Odom’s position that the Court is required to look outside the pleadings and 

review additional evidence to make its ruling misconstrues the Court’s ability to 

consider evidence outside the pleadings on a motion to dismiss. For purposes of 

Rule 12(b)(6) review, a court generally may not look beyond the pleadings. U.S. ex 

rel. Osheroff v. Humana Inc., 776 F.3d 805, 811 (11th Cir. 2015) citing Garcia v. 

Copenhaver, Bell & Assocs., M.D.'s, P.A., 104 F.3d 1256, 1266 n. 11 (11th 

Cir.1997). “We have explained, however, that a district court may consider an 

extrinsic document even on Rule 12(b)(6) review if it is (1) central to the plaintiff's 

claim, and (2) its authenticity is not challenged.” Id. citing SFM Holdings, Ltd. v. 

Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir.2010); see also Hi-Tech 

Pharms., Inc. v. HBS Int'l Corp., 910 F.3d 1186, 1189 (11th Cir. 2018) (internal 

citations omitted) (“Under the doctrine of incorporation by reference, we may also 

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consider documents attached to the motion to dismiss if they are referred to in the 

complaint, central to the plaintiff's claim, and of undisputed authenticity.”). In 

addition, a district court may consider judicially noticed documents. Bryant v. Avado 

Brands, Inc., 187 F.3d 1271, 1278 (11th Cir.1999). Smith addressed in his 

Opposition to Odom’s Request for Judicial Notice information and evidence that 

was improperly judicially noticed, was not of undisputed authenticity or otherwise 

not proper for consideration on a motion to dismiss. These authorities make clear 

that the Court may not consider wholesale any and all information and evidence 

outside of the pleadings as suggested by Odom. 

Finally, Local Rule 7.1(B) requires that before filing a motion raising an issue, 

an attorney for the moving party must attempt in good faith to resolve the issue 

through a meaningful conference with an attorney for the adverse party. Odom’s 

Motion admits that counsel did not comply with Local Rule 7.1(B). As a result, the 

Motion should be denied. 

WHEREFORE, for the foregoing reasons, Relator, Robert Smith respectfully 

requests that this Court deny Odom’s Motion for Leave to File a Reply. 

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Respectfully submitted this 19th day of December 2022. 

/s/ Elizabeth C. Billhimer

ELIZABETH C. BILLHIMER

Florida Bar No. 0121986

CLARK PARTINGTON

4100 Legendary Drive, Ste. 200.

Destin, Florida 32541

(850) 650-3304 telephone

(850) 650-3305 facsimile 

ebillhimer@clarkpartington.com

fkendall@clarkpartington.com

bgilman@clarkpartington.com

Attorney for Robert V. Smith

CERTIFICATE OF COMPLIANCE AS TO WORD COUNT

I hereby certify that, as required by Local Rule 7.1(F), this Opposition 

contains 984 words, counted as provided in Local Rule 7.1(F).

/s/ Elizabeth Billhimer 

ELIZABETH BILLHIMER

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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 19th day of December 2022:

A. BENJAMIN GORDON, III

Anchors Gordon, P.A.

2113 Lewis Turner Blvd., Suite 100

Fort Walton Beach, FL 32547

bgordon@anchorsgordon.com

aizzo@anchorsgordon.com

cyndi@anchorsgordon.com

mary@anchorsgordon.com

SARAH WILBANKS

NATHANIEL H. HUNT

PETER J. KIRSCH

Kaplan Kirsch & Rockwell LLP

1675 Broadway, Suite 2300

Denver, CO 80202

swilbanks@kaplankirsch.com

nhunt@kaplankirsch.com

pkirsch@kaplankirsch.com

COUNSEL FOR DEFENDANT

JAY A. ODOM

GREGORY T. STEWART 

LYNN M. HOSHIHARA 

KERRY A. PARSONS 

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 

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legal-admin@ngnlaw.com

COUNSEL FOR DEFENDANT

OKALOOSA COUNTY, BOARD OF COUNTY COMMISSIONERS

DAVID M. SOBOTKIN

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/ Elizabeth C. Billhimer

ELIZABETH C. BILLHIMER

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