UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

GOVERNMENT EMPLOYEES INSURANCE )

COMPANY, INC. )

Plaintiff ) 

) Case No. 22-cv-61648

) Hon. Raj Singhal 

)

v. )

)

TITAN WELLNESS CENTER OF FORT MYERS )

HOA NGUYEN, ET. AL. )

Defendants )

________________ /

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS 

CLAIMS 1-6, 9, AND 15 OF THE COMPLAINT

 /s/ Andrew S. Feldman__

Feldman Firm PLLC

150 Southeast 2nd Avenue, Suite 600

Miami, Florida 33131

Office: 305.714.9474

Email: afeldman@feldmanpllc.com 

Florida Bar No. 60325

Attorney for Defendants

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I. INTRODUCTION

Claims One Through Six, Nine, and Fifteen (the “Claims”) must be dismissed with 

prejudice against Titan Wellness Center of Fort Myers LLC (“Titan”) and Dr. Hoa Nguyen, 

(“Dr. Nguyen”) with prejudice under Federal Rules of Civil Procedure 12(b)(6), 9(b), and 8. 

Boiled to its essence, this lawsuit boldly alleges that Titan, a family business, and its owner, a 

licensed chiropractor, Dr. Nguyen, operated an illegal enterprise whose objective was to defraud 

GEICO of personal injury protection (PIP) benefits to which Titan was not entitled. To support 

each of these specious RICO claims, GEICO alleges that Titan and Dr. Nguyen committed 

predicate acts of wire and mail fraud in furtherance of RICO violations. See Claims 2-3 of 

Complaint. In addition, GEICO alleges that Dr. Nguyen and Titan conspired with co-defendants 

ISO Diagnostics and Stein, P.A. as part of their “ongoing” enterprises. See generally Claims 9 

and 15; see also 18 U.S.C. §1962(d). 

GEICO’s claims rest on conjecture and dubious legal conclusions about the practice of 

chiropractic medicine. In each RICO claim, GEICO repeats the same meritless RICO buzz words 

that Titan and Dr. Nguyen engaged in a “pattern of racketeering activity” or conspired with 

others to do so by submitting or causing fraudulent claims to be submitted to GEICO for PIP 

benefits to which Titan, ISO Diagnostics, or Stein PA were not entitled; for services that were 

not medically necessary; using billing codes (CPT codes) that “exaggerated” the services 

provided to patients; and pursuant to “a pre-determined fraudulent protocol designed solely to 

financially enrich Defendants..” Yet, despite this broad swath of supposedly fraudulent conduct 

alleged in the sweeping 100-plus-page Complaint to support the RICO Claims, there are 

numerous reasons this Court may dismiss the RICO Claims (Claims Two and Three) against Dr. 

Nguyen and Titan. 

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First, GEICO alleges series of incorrect legal conclusions about Titan’s eligibility to 

receive PIP benefits or to offer medical equipment which are insufficient to allege predicate acts 

of mail or wire fraud necessary to plead a pattern of racketeering activity under RICO. Second,

the Complaint fails to plead necessary elements of either Florida Patient Brokering Act and the 

Florida Anti-Kickback Statute based on referrals between medical providers absent ny allegation 

that Dr. Nguyen or Titan engaged in a fee splitting agreement or received or offered or paid any 

bribe, rebate, bonus, kickback (in kind, in cash, directly or indirectly), or commission to any 

other defendant in this action. Similarly, even if the Complaint hurdled this deficiency, this 

Circuit and Florida courts have held that kickbacks and patient brokering, standing alone, are an 

insufficient basis as a matter of law to allege the necessary predicate acts of fraud to state a claim 

for RICO. Third, even though GEICO alleges an assortment of supposedly fraudulent treatment 

provided by Titan and Dr. Nguyen, GEICO fails to identify a single false statement or lie 

attributable to Titan or Dr. Nguyen to support the false premise that Dr. Nugyen or Titan 

somehow perpetrated acts of mail or wire fraud. Accordingly, Rule 9(b) supports dismissal 

because GEICO fails to plead any fraudulent conduct with particularity. Fourth, those same 

allegations of supposed fraudulent treatment are based almost exclusively on GEICO’s 

disagreement with individualized medical judgments made by Titan and Dr. Nguyen which is 

insufficient to allege predicate acts of wire or mail fraud necessary to state a claim for RICO. See 

generally Complaint at 23-56, ¶¶95-213 (Section F summarizing the supposed manner and 

means used to violate RICO). 

Claims Nine and Fifteen must be dismissed for similar reasons. First, because GEICO 

fails to allege substantive RICO claims against Dr. Nguyen and Titan, the RICO conspiracy 

claims in Claim Nine and Fifteen must fail. Second, GEICO fails to allege any facts or 

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information describing how Titan or Dr. Nguyen participated in the affairs or management of 

either Stein PA or ISO Diagnostics and therefore Claims Nine and Fifteen must be dismissed 

under the Supreme Court’s test for RICO articulated in Reeves.

Beyond this, for substantially similar reasons, the additional Claims against Dr. Nguyen 

and Titan must be dismissed. Claim Five for fraud must be dismissed for the same reasons as the 

RICO Claims must be dismissed because GEICO fails to state a claim for common law fraud. 

Claim Six for unjust enrichment must be dismissed because GEICO fails to allege any facts 

demonstrating that it would be inequitable for Titan to retain monies lawfully received from 

GEICO. Claim Four, GEICO’s FDUPTA claim, must be dismissed because GEICO fails to 

allege any facts demonstrating that Titan and Dr. Nguyen have engaged in a deceptive, unfair, or 

anti-competitive business practice under the Act. Finally, GEICO’s Claim for declaratory relief 

(Claim One) must be dismissed because GEICO fails to allege an actual case or controversy, 

including any facts indicating the substantial likelihood of future pecuniary harm to GEICO as 

opposed to speculative, attenuated threat of injury. 

II. APPLICABLE LEGAL STANDARDS

A. Motion to Dismiss Standard and Pleading Fraud with Particularity Under Rule 9(b) 

Under the Federal Rules of Civil Procedure, “[a] pleading that offers ‘labels and conclusions' 

or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 555, 570 (2007)). “Nor does 

a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual 

enhancement.'” Bell Atl. Corp., 550 U.S. at 557). To survive a motion to dismiss for failure to 

state a claim, a plaintiff must plead sufficient facts to state a claim that is “plausible on its 

face.” Ashcroft, 556 U.S. at 678 A claim is plausible on its face when a plaintiff “pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

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misconduct alleged.” Id. at 678; MSP Recovery Claims v. Caring Voice Coal., 21-21317-CivGAYLES/TORRES, at *6 (S.D. Fla. July 21, 2022) (“Similarly, “unwarranted deductions of 

fact” in a complaint are not admitted as true for the purpose of testing the sufficiency of 

plaintiff's allegations. ”).

Furthermore, Federal Rule of Civil Procedure 9(b) imposes a heightened pleading 

requirement for allegations of fraud and the question of whether a complaint satisfies 

Rule 9(b) is decided on a case-by-case basis, but even detailed portrayals of fraudulent schemes 

followed by conclusions that false claims must have been submitted is insufficient. See United 

States ex rel. Atkins v. Mclnteer, 470 F.3d 1350, 1358 (11th Cir. 2006). At its base, Rule 

9(b) requires a plaintiff to allege “(1) the precise statements, documents, or misrepresentations 

made; (2) the time, place, and person responsible for the statement; (3) the content and manner in 

which these statements misled the Plaintiffs; and (4) what the defendants gained by the alleged 

fraud.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1380-81 (11th Cir. 

1997). This means where multiple defendants are involved, the complaint must contain 

sufficient, specific allegations with respect to each defendant rather than lumping all defendants 

together. See Ambrosia Coal & Constr. Co. v. Pages Morales, 482 F.3d 1309, 1317 (11th 

Cir. 2007). 

B. Pleading Violations of Civil RICO Statute Premised on Mail or Wire Fraud

“To recover, a civil plaintiff must establish that a defendant (1) operated or managed (2) an 

enterprise (3) through a pattern (4) of racketeering activity that included at least two racketeering 

acts.” Ray v. Spirit Airlines, Inc., 836 F.3d 1340, 1348 (11th Cir. 2016). A civil plaintiff must 

also show “(1) the requisite injury to ‘business or property,' and (2) that such injury was ‘by 

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reason of the substantive RICO violation.” Id. (citing Williams v. Mohawk Indus., Inc., 465 F.3d 

1277, 1282-83 (11th Cir. 2006)). 

RICO defines an ‘enterprise' as ‘any individual, partnership, corporation, association, or 

other legal entity, and any union or group of individuals associated in fact although not a legal 

entity.'” Almanza v. United Airlines, Inc., 851 F.3d 1060, 1067 (11th Cir. 2017) (citing 18 U.S.C. 

§ 1961(4)).” An “associated-in-fact enterprise,” is an enterprise with “(1) a ‘purpose,' (2) 

‘relationships among those associated with the enterprise,' and (3) ‘longevity sufficient to permit 

these associates to pursue the enterprise's purpose.'” Almanza, 851 F.3d at 1067. 

A "pattern of racketeering activity" requires the plaintiff to establish "at least two acts of 

racketeering activity." 18 U.S.C. § 1961(5); Republic of Pan. v. BCCI Holdings (Lux.) S.A., 119 

F.3d 935, 948 (11th Cir. 1997). Section 1961(1) lists wire and mail fraud as “racketeering 

activity” for raising a RICO cause of action. See 18 U.S.C. §§ 1341, 1343, 1961(1). When such 

acts of mail or wire fraud are alleged as the predicate acts that are indictable as racketeering 

activity ... a plaintiff must allege facts sufficient to support the element of intentional 

misrepresentation that is part of a "scheme to defraud." Beck v. Prupis, 162 F.3d 1090, 

1095 (11th Cir. 1998). And, a plaintiff relying on violations of mail fraud as predicate acts for 

civil RICO claims must show that he suffered injury as a result of those violations — namely, 

that the violations proximately caused his damages. Pelletier v. Zweifel, 921 F.2d 1465, 

1499 (11th Cir. 1991). The sine non qua of wire fraud is a scheme or artifice to defraud. United 

States v. Takhalov, 827 F. 3d 1307, 1312-13 (11th Cir. 2016) (other citation omitted) (reversing a 

wire fraud conviction and emphasizing that “the law in the Eleventh Circuit makes clear that a 

defendant "schemes to defraud" only if he schemes to "depriv[e] [someone] of something of 

value by trick, deceit, chicane, or overreaching."). Wire fraud also requires proof a material 

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misrepresentation. Neder vs. United States, 527 U.S. 1, 15-16 (1998) (reversing a conviction for 

wire fraud finding that materiality is a necessary element which a jury must find beyond a 

reasonable doubt to find a defendant guilty of mail, wire or bank fraud). "[T]he term `material' 

means having a natural tendency to influence, or be capable of influencing, the payment or 

receipt of money or property." Neder, 527 U.S. at 16.

III. FACTUAL ALLEGATIONS RELEVANT TO EACH CLAIM

To support each of its Claims in the Complaint, GEICO alleges an amalgamation of 

supposedly fraudulent and deceptive conduct involving Dr. Nguyen and Titan as set forth below.

A. Titan’s Supposed Failures to Comply with Licensure Rules 

GEICO alleges that Titan and Dr. Nguyen operated Titan in violation of Fla. Stat. Section 

409.9905 because Titan did not satisfy the “wholly owned” exemption to licensure under the 

Healthcare Clinic Act (HCCA) because Dr. Nguyen failed to supervise and ensure Titan’s 

compliance with applicable laws See Complaint at 9-10, ¶¶48-52. Further, GEICO alleges that 

Titan and Dr. Nguyen operated in violation of the Home Medical Equipment (HME) laws 

because it sought reimbursement for HME claims without an HME license. See Complaint at 14-

15, ¶¶70-73. 

B. Supposed Violations of Patient Brokering Act and Florida Anti-Kickback 

Statute 

GEICO alleges that Titan and Dr. Nguyen violated the Florida Patient Brokering Act and the 

Florida Anti-Kickback Statute. See Complaint, at 14-24, ¶¶74-100. GEICO repeats the same 

conclusory statements to support these assertions. First, that Titan and Dr. Nguyen referred an 

Insured to Stein P.A. for a medically unnecessary examination which was then billed by Stein 

PA to Geico. See Complaint, at 16-20, ¶82(i)-(x). Second, and more importantly, that “[a]s 

unlawful compensation for the referral, Stein and Stein P.A. falsely diagnosed the Insured with 

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an ‘emergency medical condition,’ which enabled Titan and Nguyen to submit Thousands of 

dollars in additional PIP billing through Titan to GEICO in connection with the medically 

unnecessary chiropractic, physical therapy, and other [unspecified] Fraudulent services that they 

purported to provide to the Insured. Id. at 16-20, ¶82(i)-(x). Third, that Insureds suffering injuries 

from an accident “did not both require referrals from Titan and Dr. Nguyen to Stein and Stein PA 

and from Stein and Stein PA to Baruch and ISO Diagnostics” and that “Titan and Nguyen 

referred [the Insureds] to Stein and Stein PA for medically unnecessary examinations and muscle 

strength testing and Stein and Stein PA referred both of the Insureds to ISO Diagnostics and 

Baruch for medically unnecessary range of motion and muscle strength testing pursuant to the 

Defendants’ unlawful patient brokering scheme.” Id. at 21-23, ¶92(i)-(v). 

C. Constellation of Supposed Fraudulent Treatments and Billing Protocols Based 

on Disagreements Concerning the Use of CPT Codes

GEICO alleges that Titan and Dr. Nguyen provided fraudulent treatment to its patients (i.e.

the Insureds) and engaged in pre-determined fraudulent billing protocols as follows:

• Titan and Dr. Nguyen submitted misrepresentations concerning severity of the insured’s 

presenting problems, the quality of the physical examinations, and the extent of the 

medical decision making to support Titan’s submission of claims using CPT Code 99203 

for initial examinations. See Complaint at 24-36, ¶¶101-126

• Titan and Dr. Nguyen submitted misrepresentations concerning severity of the insured’s 

presenting problems, the nature extent, and results of the follow up examination, to 

support Titan’s submission of claims using CPT Codes 99213 and 99214 for follow up 

examinations. Id. at 36-44, ¶¶127-157

• Titan and Dr. Nguyen submitted unlawful claims for health and behavioral assessments 

using CPT codes 96150, 96151, and 96156. Id. at 45-47, ¶¶158-170

• Titan and Dr. Nguyen submitted fraudulent charges for claims using medically 

unnecessary ligament laxity testing under CPT code 76499. Id. at 47-51, ¶¶171-185 

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• Titan and Dr. Nguyen submitted fraudulent charges for claims using various CPT codes 

involving medically unnecessary chiropractic and physical therapy treatment purportedly 

provided by Dr. Nguyen and Titan. Id. at 51-53, ¶¶186-196 

• Titan and Dr. Nguyen submitted fraudulent charges for claims using HCPCS code L0637 

involving medically unnecessary home medical equipment (HME), lumbar-sacral 

orthotics (LSO), for which Titan was not entitled to receive benefits. Id. at 53-56, ¶¶197-

213.

IV. ARGUMENT

A. Counts 2-3 of the RICO Claims Must be Dismissed with Prejudice 

Counts 2-3 of the Complaint must be dismissed with prejudice. 

1. GEICO fails to Allege a Pattern of Racketeering Activity Based on Supposed HCCA 

Violations

The allegations that Defendants failed to satisfy an exemption are, at best, conclusory 

statements, and opinions about the application of Florida law to Defendants. Florida law 

specifically exempts Titan Wellness and Dr. Nguyen from licensure under the Clinic Act when 

the clinic is owned by a licensed health care provider. See Fla. Stat. Sections 400.991 and 

400.9905 and 400.9905(4)(g) (2009) (to lawfully operate, a health care clinic must either obtain 

a license through Florida's Agency for Health Care Administration ("AHCA") or qualify for an 

exemption, such as being "wholly owned by a licensed health care practitioner" such as a 

chiropractor). Under this exemption, the licensed health care practitioner must own and supervise 

the business activities of the clinic and remain legally responsible for the entity's compliance 

with all federal and state laws. Fla. Stat. § 400.9905(4)(g).

Absent from the Complaint is any allegation that Dr. Nguyen did not own Titan as a licensed 

health care provider. See Fla. Stat. § 400.9905(4)(g). Instead, the Complaint repeats conclusory 

statements and speculates that Dr. Nguyen failed to supervise the activities at Titan to ensure 

compliance with applicable laws, and because of this speculative non-compliance, Titan has 

become ineligible to collect PIP benefits. See Complaint, at 8-10. GEICO’s mere legal 

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conclusions, speculation, and subjective interpretations of treatments provided by Titan and Dr. 

Nguyen cannot serve as a proxy for pleading sufficient facts or details or information showing 

how Dr. Nguyen failed to supervise the activities at Titan. Ashcroft, 556 U.S. at 678. 

Accordingly, on this basis, GEICO fails to allege any pattern of racketeering activity.

2. GEICO fails to Allege a Pattern of Racketeering Activity Based on Supposed HME 

Licensure Violations

Florida law specifically exempts Titan Wellness and Dr. Nguyen from licensure under the 

HME when the clinic is owned by a licensed health care provider, such as chiropractor. That Act 

states in pertinent part: (5) The following are exempt from home medical equipment provider 

licensure, unless they have a separate company, corporation, or division that is in the business of 

providing home medical equipment and services for sale or rent to consumers at their regular or 

temporary place of residence pursuant to the provisions of this part.......(j) Licensed health care 

practitioners who use home medical equipment in the course of their practice but do not sell 

or rent home medical equipment to their patients. Fla. Stat. § 400.93(5)(j) (emphasis ours). 

There is no allegation in the Complaint anywhere that Titan was not an organization owned 

and operated by a licensed health care practitioner, i.e. a chiropractor, Dr. Nguyen. Nor is there 

any allegation in the Complaint that Titan or Dr. Nguyen sold or rented medical equipment to 

patients. See Fla. Stat. § 400.93(5)(j) For these reasons alone, the Complaint fails to allege any 

pattern of racketeering sufficient to state a RICO claim based on supposed non-compliance with 

the HME licensure laws.

3. GEICO fails to Allege a Pattern of Racketeering Activity Based on Violations of the 

Florida Patient Brokering and Anti-Kickback Acts

GEICO fails to allege a pattern of racketeering activity based on supposed violation of 

Florida Anti-Kickback and Florida patient brokering laws necessary to state a claim under RICO 

for two reasons. 

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First, absent from the Complaint are any allegations that that Dr. Nguyen or Titan received or 

offered or paid any bribe, rebate, bonus, kickback (in kind, in cash, directly or indirectly), or 

commission to any other defendant in this action. Each of these are elements of any kickback or 

patient brokering offense in Florida. See Fla. Stat. Sections 817.505 (Patient Brokering)1and 

456.054 (Anti-Kickback Statute)2. Yet GEICO’s interpretations of criminal laws strips both 

statutes of these critical, indispensable elements – the bribe, the cash payment, the commission, 

the rebate, the kickback, or the split fee.3In doing so, GEICO alleges that the supposed 

“unlawful compensation” offered by Stein P.A. to Titan and Dr. Nguyen was Dr. Stein’s referral 

of patients who he falsely diagnosed as having an “emergency medical condition.” See

Complaint, at 16-17 ¶82 and ¶84; see also 21-23, ¶¶91-92 (alleging that referrals from Titan and 

Dr. Nguyen to Stein and Stein PA for medically unnecessary services were “unlawful 

compensation”). This borders on the absurd and no case in this district or this Circuit has found 

1

Fla. Stat. § 817.505 states:(1) It is unlawful for any person, including any health care provider or health care 

facility, to:(a) Offer or pay a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash 

or in kind, or engage in any split-fee arrangement, in any form whatsoever, to induce the referral of a patient or 

patronage to or from a health care provider or health care facility;(b) Solicit or receive a commission, benefit, 

bonus, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engage in any split-fee arrangement, 

in any form whatsoever, in return for referring a patient or patronage to or from a health care provider or health care 

facility;(c) Solicit or receive a commission, benefit, bonus, rebate, kickback, or bribe, directly or indirectly, in cash

or in kind, or engage in any split-fee arrangement, in any form whatsoever, in return for the acceptance or 

acknowledgment of treatment from a health care provider or health care facility

2 Fla. Stat. § 456.054 states: “(1) As used in this section, the term "kickback" means a remuneration or payment, by 

or on behalf of a provider of health care services or items, to any person as an incentive or inducement to refer 

patients for past or future services or items, when the payment is not tax deductible as an ordinary and necessary 

expense.(2) It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit, or 

receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting 

patients.(3)(a) It is unlawful for any person or any entity to pay or receive, directly or indirectly, a commission, 

bonus, kickback, or rebate from, or to engage in any form of a split-fee arrangement with, a dialysis facility, health 

care practitioner, surgeon, person, or entity for referring patients to a clinical laboratory as defined in s. 483.803.”

3 The court in Med. Mng. Group v. State Farm Auto, 811 So. 2d 705, 706 (Fla. Dist. Ct. App. 2002) explained a 

split-fee arrangement as “Medical Management Group of Orlando, which is not a medical provider but had referred 

the patient to Premier Advanced Imaging under an arrangement whereby MMGO "leased" space, equipment and 

services from Premier, which performed the MRI. Premier billed MMGO $350 for the MRI and MMGO, in turn, 

billed State Farm $1,400 for it.” Nowhere in the Complaint is there any allegation of any similar conduct here.

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that such allegations are sufficient to state a cause of action under either the patient brokering or 

anti-kickback statutes. 

Second, this Circuit held that kickbacks, standing alone, are an insufficient basis as a matter 

of law to impute fraud. United States v. Medina, 485 F.3d 1291, 1298 (11th Cir. 2007) (“We 

hold that based on the facts of this case, representatives of Ocean and United paying kickbacks 

alone is not sufficient to establish health care fraud. While we acknowledge that paying 

kickbacks like those at issue in this case is a violation of 42 U.S.C. § 1320a-7b(b)(2)(A), we 

cannot hold that this conduct alone is sufficient to establish health care fraud without someone 

making a knowing false or fraudulent representation to Medicare.”). This is precisely what 

GEICO attempts to do here by alleging that violations of the Florida patient brokering, and antikickback acts may constitute predicate acts of wire and mail fraud (as the supposed pattern of 

racketeering activity) to allege RICO Claims against Titan and Dr. Nguyen. Finally, at least one 

Florida court has held that such violations cannot constitute the predicate acts under RICO. See 

also State v. Rubio, 917 So. 2d 383, 399 (Fla. Dist. Ct. App. 2005), citing State v. Gusow, 724 

So.2d 135 (Fla. 4th DCA 1998) (“Since the patient brokering acts do not relate to fraudulent 

practices, false pretenses or fraud generally, they will not support the racketeering charges” and 

“striking the patient brokering incidents from counts 1, 2 and 130 as they do not relate to fraud.”)

4. GEICO’s Disagreements with Titan and Dr. Nguyen’s Use of CPT Codes Cannot 

Constitute a Pattern of Racketeering Activity Where GEICO Fails to Allege a Single 

Identifiable Fraudulent Statement or Representation Attributable to Titan or Dr. Nguyen

GEICO’s disagreements with the use of certain CPT Codes by Titan and Dr. Nguyen’s and 

mere conclusions that medical services provided by Titan and Dr. Nguyen were “medically 

unnecessary” is insufficient to allege a pattern of racketeering activity premised on violations of 

the mail or wire fraud statute where, as here, GEICO fails to allege a single identifiable false 

statement or representation attributable to Titan or Dr. Nguyen or the content of the statements.

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Funding Metrics, LLC v. Decision One Debt Relief LLC, CASE NO.: 18-81061-CIVBloom/Reinhart, at *4 (S.D. Fla. Feb. 22, 2019) (reiterating that the Rule 9(b) requires a plaintiff 

to allege (1) precisely what statements or omissions were made in which documents or oral 

representations; (2) the time and place of each such statement and the person responsible for 

making (or, in the case of omissions, not making) them; (3) the content of such statements and 

the manner in which they misled the plaintiff) Instead, GEICO concludes – exercising its own 

subjective medical judgments and conclusions --- that because testing, examinations, and 

services were supposedly medically unnecessary, each of the claims submitted by Dr. Nguyen 

and Titan were “fraudulent.” See Complaint, at 24-53; see also Ill. Farmers Ins. Co. v. Mobile 

Diagnostic Imaging, Inc., No. 13-CV-2820 (PJS/TNL), at *25 (D. Minn. Aug. 19, 

2014) (“ Plaintiffs have simply provided a list of every MRI scan performed by MDI during a 

five-year time period and argued, in essence, that some unknown number of these scans must 

have been medically unnecessary” and noting that “the conclusory statement that the scans 

were medically unnecessary is not entitled to the assumption of truth.”); Ironworkers Local 

Union 68 v. Astrazeneca Pharmaceuticals, LP, 634 F.3d 1352, 1363 (11th Cir. 2011) (dismissing 

RICO claims and noting that “[t]he issue of whether prescriptions are medically unnecessary or 

inappropriate — like most health care delivery questions — depends on the standards of practice 

in the medical profession.”); Arnold v. Alphatec Spine, Inc., No. 1:13-cv-714, at *25 (S.D. Ohio 

June 26, 2014) (“the factual allegations in the FAC do not show that all Plaintiffs were subjected 

to medically unnecessary surgeries. Rather, the facts allege that all Plaintiffs underwent surgery 

involving PureGen, some of which may have been medically unnecessary. Accordingly, 

Plaintiffs' allegations, as pled, are not sufficiently particular. Plaintiffs are required to plead the 

precise false statement at issue with the requisite particularity under Rule 9(b).”).

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a. CPT Code 99203 – Initial Exams

GEICO speculates that, because a handful of police reports supposedly omitted any reference 

to an injury or a visit to a hospital, the use of CPT Code 99023 to indicate that the Insured 

experienced an injury of moderate severity automatically constitutes wire and mail fraud. See

Complaint at 26-27, ¶109. Similarly, GEICO hypothesizes that because Titan and Dr. Nguyen 

supposedly failed to “document an extended examination of Insured’s” musculoskeletal systems 

according to the guidelines for CPT Code 99023 somehow this document failure constituted wire 

fraud and/or mail fraud. See Complaint, 28-29 at ¶113. Lastly, GEICO alleges a series of 

conclusions regarding the level of complexity or decision-making that Dr. Nguyen and Titan 

undertook to treat certain Insureds. See Complaint at 30-31; id. at 33-35, ¶ 119 (alleging in 

conclusory fashion that Titan and Nguyen provided the Insureds with the “substantially identical 

phony soft tissue injury diagnoses and recommended a substantially identical course of 

unnecessary medical treatment). Despite these conclusions, GEICO fails to allege or identify 

any false statements that Titan or Dr. Nguyen made concerning any particular patient or Insured. 

b. CPT Codes 99213 and 99214 – Follow Up Exams

In addition, GEICO alleges that Titan and Dr. Nguyen committed wire and mail fraud 

because they submitted claims for follow-up exams using CPT Codes 99213 and 99214. Again, 

GEICO bases these meritless allegations on nothing more their subjective interpretations of 

police reports which supposedly omit references to serious injuries at the time of the accident. 

See Complaint 38-40, ¶ 138; id. at 41-43, ¶151. 

c. CPT Codes 96150, 96151 and 96156 for Health and Behavioral Assessments

GEICO alleges that Titan and Dr. Ng used pre-printed questionnaires to bill for health and 

behavioral assessments in contravention of the requirements for billing under CPT codes 96150, 

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96151, and 96156. Complaint at 45-47. Despite this, contrary to the requirements of Rule 9(b), 

GEICO fails to identify any specific Insured that completed a questionnaire, any specific false or 

fraudulent statement in connection with an Insured, or the content of any statement in connection 

with an Insured and instead alleges generally that this was another fraudulent practice at Titan.

d. CPT Code 76499 for Ligament Laxity Testing

GEICO alleges that because Dr. Nguyen and Titan supposedly failed to incorporate the 

results of ligament laxity testing into the final treatment plan of the Insured, such testing was 

medically unnecessary, and therefore, fraudulent. See Complaint at 47-51. GEICO further 

surmises that there is inadequate scientific data to support ligament laxity testing. Id. at 48, 

¶¶178-19. Neither of these allegations is sufficient to constitute the predicate act of wire or mail 

fraud. Takhalov at 1312. Indeed, the failure to incorporate the results of specific testing – even if 

true -- could be the consequence of a myriad of other factors made by chiropractor as part of his 

independent medical decision making. Such a failure, alone, cannot give rise to a plausible claim 

of fraud. Ashcroft, 556 U.S. at 678.

e. CPT Codes for Chiropractic Treatment and Physical Therapy 

GEICO alleges that Titan and Dr. Nguyen submitted false claims for physical therapy and 

chiropractic treatment in contravention of certain CPT codes. See Complaint, at 51-52. Yet, 

GEICO fails to allege a single fraudulent or false statement, a single false or fraudulent diagnosis 

rendered to any specific Insured, or the content of a specific statement attributable to Dr. Nguyen 

or Titan. Instead, it surmises that Dr. Nguyen and Titan provided medically unnecessary 

treatments to “virtually always.” See Complaint, at 52, ¶195.

f. Use of Home Medical Equipment (L0637)

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Lastly, GEICO alleges that Dr. Nguyen and Titan submitted fraudulent claims for lumbarsacral orthotics (LSO) under HCPCS code L0637. See Complaint at 52-56. GEICO alleges fraud 

based on a series of conclusions regarding the medical necessity of the LSO, namely, that the 

Insured had no history of spinal instability, the Insured was receiving chiropractic treatment to 

increase the range of motion in the spine, the Insured was not fitted for the LSO, and the Insured 

was prescribed the LSO shortly after a minor car accident. See Complaint at 55, ¶211. 

Collectively, or standing in isolation, none of these allegations complies with Rule 9(b)’s 

strict particularity requirement. See Daniels vs Nat’l City Mortgage, 2009 U.S. Dist. LEXIS 7382 

at *2 (M.D. Fla. Aug. 20, 2009) (noting that the particularity requirement has an important 

purpose regarding fraud actions by “alerting defendants to the precise misconduct with which 

they are charged and protecting defendants against spurious charges or immoral and fraudulent 

behavior.”). Equally as significant, none of these allegations, alone or in combination, is 

sufficient to properly plead the predicate acts of wire or mail fraud. Fines Enters. v. Ruark, No. 

6:16-cv-1244-Orl-37TBS, at *5 (M.D. Fla. Apr. 7, 2017) (“But such conclusory allegations do 

not identify a single misrepresentation made to Plaintiff that would substantiate mail or wire 

fraud.”).

4

Thus, Claims Two and Three must be dismissed against Titan and Dr. Nguyen.

B. Counts 9 and 15 of the RICO Conspiracy Claims Must be Dismissed with Prejudice

1. Failure to State RICO Claims Against Dr. Nguyen or Titan Supports Dismissal Of 

Conspiracy Claims

4

In addition, fraud statutes do not exist to ensnare medical providers for disagreements about the use of CPT codes 

or disagreements about medical decision making. See H.R. REP. NO. 104-736, at 258 (August 21, 1996), reprinted 

in 1996 U.S.C.C.A.N. 1990, 2071 (“The health care fraud statute is "not intended to penalize a person who exercises 

a health care treatment choice or makes a medical or health care judgment in good faith simply because there is a 

difference of opinion regarding the form of diagnosis or treatment."); see also U.S. v. Whiteside, 285 F.3d 1345, 

1351-52 (11th Cir. 2002) (reversing conviction for defrauding government reasoning that “[i]n a case where the 

truth or falsity of a statement centers on an interpretive question of law, the government bears the burden of proving 

beyond a reasonable doubt that the defendant's statement is not true under a reasonable interpretation of the law.”).

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"To support a claim for a federal or state RICO conspiracy, a plaintiff must `allege an illegal 

agreement to violate a substantive provision of the RICO statute.' Thus, where a plaintiff fails to 

state a RICO claim and the conspiracy count does not contain additional allegations, the 

conspiracy claim necessarily fails." Rogers v. Nacchio, 241 Fed. Appx. 602, 609 (11th Cir. 2007) 

(quoting Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1269 (11th Cir. 2004)). 

For the reasons set forth herein, the RICO claims against Dr Nguyen and Titan fail. 

Furthermore, the RICO Conspiracy Claims in Claims 9 and 15 state no additional facts or 

information to save GEICO from its failure to plead RICO. There is no new or additional 

information describing any illegal agreement to defraud GEICO. Am. Dental Ass'n v. Cigna 

Corp., 605 F.3d 1283, 1293 (11th Cir. 2010). 

2. Counts 9 and 15 Fail the Reeves Test Because There are No Factual Allegation 

Describing How Dr. Nguyen or Titan as supposed RICO co-conspirators participated in 

the management or operation of either Stein P.A. or ISO Diagnostics 

The Supreme Court in Reeves v Ernst & Young, 507 U.S. 170, 179 (1993) held that to 

"participate, directly or indirectly, in conduct of [an] enterprise's affairs," within the meaning of 

the RICO statute, one must have some part in either the management or the operation of the 

affairs of the enterprise itself. There, the Court held that the accounting firm for a farmer's 

cooperative sued by purchasers of demand notes did not “participate in operation or 

management” of the cooperative's affairs, as required to impose liability for accountants under 

RICO. 

In Claim Nine, GEICO alleges that Stein PA was the RICO “enterprise.” Similarly, in Claim 

Fifteen GEICO alleges that ISO Diagnostics was the RICO “enterprise.” Nonetheless, absent 

from the Complaint are any allegations that either Dr. Nguyen or Titan participated in the 

operation or management of either of these supposed RICO “enterprises” --- Stein P.A. or ISO 

Case 0:22-cv-61648-AHS Document 24 Entered on FLSD Docket 11/17/2022 Page 17 of 21
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Diagnostics. Comcast of South Florida II, Inc. v. Best Cable Supply, No. 07-22335-CIVHUCK/SIMONTON, at *11 (S.D. Fla. Jan. 22, 2008) (“Plaintiffs have failed to sufficiently 

allege that the individual Defendants participated in the management or operation of the 

enterprise through a pattern of racketeering activity. ”); Fernau v. Enchante Beauty Prods., Inc., 

No. 18-CV-20866-SCOLA/MCALILEY, at *7 (S.D. Fla. Sep. 17, 2019) ( dismissing RICO 

claim finding that plaintiffs failed to allege that defendants participated in the affairs of the 

enterprise and noting that “[t]he Supreme Court has explained that "liability 'depends on showing 

that the defendants conducted or participated in the conduct of the enterprise's affairs, not just 

their own affairs.'”); Funding Metrics, LLC v. Decision One Debt Relief LLC, CASE NO.: 18-

81061-CIV-Bloom/Reinhart, at *16 (S.D. Fla. Feb. 22, 2019) (dismissing RICO claim against 

certain defendants reasoning that “these allegations fall short of alleging a plausible claim that 

Veritas, Angelo Anzalone, Sara Anzalone, Castaldo, or Smith had the requisite intent to join a 

scheme to defraud. Similarly, they fall short of pleading a plausible claim that the Veritas 

Defendants were aware of fraudulent actions by the Decision One Defendants that are alleged in 

the Complaint.”)

In addition, the Complaint is completely devoid of any allegations that Dr. Nguyen or Titan 

exercised control over, directed, or managed Stein P.A. or any of its owners or employees, 

including defendant Stein. Nor are there any allegations that Titan and Stein P.A. did anything 

more than treat the same patients [Insureds] while providing medical services to victims of car 

accidents seeking personal injury protection benefits. Treating the same patients or referring one 

another for medical services to be provided to those patients is insufficient to allege the requisite 

participation or management under Reeves. 

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Similarly absent from the Complaint are any allegations that Dr. Nguyen or Titan exercised 

control over, directed, or managed ISO Diagnostics or any of its owners or employees, including 

defendant David Baruch. Nor are there any allegations that Dr. Nguyen or Titan even ever 

communicated with or interacted with ISO Diagnostics or any of its owners or employees, 

including defendant David Baruch. 

C. The Fraud Claim in Claim Five Must be Dismissed for the same reasons

Claim Five must be dismissed against Titan and Dr. Nguyen. "To state a claim of fraud, a 

plaintiff must show (1) a false statement or an omission of material fact, (2) knowledge of the 

statement's falsity, (3) intent to induce reliance, and (4) injury resulting from the plaintiff's 

relying on the statement." Drilling Consultants, Inc. v. First Montauk Sec. Corp. , 806 F. Supp. 

2d 1228, 1236 (M.D. Fla. 2011) (citing Ward v. Atl. Sec. Bank , 777 So. 2d 1144, 1146 (Fla. 3d 

DCA 2001) ) Myers v. Provident Life & Accident Ins. Co., 564 F. Supp. 3d 1157, 1181 (M.D. 

Fla. 2021). 

For the same reasons that the RICO claims in Claims 2, 3, 9, and 15 fail, the Claim for Fraud 

must be dismissed. Moreover, there is not a single allegation in the midst of the 100-plus-page 

Complaint that alleges any information or facts ascribing knowledge or intent to either Titan or 

Dr. Nguyen sufficient to state a cause of action for fraud. First Montauk Sec. Corp., 806 F. Supp. 

2d at 1236. 

D. The Unjust Enrichment Claim Six Must be Dismissed against Titan and Dr. 

Nguyen.

The unjust enrichment claim (Claim Six) must be dismissed. To state an actionable claim 

for unjust enrichment, a plaintiff must allege: (1) the plaintiff conferred a benefit on the 

defendant, (2) of which the defendant was aware and accepted, and (3) it would be inequitable 

for the defendant to retain the benefits. Allstate Ins. Co. v. Vizcay, 826 F.3d 1326, 1330-31 (11th 

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Cir. 2016) (affirming jury verdict on unjust enrichment claim in favor of insurer against 

unlawfully operated clinic); Med. Serv. Ctr., 103 F. Supp. 3d at 1355 (granting summary 

judgment in favor of State Farm on its unjust enrichment claim against unlawfully operated 

health care clinic which was owned by a lay person but acted like it was owned by a licensed 

medical professional). Here, GEICO has not alleged any facts – beyond legal conclusions and 

subjective interpretations of utility of certain CPT codes -- describing how it would be 

inequitable for Titan and/or Dr. Nguyen to retain PIP benefits.

E. The FDUPTA Claim Four Must be Dismissed against Titan and Dr. Nguyen.

Claim Four must be dismissed against Dr. Nguyen and Titan. To allege a violation of 

FDUPTA, a plaintiff must allege (1) a deceptive act or unfair practice; 2) causation; and 3) actual 

damages." Feheley v. Lai Games Sales, Inc., No. 08-23060-civ, 2009 WL 2474061, at *5 (S.D. 

Fla. 2009); Begualg Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd., No. 10-22153-CIV, 2011 WL 

4434891, at *5 (S.D. Fla. Sept. 23, 2011) (citing KC Leisure, Inc. v. Haber, 972 So. 2d 1069, 

1073 (Fla. 5th DCA 2008)). A "deceptive act or unfair practice" may be found when "there is a 

representation, omission, or practice that is likely to mislead the consumer acting reasonably in 

the circumstances, to the consumer's detriment." Sundance Apartments I, Inc. v. General Elec. 

Capital Corp., 581 F. Supp. 2d 1215, 1220 (S.D. Fla. 2008). 

Here, GEICO fails to state a violation of the Clinic Act, the Home Medical Equipment 

licensing laws, or the Florida Patient Brokering and Anti-Kickback Acts. In fact, GEICO does 

nothing more than regurgitate legal conclusions and launch subjective interpretations concerning 

the utility of certain treatments rendered by Titan and Dr. Nguyen. Such speculation and 

conclusory statements cannot plausibly state a deceptive, anti-competitive, or unfair under 

FDUPTA.

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F. The Declaratory Relief Claim Must be Dismissed against Titan and Dr. Nguyen.

Claim One for declaratory relief must be dismissed because that Claim is based on the 

identical legal conclusions which support dismissal of the other Claims against Dr. Nguyen and 

Titan. Moreover, the Declaratory Judgment Act provides that “[i]n a case of actual controversy 

within its jurisdiction ... any court of the United States, upon the filing of an appropriate 

pleading, may declare the rights and other legal relations of any interested party seeking such 

declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201. Thus, in order 

to obtain declaratory relief under Section 2201, Plaintiff “must allege facts from which it appears 

there is a substantial likelihood that he will suffer injury in the future.” Walden v. Centers for 

Disease Control & Prevention, 669 F.3d 1277, 1284 (11th Cir. 2012). “Additionally, the 

continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and 

immediate, and create a definite, rather than speculative threat of future injury.” Malowney v. 

Fed. Collection Deposit Grp.,193 F.3d 1342, 1347 (11th Cir.1999) (quoting Emory v. Peeler,756 

F.2d 1547, 1552 (11th Cir.1985)) (internal quotations omitted).

Here, GEICO fails to state an actual controversy or likelihood that GEICO will suffer an 

injury. Instead, GEICO alleges that Titan submitted $75,000 in pending “fraudulent” claims but 

has not alleged how those pending claims – which GEICO has denied -- might injure GEICO.

Likewise, GEICO does nothing more than speculate that Titan or Dr. Nguyen pose a future threat

of cause pecuniary harm to GEICO. In fact, GEICO has blocked any future PIP claims submitted 

by Titan which belies this premise. 

CONCLUSION

For the reasons set forth herein, Dr. Nguyen and Titan request that this Court grant this 

Motion.

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