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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

NANCY GUCWA AND MARK MARUSZA,

Plaintiffs, 

v. 

DR. JEFFREY LAWLEY, ET AL., 

Defendants. 

Case No. 15-10815 

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

ANTHONY P. PATTI

 / 

OPINION AND ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS; DENYING 

DEFENDANT DR. BARRY RUBIN’S MOTION FOR SANCTIONS; AND DENYING 

PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDMENT TO THE SECOND 

AMENDED COMPLAINT 

 In October 2011, Mark Marusza suffered severe injuries to, among other 

things, his brain, shoulders, cervical spine, and ribs, when he was struck by an 

SUV while walking through an intersection during the course and scope of his 

employment. Accident Fund Insurance Company, the workers’ compensation 

administrator, refused to pay for some of Marusza’s treatment, and for attendant 

care services provided by Marusza’s girlfriend, Nancy Gucwa, after it reviewed a 

series of evaluation reports written by Doctors Ager, Baker, Rubin, and Lawley. 

After the Workers’ Compensation Board Magistrate ordered Accident Fund to pay 

Marusza, Plaintiffs filed this lawsuit against Accident Fund and the five doctor 

defendants, alleging a conspiracy, pursuant to which Accident Fund hired the 

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doctors to write fraudulent reports for the purpose of denying claimants workers’ 

compensation benefits, in violation of the Racketeer Influenced and Corrupt 

Organizations (“RICO”) Act. Plaintiffs also bring claims of tortious interference 

with contract or expectancy; liability under the Medicare Secondary Payer Act 

(“MSPA”); and the tort of false imprisonment. 

 For the reasons discussed in depth below, the Court will GRANT

Defendants’ Motions to Dismiss. The Court will DENY both Defendant Rubin’s 

Motion for Sanctions and Plaintiffs’ Request for Sanctions against Defendant 

Rubin, and will DENY Plaintiffs’ Motion for Leave to File an Amendment to the 

Second Amended Complaint. 

FACTUAL BACKGROUND

Given the nature of Defendants’ motions, the Court will accept the 

complaint’s factual allegations as true and draw all reasonable inferences in the 

plaintiffs’ favor. Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. 

Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012). 

Plaintiff Marusza was struck by a car while on the job in October 2011. The 

accident caused him to suffer a traumatic brain injury (“TBI”) and injuries to his 

spine and shoulder. Plaintiff Gucwa, Marusza’s girlfriend, provided attendant care 

services for his brain and spine injuries. 

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 Defendant Accident Fund Insurance Company (“AF”) administered 

workers’ compensation insurance under a contract of insurance through Marusza’s 

employer. Plaintiffs allege that AF hired the doctor defendants for the purpose of 

obtaining fraudulent reports supporting the denial of benefits, and that the doctor 

defendants consistently wrote biased reports favorable to AF. Relying on reports 

prepared by Doctors Ager, Baker, Rubin, and Lawley, AF refused to pay for 

attendant care services provided by Gucwa and for treatment Marusza received for 

his shoulder injuries. Medicare paid for some of the treatment costs that AF 

refused to cover. 

Plaintiffs submitted claims to the workers’ compensation agency. After a 

series of hearings held in October-December of 2015, Magistrate Beatrice B. 

Logan, of the Workers’ Compensation Board, made the following relevant factual 

findings as to Mr. Marusza: 

 Plaintiff sustained a mild traumatic brain injury, injury to his neck, 

left and right shoulders, lower back, and vision problems as a result of 

the October 2011 motor vehicle accident; 

 Plaintiff returning to useful work is probably not practical; 

 Plaintiff lost all wage earning capacity due to the injuries he 

sustained; 

 Plaintiff’s treatment was needed for the problems related to the TBI 

and orthopedic injuries Plaintiff sustained as a result of the motor 

vehicle accident; 

 Defendant Accident Fund is responsible for the reasonable and 

necessary medical treatment, including the residual TBI treatment and 

the orthopedic injuries; 

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 Accident Fund shall pay for reasonable and necessary medical 

treatment of Plaintiff’s employment-related condition of the TBI, the 

convergence insufficiency, hyperphoria, ptosis, end point nystagmus, 

and the orthopedic injuries Plaintiff sustained as a result of the 

accident; 

 Plaintiff cannot return to his former job with Defendant, any of his 

past jobs, or any employment other than a sheltered workshop; 

(Dkt. 79, Pg. ID 1220-25). 

The Magistrate ordered Accident Fund to pay Plaintiff Marusza worker’s 

compensation benefits at the rate of $592.88 per week from October 19, 2011 until 

otherwise ordered and to pay for reasonable and necessary medical treatment for 

Plaintiff’s employment related injury. Accident Fund paid Plaintiff Marusza 

$74,382.00 on August 12, 2016. (Dkt. 102-1, Pg. ID 1846). 

PROCEDURAL HISTORY

The Court will recite only the pertinent parts of the procedural history of this 

case. After Plaintiffs filed their Amended Complaint [Dkt. 2] in March 2015, the 

Defendants filed their Motions to Dismiss [Dkt. 27, 32-34, 36] in April and May 

2015. Further briefing on these motions followed, and in lieu of a hearing, the 

Court met with counsel for a status conference in November 2015. The Court 

adjourned the hearing until after the Workers’ Compensation Board issued a 

written decision in Marusza’s case. 

Plaintiffs filed their Second Amended Complaint [Dkt. 75] in April 2016. 

The Workers’ Compensation Board Magistrate issued an Opinion and Order [Dkt. 

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79] on May 23, 2016. Thereafter, Defendants filed their Motions to Dismiss the 

Second Amended Complaint [Dkt. 81, 83-86] in late July 2016. Both parties timely 

briefed their Responses [Dkt. 93-97] and Replies [Dkt. 98-102] by October 2016. 

Defendant Dr. Barry Rubin filed a Motion for Sanctions (Dkt. 104) on 

November 8, 2016. Plaintiffs then filed a Motion for Leave to File an Amendment 

to the Second Amended Complaint [Dkt. 106] on November 21, 2016. After a 

hearing on December 2, 2016, the Court took all motions under advisement. 

I. Defendants’ Motions to Dismiss 

STANDARD OF REVIEW

All Defendants move to dismiss Plaintiffs’ complaint pursuant to Federal 

Rules of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can 

be granted. To survive such a motion, Plaintiffs must plead factual content that 

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

misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A plaintiff's 

complaint must provide ‘more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Courts are not 

required to accept as true legal conclusions framed as factual allegations. See 

Twombly, 550 U.S. at 555. “Factual allegations must be enough to raise a right to 

relief above the speculative level on the assumption that all the allegations in the 

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complaint are true (even if doubtful in fact).” Id. (internal citations omitted). 

“[W]here the well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—

'that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. 

P. 8(a)(2)).

ANALYSIS

Plaintiffs bring claims under RICO against Defendants AF and Doctors 

Baker, Lawley, and Ager. They also assert tortious interference claims against all 

of the doctors. Finally, Plaintiffs allege that AF has violated the Medicare 

Secondary Payer Act (“MSPA”) and that AF and Dr. Baker are liable for the tort of 

false imprisonment. 

A. Racketeer Influenced and Corrupt Organizations (“RICO”) Act 

Plaintiffs suing under RICO must establish that illegal racketeering activities 

have caused them injury “in [their] business or property.” 18 U.S.C. § 1964(c). To 

state a civil RICO claim, a plaintiff must allege “(1) conduct (2) of an enterprise 

(3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., 

Inc., 473 U.S. 479, 496 (1985) (footnote omitted). The pattern element requires 

continuity, “referring either to a closed period of repeated conduct, or to past 

conduct that by its nature projects into the future with a threat of repetition.” 

Brown v. Cassens Transport Co., 546 F.3d 347, 354 (6th Cir. 2008) (internal 

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quotations omitted). A plaintiff must also allege (5) an “injury to business or 

property” that is (6) proximately caused by the defendants’ racketeering activity. 

Jackson v. Sedgwick Claims Management Services, 731 F.3d 556, 563–64 (6th Cir. 

2013) (en banc). Furthermore, plaintiffs must demonstrate that “a RICO predicate 

offense not only was a ‘but-for’ cause of [the] injury, but was the proximate cause 

as well.” Hemi Group, LLC v. City of New York, 559 U.S. 1, 9 (2010). 

 Plaintiffs argue that Defendants AF, Ager, Baker, and Lawley conducted an 

enterprise through a pattern of mail and wire fraud—specifically, the preparation 

(and mailing) of false medical reports intended to serve as a pretext for denying 

Plaintiffs and others workers’ compensation benefits. 

1. Plaintiff Marusza’s RICO Claim 

Although Plaintiff Marusza concedes that his RICO claim is fatal “as the law 

now stands in the Sixth Circuit” (Dkt. 97, Pg. ID 1703), he nevertheless argues that 

Jackson should not bar an injured worker from bringing a claim against an 

independent examiner. 731 F.3d at 563–64. He also purports to sue Defendant AF 

under RICO in an attempt to preserve his allegations in the event that Jackson is 

reversed “and holds that an injured person has a claim for damage to property 

under RICO.” (Compl. ¶7B). Plaintiff may not now “reserve” his RICO claim on 

the basis of such speculation. If Jackson is overturned at some future date, Plaintiff 

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could then “seek leave to amend his complaint to add a RICO claim.” Prieur v. 

Acuity, 143 F. Supp. 3d 670, 671 n.2 (E.D. Mich. 2015) (Parker, J.). 

The Court will dismiss Plaintiff’s RICO claim because he has failed to 

allege injury to business or property. Jackson, and a subsequent case, Brown v. 

Ajax Paving Industries, Inc., are on point: in both cases, plaintiffs who were denied 

workers’ compensation benefits for work-related injuries brought RICO claims 

against their employers, their employers’ workers’ compensation claim 

administrators, and alleged “cut-off” doctors. See Brown, 752 F.3d 656, 657 (6th 

Cir. 2014); Jackson, 731 F.3d at 558. Sitting en banc, the Jackson Court held that 

the claims were properly dismissed because “racketeering activity leading to a loss 

or diminution of benefits the plaintiff expects to receive under a workers’ 

compensation scheme does not constitute an injury to ‘business or property’ under 

RICO.” Jackson, 731 F.3d at 566. Likewise, in Brown, the Sixth Circuit rejected 

the argument that Jackson’s holding applied only to RICO claims brought by an 

employee against his employer. Jackson’s reasoning, it explained, “applies with 

equal force whether an employee sues his employer or somebody else.” Brown, 

752 F.3d at 658; see also id. (stating that the RICO Act’s applicability turns on the 

nature of the plaintiff’s injury, not the nature of the defendant). 

 Plaintiff argues that his claims can proceed because he is only bringing them 

against “independent medical examiners,” and “Jackson never specifically 

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considered whether a RICO claim brought by an injured worker against an 

‘independent’ examiner is sufficiently removed from the ‘personal injury’ giving 

rise to the workers’ compensation claim that it may be considered an injury to 

‘business or property’ within RICO.” (Compl. ¶6). Because this argument ignores 

the reasoning of both Jackson and Brown, it is meritless, and Plaintiff’s RICO 

claim is dismissed. 

2. Plaintiff Gucwa’s RICO Claim 

Unlike Marusza or the Jackson and Brown plaintiffs, Gucwa is not an 

employee claiming workers’ compensation for her own personal injury1

; rather, 

she provided medical care to the injured employee and claims workers’ 

compensation as reimbursement. The Court finds this distinction irrelevant and 

holds that Gucwa’s claim fails because she cannot prove that the alleged 

racketeering activities caused injury to her business or property. 

Brown articulates two reasons as to why similar claims have previously 

failed: 

One was that workers’ compensation compensates for personal injury. 

The [RICO] Act, which puts its spotlight on “business or property,” 

does not cover losses that flow from personal injuries. The other was 

that a contrary rule would allow the Act to police fraud in the 

workers’ compensation system, planting the national banner on land 

 

1

 “A personal injury – that is, an injury ‘to a person, such as a broken bone, a cut, or a bruise” or 

a ‘bodily injury’ is different in kind from an injury to ‘business or property,’ in the sense that 

these terms are commonly understood.” Jackson, 731 F.3d at 564 (quoting Black’s Law 

Dictionary 857 (9th ed. 2009)). 

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traditionally patrolled by the States. The Act does not speak with 

enough clarity . . . to authorize such an intrusion. 

Brown, 752 F.3d at 657 (internal citations omitted). The Jackson holding applies to 

any suit brought by the injured employee, regardless of the defendant, because 

“[c]hanging the defendant neither weakens the link between the benefits and 

personal injury nor dims the respect owed to the States’ authority over workers’ 

compensation.” Id. at 658. 

 Plaintiffs’ position is that changing the plaintiff to a caregiver does 

“weaken[] the link between the benefits and personal injury.” Id. Plaintiffs 

highlight four decisions from this District in which courts held that a medical 

provider’s loss of reimbursement from some form of insurance benefits is 

sufficiently removed from the underlying personal injury to suffice as a RICO 

injury. See State Farm Mut. Auto. Ins. Co. v. Warren Chiropractic & Rehab Clinic, 

P.C., No. 14-11521, 2015 WL 4724829 (E.D. Mich. Aug. 10, 2015) (Goldsmith, 

J.) (explaining that the “business dispute between an insurance company and the 

medical providers . . . relates to harm to business or property, not personal 

injury.”); State Farm Mut. Auto. Ins. Co. v. Universal Health Group, Inc., No. 14-

10266, 2014 WL 5427170, at *8 (E.D. Mich. Oct. 24, 2014) (Levy, J.) (the court 

did not interpret Jackson to bar claims by “doctors, hospitals, and any number of 

nonprofits directly injured in their business dealings involving personal injuries”); 

Allstate Insurance Company v. Medical Evaluations, P.C., No. 13-14682, 2014 

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WL 2559230 (E.D. Mich. June 6, 2014) (Leitman, J.); State Farm Mut. Auto. Ins. 

Co. v. Physiomatrix, Inc., No. 12-11500, 2014 WL 555199 (E.D. Mich. Feb. 12, 

2014) (O’Meara, J.) (Jackson did not bar medical clinics’ RICO claims based on 

blanket denials of personal injury protection benefits because their loss of 

reimbursement for services provided was an injury to business or property). 

Plaintiffs’ arguments are misplaced. Gucwa is not a professional caregiver 

and only provided medical care to Marusza in her capacity as his girlfriend. The 

above-cited cases are also distinguishable because they involved claims brought 

under Michigan’s No-Fault Insurance Act and defendants who were commercial 

entities – rehabilitative clinics, medical billing firms, and other corporations. See 

also Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“When a commercial 

enterprise suffers a loss of money[,] it suffers an injury in both its ‘business’ and its 

‘property.’”) (emphasis added). Also notable is the fact that, in November 2015, 

Gucwa withdrew her workers’ compensation claim for attendant care services 

because she is not considered a ‘provider’ as defined in the Michigan 

Administrative Health Care Services Workers Compensation Rules,2

 and thus, she 

no longer asserts entitlement to benefits for services rendered. (Dkt. 85-4, Pg. ID 

1609). 

 

2

 The Michigan Administrative Health Care Service Workers Compensation Rule 418.10109(p) 

defines ‘provider’ as “a facility, health care organization, or a practitioner.” Another provision of 

this Rule states that a practitioner is “an individual who is licensed, registered, or certified.” Rule 

418.10109(l). 

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 Plaintiff Gucwa’s role as a non-professional, unlicensed, attendant care 

provider is not comparable to that of a commercial enterprise, such as a licensed 

doctor or rehabilitative clinic, such that Gucwa can sufficiently establish that she 

suffered injury to her business or property. Her claimed damages are too intimately 

connected with Marusza’s personal injury underlying his workers’ compensation 

claim to constitute an injury to business or property that is recoverable under 

RICO. See Lewis v. Drouillard, 788 F. Supp. 2d 567, 570 (E.D. Mich. 2011) 

(Roberts, J.); Jackson, 731 F.3d at 566 (emphasizing that “an award of benefits 

under a workers’ compensation system and any dispute over those benefits are 

inextricably intertwined with a personal injury giving rise to the benefits.”) 

(emphasis added). 

 It is undisputed that AF paid Marusza $74,382.00 in August 2016 as ordered 

by the Workers’ Compensation Magistrate. (Dkt. 102-1, Pg. ID 1846). Plaintiffs 

suggest that Accident Fund wrote a check to Marusza, rather than Gucwa, only 

“because [it] knew this decision was pending.” (Tr. 26:24-25, 27:1-7). This 

argument is baseless.3

 The bottom line is, AF paid, as directed. Once AF wrote 

Marusza a check, it was under no obligation to pay anyone else. Id. at 27:14-17. 

That Gucwa did not receive any portion of that money is no fault of Accident 

Fund’s. 

 

3

 Plaintiffs’ counsel acknowledged during the hearing that he did not have proof to support this 

claim and that he “can only infer [Accident Fund] paid it directly to Marusza.” (Tr. 27:2-7). 

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 The Court now finds that Gucwa lacks standing to sue Defendants under 

RICO. The record is devoid of evidence showing how Gucwa has “any contractual 

or other rights against the defendants,” nor has Gucwa shown “what duty was 

owed [her] . . . nor how any defendant deprived [her] of a benefit due [her].” 

Palmer v. Nationwide Mutual Insurance Company, 945 F.2d 1371, 1376 (6th Cir. 

1991). It is abundantly clear that Gucwa has no legal basis upon which to maintain 

a claim in her own capacity for the workers’ compensation reimbursement owed to 

Marusza. 

B. Tortious Interference with Contract or Business Expectancy 

The Court will dismiss Plaintiffs’ state claims for tortious interference with 

contract or business expectancy against Defendants Ager, Baker, and Rubin. “The 

elements of tortious interference with a contract are (1) the existence of a contract, 

(2) a breach of the contract, and (3) an unjustified instigation of the breach by the 

defendant.” Knight Enterprises v. RPF Oil Co., 829 N.W.2d 345, 348 (Mich. Ct. 

App. 2013). Plaintiffs allege that by supplying their false reports, Ager, Baker, and 

Rubin induced AF to breach its workers’ comp insurance contract with Marusza’s 

employer. Furthermore, according to Plaintiffs, the Michigan Supreme Court 

recognized the validity of such a claim in Dubuc v. El-Magrabi, 795 N.W.2d 593, 

594 (Mich. 2011) (Mem. Op.). 

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The allegations in Dubuc differ from those in this matter in a critical respect: 

here, AF allegedly had a pre-existing intent to deny workers’ compensation 

benefits and hired the doctor defendants to effectuate that intent by providing a 

pretext for the denial. In other words, Plaintiffs have alleged that the doctor 

defendants did not induce the breach; rather, AF intended to breach the contract all 

along. 

Plaintiffs also purport to allege tortious interference with a business 

expectancy. Under Michigan law, this is a separate cause of action from tortious 

interference with contract. Health Call, 706 N.W.2d at 848. Its elements are 

(1) the existence of a valid business relationship or expectancy that is 

not necessarily predicated on an enforceable contract, (2) knowledge 

of the relationship or expectancy on the part of the defendant 

interferer, (3) an intentional interference by the defendant inducing or 

causing a breach or termination of the relationship or expectancy, and 

(4) resulting damage to the party whose relationship or expectancy 

was disrupted. 

Id. at 849. Plaintiffs have not shown that these elements are satisfied, and their 

claims are therefore dismissed. 

C. Medicare Secondary Payer Act 

Marusza maintains that Jackson’s holding conflicts with the intent of the 

Medicare Secondary Payer Act (“MSPA”), 42 U.S.C. § 1395(y), in that it 

improperly requires Medicare to pay for medical bills that should have been paid 

by the workers’ compensation insurer. The MSPA “designates certain private 

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entities – such as a group health plan, a worker’s compensation plan, or an 

automobile or liability insurance plan – as ‘primary payers’ that have the 

responsibility to pay for a person’s medical treatment.” Stalley v. Methodist Health 

Care, 517 F.3d 911, 915 (6th Cir. 2008). The MSPA does not require Medicare to 

pay “if payment for covered medical services has been or is reasonably expected to 

be made by a private payer.” Nawas v. State Farm Mut. Auto. Ins., No. 13-11158, 

2014 WL 4605601, at *3 (E.D. Mich. Sept. 15, 2014) (Berg, J.) (citing 42 U.S.C. § 

1395y(b)(2)(A)). However, “[i]f the primary payer has not paid and will not 

promptly do so,” Medicare may “conditionally pay the cost of the treatment.” 

Stalley, 517 F.3d at 915; see also 42 U.S.C. § 1395y(b)(2)(B)(i). The MSPA 

further creates a private right of action for double damages against a primary 

insurer that fails to pay medical expenses and thereby lets Medicare foot the bill 

instead. See Bio-Medical Applications of Tenn., Inc. v. Central States S.E. & S.W 

Areas Health & Welfare Fund, 656 F.3d 277, 284 (6th Cir. 2011) (citing 42 U.S.C. 

§ 1395y(b)(3)(A)). Two conditions precedent must be met before a plaintiff may 

invoke the MSPA: “[f]irst, Medicare must have actually made payments on the 

claimant’s behalf . . . second, the primary insurer must be ‘responsible’ for paying 

the benefits at issue.” Geer v. Amex Assur. Co., No. 09-11917, 2010 WL2681160, 

at *4 (E.D. Mich. July 6, 2010) (Zatkoff, J.). 

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 AF raises two arguments. First, it claims that there is no evidence in the 

workers’ compensation record that Medicare actually paid for any of Plaintiff 

Marusza’s medical bills at issue.4

 Specifically, AF challenges the complaint’s 

failure to identify specific payments that Medicare made. Plaintiff contends that 

there is nothing requiring a workers’ compensation claimant to prove that 

Medicare paid medical bills. AF maintains that as of December 2, 2016 (the date of 

the hearing), it has not received a final determination letter from Medicare, and 

therefore, no payment to Medicare from AF is due.5

 

AF also asserts that a cause of action does not accrue under the MSPA until 

there is some sort of adjudication or settlement demonstrating the defendant’s 

responsibility for the expenses. However, the Sixth Circuit expressly rejected this 

line of reasoning in Bio-Medical. The MSPA’s “demonstrated responsibility” 

provision applies only to lawsuits brought by Medicare against tortfeasors; it does 

not apply to suits brought by private parties or to suits against private insurers. 

Bio-Medical, 656 F.3d at 279. Since Marusza is a private party suing a private 

insurer, AF’s “demonstrated responsibility” argument is no good. 

 

4

 In her Opinion, Magistrate Judge Logan noted that “[t]here was no evidence presented at the 

hearings of unpaid medical bills. It appears Auto-Owners paid the medical bills that defendant 

did not pay and they are seeking reimbursement.” Dkt. 79, Pg. ID 1594. 

5

 INSURER NGHP RECOVERY, https://www.cms.gov/medicare/coordination-of-benefits-andrecovery/insurerservices/insurer-NGHP-recovery.html (modified on Dec. 21, 2015, 12:56 P.M.) 

(explaining that the Commercial Repayment Center “issues a recovery demand letter advising 

the applicable plan of the amount of money owed to Medicare.”). 

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The Court finds a more serious problem with Plaintiff’s claim. The BioMedical Court acknowledged that the MSPA’s private cause of action is not a qui 

tam provision, which would transfer the government’s standing to a private party. 

656 F.3d at 296 n.17. To have standing, MSPA plaintiffs “must suffer their own 

harm,” as opposed to the harm suffered by Medicare (i.e., Medicare’s loss of 

money when it pays expenses that a private payer should have paid). Id. The BioMedical plaintiff had standing because he alleged that Medicare paid him less than 

the primary insurer would have paid. Id. 

Marusza has not alleged that he was paid less by Medicare or that he was in 

any other way harmed by the fact that Medicare, rather than AF, paid for treatment. 

Accordingly, the Court will dismiss Marusza’s MSPA claim for lack of standing. 

D. False Imprisonment 

Plaintiff Marusza concedes that his false imprisonment claim fails in light of 

Sheehan v. Star Insurance Company, in which the Sixth Circuit – affirming this 

Court – held that the plaintiff’s actions, like those here, “were sufficiently 

voluntary that there was no imprisonment . . . and there is no indication that the 

Michigan Supreme Court would likely say otherwise.” No. 16-1692, 2016 WL 

6872049, at *1 (6th Cir. Nov. 22, 2016). The Court will therefore dismiss

Plaintiff’s false imprisonment claim. 

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II. Defendant Doctor Barry Rubin’s Motion for Sanctions and 

Plaintiffs’ Requests for Sanctions 

Per Federal Rule of Civil Procedure 11(b), when a motion or document is 

filed with the court, a party or counsel represents to the court that: 

(1) it is not being presented for any improper purpose, such as to 

harass, cause unnecessary delay, or needlessly increase the cost of 

litigation; 

(2) the claims, defenses, and other legal contentions are warranted by 

existing law or by a nonfrivolous argument for extending, modifying, 

or reversing existing law or for establishing new law; 

(3) the factual contentions have evidentiary support or, if specifically 

so identified, will likely have evidentiary support after a reasonable 

opportunity for further investigation or discovery. 

Oakstone Cmty. Sch. v. Williams, No. 14-3742, 615 F. Appx. 284, 288 (6th Cir. 

2015) (unpublished). Fed. R. Civ. P. 11(c) authorizes the Court to impose sanctions 

if it finds that Rule 11(b) has been violated. In making this determination, the 

Court should focus on whether “the attorney believes on the basis of reasonable 

inquiry that there is a reasonable basis in law and fact for the position taken and 

that the paper is not filed for an improper purpose.” Id. (quoting Jackson v. Law 

Firm of O'Hara, Ruberg, Osborne and Taylor, 875 F.2d 1224, 1229 (6th 

Cir.1989)). When deciding whether to impose sanctions, the Court implements a 

standard of objective reasonableness. Montell v. Diversified Clinical Servs., Inc., 

757 F.3d 497, 510 (6th Cir. 2014). 

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A party’s egregious conduct may warrant monetary sanctions, which can 

include “part or all of the reasonable attorney's fees and other expenses directly 

resulting from the violation,” but “must be limited to what suffices to deter 

repetition of the conduct or comparable conduct by others similarly situated.” Fed. 

R. Civ. P. 11(c)(4). The party seeking sanctions must serve the motion within the 

safe harbor period so that the opposing party has “sufficient opportunity . . . to 

choose whether to withdraw or cure the offense voluntarily before the court 

disposes of the challenged contention.” Ridder v. City of Springfield, 109 F.3d 288, 

297 (6th Cir. 1997). 

According to Defendant Dr. Rubin, Plaintiffs’ claims are frivolous because 

Rubin submitted his independent medical examination report in May 2014, two 

years after Defendant AF first denied Plaintiff Marusza his benefits. Therefore, he 

says, he could not have committed tortious interference.6

 Rubin also maintains that 

Plaintiffs’ attorney should be sanctioned7

 because he presented to the Court a 

frivolous, unwarranted legal theory – specifically, that a party can be liable for 

tortious interference for causing a continuation of the initial breach. 

Plaintiffs argue that these claims are not sanctionable because disability 

workers’ compensation claimants “may make a stream of claims as services are 

 

6

 AF denied Plaintiffs’ claims for workers’ compensation benefits in June 2012. 

7

 Pursuant to Federal Rule of Civil Procedure 11(c)(5)(A), the court may not impose a monetary 

sanction against a represented party for violating Rule 11(b)(2). 

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provided.” (Dkt. 105, Pg. ID 1893). Because a person could file claims over the 

span of many years for an old injury, Plaintiffs contend, the insurer will continually 

evaluate new claims and either grant or deny benefits. They further state that if 

they prevail, Defendant should pay sanctions to them pursuant to Federal Rule of 

Civil Procedure 11(c)(2). 

The Court will deny Defendant Rubin’s Motion for Sanctions and Plaintiffs’ 

Request for Sanctions because the basis for Plaintiffs’ claims against Rubin was 

not unreasonable. Furthermore, there is no indication that any of the claims were 

filed for an improper purpose or that any of the parties or their counsel engaged in 

egregious conduct. See Montell, 757 F.3d at 510. 

III. Plaintiffs’ Motion for Leave to File an Amendment to the Second 

Amended Complaint 

Plaintiffs move for leave to amend the Second Amended Complaint. Leave 

to amend “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a)(2). 

“When considering whether to grant leave to amend a complaint, the court 

considers ‘[u]ndue delay in filing, lack of notice to the opposing party, bad faith by 

the moving party . . . and futility.’” Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998) 

(quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994)). Though Rule 15(a) 

indicates that leave to amend shall be freely granted, “[a]mending would be futile 

if a proposed amendment would not survive a motion to dismiss.” SFS Check, LLC 

v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014). 

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 Plaintiffs’ Motion for Leave to Amend the Second Amended Complaint is 

denied, as any proposed amendments would be insufficient to defeat Defendants’ 

Motions to Dismiss. 

CONCLUSION

Accordingly, 

IT IS ORDERED that Defendants’ Motions to Dismiss the Second 

Amended Complaint [Dkt. 81, 83-86] is GRANTED. 

IT IS FURTHER ORDERED that Defendant Rubin’s Motion for 

Sanctions [104] is DENIED. 

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Leave to Amend 

[106] is DENIED. 

SO ORDERED. 

s/Arthur J. Tarnow 

 Arthur J. Tarnow 

Dated: January 23, 2017 Senior United States District Judge 

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