UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES OF AMERICA ex rel.

JOHN N. KRAMER,

Plaintiff,

v.

ROBERT A. DOYLE, JR., et al.,

Defendants.

Case No. 1:18-cv-373

JUDGE DOUGLAS R. COLE

OPINION AND ORDER

This case, about dentists who allegedly billed Medicaid for medically 

unnecessary procedures, has a long history.1 It is now before the Court on three

motions. The first is Plaintiff-Relator John N. Kramer’s motion seeking leave to file 

a fourth amended complaint. (Doc. 90). The proposed Fourth Amended Complaint 

(Doc. 90-2) adds various allegations against North American Dental Management, 

LLC, (NADM), and Professional Dental Alliance, LLC, (PDA). (Doc. 90, #2250). So as 

part of his Motion for Leave to Amend, Kramer also moves the Court to reconsider its 

earlier dismissal of NADM, (Doc. 67, #1397–98)—the second motion now before the 

Court. (Doc. 90, #2250). Finally, NADM and PDA seek leave to file a surreply to 

Kramer’s reply on that combined motion. (Doc. 95). For the reasons discussed below, 

the Court DENIES both the Motion for Leave to File Fourth Amended Complaint 

and the Motion for Reconsideration of NADM’s Dismissal (Doc. 90). Accordingly, it 

1 The Court recounts the lengthy background only briefly here. For a more complete account, 

see the Court’s first Opinion and Order. (Doc. 67, #1363–69).

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also DENIES AS MOOT the Opposed Motion for Leave to File Surreply Brief, 

Instanter (Doc. 95). 

BACKGROUND

Kramer believes certain dentists in eastern Ohio performed medically 

unnecessary dental procedures and billed those procedures to Medicaid. He brought 

a qui tam action alleging as much against multiple defendants, including Complete 

Dental Care (CDC) Martins Ferry, LLC, and CDC Steubenville, LLC, (together, CDC 

Defendants), under the False Claims Act (FCA). (See generally Compl., Doc. 1). On 

November 14, 2018, after this litigation began, but before the Court unsealed the 

matter, the CDC Defendants sold their dental practices to NADM and PDA.

2 (Doc. 

87-1, #2073). After Kramer learned of NADM’s role, he amended his Complaint to 

include it. (3d Am. Compl., Doc. 37). 

All of the then-Defendants, including North American Dental Group (NADG), 

NADM’s corporate parent, (see Docs. 30, 46), NADM, and the CDC Defendants, moved 

to dismiss the Third Amended Complaint. (Docs. 48, 49). The Court granted in part 

and denied in part the CDC Defendants’ motion. (Doc. 67, #1403). And it granted 

NADG and NADM’s motion. (Id.). In brief, the Court found that Kramer had plausibly 

alleged CDC Defendants submitted false claims. (Id. at #1388–90). But he had not 

plausibly alleged the same for NADM and NADG. (Id. at #1397–98). So the Court 

dismissed all claims against them and with prejudice because it was Kramer’s third 

2 Kramer filed his Complaint under seal on May 31, 2018. (Doc. 1). The sale occurred 

November 14, 2018. (Doc. 87-1, #2073). The Court unsealed the case on September 12, 2019. 

(Doc. 17). Defendants moved to dismiss three months later. (Doc. 48).

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crack at alleging a claim against those defendants. (Id. at #1403). Discovery 

commenced. 

Kramer then sought once again to join NADM and also to join (for the first 

time) PDA. (Doc. 71). He argued that discovery produced sale contracts proving that 

NADM and PDA bear liability for CDC Defendants’ false claims. (Id. at #1451–55). 

So he moved under Federal Rule of Civil Procedure 25(c) to assert claims against 

NADM and PDA, arguing they bear liability as CDC Defendants’ successors in 

interest. (Id.). Kramer also moved under Rule 60(b) for the Court to set aside its 

earlier ruling dismissing NADM with prejudice, in which motion he argued he did 

not know of the transfer’s full extent until he saw the contracts. (Id. at #1455–56).

The Court was not persuaded by either argument. (Op. and Order, Doc. 89, #2247–

48). But it noted that it would consider a motion for reconsideration coupled with a 

renewed motion to amend Kramer’s Complaint, should he so move. (Id. at #2248). 

Kramer has now moved for leave to file a Fourth Amended Complaint. He 

seeks to add various allegations against NADM and PDA, which he claims he has 

done “[i]n accordance with the Court’s Order.” (Doc. 90, #2251). More specifically, 

Kramer seeks to add allegations about NADM and PDA’s purchase of CDC and three 

example patients already in the Third Amended Complaint—Patients Five, Six, and 

Seven, as well as twelve new example patients—Patients Nine through Twenty. (Doc. 

90-1 ¶¶ 224–25, 242–44, 263–65, 286–365, #2327, 2331–32, 2335–36, 2340–56).

NADM, PDA, and CDC Defendants opposed. NADM and PDA argue, in part,

that amendment would be futile, and that Kramer has repeatedly failed to cure his 

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pleading deficiencies through amendment. (Doc. 92, #2470–84). So they say 

reconsideration is unwarranted. (Id. at #2484). CDC Defendants make similar 

arguments. First, they say Kramer has not pleaded sufficient factual allegations to 

support claims against NADM and PDA. (Doc. 93, #2488–91). Second, they say

Kramer has failed to meet the standard for reconsideration of an interlocutory order. 

(Id. at #2491–94). Finally, they say the Court should deny Kramer leave to amend for 

repeated failure to cure deficiencies. (Id. at #2494–96). 

Kramer replied. (Doc. 94). He argues, among other things, that (1) the Court’s 

prior Order established that he can state a plausible claim against NADM and PDA 

for post-closing claims; (2) his proposed amendments are not futile; and (3) NADM 

and PDA are responsible for the false claims associated with Patients Five, Six, and 

Seven. (Id. at #2499–2506).

Finally, NADM and PDA sought leave to file a surreply. (Doc. 95). They say 

Kramer misrepresented both the Court’s previous Opinion and Order and the effects 

of his proposed amendments, so they are entitled to file a surreply. (Id. at #2509–

11). Kramer disagrees on both fronts. (Doc. 96, #2518–20). In the more than three 

months since Kramer responded, neither NADM nor PDA has replied. So the Court 

treats the motion as ripe. Inge v. Rock Fin. Corp., 388 F.3d 930, 935 n.4 (6th Cir. 

2004) (“[I]t appears that [the movants] never filed a reply in support of [their] motion 

to [file a surreply]. Accordingly, the motion became ripe ... when the time for filing a 

reply brief expired.”).

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LEGAL STANDARD

“[C]ourt[s] should freely give leave [to amend] when justice so requires.” Fed. 

R. Civ. P. 15(a)(2). But when deciding whether to grant leave to amend, courts may 

consider “undue delay in filing, lack of notice to the opposing party, bad faith by the 

moving party, repeated failure to cure deficiencies by previous amendments, undue 

prejudice to the opposing party, and futility of amendment.” Gen. Elec. Co. v. Sargent 

& Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990) (cleaned up); see also Dubuc v. Green 

Oak Twp., 312 F.3d 736, 752 (6th Cir. 2002) (“[C]ourts may deny leave to amend when 

the amendment would be futile[.]”). The touchstone for assessing futility is whether 

the proposed amendment can survive a Rule 12(b)(6) motion to dismiss. Rose v. 

Hartford Underwriters Ins. Co., 203 F.3d 417, 420–21 (6th Cir. 2000). 

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege 

“sufficient factual matter ... to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). While a “plausible” claim for 

relief does not require a showing of probable liability, it requires more than “a sheer 

possibility that a defendant has acted unlawfully.” Id. That means the complaint 

must allege sufficient facts, taken as true, to allow the Court to “draw the reasonable 

inference that the defendant is liable.” Id. And a plaintiff must provide a “short and 

plain statement of the claim showing that the pleader is entitled to relief.” Keys v. 

Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)).

To meet this pleading standard, a complaint must contain “either direct or 

inferential allegations respecting all material elements to sustain recovery under a 

viable legal theory.” Terry v. Tyson Farms, Inc., 604 F.3d 272, 275–76 (6th Cir. 2010) 

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(citation omitted). “Conclusory allegations or legal conclusions masquerading as 

factual allegations will not suffice.” Id. at 276 (cleaned up). In short, an action will be 

dismissed where “there is no law to support the claims made” or “the facts alleged are 

insufficient to state a claim.” Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 967 F. 

Supp. 2d 1164, 1169 (S.D. Ohio 2013). 

Because Kramer seeks reconsideration, the standard for such motions also 

comes into play. “Traditionally, courts will find justification for reconsidering 

interlocutory orders [only] when there is (1) an intervening change of controlling law; 

(2) new evidence available; or (3) a need to correct a clear error or [to] prevent 

manifest injustice.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 

949, 959 (6th Cir. 2004). Importantly, “[a] motion to reconsider an interlocutory order 

is not an invitation for the parties to relitigate the issue.” Breeders’ Cup Ltd. v. Nuvei 

Techs., Inc., No. 5:19-cv-00113, 2023 WL 6135671, at *2 (E.D. Ky. Sept. 19, 2023).

LAW AND ANALYSIS

Kramer’s proposed amendments are futile, so the Court denies the Motion for 

Leave to Amend on that basis. Dubuc, 312 F.3d at 752. To start, he fails to sufficiently 

allege well-pleaded facts raising a plausible inference that NADM and PDA 

knowingly joined an existing scheme perpetrated by the CDC Defendants. Merely

alleging, without supporting details, that NADM and PDA acted “in concert” to 

“continue[] the fraudulent scheme alleged in this Complaint,” (Doc. 90-1 ¶¶ 286–309, 

#2340–43), is not enough. Such “[c]onclusory allegations ... will not suffice.” Terry, 

604 F.3d at 276 (citation omitted). 

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Perhaps he instead means to allege a direct FCA action against NADM and 

PDA for claims they submitted after they purchased CDC Defendants’ dental 

practices. But if so, Kramer needs to allege “at least one” representative false claim 

that NADM or PDA knowingly submitted or caused to be submitted once they took 

over those practices. United States ex rel. Owsley v. Fazzi Assocs., Inc., 16 F.4th 192, 

196 (6th Cir. 2021) (“[U]nder Rule 9(b), the identification of at least one false claim 

with specificity is an indispensable element of a complaint that alleges a False Claims 

Act violation.” (cleaned up)); 31 U.S.C. § 3729(a)(1)(A) (“[A]ny person who—

knowingly presents, or causes to be presented, a false or fraudulent claim for payment 

or approval ... is liable to the United States Government[.]” (emphasis added)); id.

§ 3729(b)(1)(A) (defining “knowing” as “actual knowledge,” “deliberate ignorance of 

the truth or falsity of the information,” or “reckless disregard” for such truth); see 

generally U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 640 (6th Cir. 

2003). And none of his proposed amended allegations clear that hurdle.

Start with the allegations based on Patients Five through Seven. For each of

those patients, the proposed Fourth Amended Complaint adds allegations that 

(1) NADM and PDA “owned and operated” the CDC practice where that patient 

received treatment at the time of treatment; (2) “the dentists who performed work on 

[the patient] were agents of” NADM and PDA; and (3) NADM and PDA “expressly 

assumed liability for treatment of [the patient] after the sale of” CDC. (Doc. 90-1

¶¶ 224–25, 242, 244, 263, 265, #2327, 2331–32, 2335–36). It also alleges Patients Six 

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and Seven “executed a HIPAA/Privacy Notice and Financial Agreement with” PDA. 

(Id. ¶¶ 243, 264, #2331, 2335).

But none of those proposed amendments allege with particularity that NADM 

or PDA knowingly submitted or caused the submission of a specific false claim. As 

discussed briefly above, and more extensively in the Court’s first Opinion and Order, 

a plaintiff must allege the knowing submission of at least one specific false claim by 

any given defendant to plead an FCA claim against that defendant. (Doc. 67, #1371–

74, 1384). And mere ownership is not enough to give rise to an inference of knowledge. 

See United States ex rel. Taylor v. Boyko, 39 F.4th 177, 199 (4th Cir. 2022) (holding 

that “bald and vague allegations that the corporate Defendants ‘knowingly made, 

used, or caused to be made or used, a false record’ for Taylor's medical care ‘through 

their [shared] ownership and control’ and ‘direct or indirect contractual 

arrangements’” were not enough to plausibly allege a False Claims Act claim (cleaned 

up)); cf. CoStar Grp., Inc. v. LoopNet, Inc., 373 F.3d 544, 550 (4th Cir. 2004)

(“[S]omething more must be shown than mere ownership of a machine used by others 

to make illegal copies ... [T]he Copyright Act does not hold the owner of the copying 

machine liable as a direct infringer when its customer copies infringing material 

without knowledge of the owner[.]”). Compounding the problem, Kramer fails to 

provide sufficient details as to any claim submitted on behalf of these persons 

“reasonably to pluck out” those claims “from all the other claims they submitted” 

during the relevant time period. Fazzi Assocs., 16 F.4th at 197. So Kramer’s proposed 

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amendments related to Patients Five, Six, and Seven are insufficient to allege an 

FCA claim against NADM and PDA.

The allegations about Patients Nine and Ten also miss the mark. True, those 

patients received care after NADM and PDA bought CDC. And, as to Patient Nine, 

Kramer alleges a specific month in which that patient received treatment—July 2019. 

(Doc. 90-1 ¶¶ 311–14, #2344). But as to Patient Ten, all he says about time is that 

the treatment was sometime “after July 2019,” and before Patient Ten received 

treatment from Kramer in July 2020. (Id. ¶¶ 315–18, #2344–45). And as to neither 

does he allege claim submission dates, claim amounts, or other details to “identify a 

representative false claim that was actually submitted to the government.” 

Chesbrough v. VPA, P.C., 655 F.3d 461, 470 (6th Cir. 2011). All he alleges is that 

those patients received medically unnecessary root canals. (Doc. 90-1 ¶¶ 311–18, 

#2344–45). Again, that falls short of what caselaw requires for the requisite 

representative false claim that is an indispensable element of an FCA claim. Fazzi 

Assocs., 16 F.4th at 197. 

Nor do the allegations relating to Patients Eleven through Twenty bridge this 

gap. He alleges only that each patient received care during a window ranging from 

two months to two years. (Doc. 90-1 ¶¶ 319, 323, 327, 331, 335, 339, 343, 347, 352, 

356 #2345–54). And he does not provide additional details about specific claim 

submissions as to any of those patients. Again, that is nowhere near enough to allow

NADM or PDA “reasonably to pluck out” those claims “from all the other claims they

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submitted.” Fazzi Assocs., 16 F.4th at 197. So Kramer has not plausibly alleged a 

representative false claim related to Patients Eleven through Twenty, either. 

Because Kramer fails to allege a representative false claim attributable to 

NADM or PDA, his claim against them fails out of the box. That, in turn, renders his 

request to amend to add FCA claims against NADM and PDA futile. Terry, 604 F.3d 

at 275–76 (citation omitted). Accordingly, the Court denies Kramer’s Motion for 

Leave to File Fourth Amended Complaint (Doc. 90).

Further reinforcing that result, courts may consider the “repeated failure to 

cure deficiencies by previous amendments” when deciding whether to grant leave to 

amend. Gen. Elec. Co., 916 F.2d at 1130. Kramer has repeatedly tried and failed to 

state a claim against NADG, NADM, and/or PDA. The First Amended Complaint 

(Doc. 11) and Second Amended Complaint (Doc. 14) both listed NADG as a Defendant.

Then, after NADG moved to dismiss the Second Amended Complaint, (Doc. 31), 

Kramer filed his Third Amended Complaint, in which he added NADM as a 

Defendant, (Doc. 37). Next, after NADG and NADM moved to dismiss the Third 

Amended Complaint, (Doc. 49), Kramer again sought leave to amend, (Doc. 57). The 

Court then dismissed all claims against NADM and NADG with prejudice. (Doc. 67, 

#1403). After that, Kramer sought to join NADM and PDA as Defendants. (Doc. 71). 

When the Court also denied that motion, (Doc. 89), Kramer filed the motions now 

before the Court. In short, “a plaintiff is not entitled to unlimited chances to amend,” 

Gavaldon v. Stanchart Sec. Int’l, Inc., No. 16-cv-590, 2018 WL 1470244, at *2 (S.D. 

Cal. Mar. 26, 2018), and the Court is convinced that Kramer has “had more than 

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enough chances to craft plausible allegations,” Gerber v. Ohio N. Univ., No. 3:14-cv2763, 2015 WL 1996252, at *15 (N.D. Ohio Apr. 30, 2015). So Kramer’s repeated 

failure to allege plausible claims against NADM and PDA further supports denying 

Kramer’s latest attempt to amend.

Next, the Court turns to Kramer’s Motion for Reconsideration. Kramer seeks 

reconsideration based on his proposed new allegations—in other words, “new 

evidence.” Rodriguez, 89 F. App’x at 959. But those new, insufficiently specific

allegations do not justify reconsideration for the same reasons they do not justify 

amendment. And Kramer has neither shown an intervening change of controlling law

nor otherwise persuaded the Court that its previous decision was in error. Id. So the 

Court denies the Motion for Reconsideration of NADM’s Dismissal (Doc. 90).

That leaves only NADM and PDA’s motion for leave to file surreply. Because 

the Court has denied both of Kramer’s Motions, NADM and PDA’s proposed surreply 

is moot. So the Court denies the motion as such.

CONCLUSION

For the reasons discussed above, the Court DENIES both Kramer’s Motion for 

Leave to File Fourth Amended Complaint and Motion for Reconsideration of NADM’s 

Dismissal (Doc. 90). It also DENIES AS MOOT the Opposed Motion for Leave to File 

Surreply Brief, Instanter (Doc. 95).

SO ORDERED. 

March 22, 2024 

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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