IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

UNITED STATES OF AMERICA ex rel. ) 

 ) 

JOHN N. KRAMER, D.D.S., ) Case No.: 1:18-CV-00373-DRC 

 ) 

BRINGING THIS ACTION ON BEHALF ) Judge: Hon. Douglas R. Cole 

OF THE UNITED STATES OF AMERICA, ) 

 ) 

Plaintiff and Relator, ) 

 ) 

v. ) 

 ) 

ROBERT A. DOYLE, JR. D.M.D., et al., ) 

 ) 

Defendants. ) 

 ) 

 

DEFENDANTS NORTH AMERICAN DENTAL GROUP, LLC AND 

NORTH AMERICAN DENTAL MANAGEMENT, LLC’S PARTIALLY 

UNOPPOSED MOTION FOR LEAVE TO FILE SURREPLY BRIEF, INSTANTER 

Pursuant to L.R. 7.2(a)(2), Defendants North American Dental Group, LLC and North 

American Dental Management, LLC (collectively, “NADG”) respectfully move this Court for 

leave to file, instanter, the Surreply In Support Of Its Opposition To Dr. Kramer’s Motion For 

Leave To File Fourth Amended Complaint (the “Surreply Brief”), attached as Exhibit A. 

Good cause exists to grant this Motion because Relator Dr. Kramer (“Dr. Kramer”) raises 

arguments and factual allegations for the first time in his Joint Reply To Memoranda In 

Opposition To Relator’s Motion For Leave To File Fourth Amended Complaint Under Federal 

Rule Of Civil Procedure 15(a)(2) (Doc. 57) By North American Dental Group (Doc. 59) And 

Dr. Doyle And Complete Dental Care (Doc. 60) (Doc. 61) (“Reply”). As described below, 

Dr. Kramer partially opposes and partially consents to the filing of the Surreply. 

Specifically, NADG seek leave to address four new legal claims and factual allegations in 

Dr. Kramer’s Reply. First, Dr. Kramer attempts to rescue his complaint by extending the duties 

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belonging to medical providers under the Medicare and Medicaid statutes and rules to NADG, 

which has never been a provider of medical services and is not subject to those duties. 

Second, Dr. Kramer cannot solve his pleading problems by broadly “imputing” knowledge to 

NADG. Third, the Court should strike or disregard the misleading and inaccurate USA Today

article (Doc. 61–1) that the Reply offers to “corroborate” the allegations in Dr. Kramer’s 

Proposed Amended Complaint. Fourth, Dr. Kramer’s broad pronouncement that a “request for 

attorney’s fees made in a brief” automatically falls under Federal Rule of Procedure 11 is wrong 

and misstates the holding of Myers v. Anthem Life Ins. Co., 316 F.R.D. 186 (W.D. Ky. 2016). 

NADG has not had the opportunity to respond to any of these new arguments. 

L.R. 7.2(a)(2) provides that additional memoranda related to a motion may be permitted 

“upon leave of court for good cause shown.” “Good cause exists for a sur-reply where a party 

seeks to respond to an argument raised by a party for the first time in its reply brief.” In re E. I. 

du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. CV 2:13-MD-2433, 2019 WL 6310731, 

at *28 (S.D. Ohio Nov. 25, 2019) (internal quotation and alteration omitted). “This Court has 

previously recognized that a district court responding to a request for leave to file a sur-reply 

routinely grants such motions when a party is unable to contest matters presented to the court for 

the first time in the last scheduled pleading.” Laws v. Stevens Transp., Inc., No. 2:12-CV-544, 

2013 WL 4510395, at *2 (S.D. Ohio Aug. 23, 2013) (internal quotations omitted). That is 

precisely the situation in this case. 

Moreover, it is improper for Dr. Kramer to raise new arguments in reply because NADG 

would “not have a chance to respond.” Aetna Cas. & Sur. Co. v. Leahey Const. Co., 219 F.3d 

519, 545 (6th Cir. 2000); see also Curcio Webb LLC, v. Nat’l Benefit Programs Agency, Inc., 

367 F. Supp. 2d 1191, 1207, n.28 (S.D. Ohio 2005) (rejecting a new “characterization” of the 

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allegations in a reply “that did not appear in Plaintiff’s Complaint”); Deutsche Bank Nat. Tr. 

Co. v. Mills, No. 2:07-CV-1016, 2008 WL 399627, at *1 (S.D. Ohio Feb. 12, 2008) (“as a matter 

of procedure, it is well settled that Mills cannot raise these new arguments in her reply 

memorandum”). 

Pursuant to L.R. 7.3(b), NADG sought Dr. Kramer’s consent to file the Surreply. 

NADG has received permission to represent to the Court that Dr. Kramer does not consent to 

NADG filing sections A, B, and D, of the Surreply, and that “while Relator disputes the 

substance of Section C addressing the USA Today investigation into Defendants’ conduct, 

Relator does not oppose NADG’s Motion for Leave to File Its Sur-reply as it pertains to Section 

C only.” (See 4/2/2020 E-mail Exchange between Silberman and Tate, et al., attached as 

Exhibit B.) 

Based on the foregoing, NADG respectfully requests leave to file the attached Surreply 

Brief, instanter. 

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Dated: April 2, 2020 Respectfully submitted, 

 

 /s/ Andrew G. Fiorella 

 Andrew G. Fiorella (0077005) 

 James J. Walsh, Jr. (0096660) 

 BENESCH, FRIEDLANDER, 

 COPLAN & ARONOFF LLP 

 200 Public Square, Suite 2300 

 Cleveland, Ohio 44114 

 Telephone: (216) 363-4500 

 Facsimile: (216) 363-4588 

 E-Mail: afiorella@beneschlaw.com 

 jwalsh@beneschlaw.com 

 

 -andMark J. Silberman (pro hac vice) 

Stephen Chahn Lee (pro hac vice) 

71 South Wacker Drive, Suite 1600 

Chicago, Illinois 60606 

Telephone: (312) 212-4949 

Facsimile: (312) 767-9192 

E-Mail: msilberman@beneschlaw.com

 slee@beneschlaw.com

 

 Attorneys for Defendants 

 North American Dental Group, LLC and 

 North American Dental Management, LLC 

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CERTIFICATION OF SERVICE 

I hereby certify that on April 2, 2020, a copy of the foregoing Defendants North 

American Dental Group, LLC and North American Dental Management, LLC’s Partially 

Unopposed Motion For Leave To File Surreply Brief, Instanter was filed electronically. Notice 

of this filing will be sent by operation of the Court’s electronic filing system to all parties 

indicated on the electronic filing receipt. Parties may access this filing through the Court’s 

system. There are no parties requiring service by other means. 

 

 /s/ Andrew G. Fiorella 

 Andrew G. Fiorella (0077005) 

BENESCH, FRIEDLANDER, 

 COPLAN & ARONOFF LLP 

 200 Public Square, Suite 2300 

 Cleveland, Ohio 44114 

 Telephone: (216) 363-4500 

 Facsimile: (216) 363-4588 

 E-Mail: afiorella@beneschlaw.com 

 

 One of the Attorneys for Defendants North 

 American Dental Group, LLC and North 

 American Dental Management, LLC 

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