UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA and 

STATE OF INDIANA ex rel. BRADLEY A. 

STEPHENS,

Plaintiffs,

v. CAUSE NO.: 2:15-CV-307-TLS

DR. ARSHAD MALIK, DR. ERNEST 

MIRICH, DR. ZHAFAR KHALID and 

NUCLEAR CARDIOLOGY ASSOCIATES, 

Defendants.

OPINION AND ORDER

The Relator Bradley A. Stephens brings an Amended Complaint [ECF No. 15] against 

Defendants Dr. Rakesh Kansal, Dr. Arshad Malik, Dr. Ernest Mirich, Dr. Zhafar Khalid, and 

Nuclear Cardiology Associates (NCA), alleging that these doctors knowingly made false claims 

to Medicaid for payment for myocardial stress tests and/or nuclear imaging services when they

self-referred their patients to NCA—an entity that each doctor shares an ownership interest in—

for those services, which NCA performed. The Relator arranges his allegations into three Counts

involving four separate schemes implicating the federal False Claims Act (FCA), the federal 

Stark Law, and the Indiana False Claims Act. Count I contains two separate schemes.1 The first 

scheme involves unlawful referrals and billing to Medicaid by the Doctors for falsely certifying 

1 Because “[o]ne set of facts producing one injury creates one claim for relief, no matter how many laws 

the deeds violate[,]” the Court assumes each scheme constitutes a distinct claim for relief. N.A.A.C.P. v. 

Am. Fam. Mut. Ins. Co., 978 F.2d 287, 292 (7th Cir. 1992) (citations omitted); see also Fed. R. Civ. P. 

10(b) (“If doing so would promote clarity, each claim founded on a separate transaction or occurrence—

and each defense other than a denial—must be stated in a separate count or defense.”).

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compliance with the Stark Law.

2 The second scheme involves NCA causing the unlawful billing 

to Medicaid by the Doctors. Count II contains the third scheme, which involves unlawful billing 

to Medicaid by the Doctors for services they did not supervise or provide but that NCA provided 

instead. Count III contains the fourth scheme, which involves a conspiracy among the Doctors to 

submit false claims to Medicaid. 

The United States elected to intervene in the part of the action related to allegations 

involving Dr. Kansal. ECF No. 70. However, the United States declined to intervene in the part 

of the action related to allegations involving Defendants Drs. Malik, Mirich, and Khalid (the 

Doctor Defendants). Id. The State of Indiana declined to intervene at all. ECF No. 73. The 

United States and the Relator filed a Joint Notice of Voluntary Dismissal of Defendant Dr. 

Rakesh Kansal [ECF No. 71], on June 12, 2023, which the Court granted on September 15, 2023 

[ECF No. 84], dismissing Defendant Dr. Kansal from the instant action.

This matter is now before the Court on Defendant Dr. Ernest Mirich’s Motion to Dismiss 

First Amended Complaint [ECF No. 96], Defendants Dr. Arshad Malik and Nuclear Cardiology 

Associates’ Motion to Dismiss Plaintiff’s Amended Complaint [ECF No. 98], and the Motion to 

Dismiss of Dr. Zhafar Khalid [ECF No. 100], each brought pursuant to Federal Rules of Civil 

Procedure 9(b) and 12(b)(6). The Motions are fully briefed and ripe for ruling. For the reasons 

set forth below, the Court grants the motions.

2 Although “the Doctors” referred to Drs. Kansal, Malik, Mirich, and Khalid in the Amended Complaint, 

because Dr. Kansal has been dismissed from the instant litigation, see ECF No. 84, “the Doctors” now 

refers to only Drs. Malik, Mirich, and Khalid.

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LEGAL AND STATUTORY STANDARDS

A. Motion to Dismiss

“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the 

viability of a complaint by arguing that it fails to state a claim upon which relief may be 

granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014) (citing Fed. 

R. Civ. P. 12(b)(6); Gen. Elec. Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074, 1080 (7th Cir. 

1997)). When reviewing a complaint attacked by a Rule 12(b)(6) motion, a court construes the 

complaint in the light most favorable to the non-moving party, accepts the factual allegations as 

true, and draws all inferences in the non-moving party’s favor. Bell v. City of Chicago, 835 F.3d 

736, 738 (7th Cir. 2016). “Factual allegations must be enough to raise a right to relief above the 

speculative level . . . on the assumption that all the allegations in the complaint are true (even if 

doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009) (citing Twombly, 550 U.S. at 556).

Claims of fraud brought under the FCA and the Indiana False Claims Act are subject to 

the heightened pleading standard of Federal Rule of Civil Procedure 9(b), which requires a 

relator to “state with particularity the circumstances constituting fraud or mistake.” Lanahan v. 

County of Cook, 41 F.4th 854, 861–62 (7th Cir. 2022) (quoting Fed. R. Civ. P. 9(b)). The 

“precise level of particularity required under Rule 9(b) depends upon the facts of the case,” but 

the pleadings generally should describe “the who, what, when, where, and how of the fraud.” 

Camasta, 761 F.3d at 737; see United States ex rel. Prose v. Molina Healthcare of Ill., Inc., 17 

F.4th 732, 739 (7th Cir. 2021) (recognizing that a plaintiff’s allegations must be “precise” and 

“substantiated,” though “courts and litigants should not ‘take an overly rigid view of the 

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formulation’” (cleaned up)). “Malice, intent, knowledge, and other conditions of a person’s mind 

may be alleged generally.” Fed. R. Civ. P. 9(b).

B. False Claims Act

“The FCA imposes civil liability on a series of actions related to fraudulent treatment of 

government funds.” Lanahan, 41 F.4th at 861 (citing 31 U.S.C. § 3729(a)(1)). A private citizen, 

referred to as a “relator,” may bring an action under the FCA “in the name of the Government.” 

Id. (quoting 31 U.S.C. § 3730(b)(1)). Although the Relator references § 3729(a)(1) and 

§ 3729(a)(1)(A) in the Amended Complaint, it appears that the Relator is alleging violations of 

§ 3729(a)(1)(A), § 3729(a)(1)(B), and § 3729(a)(1)(C).

A defendant violates the FCA when it “knowingly presents, or causes to be presented, a 

false or fraudulent claim for payment or approval.” 31 U.S.C. § 3729(a)(1)(A). A defendant also 

violates the False Claims Act when it “knowingly makes, uses, or causes to be made or used, a 

false record or statement material to a false or fraudulent claim.” Id. § 3729(a)(1)(B). To 

establish a prima facie case for a violation based on a false or fraudulent claim or a false record 

or statement under the FCA, the plaintiff “generally must prove (1) that the defendant made a 

[claim, record, or] statement in order to receive money from the government; (2) that the [claim, 

record, or] statement was false; and (3) that the defendant knew the [claim, record, or] statement 

was false.” United States ex rel. Yannacopoulos v. Gen. Dynamics, 652 F.3d 818, 822 (7th Cir. 

2011) (citation omitted).

Under § 3729(a)(1)(C), civil liability is imposed when a person “conspires to commit a 

violation of subparagraph (A) [or] (B).” 31 U.S.C. § 3729(a)(1)(C). “[G]eneral civil conspiracy 

principles apply” to FCA conspiracy claims. United States ex rel. Durcholz v. FKW Inc., 189 

F.3d 542, 545 n.3 (7th Cir. 1999) (citation omitted). 

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C. The Stark Law

Medicare is a federal health insurance program. See 42 U.S.C. §§ 1395–1395lll. The 

Stark Law prohibits physicians from referring patients for designated health services payable by 

Medicare to an entity with which the physician has a financial relationship. See id. 

§ 1395nn(a)(1)(A). The Stark Law also prohibits such an entity from presenting or causing to be 

presented a claim or bill “to any individual, third party payor, or other entity for designated 

health services furnished pursuant to” those prohibited referrals. Id. § 1395nn(a)(1)(B).

D. Indiana False Claims Act

The Indiana False Claims Act (Indiana FCA) prohibits any person from knowingly or 

intentionally “present[ing] a false claim to the state for payment or approval.” Ind. Code § 5-11-

5.5-2(b)(1). The Indiana FCA also prohibits “mak[ing] or us[ing] a false record or statement to 

obtain payment or approval of a false claim from the state,” Ind. Code § 5-11-5.5-2(b)(2), and 

“conspir[ing] with another person to perform” one of those acts, Ind. Code § 5-11-5.5-2(b)(7). It 

further prohibits “caus[ing] or induc[ing] another person to perform” one of those acts. Ind. Code 

§ 5-11-5.5-2(b)(8).

FACTUAL BACKGROUND

The following allegations are taken from the Amended Complaint. The Relator alleges 

that he has direct and independent knowledge of the information on which the allegations are 

based. Am. Compl. ¶ 3, ECF No. 15.

A. The Defendants

Dr. Arshad Malik is a cardiologist with his medical practice office at 8560 Broadway, 

Merrillville, IN 46410. Id. at ¶ 11. Dr. Malik engages in business as Arshad Malik, M.D., P.C., 

and he is the sole owner. Id. In 2012 and 2013, he received approximately $648,943 from 

Medicare for claims relating to the provision of myocardial profusion studies—also known as 

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nuclear stress tests, which are diagnostic imaging studies utilized to determine whether a patient 

has heart disease due to inadequate blood flow to the heart muscles. Id. at ¶¶ 12, 24. 

Dr. Zafar Khalid is an internist with his medical practice office at 8550 Broadway, 

Merrillville, IN 46410. Id. at ¶ 13. Dr. Khalid engages in business as Elite Internal Medicine, 

P.C., and he is the sole owner. Id. In 2012 and 2013, he received approximately $296,396 from 

Medicare for claims relating to the provision of nuclear stress tests. Id. at ¶ 14.

Dr. Ernest Mirich is a cardiologist with his medical practice office at 8550 Broadway, 

Merrillville, IN 46410. Id. at ¶ 15. Dr. Mirich engages in business as Mirich Medical Corp., and 

he is the sole owner. Id. In 2012 and 2013, he received approximately $174,126 from Medicare 

for claims relating to the provision of nuclear stress tests. Id. at ¶ 16.

Nuclear Cardiology Associates (NCA) is located at 8564 Broadway in Merrillville, 

Indiana, and is located within the 8550-8564 S. Broadway Professional Center. Id. at ¶ 18. NCA 

is a Medicare-enrolled provider—owned by Drs. Kansal, Malik, Mirich, and Khalid—that 

performs nuclear stress tests and only accepts patients referred by the Doctors. Id. at ¶¶ 20, 45, 

46. 

B. Stress Tests and Nuclear Imaging

The Doctors do not have the equipment necessary at their individual medical practice 

offices to perform the technical component of the nuclear stress tests. Id. at ¶ 44. They refer all 

Medicare patients to NCA for nuclear stress tests. Id. at ¶ 45. NCA owns or leases a Phillips 

ACAD machine, using the machine to perform nuclear imagining services such as nuclear stress 

tests. Id. at ¶ 19. NCA employs Camille Shoop, a licensed nuclear technician. Id. at ¶ 21. She 

oversees all services performed by NCA and its equipment. Id.

Nuclear stress tests include the following designated health services: (1) ultrasound 

exams of the heart; (2) administration of thallium tl-201 thallus chloride for diagnostic testing; 

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(3) ultrasound scanning of blood flow; (4) nuclear medicine study of vessels of the heart; (5) 

ultrasound studies of arteries of both arms and legs; (6) injection of regadenoson (Lexiscan®); 

and (7) the administration of technetium t-99m sestamitsi for diagnostic testing. Id. at ¶¶ 34, 45. 

These services are known as the “technical component” of the nuclear stress test. Id. at ¶¶ 44, 45.

The Doctors are not present during the performance of those designated health services at 

NCA nor do they provide supervision or maintain officer hours at NCA. Id. at ¶¶ 49, 50. In 2012 

and 2013, NCA performed approximately 1,487 nuclear stress tests on Medicare-enrolled 

patients referred by the Doctors. Id. at ¶ 22. 

C. Billing Practices of the Defendants

The Doctors, through their individual business entities, each completed CMS Form 855B. 

Id. at ¶ 17. Also, each is a Medicare-enrolled provider that routinely bills Medicare for services. 

Id. However, NCA does not bill Medicare for any of the designated health services that it 

provides. Id. at ¶¶ 20, 47. Instead, NCA reassigned to the Doctors its right to bill for those 

services. Id. at ¶ 57. The Doctors billed Medicare for the professional and technical components 

of the nuclear stress tests. Id. at ¶ 64. 

ANALYSIS

In their Motions to Dismiss, the Defendants each argue that the Relator’s Amended 

Complaint fails to plead facts with the necessary particularity for a fraud claim under Rule 9(b)

in Counts I and II because the Amended Complaint contains no allegations of representative 

examples of the alleged fraudulent schemes. Additionally, the Defendants argue that the 

Amended Complaint fails to sufficiently allege a conspiracy claim in Count III. The Defendants

further argue for dismissal of the Indiana State Law claims. Finally, they argue that the Relator 

should not be granted leave to amend the operative complaint if it is dismissed. The Court

addresses each argument in turn.

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A. Failure to Plead with Particularity—No Specific Representative Examples (Counts I 

and II)

Under Rule 9(b), “to defeat dismissal [of an FCA claim], ‘specific representative 

examples’ of false submissions are required.” United States ex rel. Sibley v. Univ. of Chi. Med. 

Ctr., 44 F.4th 646, 656 (7th Cir. 2022) (quoting United States ex rel. Mamalakis v. Anesthetix 

Mgmt. LLC, 20 F.4th 295, 302 (7th Cir. 2021)). For example, in Mamalakis, the Seventh Circuit 

Court of Appeals held that the relator’s ten specific examples in the operative complaint of noncompliance with proper billing “provid[ed] a particularized basis from which to plausibly infer 

that at least on these occasions, [the defendant] presented false claims to the government” 

because the examples were “detailed, identifying specific doctors and procedures and describing 

why each procedure should not have been billed as medically directed.” 20 F.4th at 303; see 

Sibley, 44 F.4th at 656 (“Mamalakis teaches that the relators here must allege specific examples 

of patient debts.”). Thus, when a complaint does not allege specific representative examples it 

“fail[s] to adequately set out the requisite ‘who, what, when, where, and how’ of the fraud.” 

Sibley, 44 F.4th at 656–57 (quoting Mamalakis, 20 F.4th at 301; United States ex rel. Presser v. 

Acacia Mental Health Clinic, LLC, 836 F.3d 770, 779–80 (7th Cir. 2016)).

The Defendants are correct in that Counts I and II of the Amended Complaint fail to 

allege any representative examples of referrals by the Doctors to NCA for designated health 

services related to nuclear stress tests that NCA provided but for which the Doctors billed 

Medicare for reimbursement. For example, the Amended Complaint does not allege facts that

show the existence of a specific patient of any of the Doctors, nor does it allege facts that show 

any specific designated health services related to a nuclear stress test that were improperly 

referred, provided by NCA, unbundled, or billed to Medicare for reimbursement. See Sibley, 44 

F.4th at 656–57; Mamalakis, 20 F.4th at 301; Presser, 836 F.3d at 779–80. Rather, the Amended 

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Complaint alleges that “[b]y reassigning to the Doctors its right to bill for the DHS it provided 

and/or passively permitting each to bill for DHS, NCA caused claims to be presented to 

Medicare [] for services furnished pursuant to a prohibited self-referral,” “the Doctors received 

payment from Medicare for claims tainted by their illegal self-referral of patients to NCA for 

DHS,” “[t]he Doctors billed and continue to bill Medicare for . . . nuclear stress tests despite the 

fact that they do not provide them . . . with respect to all of their patients who are Medicare 

beneficiaries and otherwise require a nuclear test,” and “the Doctors bill Medicare for . . . nuclear 

stress tests that are provided at NCA.” Am. Comp. ¶¶ 57, 58, 66, 69. These bald allegations are 

conclusory with no factual support by way of any specific representative examples and thus are 

insufficient to state a claim for fraud.

The Relator argues that allegations—such as Dr. Malik received approximately $648,943 

from Medicare for claims relating to the provision of nuclear stress tests, Dr. Zafar received 

approximately $296,396 from Medicare for claims relating to the provision of nuclear stress 

tests, and Dr. Mirich received approximately $174,126 from Medicare for claims relating to the 

provision of nuclear stress tests—satisfy Rule 9(b) because they are enough to put the 

Defendants on notice of the claims against them when combined with other allegations in the 

Amended Complaint. But these allegations do not meet the Rule 9(b) standard, which requires 

specific representative examples of false submissions. See Sibley, 44 F.4th at 656. Nor does the 

Relator point to any such specific examples. Instead, the Relator points to Presser, 836 F.3d at 

778, a Seventh Circuit case from 2016, to support his argument that Rule 9(b) is satisfied for an

FCA claim when “the alleged facts necessarily led one to the conclusion that the defendant had 

presented claims to the Government.” In Presser, the Seventh Circuit arrived at this standard 

based in part on the holding in United States ex rel. Lusby v. Rolls–Royce Corp., 570 F.3d 849 

(7th Cir. 2009). See Presser, 836 F.3d at 777–78.

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In Lusby, the alleged false claims involved statements related to engines meeting certain 

specifications, which the defendant, Rolls–Royce, sold to the government. See id. at 853. The 

Seventh Circuit was faced with the question of whether the plaintiff was required to produce the 

paperwork to support the allegations. In answering the question in the negative, the Lusby court 

explained:

The complaint alleges that five contracts between Rolls–Royce and the United 

States require all of the engine’s parts to meet particular specifications; that the 

parts did not do so (and the complaint describes tests said to prove this deficiency); 

that Rolls–Royce knew that the parts were non-compliant (not only because Lusby 

told his supervisors this but also because audits by Rolls–Royce’s design and 

quality-assurance departments confirmed Lusby’s conclusions); and that Rolls–

Royce nonetheless certified that the parts met the contracts’ specifications. The 

complaint names specific parts shipped on specific dates, and it relates details of 

payment.

Id. at 853–54 (emphasis added). Based on those specific and detailed allegations and recognizing 

that the relator likely “does not have access to the paperwork,” the court held that it was not 

“essential for a relator to produce the invoices (and accompanying representations) at the outset 

of the suit” because the inference proposed by the plaintiff was plausible based on the specific 

allegations. Id. at 854. Allegations of specific non-compliant parts shipped on specific dates and 

the details of payment present in Lusby analogous to the medical setting in this case are absent in 

the Amended Complaint, as discussed above. Nor does the Relator provide a reason why he 

would not have access to the paperwork for specific bills submitted to Medicare by the Doctors

or caused to be submitted to Medicare by NCA.

Moreover, the allegations in this case of the total amounts paid to the Doctors by 

Medicare along with the other conclusory allegations discussed above do not compare with the 

allegations that the court found adequate under Rule 9(b) in Presser. In Presser, the alleged false 

claims involved a clinic—Acacia, where the relator, Ms. Presser, was a nurse practitioner—

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billing using the code 90801, a code for psychiatric evaluations. See 836 F.3d at 778. The 

Presser court explained:

According to the complaint, this code is only meant to apply to full psychological 

assessments by a therapist or an evaluation by a psychiatrist. Ms. Presser alleges 

that her superiors directed her to use this code even though they also expressly told 

her to discontinue conducting psychiatric evaluations. She also alleges that 

receptionists and medical nurse practitioners used this code, even though their job 

description clearly does not include psychological assessments. The clinic director 

indicated to Ms. Presser that the use of this specific code was the policy and that 

Mr. Freund wanted these policies in place. Acacia mandated that all patients be 

assessed by a receptionist, nurse practitioner, and medical nurse practitioner, and 

each of these encounters were billed separately. These allegations state clearly and 

specifically that Acacia provided non-psychiatric evaluations and then falsely 

presented those services as psychiatric evaluations on bills to the state and federal 

governments.

Id. (cleaned up).

Although the relator in Presser did not submit any representative examples of such bills 

with her complaint, the court held, “Considering Ms. Presser’s position as a nurse practitioner, a 

position that does not appear to include regular access to medical bills, we do not see how she 

would have been able to plead more facts pertaining to the billing process.” Id. (citing Corley v. 

Rosewood Care Ctr., Inc., 142 F.3d 1041, 1051 (7th Cir. 1998)). Correspondingly, the court also 

held that “Ms. Presser’s complaint sufficiently alleges that the defendants misused a billing code 

and falsely represented to the state and federal governments that a certain treatment was given by 

certain medical staff when in fact it was not.” Id. at 779. Unlike in Presser where the relator pled 

that she was a nurse practitioner at the clinic where she alleged the improper billing occurred, in 

this case, the Relator has merely pled that he is an “original source” without providing any more 

information about how he obtained the information contained in the Amended Complaint; thus, 

the Relator here has not alleged facts to establish that he lacks access to all facts necessary to 

allege his claims in more detail.

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Additionally, Presser pre-dates by approximately six years Sibley, where the Seventh 

Circuit clarified that to defeat the dismissal of an FCA claim, specific representative examples of 

false submissions are required. See Sibley, 44 F.4th at 656. And, “[t]he purpose (the defensible 

purpose, anyway) of the heightened pleading requirement in fraud cases is to force the plaintiff 

to do more than the usual investigation before filing his complaint.” Ackerman v. Nw. Mut. Life 

Ins. Co., 172 F.3d 467, 469 (7th Cir. 1999). Satisfying this requirement ensures that the 

plaintiff’s claims are “responsible and supported, rather than defamatory and extortionate.” Id.

Because the Amended Complaint here fails to allege specific representative examples or 

a reason why the Relator would not have access to such facts, the Court concludes that the 

Relator has not plead facts with sufficient particularity against the Defendants to satisfy the 

requirements of Rule 9(b). Consequently, Counts I and II of the Amended Complaint have not 

alleged violations of the FCA with the requisite particularity. Accordingly, the Court grants the 

Defendants’ requests for dismissal of the FCA claims in Counts I and II of the Relator’s 

Amended Complaint. Thus, the Court need not address the parties’ additional arguments on the 

dismissal of Counts I and II.3

3 The Relator also argues that because the Doctors have not sought early summary judgment it is plausible 

that the Doctors submitted the alleged Medicare claims, and so the Relator believes that he has met his 

Rule 9(b) burden. In support, he cites United States ex rel. Myers v. Am.’s Disabled Homebound, Inc., 

No. 14 C 8525, 2018 WL 1427171, at *5 (N.D. Ill. Mar. 22, 2018). However, the Myers court actually 

explained:

Defendants should know the answer to the question of whether they submitted claims to 

Medicare on behalf of the patients identified in the complaint. If Defendants knew that they 

never actually submitted Medicare claims for home health services provided to the twelve 

named patients, Defendants could have sought early summary judgment based on those 

records, and remain free to do so in the future. It is plausible, and in fact likely, that 

Defendants submitted Medicare claims for services provided to the twelve patients. The 

real question in this case will be whether those patients were properly certified as eligible 

for those services under Medicare.

2018 WL 1427171, at *5. Unlike in Myers, here the Relator did not identify any patients of the 

Doctors in the Amended Complaint. Also, the Myers court did not hold that the relator met its 

Rule 9(b) burden because the defendants did not file a motion for summary judgment. Thus, the 

Court finds the Relator’s argument unavailing.

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B. Failure to Sufficiently Plead a Conspiracy Claim Under the FCA (Count III)

The FCA provides for conspiracy claims, see 31 U.S.C. § 3729(a)(1)(C), and “general 

civil conspiracy principles apply,” FKW Inc., 189 F.3d at 545 n.3 (citation omitted). To 

sufficiently

plead an FCA conspiracy claim, a plaintiff must allege that the defendants had an 

agreement, combination, or conspiracy to defraud the government by getting a false 

or fraudulent claim allowed or paid and that they did so for the purpose of obtaining 

or aiding to obtain payment from the government or approval of a claim against the 

government. 

United States v. Wagoner, No. 2:17-CV-478, 2018 WL 4539819, at *8 (N.D. Ind. Sept. 20, 

2018) (quoting U.S. ex rel. Lisitza v. Par Pharm. Cos., No. 06 C 06131, 2013 WL 870623, at *7 

(N.D. Ill. Mar. 7, 2013)) (cleaned up). However, the standard for sufficiently pleading a 

conspiracy claim also requires the plaintiff to allege that there was an overt act by the coconspirators that resulted in actual damage or injury. See Lenard v. Argento, 699 F.2d 874, 882 

(7th Cir. 1983). In the context of the FCA, this means that “an actionable FCA conspiracy exists 

only where at least one of the alleged co-conspirators actually committed an FCA violation.” See

United States ex rel. Hubert v. Bd. of Educ. of City of Chi., No. 16 C 4336, 2018 WL 6248827, at 

*9 (N.D. Ill. Nov. 29, 2018) (quoting U.S. ex rel. Rockey v. Ear Inst. of Chi., LLC, 92 F. Supp. 

3d 804, 826 (N.D. Ill. 2015)).

As argued here by the Defendants, the Relator’s Amended Complaint fails to allege an 

FCA violation in Counts I and II—for the reasons stated in Section A above. Consequently, the 

Court concludes that the Amended Complaint fails to allege an actual injury resulting from any 

conspiracy to defraud the government. Therefore, the Relator’s conspiracy claim in Count III 

also fails and the Court grants the Defendants’ requests to dismiss the claim. Thus, the Court 

need not address the parties’ additional arguments on the dismissal of the FCA conspiracy claim 

in Count III.

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C. Indiana State Law Claims

Because the Court dismisses the Relator’s claims for federal Stark Law violations and 

FCA violations in Count I, II, and III, the only remaining claims are those brought under the 

Indiana FCA. “The Court’s discussion of the FCA claims applies with equal force to the Indiana 

FCA claims because the Indiana FCA mirrors the Federal FCA in all material respects.”

Wagoner, 2018 WL 4539819, at *4 n.2 (cleaned up). Here, as argued by the Defendants, because 

the FCA claims in Counts I, II, and III fail, the Indiana FCA claims also fail. Thus, the Court also 

dismisses the claims in Counts I, II, and III to the extent that they are brought under the Indiana 

FCA.

D. Opportunity to Amend

Because the Relator has not adequately alleged a claim under the federal FCA or Indiana 

FCA, his Amended Complaint is dismissed without prejudice. The Relator has not requested 

leave to amend the Amended Complaint. However, a court “should freely give leave [to amend 

pleadings] when justice so requires.” Fed. R. Civ. P. 15(a)(2); see also Foster v. DeLuca, 545 

F.3d 582, 584 (7th Cir. 2008) (“District courts routinely do not terminate a case at the same time 

that they grant a defendant’s motion to dismiss; rather, they generally dismiss the plaintiff’s 

complaint without prejudice and give the plaintiff at least one opportunity to amend [his]

complaint.” (citation omitted)); Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 

F.3d 682, 687 (7th Cir. 2004) (stating that the general rule is that “the district court should grant 

leave to amend after granting a motion to dismiss”). Nevertheless, a court should not grant leave 

to amend “where the amendment would be futile.” Stanard v. Nygren, 658 F.3d 792, 797 (7th 

Cir. 2011) (quoting Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008)). 

Therefore, the Relator is granted up to and including December 2, 2024, to file a motion 

for leave to amend with an updated, proposed second amended complaint attached to the motion 

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that cures the deficiencies set forth in this Opinion. See Aldridge v. Forest River, Inc., 635 F.3d 

870, 875 (7th Cir. 2011) (“[T]he decision to grant or deny a motion to file an amended pleading 

is a matter purely within the sound discretion of the district court.” (quoting Brunt v. Serv. Emps. 

Int’l Union, 284 F.3d 715, 720 (7th Cir. 2002))). If the Relator does not file a motion for leave to 

amend with an updated, proposed second amended complaint attached by December 2, 2024, the 

Court will direct the Clerk of Court to close the case.

CONCLUSION

Based on the foregoing, the Court hereby:

1. GRANTS Defendant Dr. Ernest Mirich’s Motion to Dismiss First Amended 

Complaint [ECF No. 96];

2. GRANTS Defendants Dr. Arshad Malik and Nuclear Cardiology Associates’ Motion 

to Dismiss Plaintiff’s Amended Complaint [ECF No. 98];

3. GRANTS Motion to Dismiss of Dr. Zhafar Khalid [ECF No. 100];

4. DISMISSES without prejudice the Amended Complaint [ECF No. 15]; and

5. GRANTS the Relator up to and including December 2, 2024, to file a motion for 

leave to amend with an updated, proposed second amended complaint attached.

If the Relator does not file a motion for leave to amend with an updated, proposed second 

amended complaint attached by December 2, 2024, the Court will direct the Clerk of Court to 

close the case without further notice to the Relator.

SO ORDERED on October 28, 2024.

s/ Theresa L. Springmann

JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

USDC IN/ND case 2:15-cv-00307-TLS-AZ document 132 filed 10/28/24 page 15 of 15