IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) CIVIL ACTION 15-0655-WS-N

 )

JAMES M. CRUMB, M.D., et al., )

)

Defendants. )

ORDER

This matter comes before the Court on the Government’s Motion to Modify Scheduling 

Order and for Leave to File Second Amended Complaint (doc. 97). The Motion has been briefed 

and is now ripe for disposition.1

I. Background.

The Government brought this False Claims Act action against defendants, James Crumb, 

M.D., Mobility Metabolism & Wellness, P.C. (“MMW”), and Coastal Neurological Institute, 

P.C. (“CNI”). According to the First Amended Complaint, defendants submitted or caused to be 

submitted false claims to federal health care benefit programs for treatment using false diagnoses 

of rare neurological disorders identified as Spasmodic Torticollis (“ST”) and/or Genetic Torsion 

Dystonia (“GTD”), solely to create covered and payable claims.2 In that manner, the 

Government alleges, defendants successfully submitted claims for reimbursement of Botox 

injection procedures and ultrasound guidance used in treatment of ST and GTD that would 

 1 In the Motion, the Government represents that “[t]he Defendants do not oppose 

the United States’ Motion.” (Doc. 97, at 11.) In fact, all defendants have filed opposition briefs. 

(See docs. 103, 104.) As such, the Government’s statement of non-opposition will not be 

credited for purposes of this Order.

2 Indeed, the First Amended Complaint alleged that “Dr. Crumb knowingly 

falsified diagnoses [of] over a thousand patients, representing that CNI and MMW patients 

suffered from rare neurological disorders of [ST] and/or [GTD], when in fact the patients did not 

have such diagnoses.” (Doc. 34, ¶ 7(a).)

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otherwise have been denied as non-covered. The First Amended Complaint (doc. 34) spans 69 

pages and 307 numbered paragraphs, with nearly 300 pages of accompanying exhibits (including 

spreadsheets containing detailed claims data).

Of particular import for the pending Motion to Amend, Paragraph 108 of the First 

Amended Complaint sets forth certain factual allegations in support of the Government’s false 

diagnosis theory of liability. That paragraph reads as follows:

“More than twenty CNI and MMW patients were interviewed during the course of 

the United States’ investigation, and none were aware that Dr. Crumb diagnosed 

them with rare neurological movement disorders. In fact none of the patients had 

ever heard of these diagnoses.”

(Doc. 34, ¶ 108.)

The Rule 16(b) Scheduling Order fixed a deadline of July 1, 2016 for motions to amend 

the pleadings. (Doc. 64, ¶ 6.) That deadline expired without any requests by the Government for 

further amendments. On September 2, 2016, however, the Government filed a Motion to Modify 

Scheduling Order and for Leave to File Second Amended Complaint. The only modification to 

the voluminous First Amended Complaint that the Government proposes to make at this time is 

to substitute the following language for the existing Paragraph 108:

“More than twenty CNI and MMW patients were interviewed during the course of 

the United States’ investigation, and all but a few were unaware that Dr. Crumb 

diagnosed them with rare neurological movement disorders. In fact many of the 

patients had never heard of these diagnoses.”

(Doc. 97, Exh. B, ¶ 108 (emphasis added).) So, instead of saying that none of the patients 

interviewed during the Government’s investigation were aware that Dr. Crumb had diagnosed 

them with ST or GTD, the Second Amended Complaint would say that all but a few of the 

patients lacked such awareness. And instead of saying that none of the interviewed patients had 

ever heard of these diagnoses, the Second Amended Complaint would say that many of them had 

not heard of these diagnoses. Those are the sole amendments proposed by the Government. All 

defendants have objected, and the requested edits to seven words in a single paragraph of the 

Government’s pleading have spawned more than 35 pages of briefing.

II. Analysis.

A. Rule 16(b)(4) Good Cause.

As the Government correctly recognizes, the first hurdle it confronts is to demonstrate 

good cause for modifying the July 1, 2016 deadline fixed by the Scheduling Order for amending 

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pleadings. Where a party endeavors to amend its pleading after the scheduling order deadline 

has passed, the movant must satisfy the more stringent standard of Rule 16(b)(4), Fed.R.Civ.P., 

before reaching the relaxed Rule 15(a)(2) test. See, e.g., Southern Grouts & Mortars, Inc. v. 3M 

Co., 575 F.3d 1235, 1241 (11th Cir. 2009) (“A plaintiff seeking leave to amend its complaint 

after the deadline designated in a scheduling order must demonstrate ‘good cause’ under 

Fed.R.Civ.P. 16(b).”); Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998) 

(“[B]ecause Sosa’s motion to amend was filed after the scheduling order’s deadline, she must 

first demonstrate good cause under Rule 16(b) before we will consider whether amendment is 

proper under Rule 15(a).”).3 Pursuant to that rule, “[a] schedule may be modified only for good 

cause and with the judge’s consent.” Rule 16(b)(4), Fed.R.Civ.P. The “good cause” standard 

“precludes modification unless the schedule cannot be met despite the diligence of the party 

seeking the extension.” Sosa, 133 F.3d at 1418 (citation and internal quotation marks omitted).4 

The burden of establishing the requisite good cause / diligence lies with the Government, as the 

party seeking relief from the lapsed deadline.5

 3 The rationale for requiring a heightened showing to amend the pleadings after the 

scheduling order deadline lapses is as follows: “[A] scheduling order is not a frivolous piece of 

paper, idly entered, which can be cavalierly disregarded .... Disregard of the order would 

undermine the court’s ability to control its docket, disrupt the agreed-upon course of the 

litigation, and reward the indolent and the cavalier.” Rogers v. Hartford Life and Acc. Ins. Co., 

2012 WL 2395194, *1 n.3 (S.D. Ala. June 22, 2012) (citation omitted); see also Baker v. U.S. 

Marshal Service, 2014 WL 2534927, *2 (D.N.J. June 5, 2014) (“Extensions of time without 

good cause would deprive courts of the ability to effectively manage cases on their overcrowded 

dockets and would severely impair the utility of Scheduling Orders.”).

4 See also Romero v. Drummond Co., 552 F.3d 1303, 1319 (11th Cir. 2008) (“To 

establish good cause, the party seeking the extension must have been diligent.”); King v. Chubb 

& Son, 563 Fed.Appx. 729, 732 (11th Cir. Apr. 22, 2014) (“There can be no good cause where 

the record shows that the late-filing party lacked diligence in pursuing its claim.”) (citation and 

internal quotation marks omitted).

5 See, e.g., Race Tires America, Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 

(3rd Cir. 2010) (“Rule 16(b)(4) focuses on the moving party’s burden to show due diligence.”); 

Northstar Marine, Inc. v. Huffman, 2014 WL 3720537, *3 (S.D. Ala. July 28, 2014) (“The 

burden of establishing good cause / diligence rests squarely on the party seeking relief from the 

scheduling order.”).

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To meet its burden, the Government explains that it did not discover the factual error in 

the current iteration of Paragraph 108 until after the Scheduling Order deadline had passed. 

Indeed, the Government sets forth the following chronology: (i) on July 27, 2016, CNI alerted 

the Government to its belief that Paragraph 108 was factually inaccurate, based on CNI’s 

observations of one of Dr. Crumb’s patients at a deposition on June 3, 2016; (ii) in preparing 

discovery responses due on September 6, 2016, the Government discovered that it might have 

overlooked patient interviews conducted in 2013 that were outside the scope of the False Claims 

Act investigation; (iii) the Government conducted a self-audit of Paragraph 108 in late August 

2016; (iv) based on that self-audit, counsel for the Government determined that as many as three 

patients interviewed were “arguably” aware that Dr. Crumb had diagnosed them as having ST or 

GTD, and that the Government had overlooked those interviews in drafting the Amended 

Complaint; and (v) the instant Motion followed as the Government fulfilled its “obligation and 

duty to immediately provide notice of the factual inaccuracy to the parties and to the Court.” 

(Doc. 97, at 6.)

Simply stated, then, the Government’s position is that it made a mistake in drafting the 

Amended Complaint. Specifically, the pleading asserted that none of the patients interviewed 

knew that Dr. Crumb had diagnosed them as having ST or GTD, or had even heard of such 

diagnoses. In fact, a small number of the interviewed patients had or may have had such 

knowledge, as set forth in interviews that the Government had failed to consider in drafting the 

Amended Complaint. Upon identifying this error, the Government moved promptly to correct it. 

Under the particular circumstances presented here, and given the modesty of the correction and 

the fact that it is being made to adjust language in one paragraph of the pleading that everyone 

now agrees to be inaccurate, the Court is satisfied that the Government has shown the requisite 

good cause to modify the Scheduling Order deadline for amending pleadings so as to allow the 

Second Amended Complaint to be filed at this time.6

 6 In so concluding, the Court has considered defendants’ respective response briefs. 

CNI concedes that “it does not oppose the need to file yet another amendment ... if the United 

States has now determined that it contains factual inaccuracies.” (Doc. 104, at 3.) For their part, 

Dr. Crumb and MMW readily acknowledge that “Paragraph 108 is inaccurate and does need to 

be corrected.” (Doc. 103, at 3.) But they insist the Government should have known of the 

inaccuracy back at the time of “the very first deposition in this case,” involving a patient named 

E.K. (Id.) CNI focuses on this same point, citing the E.K. deposition as well as the availability 

(Continued)

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B. Rule 15(a)(2) Interests of Justice. 

Having satisfied the “good cause” requirements of Rule 16(b)(4), the Government must 

also show that its proposed amendment passes muster under Rule 15(a)(2). See Sosa, 133 F.3d 

at 1419. That rule provides that, as a general proposition, “a party may amend its pleading only 

with the opposing party’s written consent or the court’s leave. The court should freely give leave 

when justice so requires.” Rule 15(a)(2), Fed.R.Civ.P. “The thrust of Rule 15(a) is to allow 

parties to have their claims heard on the merits, and accordingly, district courts should liberally 

grant leave to amend when the underlying facts or circumstances relied upon by a plaintiff may 

be a proper subject of relief.” In re Engle Cases, 767 F.3d 1082, 1108 (11th Cir. 2014 ) (citation 

and internal quotation marks omitted).

“Although leave to amend shall be freely given when justice so requires, a motion to 

amend may be denied on numerous grounds such as undue delay, undue prejudice to the 

defendants, and futility of the amendment.” Mann v. Palmer, 713 F.3d 1306, 1316 (11th Cir. 

2013) (citation omitted); see also Andrx Pharmaceuticals, Inc. v. Elan Corp., PLC, 421 F.3d 

1227, 1236 (11th Cir. 2005) (“Leave may be denied because of undue delay, bad faith or dilatory 

motive on the part of the movant, repeated failure to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] 

futility of amendment.”) (citation and internal quotation marks omitted). “A district court may 

find undue delay when the movant knew of facts supporting the new claim long before the 

movant requested leave to amend,” where “the amendment involves new theories of recovery or 

would require additional discovery.” Tampa Bay Water v. HDR Engineering, Inc., 731 F.3d 

1171, 1186 (11th Cir. 2013) (citation omitted). In light of the relaxed Rule 15(a) standard, 

however, “[d]istrict courts have limited discretion in denying leave to amend, and should grant a 

 

of the other interviews that the Government says it initially overlooked. The Government’s 

response is that it did not view the E.K. deposition as requiring amendment of Paragraph 108 and 

that it “completely disagrees with” defendants’ characterization of that deposition. (Doc. 109, at 

7.) After careful consideration, the Court is satisfied that the Government attorneys who filed 

the Amended Complaint overlooked the other set of interviews requiring amendment of 

Paragraph 108 until after the Scheduling Order deadline had expired, and that they acted 

promptly and diligently to correct the error after becoming aware of same.

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motion to amend unless there are substantial reasons to deny it.” Bowers v. U.S. Parole Com'n, 

Warden, 760 F.3d 1177, 1185 (11th Cir. 2014) (citation and internal marks omitted).

It cannot reasonably be argued that circumstances of undue delay, unfair prejudice or 

futility militate against allowing the Government to amend its pleading. CNI objects to what it 

terms an “eleventh-hour switch” in the text of Paragraph 108, but this case is far from the 

eleventh hour. (Doc. 104, at 5.) The discovery cutoff date is May 26, 2017, some eight months 

away, with a trial setting in November 2017, more than a year from now. (See doc. 64, ¶¶ 3-4.) 

Even if the Government’s modification of seven words in one paragraph of a 69-page pleading 

really “carries great weight and is far from immaterial” as CNI contends (doc. 104, at 5), there is 

considerable time for defendants to adjust their discovery plans and litigation strategies 

accordingly. On this record, the Court cannot and does not find that any of the limited 

circumstances authorizing denial of a motion for leave to amend pursuant to Rule 15(a)(2) are 

present here. Again, the Government discovered a factual mistake in one paragraph of a 

voluminous pleading, and now seeks to fix it. While the parties debate the significance of the 

proposed modification, suffice it to say that neither the analysis nor the conclusions of the Order 

(doc. 92) adjudicating defendants’ Motions to Dismiss would be materially affected by this 

amendment. At this early stage of the proceedings, the interests of justice unequivocally favor

allowing the Government to amend its complaint for the limited purpose of correcting the error it 

discovered in Paragraph 108.

In opposing the Motion to Amend, defendants request various other forms of relief, many 

of them directed at what they perceived to be continued inaccuracies in Paragraph 109 of the 

proposed Second Amended Complaint. Dr. Crumb and MMW assert that “this situation justifies 

the Defendants being afforded significant latitude in obtaining discovery” and “respectfully 

request entry of an order striking Paragraphs 108 and Paragraph 109 from the Amended 

Complaint or, in the alternative, entry of an order requiring the United States to correct both 

paragraphs.” (Doc. 103, at 4.) And CNI urges the Court to hold in abeyance any ruling on the 

Motion for Leave to Amend until such time as a full-scale investigation into the propriety of 

Paragraph 109 has occurred, including immediate production of interview reports involving 

former patients and in camera judicial review of such reports. (Doc. 104, at 8.) Finally, CNI 

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requests an order requiring the Government “to pay defendant’s costs associated with the filing 

of answers to any Second Amended Complaint that may be filed.” (Id.)

7

Defendants have identified no authority for the relief they request, and the Court is aware 

of none. With respect to Paragraph 108, the Government is correcting a known error at an early 

stage of this litigation; therefore, there is no conceivable reason to strike it, as Dr. Crumb and 

MMW request. Nor would it be appropriate to award CNI its costs associated with filing an 

answer to the Second Amended Complaint. In its Answer to the First Amended Complaint, CNI 

addressed Paragraph 108 (again, the only paragraph affected by this new amendment) as follows: 

“CNI denies the allegations in Paragraph 108.” (Doc. 101, ¶ 108.) In all likelihood, CNI’s 

answer to the Second Amended Complaint will be a carbon copy of its answer to the First 

Amended Complaint with, at most, tinkering to a single sentence. No costs will be awarded for 

such a pro forma endeavor. And Dr. Crumb / MMW’s suggestion that the scope of discovery 

should be somehow broadened beyond the constraints of Rule 26 and other discovery principles

in light of this amendment is not well-taken. 

As for Paragraph 109, the Court understands that defendants disagree with the factual 

allegations therein. The Court further understands that the Government stands by the accuracy 

of those allegations. These kinds of disagreements as to the veracity vel non of well-pleaded 

facts in a complaint happen every single day in federal court. They are not grounds for striking 

the challenged paragraph, forcing the plaintiff to amend that paragraph against its wishes, 

conducting in camera review of documents at the pleadings stage to make a judicial 

determination as to which side’s position is in the right, or carrying out a litigation within a 

litigation as to whether the disputed factual allegation must be corrected in the underlying 

pleading. As plaintiff in this case, the Government is the master of its complaint. Absent 

inclusion of “redundant, immaterial, impertinent, or scandalous matter” within the meaning of 

Rule 12(f), Fed.R.Civ.P., which no party has invoked, the Government’s decision to leave 

 7 The Court observes that an exhibit to CNI’s response lists one of Dr. Crumb’s 

former patients by name. This is improper and unacceptable, as a matter of both federal law and 

the governing procedural rules. The Clerk of Court is directed to seal Exhibit D to CNI’s 

Response (doc. 104). All parties are reminded that it is essential for them to implement adequate 

and effective safeguards to ensure that the privacy interests of non-party patients will not be 

compromised via inclusion in the public record of unredacted filings such as Exhibit D to 

document 104. This kind of error must not recur.

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Paragraph 109 in its current form is not properly assailed via opposition to a Motion for Leave to 

Amend.

III. Conclusion.

For all of the foregoing reasons, it is ordered as follows:

1. The Government’s Motion to Modify Scheduling Order and for Leave to File 

Second Amended Complaint (doc. 97) is granted;

2. Defendants’ requests for myriad alternative forms of relief subsumed within their 

Responses (docs. 103, 104) to the Motion are denied;

3. Pursuant to Civil L.R. 15(c), the Government is ordered, on or before September 

27, 2016, to refile its Second Amended Complaint as a freestanding pleading in 

substantially the same form as Exhibit B to its Motion;8

4. Defendants’ answers to the Second Amended Complaint are due on or before 

October 11, 2016; and

5. The Clerk of Court is directed to seal Exhibit D to docket entry 104, which 

defendant CNI filed in unredacted form in the public court file even though it 

includes personal identifying information for a non-party patient.

DONE and ORDERED this 23rd day of September, 2016.

 s/WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

 8 In refiling the Second Amended Complaint as a freestanding pleading, the 

Government is not required to refile Exhibits B, C and D to that pleading. Those exhibits 

(hundreds of pages of sensitive claims records containing patient names, treatment dates, 

diagnoses, procedures/services performed and so on) have previously been filed under seal at 

docket entry 37 and are not modified by the Second Amended Complaint.

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