IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

ELIZABETH BLEVINS, et al., :

 :

Plaintiffs, :

 :

vs. : CIVIL ACTION NO. 15-00120-CG-B

 : 

SEYDI VAKKAS AKSUT, et al., :

 :

Defendants. :

REPORT AND RECOMMENDATION

This case is before the Court on Plaintiffs’ Motion to 

Remand(Doc. 46), and Defendants’ Motions to Dismiss(Docs. 4, 10, 

20, 33, 37, 54). The motions, which have been fully briefed and 

are ripe for resolution, have been referred to the undersigned 

for a report and recommendation pursuant to 28 U.S.C. §

636(b)(1)(B) and S.D. Ala. CivLR 72(a)(2)(S). Upon consideration 

of all matters presented, the undersigned RECOMMENDS, for the 

reasons stated herein, that Plaintiffs’ Motion to Remand be 

denied, that Defendants’ Motions to Dismiss be granted as to 

Plaintiffs’ RICO claims, and that this Court decline to exercise 

supplemental jurisdiction over Plaintiffs’ remaining state-law 

claims and thus dismiss the claims without prejudice. 

I. Background Facts

This action was filed on February 6, 2015, in the Circuit 

Court of Dallas County, Alabama, by 181 Plaintiffs who claim 

that Defendant Seydi Vakkas Aksut, M.D., performed unnecessary 

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interventional cardiology procedures on them at medical 

facilities operated by Defendants Selma Heart Institute, P.C.

(“SHI”),1 Vaughan Regional Medical Center, LLC (“Vaughan”), 

LifePoint Hospitals, Inc. (“LifePoint Hospitals”), LifePoint RC, 

Inc. (“LifePoint RC”), LifePoint CSGP, Inc. (“LifePoint CSGP”), 

Baptist Health/Baptist Medical Center South (“Baptist Medical 

Center”), Jackson Hospital & Clinic, Inc. (“Jackson Hospital”), 

and various fictitious parties. (Doc. 1-1 at ¶¶ 182-190). 

In the complaint, Plaintiffs have asserted twenty-three 

claims against these Defendants, including Racketeer Influenced 

and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq.

(“RICO”) (Counts 1-3), Alabama Deceptive Trade Practices Act

(Count 4), unjust enrichment (Count 5), money had and received 

(Count 6), outrage (Count 7), negligent entrustment (Count 8), 

negligence/wantonness (Count 9), negligent/wanton 

supervision/training (Count 10), negligent/wanton retention

(Count 11), negligent/wanton hiring (Count 12), medical 

negligence/wantonness (Count 13), gross negligence (Count 14), 

lack of informed consent (Count 15), lack of consent/battery 

(Count 16), misrepresentation (Count 17), suppression (Count 

18), deceit (Count 19), wrongful death (Count 20), conspiracy

 1 SHI is the legal entity through which Dr. Aksut practiced

medicine. (Doc. 1-1 at ¶ 208). 

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(Count 21), vicarious liability (Count 22), and loss of 

consortium (Count 23). (Doc. 1-1 at ¶¶ 261-418). Plaintiffs 

seek an unspecified amount of compensatory and punitive damages

(including statutory treble damages), as well as interest, 

costs, and attorney’s fees. (Id.). 

According to Plaintiffs, they are former patients of 

Defendants who underwent medically unnecessary and lifethreatening interventional cardiology procedures performed by 

Defendant Dr. Aksut as part of a pattern or practice of wrongful

conduct, resulting in both physical and financial harm to 

Plaintiffs. (Id. at ¶¶ 206-215). Plaintiffs allege that the 

Defendant hospitals/clinics had direct involvement in and 

participation with Defendant Aksut in the performance of these

unnecessary procedures, that Defendants charged and received 

monies for the procedures, and that they knew or should of known 

that the procedures were unnecessary. (Id.). Plaintiffs allege 

that in November 2014, Defendant LifePoint Hospital began 

notifying them that they were victims of these wrongful acts. 

(Id.).

On March 6, 2015, Defendant Vaughan timely removed the case 

to this Court pursuant to 28 U.S.C. §§ 1331, 1441, and 1446. In 

its notice of removal, Vaughan asserts the existence of subject 

matter jurisdiction under § 1331 (federal question) based on 

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Plaintiffs’ three RICO counts.2 (Doc. 1 at 3-4). The remaining 

Defendants have consented to the removal. (Docs. 2, 3, 5, 16). 

On March 20, 2015, Plaintiffs filed the instant motion seeking 

to remand this action to state court. (Doc. 46). Plaintiffs

contend that the Class Action Fairness Act (“CAFA”), 28 U.S.C. 

§1332(d) annuls the Court’s otherwise undisputed federal 

question jurisdiction and requires remand under CAFA’s 

exceptions for “local” and “home state” controversies. (Doc. 46

at 5, Doc. 46-1 at 10). The motion has been fully briefed and 

is now ready for resolution.

II. Motion to Remand

A. Standard of Review

Federal district courts “shall have original jurisdiction 

of all civil actions arising under the Constitution, laws, or 

treaties of the United States.” 28 U.S.C. § 1331. The 

determination of whether an action “arises under” the laws of 

the United States is made pursuant to the “well-pleaded 

complaint rule,” which provides that the plaintiff’s properly 

pleaded complaint governs the jurisdictional determination. 

Blab T.V. of Mobile, Inc. v. Comcast Cable Commc’ns, Inc., 182 

F.3d 851, 854 (11th Cir. 1999) (citing Louisville & Nashville 

R.R. Co. v. Mottley, 211 U.S. 149 (1908)). “[F]ederal courts 

 2 Plaintiffs do not dispute the timeliness of the removal.

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[have] jurisdiction to hear, originally or by removal from a 

state court, only those cases in which a well-pleaded complaint 

establishes either that federal law creates the cause of action 

or that the plaintiff’s right to relief necessarily depends on 

resolution of a substantial question of federal law.” Franchise 

Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-

28 (1983). “As a general rule, absent diversity jurisdiction, a 

case will not be removable if the complaint does not 

affirmatively allege a federal claim.” Beneficial Nat’l Bank v. 

Anderson, 539 U.S. 1, 6 (2003). 

A removing defendant must establish the propriety of 

removal under 28 U.S.C. § 1441 and, therefore, must establish 

the existence of federal jurisdiction. See Friedman v. New York 

Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (“In removal 

cases, the burden is on the party who sought removal to 

demonstrate that federal jurisdiction exists”) (citation 

omitted). Because removal infringes upon state sovereignty and 

implicates central concepts of federalism, removal statutes must 

be construed narrowly, with all doubts resolved in favor of 

remand. See University of S. Ala. v. American Tobacco Co., 168 

F.3d 405, 411 (11th Cir. 1999). The Eleventh Circuit has made 

clear that “courts may use their judicial experience and common 

sense in determining whether the case stated in a complaint 

meets federal jurisdictional requirements.” Roe v. Michelin N. 

Case 2:15-cv-00120-CG-B Document 127 Filed 11/17/15 Page 5 of 25
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Am., Inc., 613 F.3d 1058, 1062 (11th Cir. 2010).

B. Analysis

As stated, in its notice of removal, Defendant Vaughan 

asserts that this Court has subject matter jurisdiction pursuant 

to 28 U.S.C. § 1331 (federal question) because of the presence 

of the federal RICO claims, 18 U.S.C. § 1962, contained in 

counts 1-3 of Plaintiffs’ complaint. (Doc. 1 at 3-4). Notably, 

Plaintiffs do not dispute that the Court has federal question 

jurisdiction over this case on the basis of the federal RICO 

claims.3 (Doc. 46-1 at 18, 21). Rather, Plaintiffs argue that 

the Class Action Fairness Act (“CAFA”),4 28 U.S.C. § 1332(d),

 3 Plaintiffs state, “[t]o be clear, this court has original 

jurisdiction under Section 1331 . . .” (Doc. 91 at 5; Doc. 46-1 

at 21).

4 In Lowery v. Alabama Power Co., 483 F.3d 1184, 1193-95 (11th 

Cir. 2007), the Eleventh Circuit described CAFA as follows:

Congress enacted CAFA to address inequitable 

state court treatment of class actions and 

to put an end to certain abusive practices 

by plaintiffs’ class counsel. . . . CAFA 

seeks to address these inequities and 

abusive practices by, among other things, 

broadening federal diversity jurisdiction 

over class actions with interstate 

implications. . . . CAFA amends the federal 

diversity jurisdiction statute, 28 U.S.C. § 

1332, by inserting a new subsection, § 

1332(d). This new subsection works a sea 

change in diversity jurisdiction for certain 

class actions. It broadens diversity 

jurisdiction by establishing lower threshold 

requirements for jurisdiction and abrogating 

(Continued)

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“predominates” § 1331 in cases such as the present one involving 

allegations of class or mass actions, rendering the Court unable 

to exercise its federal question jurisdiction and requiring 

remand under CAFA’s “home state” and “local” controversy 

exceptions.5 (Doc. 46-1 at 5, 10, 22). Plaintiffs’ argument is 

misplaced. 

It is axiomatic (and undisputed by the parties) that this 

Court has the authority to exercise subject matter jurisdiction 

 

long-established precedent. Subject to 

certain exceptions designed to keep purely 

local matters and issues of particular state 

concern in the state courts, § 1332(d)(3) to 

(5), CAFA provides federal courts with 

jurisdiction over class actions provided 

that: the number of plaintiffs in all 

proposed plaintiff classes exceeds one 

hundred, § 1332(d)(5)(b); any member of the 

plaintiff class is diverse from any 

defendant, § 1332(d)(2); and the aggregate 

of the claims of individual class members 

exceeds $5,000,000, exclusive of interests 

and costs. § 1332(d)(2), (6). . . .

Id.

5 According to Plaintiffs, “CAFA is an act by Congress that takes 

away a district court’s authority to exercise original 

jurisdiction” under § 1331 (Doc. 46-1 at 19); CAFA “preclude[s]”

the Court “from exercising original jurisdiction” under § 1331 

(id. at 21); CAFA’s exceptions, §§ 1332(d)(3)-(4) (designed to 

keep local matters in the state courts), require the Court to 

abstain from exercising its § 1331 federal question jurisdiction 

and require remand (id. at 10, 22); and “[t]he general grant of 

original jurisdiction under Section 1331 is defeated by the 

specific and exclusive assignment of jurisdiction to the state 

courts under [CAFA] Section 1332(d).” (Doc. 91 at 6). 

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under § 1331 over federal questions, such as the federal RICO 

claims alleged in this case. See Braswell Wood Co. v. Waste 

Away Grp., Inc., 2011 U.S. Dist. LEXIS 62337, *7, 2011 WL 

2292311, *2 (M.D. Ala. June 9, 2011) (“Plaintiff’s Second 

Amended Complaint included a RICO claim that unquestionably 

invoked this court’s subject matter jurisdiction and obviated 

any inquiry into the propriety of Defendants’ removal.”); 

Eagletech Commc’ns Inc. v. Citigroup, Inc., 2008 U.S. Dist. 

LEXIS 49432, *57, 2008 WL 3166533, *16 (S.D. Fla. June 27, 2008) 

(“There is no question in this case that the federal RICO 

claims, Counts I-IV, arise under the laws of the United States 

so that federal question jurisdiction has been established. . . 

. ”). Moreover, “the presence of even one claim ‘arising under’

federal law is sufficient to satisfy the requirement that the 

case be within the original jurisdiction of the district court 

for removal.” Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 

381, 386 (1998).

It is further beyond dispute that CAFA is an amendment to 

the federal diversity statute, 28 U.S.C. § 1332, that expands 

federal diversity jurisdiction over interstate class actions.

See Yescavage v. Wyeth, Inc., 2005 U.S. Dist. LEXIS 20392, *3, 

2005 WL 2088429, *1 (M.D. Fla. Aug. 30, 2005) (“CAFA, which was 

signed into law on February 18, 2005, expands federal diversity 

of citizenship jurisdiction for class actions, inter alia, by 

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relaxing the diversity of citizenship requirements and allowing 

for the aggregation of the amount in controversy.”); see also In 

Touch Concepts, Inc. v. Cellco P’ship, 788 F.3d 98, 102 (2d Cir. 

2015) (“CAFA is, after all, an amendment to the diversity 

statute.”).

Contrary to Plaintiffs’ argument, there is nothing in the 

language of CAFA that suggests that any of its provisions were 

intended to “predominate” or strip the federal courts of its 

federal question jurisdiction under § 1331 in cases in which 

CAFA would also confer jurisdiction. And, Plaintiffs have 

presented no authority suggesting that Congress intended to 

annul federal question subject matter jurisdiction under § 1331 

in cases in which CAFA would also apply, and this Court has 

found no such authority.6 

Suffice it to say that Defendant Vaughan did not invoke 

CAFA diversity jurisdiction under § 1332(d)(2) in its notice of 

removal, and the exceptions to CAFA diversity jurisdiction in § 

1332(d)(4) have no impact on this Court’s exercise of subject 

matter jurisdiction under § 1331, which is an entirely separate 

and distinct basis for jurisdiction. See Air China, Ltd. v. 

 6 Plaintiffs concede that they “cannot find a case that 

specifically states that Section 1332(d) [CAFA] prevails over 

the general grant of jurisdiction in Section 1331.” (Doc. 91 at 

6).

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Kopf, 473 Fed. Appx. 45, 47-48 (2d Cir. 2012) (the contention 

that the district court lacked subject matter jurisdiction 

because “there was no diversity jurisdiction . . . [was] utterly 

meritless because federal question jurisdiction existed with 

respect to the RICO claim asserted against the defendants. . . . 

“). The Court thus concludes that Plaintiffs’ RICO claims

constitute a federal question under § 1331, and thereby 

establishes subject matter jurisdiction over this action. As a 

result, no further discussion of CAFA is warranted or required.

See Sonic Auto., Inc. v. Price, 2011 U.S. Dist. LEXIS 90359, *24 

n.2, 2011 WL 3564884, *8 n.2 (W.D.N.C. Aug. 12, 2011) (“Because 

subject matter jurisdiction is satisfied by the presence of 

federal questions in the Petition to Vacate, the Court does not 

reach the issue of CAFA jurisdiction pursuant to 28 U.S.C. § 

1332(d).”); In re Anthem, Inc., 2015 U.S. Dist. LEXIS 120917, 

*52, 2015 WL 5286992, *3 (N.D. Cal. Sept. 9, 2015) (having found 

subject matter jurisdiction under ERISA, the Court “need not 

address the independent questions of whether diversity 

jurisdiction exists under CAFA or whether federal question 

exists under HIPAA and the HITECH Act.”); Becnel v. KPMG LLP, 

387 F. Supp. 2d 984, 986 n.1 (W.D. Ark. 2005) (where the court 

found federal question jurisdiction to exist, it was unnecessary 

to determine the merit of defendants’ remaining arguments in 

favor of federal jurisdiction, including CAFA.).

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III. Defendants’ Motions to Dismiss Plaintiffs’ RICO Claims

A. Standard of Review

A defendant may move to dismiss a complaint pursuant to 

Federal Rule of Civil Procedure 12(b)(6) if the plaintiff has 

failed to state a claim upon which relief may be granted. “The 

standard of review for a motion to dismiss is the same for the 

appellate court as it [is] for the trial court.” Stephens v. 

Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir.

1990). “When considering a motion to dismiss, all facts set 

forth in the plaintiff’s complaint ‘are to be accepted as true 

and the court limits its consideration to the pleadings and 

exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 

F.3d 1228, 1231 (11th Cir. 2000) (quoting GSW, Inc. v. Long 

County, 999 F.2d 1508, 1510 (11th Cir. 1993)). All “reasonable 

inferences” are drawn in favor of the plaintiff. St. George v. 

Pinellas County, 285 F.3d 1334, 1337 (11th Cir. 2002).

To survive a 12(b)(6) motion to dismiss for failure to 

state a claim, the complaint “does not need detailed factual 

allegations”; however, the “plaintiff’s obligation to provide 

the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 

than labels and conclusions, and a formulaic recitation of the 

elements of a cause of action will not do. . . . Factual 

allegations must be enough to raise a right to relief above the 

speculative level . . ., on the assumption that all the 

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allegations in the complaint are true (even if doubtful in 

fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(internal citations omitted). The plaintiff must plead “enough 

facts to state a claim that is plausible on its face.” Id. at 

570. Unless a plaintiff has “nudged [his] claims across the 

line from conceivable to plausible,” the complaint “must be 

dismissed.” Id.

“[U]unsupported conclusions of law or of mixed fact and 

law” will not defeat a Rule 12(b)(6) motion for dismissal. 

Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003) (quoting 

Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16 (11th 

Cir. 2001)). “[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.” Ashcroft v. Iqbal, 556 U.S. 

662, 679 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The U.S. 

Supreme Court has suggested that courts adopt a “two-pronged 

approach” when considering motions to dismiss: “1) eliminate any 

allegations in the complaint that are merely legal conclusions; 

and 2) where there are well-pleaded factual allegations, ‘assume 

their veracity and then determine whether they plausibly give 

rise to an entitlement to relief.’” American Dental Ass’n v. 

Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting 

Iqbal, 556 U.S. at 664). Importantly, “courts may infer from 

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the factual allegations in the complaint ‘obvious alternative 

explanation[s],’ which suggest lawful conduct rather than the 

unlawful conduct the plaintiff would ask the court to infer.” 

Id. (quoting Iqbal, 556 U.S. at 682).

B. Analysis

In their complaint, Plaintiffs contend that Defendants 

violated sections 1962(a), (c), and (d) of the RICO statutes

(counts 1-3), and seek damages, including compensatory, 

punitive, and statutory treble damages. (Doc. 1-1 at ¶¶ 261-

317). Defendants move to dismiss Plaintiffs’ RICO claims for 

failure to satisfy RICO’s heightened pleading standard and lack 

of standing. (Doc. 10 at 4-5; Doc. 20 at 1; Doc. 33, Doc. 34 at 

5, 11; Doc. 37, Doc. 38 at 8, 17; Doc. 54 at 3-4; Doc. 69 at 8-

9)7. 

Because Plaintiffs’ RICO claims in this case arise from an

alleged pattern of racketeering consisting of fraud, their 

substantive RICO allegations must comply not only with the 

plausibility criteria articulated in Twombly and Iqbal, but also 

with Federal Rule of Civil Procedure 9(b)’s heightened pleading 

 7 Defendants have also sought the dismissal of Plaintiff’s 

various state law claims on numerous grounds; however, because 

the undersigned finds that the RICO claims are due to be 

dismissed, and that the Court should decline to exercise

supplemental jurisdiction over Plaintiffs’ various state law 

claims, Defendants’ arguments regarding the state law claims 

have not been addressed.

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standard. Ray v. Spirit Airlines, Inc., 2015 U.S. Dist. LEXIS 

120033, *5, 2015 WL 5168367, *2 (S.D. Fla. July 27, 2015). Rule 

9(b) requires that “[i]n alleging fraud or mistake, a party must 

state with particularity the circumstances constituting fraud or 

mistake.” Fed. R. Civ. P. 9(b); see also Ambrosia Coal & 

Constr. Co. v. Pages Morales, 482 F.3d 1309, 1316 (11th Cir. 

2007) (holding that civil RICO claims, which are “essentially a 

certain breed of fraud claims, must be pled with an increased 

level of specificity” under Rule 9(b)).8 

 8 Under Rule 9(b), a plaintiff must allege: “(1) the precise 

statements, documents, or misrepresentations made; (2) the time, 

place, and person responsible for the statement; (3) the content 

and manner in which these statements misled the Plaintiffs; and 

(4) what the defendants gained by the alleged fraud.” Ambrosia, 

482 F.3d at 1317 (citing Brooks v. Blue Cross & Blue Shield of 

Fla., Inc., 116 F.3d 1364, 1380–81 (11th Cir. 1997)). In 

Brooks, the court applied Rule 9(b)’s requirements to a RICO 

fraud complaint and held that plaintiffs failed to plead its 

civil RICO claims against each defendant with the required level 

of specificity because the complaint was devoid of specific 

allegations with respect to each defendant; rather, the 

plaintiffs “lumped together” all of the defendants in their 

allegations of fraud. Brooks, 116 F.3d at 1381. “In a case 

involving multiple defendants . . . the complaint should inform 

each defendant of the nature of his alleged participation in the 

fraud.” Ambrosia, 482 F.3d at 1317 (citing Brooks, 116 F.3d at 

1381). However, “Rule 9(b)’s heightened pleading standard may 

be applied less stringently, . . . when specific ‘factual 

information [about the fraud] is peculiarly within the 

defendant’s knowledge or control.’” Hill v. Morehouse Med. 

Assocs., 2003 U.S. App. LEXIS 27956, *10, 2003 WL 22019936, *3 

(11th Cir. Aug. 15, 2003) (citations omitted). Also, where “the 

alleged fraud occurred over an extended period of time and the 

acts were numerous, the specificity requirements are applied 

less stringently.” Lawrence Holdings, Inc. v. ASA Int’l, Ltd., 

2014 U.S. Dist. LEXIS 154246, *29, 2014 WL 5502464, *11 (M.D. 

(Continued)

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Turning to Plaintiffs’ RICO claims in this case, RICO 

provides a private right of action under the following 

circumstances:

Any person injured in his business or 

property by reason of a violation of section 

1962 of this chapter may sue therefor in any 

appropriate United States district court and 

shall recover threefold the damages he 

sustains and the cost of the suit, including 

a reasonable attorney’s fee. . . .

18 U.S.C. § 1964(c) (emphasis supplied). 

Section 1962 of Title 18 of the United States Code 

criminalizes the following activities:

(a) It shall be unlawful for any person 

who has received any income derived, 

directly or indirectly, from a pattern of 

racketeering activity ... to use or invest, 

directly or indirectly, any part of such 

income, or the proceeds of such income, in 

acquisition of any interest in, or the 

establishment or operation of, any 

enterprise which is engaged in, or the 

activities of which affect, interstate or 

foreign commerce.

(b) It shall be unlawful for any person 

through a pattern of racketeering activity 

... to acquire or maintain, directly or 

indirectly, any interest in or control of 

any enterprise which is engaged in, or the 

 

Fla. Oct. 30, 2014) (citations omitted). In addition, 

allegations of intent or knowledge “need only give rise to a 

strong inference that the defendants possessed the requisite 

fraudulent intent.” Id., 2014 WL 5502464 at *12 (citations 

omitted). “[C]onditions of a person’s mind, such as intent or 

knowledge, may be alleged generally.” Id. (citations omitted).

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activities of which affect, interstate or 

foreign commerce.

(c) It shall be unlawful for any person 

employed by or associated with any 

enterprise engaged in, or the activities of 

which affect, interstate or foreign 

commerce, to conduct or participate, 

directly or indirectly, in the conduct of 

such enterprise’s affairs through a pattern 

of racketeering activity.

(d) It shall be unlawful for any person 

to conspire to violate any of the provisions 

of subsection (a), (b), or (c) of this 

section.

Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 

F.3d 1290, 1316 (11th Cir. 1998).

“Racketeering activity” includes “any act ‘chargeable’ 

under several generically described state criminal laws, any act 

‘indictable’ under numerous specific federal criminal 

provisions, including mail and wire fraud,9 and any ‘offense’ 

involving bankruptcy or securities fraud or drug-related 

activities that is ‘punishable’ under federal law.” Sedima, 

S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 481–82 (1985). 

Subsections (a) and (c) of § 1962 require proof of a “pattern of 

racketeering activity,” which is defined in 18 U.S.C. § 1961(5) 

as “at least two acts of racketeering activity.” Muhammad v. 

 9 “Mail or wire fraud occurs when a person (1) intentionally 

participates in a scheme to defraud another of money or property 

and (2) uses the mails or wires in furtherance of that scheme.” 

American Dental, 605 F.3d at 1290 (citations omitted). 

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Option One Mortgage Corp., 2010 U.S. Dist. LEXIS 67528, *12, 

2010 WL 2712250, *5 (S.D. Ala. July 6, 2010) (citing Johnson, 

162 F.3d at 1316). The racketeering predicates must be related, 

and must amount to or pose a threat of continued criminal 

activity. Id., 605 F.3d at 1290–91 (citations omitted). 

Defendants argue that Plaintiffs’ RICO claims are due to be 

dismissed because Plaintiffs do not allege an injury to their 

“business or property” and, thus, lack standing to maintain a

RICO claim. Defendants are correct that “[t]he requirement that 

the injury be to the plaintiff’s business or property means that 

the plaintiff must show a proprietary type of damage.” Grogan 

v. Platt, 835 F.2d 844, 847 (11th Cir. 1988). Without question, 

personal injuries and “the pecuniary losses therefrom” are 

excluded from the phrase “injured in his business or property”

and are not recoverable under RICO. Id.

In Grogan, the Eleventh Circuit held that plaintiffs’ 

claims for economic damages, such as loss of earnings and loss 

of support resulting from the personal injuries inflicted by 

defendants, were not recoverable damages under RICO. The court 

observed that “[t]he words ‘business or property’ are, in part, 

words of limitation,” and “[h]ad Congress intended to create a 

federal treble damages remedy for cases involving bodily injury, 

injury to reputation, mental or emotional anguish, or the like, 

all of which will cause some financial loss, it could have 

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enacted a statute referring to injury generally, without any 

restrictive language.” Id., 835 F.2d at 846-48 (emphasis in 

original). Therefore, the court held that the plaintiffs’ 

pecuniary losses resulting from their personal injuries were not 

recoverable under RICO. Id. at 847.

In the present case, Plaintiffs’ RICO allegations include 

assertions that between 2003 and 2014, Defendants induced 

Plaintiffs to undergo unnecessary interventional cardiology 

procedures for no reason other than to defraud Plaintiffs and 

their insurance providers of money. Plaintiffs allege that they 

suffered personal injuries from the unnecessary medical 

procedures and incurred medical expenses10 as a result of 

Defendants’ acts. (Doc. 1-1 at ¶¶ 1-181, 206-215, 252, 262-

317). Plaintiffs claim that their medical payments to 

Defendants “constitute an injury in property.”11 (Doc. 83-1 at 

27). However, because Plaintiffs’ medical expenses constitute a 

pecuniary loss resulting from personal injuries, they are not 

 10 Plaintiffs allege that Defendants engaged in wire and mail 

fraud in billing and collecting payments for the fraudulent 

medical procedures. (Doc. 1-1 at ¶¶ 206-317).

11Plaintiffs cite Reiter v. Sonotone Corp., 442 U.S. 330, 339 

(1979), in support of their argument that payment from consumers 

constitutes a property injury. (Doc. 83-1 at 27). However, 

Reiter did not involve a RICO action and, more importantly, it 

did not involve personal injury to the plaintiffs; therefore, 

Plaintiffs’ argument is unpersuasive. 

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recoverable under RICO.12 See Grogan, 835 F.2d at 845.

In Connor v. Halifax Hosp. Med. Ctr., 135 F. Supp. 2d 1198, 

1209 (M.D. Fla. 2001), aff’d Connor v. Halifax Hosp. Med. Ctr., 

2002 WL 32290997 (11th Cir. June 26, 2002) (unreported), the 

court similarly rejected a RICO claim against various health 

care providers who were accused of intentionally administering 

huge doses of morphine to patients receiving hospice care in 

order to hasten their deaths and maximize the defendants’ 

financial recovery from the patients’ insurance companies and 

governmental agencies paying for their care. Id., 135 F. Supp. 

2d at 1207. The court observed that “a § 1964 plaintiff cannot 

recover under RICO for those pecuniary losses that are most 

properly understood as part of a personal injury claim,” and 

held that the plaintiffs’ claims for damages for “loss of life,”

including any “related pecuniary losses,” were personal in 

nature, and, therefore, not cognizable under RICO. Id. at 1209, 

1219; see also Genty v. Resolution Trust Corp., 937 F.2d 899, 

918 (3d Cir. 1991) (holding that plaintiffs could not recover 

damages for personal injuries caused by exposure to toxic waste 

 12 Plaintiffs also assert that they have incurred economic 

expenses in the form of increased premiums from their insurance 

providers as a result of Defendants’ fraudulent billing. (Doc. 

86-2 at 28 n.10). Assuming that assertion as true, it is no 

different than Plaintiffs’ payments to Defendants for medical 

expenses flowing from their personal injuries and, thus, is not 

recoverable under RICO. 

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under RICO, including medical expenses incurred for treatment of 

illnesses caused by the exposure; rather, only damages to 

business or property, i.e., loss of market value of their homes, 

was compensable); Keller v. Strauss, 2011 U.S. Dist. LEXIS 64403 

(N.D. Ga. June 17, 2011)(where the plaintiffs alleged personal 

injuries and related pecuniary losses (i.e. related medical 

expenses), they lacked standing to assert a RICO claim.); Gaines 

v. Texas Tech University, 965 F. Supp. 886, 890 (N.D. Tex. 1997)

(holding that the plaintiff’s pecuniary losses resulting from 

his knee injury, including medical expenses and loss of an NFL 

contract, did not constitute property damage under RICO); Ehrich 

v. B.A.T. Indus. P.L.C., 964 F. Supp. 164, 167 (D.N.J. 1997)

(where the plaintiffs’ core injuries were medical in nature, 

i.e., nicotine addiction and cancer, not proprietary, any 

incidental financial consequences, such as related medical 

expenses, did not give rise to a claim under RICO). 

In the present case, Plaintiffs seek to base their standing 

under RICO on medical expenses incurred as a result of 

unnecessary medical treatment by Defendants. However, such 

expenses do not constitute property damage under RICO. 

Therefore, based on the foregoing authorities, Defendants’ 

Motions to Dismiss Plaintiffs’ RICO claims are due to be 

granted.

IV. Supplemental Jurisdiction over State-Law Claims

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Under 28 U.S.C. § 1367(a), federal courts have “the power 

to exercise supplemental jurisdiction over all claims that arise 

out of a common nucleus of operative fact with a substantial 

federal claim.” Gibson v. York, 569 F. Appx. 810, 812 (11th 

Cir. 2014) (quoting Upper Chattahoochee Riverkeeper Fund, Inc. 

v. City of Atlanta, 701 F.3d 669, 678 (11th Cir. 2012)). 

However, the Eleventh Circuit “encourage[s] district courts to 

dismiss any remaining state claims when the federal claims have 

all been dismissed prior to trial.” Id. (citing Raney v. 

Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004) (“[t]he 

decision to exercise supplemental jurisdiction over pendant 

state claims rests within the discretion of the district court. 

. . . . We have encouraged district courts to dismiss any 

remaining state claims when, as here, the federal claims have 

been dismissed prior to trial.”); Ford v. Ocwen Loan Servicing, 

LLC, 2012 U.S. Dist. LEXIS 11224, *6, 2012 WL 280642, *2 (S.D. 

Ala. Jan. 31, 2012) (“[C]ase law is legion for the proposition 

that district courts must be circumspect about wielding their 

discretion to exercise supplemental jurisdiction under 28 U.S.C. 

§ 1367 after all original-jurisdiction claims have been 

dismissed, particularly in the early stages of a case”); Weaver 

v. James Bonding Co., 442 F. Supp. 2d 1219, 1229 n.13 (S.D. Ala. 

2006) (“Judges in this District have routinely declined 

supplemental jurisdiction” after dismissal of all federal 

Case 2:15-cv-00120-CG-B Document 127 Filed 11/17/15 Page 21 of 25
22

claims).

However, “declining to exercise supplemental jurisdiction 

is not a kneejerk action once all federal claims are dismissed; 

rather, the court should take into account concerns of comity, 

judicial economy, convenience, fairness, and the like.” Doe v. 

City of Demopolis, 799 F. Supp. 2d 1300, 1317 (S.D. Ala. 2011)

(citations omitted); see also Carnegie–Mellon University v. 

Cohill, 484 U.S. 343, 350 n.7 (1988) (“in the usual case in 

which all federal-law claims are eliminated before trial, the 

balance of factors to be considered under the pendent 

jurisdiction doctrine — judicial economy, convenience, fairness, 

and comity — will point toward declining to exercise 

jurisdiction over the remaining state-law claims”).

In the case at hand, the relevant factors weigh heavily in 

favor of declining to exercise supplemental jurisdiction. This 

case is still in the early stages, and the state-law claims 

against Defendants have not been “tested via Rule 12(b) Motion.”

Cf. Ford, 2012 U.S. Dist. LEXIS 11224 at *6 n.3, 2012 WL 280642 

at *2 n.3. Furthermore, discovery has been stayed in this case 

pending resolution of the instant motion. Moreover, with regard 

to the merits, this Court is “no better situated than any other 

tribunal to adjudicate this matter.” Ford, 2012 U.S. Dist. 

LEXIS 11224 at *6 n.3, 2012 WL 280642 at *2 n.3. “[G]iven that 

state courts are better equipped than federal courts to decide 

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state-law issues, if anything the interests of judicial economy 

would be disserved by the exercise of supplemental jurisdiction 

here.” Id. “Both comity and economy are served when issues of 

state law are resolved by state courts.” Id. 

It is also noteworthy that scores of cases involving 

substantially similar allegations against Defendant Seydi Vakkas 

Aksut, and several of the other named Defendants have been filed 

and are pending in the Circuit Court of Dallas County. See

Little et al. v. Aksut, et al., Circuit Court of Dallas County, 

CV-2015-900131 (filed May 1, 2015); Mosley v. Aksut, et al.,

Circuit Court of Dallas County, CV-2015-900132 (filed May 1, 

2015); Pettway, Sr., et al v. Aksut, Circuit Court of Dallas 

County, CV-2015-900133 (filed May 1, 2015; Bailey v. Vaughn 

Regional Medical Center, et al, CV-900145(filed May 11, 2015); 

Peterson v. Vaughn Regional Medical Center, et al, CV900145(filed May 11, 2015); Reeves v. Vaughn Regional Medical 

Center, et al, CV-900145(filed July 6, 2015). Both comity and 

economy will be served by having these cases involving common 

facts and near identical issues and Defendants adjudicated in 

the Circuit Court of Dallas County. Accordingly, the 

undersigned finds that under these circumstances, the Court 

should decline to exercise supplemental jurisdiction over 

Plaintiffs’ state law claims, and dismiss those claims without 

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prejudice so that they can be litigated in state court.13 Austin 

v. City of Montgomery, 196 Fed. Appx. 747, 2006 U.S. App. LEXIS 

19810, 2006 WL 2219726, *6 (11th Cir. 2006) ("When a court 

declines to exercise supplemental jurisdiction under § 

1367(c)(3) because only state claims remain, the proper action 

is a dismissal without prejudice so that the complaining party 

may pursue the claim in state court.").

V. Conclusion

Based on the foregoing, the undersigned RECOMMENDS that 

Plaintiffs’ Motion to Remand be denied and that Defendants’

Motions to Dismiss Plaintiffs’ RICO claims be granted. The 

undersigned further RECOMMENDS that the Court decline to 

exercise jurisdiction over the remaining state-law claims, and 

that the state-law claims be dismissed without prejudice so that 

Plaintiffs can re-file them in state court.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

 13 The undersigned observes that any statute of limitations 

concerns are alleviated by Congress's pronouncement that, when a 

court declines to exercise supplemental jurisdiction, any state 

limitations period "shall be tolled while the claim is pending 

[in federal court] and for a period of 30 days after it is 

dismissed." 28 U.S.C. § 1367(d).

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(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); Fed. R. Civ. P. 72(b); S.D. ALA. GenLR 72(c). The 

parties should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 16th day of November, 2015.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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