Florida Software Syst. v. Columbia/Hca Healthcare

• Court: U.S. District Court — Middle District of Florida
• Writing for the Court: Kovachevich
• Citation: Florida Software Syst. v. Columbia/Hca Healthcare, 46 F.Supp.2d 1276 (M.D. Fla. 1999)
• Decision Date: 19 April 1999
• Docket Number: No. 97-2866-Civ-T-17B.,97-2866-Civ-T-17B.
• Parties: FLORIDA SOFTWARE SYSTEMS, INC., A Florida corporation, Plaintiff/Counter-defendant, v. COLUMBIA/HCA HEALTHCARE CORPORATION, A Delaware corporation, Defendant/Counter-plaintiff/Third-Party Plaintiff, v. Receivable Dynamics Inc., A Florida corporation, Nevada Communications Corporation, A Delaware corporation, and Norman R. Dobiesz, Maureen Donovan Dobiesz, Stuart M. Lopata and Samuel A. Greco, as individuals, Third-Party Defendants.

46 F.Supp.2d 1276

FLORIDA SOFTWARE SYSTEMS, INC., A Florida corporation, Plaintiff/Counter-defendant, v. COLUMBIA/HCA HEALTHCARE CORPORATION, A Delaware corporation, Defendant/Counter-plaintiff/Third-Party Plaintiff, v. Receivable Dynamics Inc., A Florida corporation, Nevada Communications Corporation, A Delaware corporation, and Norman R. Dobiesz, Maureen Donovan Dobiesz, Stuart M. Lopata and Samuel A. Greco, as individuals, Third-Party Defendants.

No. 97-2866-Civ-T-17B.

United States District Court, M.D. Florida, Tampa Division.

April 19, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marion Hale, Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, FL, Wayne L. Thomas, Law Office of Wayne L. Thomas, Tampa, FL, John N. Blair, David L. Roach, Blair & Roach, Tonawanda, NY, for Florida Software Systems, Inc., a Florida Corporation, plaintiff.

George D. Conwell, Jr., Edward Martin Waller, Jr., Guillermo Amable Pernas, Jr., Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, FL, Kevin Murphy, Jennifer P. Kotler, Latham & Watkins, P.A., Chicago, IL, Michael Chertoff, Matthew T. Martens, Latham & Watkins, Newark, NJ, for Columbia Regional Medical Center Southwest Florida, a Delaware Corporation, defendant.

Marion Hale, Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, FL, John N. Blair, Blair & Roach, Tonawanda, NY, for Receivable Dynamics, Inc., a Florida corporation, Nevada Communications Corp., a Delaware corporation, Norman R. Dobiesz, Maureen Donovan Dobiesz, Stuart M. Lopata, Samuel A. Greco, third-party defendants.

Gary Roy Trombley, D. Michelle Peden, Trombley & Associates, P.A., Tampa, FL for Samuel A. Greco, third-party, defendant.

ORDER ON PLAINTIFF/COUNTERDEFENDANT'S AND THIRD-PARTY DEFENDANTS' MOTION TO DISMISS THE COUNTERCLAIM AND THIRD-PARTY COMPLAINT

KOVACHEVICH, District Judge.

This cause comes before the Court on Plaintiff/Counter-Defendant's and Third-Party Defendants' motions to dismiss the Counterclaim and Third-Party Complaint filed on December 15, 1998 (Dkt.58-59).

STANDARD OF REVIEW

Under Conley v. Gibson, a district court should not dismiss a complaint "for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts" that would entitle the plaintiff to relief. 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). At a minimum, the Federal Rules of Civil Procedure require a "short and plain statement of the claim" that will "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." See id. at 47, 78 S.Ct. 99 (quoting Fed.R.Civ.P. 8(a)(2)).

In deciding a motion to dismiss, a court can examine only the four corners of the complaint. Rickman v. Precisionaire, Inc., 902 F.Supp. 232 (M.D.Fla.1995). Furthermore, when ruling on a motion to dismiss, a trial court is required to view the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). However, when, on the basis of a dispositive issue of law, no construction of the factual allegations of a complaint will support the cause of action, dismissal of the complaint is appropriate. Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 32 (1991); Powell v. United States, 945 F.2d 374 (11th Cir. 1991).

FACTS

Columbia / HCA Healthcare Corporation (Columbia), entered into several agreements with Florida Software Systems, Inc. (FSS), whereby FSS was granted the exclusive right to provide medical claims management services for all facilities owned, controlled or managed by Columbia in the State of Florida.

Additionally, Greco, an officer of Columbia, entered into contracts with Receivable Dynamics, Inc. (RDI) and Nevada Communications Corporation (Nevada) on behalf of Columbia. Pursuant to its agreement with Columbia, RDI was to provide electronic claims transmission and claims management services for certain hospitals operated by Columbia in Florida. Pursuant to its agreement with Columbia, Nevada was to "exclusively manage and provide Telecommunications Services, including administrative phones, patient room phones, and pay telephones located at all Columbia locations for a term of ten years."

FSS initiated this litigation by suing Columbia for fraud, implied contract, and breach of contract. Thereafter, Columbia filed a Counterclaim against FSS and a Third-Party Complaint against RDI, Nevada, Mr. Dobiesz and his wife, Maureen Donovan Dobiesz, Mr. Lopata, and former Columbia executive, Samuel A. Greco. Columbia alleged that Mr. and Mrs. Dobiesz, Lopata, and Greco incorporated, acquired, or otherwise controlled numerous corporations, namely FSS, RDI, and Nevada, with the purpose of defrauding Columbia.

On January 13, 1999, Columbia filed a corrected Counterclaim and Third-Party Complaint (the amended complaint). The amended complaint contains the following counts:

(I) Racketeering Violation pursuant to 18 U.S.C. § 1962(c);

(II) Racketeering Conspiracy pursuant to 18 U.S.C. § 1962(d); (III) Pattern of Criminal Activity pursuant to Florida Statutes Title 45, § 772.103(3);

(IV) Conspiracy pursuant to Florida Statutes Title 45, § 772.103(4);

(V) Breach of Fiduciary Duty by Greco;

(VI) Conspiracy and concerted action to aid and abet Greco's breach of fiduciary duty;

(VII) Recission of Contracts between Columbia and the Defendants;

(VIII) Accounting

(IX) Breach of Contract

(X) Fraud in the Inducement; and

(XI) Violation of Florida Statute Annotated § 501.210.

The Plaintiff/Counterdefendant, Florida Software Systems, Inc. and the Third-Party Defendants, Receivable Dynamics, Inc., Nevada Communications Corporation, Norman R. Dobiesz, Maureen Donovan Dobiesz, and Stuart M. Lopata (Counter/Third-Party Defendants) seek to dismiss counts I-IV and VI-XI. Third-Party Defendant Samuel A. Greco filed a separate motion seeking to dismiss each count filed against him which includes counts I-V.

DISCUSSION

I. Motion to Dismiss Claims Against Third-Parties:

The Third-Party Defendants seek to dismiss the Third-Party Complaint as improper under Rule 14(a) of the Federal Rules of Civil Procedure. However, Rule 13(h) provides that "persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of Rules 19 and 20." Fed.R.Civ.P. 13(h). Furthermore, Rule 20 permits joinder of parties as defendants when "there is asserted against them... any right to relief of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." Fed.R.Civ.P. 20(a).

Although the Counter/Third-Party Plaintiff's pleading may not be styled as a third-party complaint, the parties were properly joined as "additional parties to the counterclaim pursuant to Rule 13(h)." Furthermore, the Counter/Third-Party Plaintiff has clearly satisfied the requirements for permissive joinder under Rule 20. Therefore, since Columbia has satisfied the requirements for joinder of parties under both Rule 13(h) and Rule 20(a), the motion to dismiss, (Docket No. 58) under Rule 14(a) should be denied.

Count I:Racketeering Violation pursuant to 18 U.S.C. § 1962(c)

Counter/Third-Party Defendants and Third-Party Defendant Greco (Greco) allege that Columbia has: (1) failed to allege the pre-requisite elements for mail fraud; (2) failed to allege fraud with specificity; (3) failed to allege that the predicate acts were related, and (4) failed to allege that the predicate acts threaten the likelihood of continued criminal activity.

1. Failure to allege the pre-requisite elements of mail fraud.

Counter/Third-Party Defendants claim that Columbia's mail fraud allegations are defective because named items were sent via private carriers, such as Federal Express and U.P.S., instead of U.S. Mail. This argument is baseless as the relevant statute, as amended in 1994, now includes mail delivered "by the Postal Service, or ... any private or commercial interstate carrier." 18 U.S.C.A § 1341 (Supp.1998). Therefore, Columbia has adequately pled facts which implicate both the mail and wires.

Greco claims that Columbia failed to plead the most basic requirement of mail fraud in five of the eight allegations of mail and wire fraud against Greco; that the misrepresentations were placed for delivery by either the United States Postal Service and/or private and commercial interstate carrier. However, the Corrected Counterclaim and Third Party Complaint corrects this deficiency.

2. Failure to allege fraud with specificity

This Court has previously held that pleading a predicate act with specificity requires the complaint to answer the familiar questions of "who, when, where, how, and why." Delfrate v. Letts, 1996 WL 420880, at *5 (M.D.Fla.1996) (Kovachevich, C.J.). In each allegation of mail fraud, the amended complaint adequately identifies the nature of the mailing at issue, the party by whom it was sent, the party by whom it was received, and the means by which it was sent.

Counter/Third-Party Defendants claim that Columbia has failed to allege how the "mail and wire fraud were in furtherance of a scheme." (Motion at 8) However, the Supreme Court has held that "the use of the mails need not be an essential element of the scheme. It is sufficient for the mailing to be incident to an essential part of the scheme or a step in [the] plot." Schmuck v. United States, 489 U.S. 705, 710-11, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The use of the mail is in furtherance of a scheme if the scheme's completion is dependant on information and documents which passed through the mails. United States v. Downs, 870 F.2d 613, 615 (11th Cir.1989). In this case, the scheme, as alleged by Columbia, was largely dependant upon mailings and wires involving contracts,...