United States District Court, M.D. Tennessee, Nashville Division
NEWBERN MAGISTRATE JUDGE.
WILLIAM L. CAMPBELL, JR. UNITED STATES DISTRICT JUDGE.
before the Court is Defendant United States' Motion to
Dismiss the Complaint. (Doc. No. 50). Plaintiffs filed a
response (Doc. No. 55) and Defendant filed a reply (Doc. No.
60). For the reasons discussed below, the motion to dismiss
PainMD is a pain management clinic; Plaintiff Michael Kestner
is the majority owner. (Compl., Doc. No. 1, ¶¶
13-14). On November 15, 2018, the United States filed a civil
action against PainMD, Kestner, and others under the False
Claims Act, 37 U.S.C. §§ 3729, et seq. in
United States v. Kestner, (No. 3:18-cv-01289) (M.D.
Tenn, filed Nov. 15, 2018). Shortly thereafter, on December
5, 2018, CMS issued a Notice of Suspension of Medicare
Payments to PainMD, stating all Medicare payments were
suspended “based on credible allegations of
fraud” pursuant to 42 C.F.R. § 405.370, and
informing PainMD of its right to submit a rebuttal. (Doc. No.
immediately filed this case seeking a temporary restraining
order, mandamus relief compelling CMS to issue a notice of
overpayment determination, and a preliminary injunction to
end the suspension of Medicare payments. (Compl., Doc. No. 1,
¶ 46). Plaintiff invoked federal question jurisdiction
under 28 U.S.C. § 1331, and mandamus jurisdiction under
28 U.S.C. § 1361 and the All Writs Act 28 U.S.C. §
1651. The Court denied Plaintiffs' request for a
temporary restraining order. (Doc. No. 17). Defendants moved
to dismiss the Complaint under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter
jurisdiction and failure to state a claim upon which relief
can be granted, respectively.
STANDARD OF REVIEW
a court has subject-matter jurisdiction is a “threshold
determination” in any action. Am. Telecom Co. v.
Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007).
This reflects the fundamental principle that
“[j]urisdiction is power to declare the law, and when
it ceases to exist, the only function remaining to the court
is that of announcing the fact and dismissing the
cause.” Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte
McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)); see
also, Wayside Church v. Van Buren Cty., 847
F.3d 812, 816 (6th Cir. 2017) (explaining that courts
“are ‘bound to consider [a] 12(b)(1) motion
first, since [a] Rule 12(b)(6) challenge becomes moot if
th[e] court lacks subject matter jurisdiction” (quoting
Moir v. Greater Cleveland Reg'l Transit Auth.,
895 F.2d 266, 269 (6th Cir. 1990))).
party asserting subject-matter jurisdiction bears the burden
of establishing that it exists. Ammons v. Ally Fin.,
Inc., 305 F.Supp.3d 818, 820 (M.D. Tenn. 2018). A motion
to dismiss under Rule 12(b)(1) for lack of subject-matter
jurisdiction “may either attack the claim of
jurisdiction on its face or it can attack the factual basis
of jurisdiction.” Golden v. Gorno Bros., Inc.,
410 F.3d 879, 881 (6th Cir. 2005). A facial attack challenges
the sufficiency of the pleading and, like a motion under Rule
12(b)(6), requires the Court to take all factual allegations
in the pleading as true. Wayside Church, 847 F.3d at
816-17 (quoting Gentek Bldg. Prods., Inc. v.
Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007)). A factual attack challenges the allegations
supporting jurisdiction, raising “a factual controversy
requiring the district court to ‘weigh the conflicting
evidence to arrive at the factual predicate that
subject-matter does or does not exist.” Id. at
817 (quoting Gentek Bldg. Prods., Inc., 491 F.3d at
330). District courts reviewing factual attacks have
“wide discretion to allow affidavits, documents and
even a limited evidentiary hearing to resolve disputed
jurisdictional facts.” Ohio Nat'l Life Ins. Co.
v. United States, 922 F.3d 320, 325 (6th Cir. 1990).
deciding a motion to dismiss under Rule 12(b)(6), a court
must take all the factual allegations in the complaint as
true. Ashcroft v. Iqbal, 556 U.S. 662 (2009). To
survive a motion to dismiss, a complaint must contain
sufficient factual allegations, accepted as true, to state a
claim for relief that is plausible on its face. Id.
A claim has facial plausibility when the plaintiff pleads
facts that allow the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.
Id. In reviewing a motion to dismiss, the Court
construes the complaint in the light most favorable to the
plaintiff, accepts its allegations as true, and draws all
reasonable inferences in favor of the plaintiff. Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
considering a Rule 12(b)(6) motion, the Court may consider
the complaint and any exhibits attached thereto, public
records, items appearing in the record of the case and
exhibits attached to Defendant's motion to dismiss
provided they are referred to in the Complaint and are
central to the claims. Bassett v. National Collegiate
Athletic Assn., 528 F.3d 426, 430 (6th Cir. 2008)
claims presented arise under the Medicare Act, 42 U.S.C.
§§ 1395 et seq, and implementing
regulations, 42 C.F.R. § 405. Medicare is a federal
program designed to provide health insurance coverage to
seniors and certain disabled individuals. See,
Baptist Hosp. E. v. Sec'y of Health and Human
Servs., 802 F.2d 860, 868 (6th Cir. 1986). The Secretary
of Health and Human Services (the “Secretary”)
has delegated the ...