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Moreover, as counterclaim-

defendants are presumably aware of the procedures they performed on particular patients and

those procedures for which they sought reimbursement, I find that State Farm’s pleading places

counterclaim-defendants on notice of the specific misconduct State Farm alleges. Thus, because

paragraphs nineteen and twenty-five place counterclaim-defendants on notice and “adequately

describe[] the nature and subject of the alleged misrepresentation,” I find that State Farm has

satisfied Rule 9(b)’s heightened pleading requirement for the reimbursement requests listed in

these two paragraphs. Seville, 742 F.2d at 791.

To the extent that State Farm seeks recovery based on reimbursement requests not listed

in paragraphs nineteen or twenty-five or both, State Farm has not pleaded fraud with the

particularity required by Rule 9(b). Indeed, State Farm lumps together all non-enumerated

reimbursement requests, averring that “all, or in the alternative, many” of the reimbursement

requests “contain fraudulent misrepresentations.” (Countercl. ¶ 33.) The nearest State Farm

comes to describing the content and character of these remaining “fraudulent misrepresentations”

consists of one broad and patently imprecise allegation, which provides:

It was further part of the conspiracy and scheme to defraud that many of the examinations, physical therapy modalities, chiropractic treatments, testing, consultations and/or other treatments purportedly provided at Allied to individuals involved in motor vehicle accidents . . . were not provided, not provided for the medical necessity and/or benefit to the patient, misrepresented, not reimbursable under applicable law and/or not provided pursuant to applicable law.

(Id. ¶ 19 (emphasis added).) State Farm’s liberal use of the phrase “and/or” creates alternative

misrepresentations on which State Farm attempts to base its fraud claim. Rather than placing

counterclaim-defendants “on notice of the precise misconduct with which they are charged,”


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