United States District Court, D. Kansas
UNITED STATES ex rel. MONA SABET EDALATI and DAVID EDALATI; and MONA SABET EDALATI and DAVID EDALATI, individually, Plaintiffs/Relators,
PARAMJEET SABHARWAL, WANDA KANIEWSKI, KANSAS INSTITUTE OF MEDICINE LLC, KASAS INSTITUTE OF MEDICINE, INC., and MINIMALLY INVASIVE SURGERY HOSPITAL, INC., Defendants.
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff/Relator Dr. David
Edalati’s Motion to Dismiss Counts III, VII, and VIII
of Defendants’ Counterclaims. (Doc. 25.)
are former employees of defendants Minimally Invasive
Surgical Hospital and Kansas Institute of Medicine.
Defendants are two doctors licensed in the State of Kansas,
one for-profit hospital, and two corporate entities that
operate a medical clinic. Plaintiffs filed this qui
tam action against defendants on behalf of the United
States, alleging multiple violations of the False Claims Act,
including retaliation after plaintiffs took action to oppose
defendants’ allegedly unlawful conduct.
8, 2019, defendants answered and alleged eight counterclaims
against plaintiffs, including two counterclaims for
conversion (Counts III and VII) and one counterclaim for
defamation (Count VIII). Defendants’ counterclaims for
conversion are based on the former employment of plaintiff
Dr. Edalati and his duties under various employment
agreements, while defendants’ counterclaim for
defamation is based on plaintiff’s alleged
communications to patients. Plaintiff Dr. Edalati disputes
the validity of the employment agreements and moves to
dismiss these three counterclaims as either unavailable under
Kansas law or inadequately pleaded.
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the court assumes true all well-pleaded facts in
the complaint, disregards all legal conclusions worded as
factual allegations, and grants the non-moving party all
reasonable inferences from the pleadings. Colony Ins. Co.
v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012). To
survive a motion to dismiss, the complaint “must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face, ” not
merely possible. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Co. v. Twombly, 550
U.S. 544, 570 (2007)) (quotation marks omitted); see
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007).
argues that defendants cannot bring their counterclaims for
conversion because those claims are based on the
parties’ disputed employment agreements, and that
defendants’ counterclaim for defamation is inadequately
pleaded. Defendants argue that Federal Rule of Civil
Procedure 8 permits their conversion counterclaims as a
pleading of inconsistent grounds, and that the court should
allow defendants to proceed to discovery so that they may
cure the deficiencies in their counterclaim for defamation.
The court will address defendants’ counterclaims for
conversion before turning to defendants’ counterclaim
Kansas, a party may bring a tort claim parallel to a breach
of contract claim when the tort is independent of the
bargained-for duties of the contract. Swimwear Sol., Inc.
v. Orlando Bathing Suit, LLC, 309 F.Supp.3d 1022, 1032
(D. Kan. 2018); see Rezac Livestock Comm. Co. v. Pinnacle
Bank, 255 F.Supp.3d 1150, 1171–72 (D. Kan. 2017)
(“Plaintiff’s conversion claim rests not on the
terms of any contract . . . .”). If the duties
allegedly breached by the tort claim are specifically
outlined in the contract, then the tort claim is part of the
contractual relationship and may not be separately brought.
See M.F. v. ADT, Inc., 357 F.Supp.3d 1116,
1136–37 (D. Kan. 2018) (stating the difference as
“whether the contract calls for a specific
rely on the parties’ disputed employment agreements as
the basis for defendants’ conversion counterclaims.
Defendants allege that plaintiff Dr. Edalati received fees
for medical work, that those fees are the property of
defendants, and that plaintiff has improperly exercised
ownership over those fees by not remitting them to
defendants. Defendants’ various claims for breach of
contract (Counts I and V) and an accounting (Counts II and
VI) show that this duty to remit fees is based on specific
language of the parties’ disputed employment
agreements. (See Doc. 21, at 12–13,
16–17.) The disputed employment agreements call for a
specific result, and defendants’ counterclaims for
conversion are based on specific remittance obligations owed
under those agreements. See M.F., 357 F.Supp.3d at
1136–37. These claims are therefore part of the alleged
breach of a contractual relationship and, under Kansas law,
may not be separately brought in tort. While defendants may
attempt to recover these allegedly misappropriated funds,
they may not do so through the tort of conversion.
the court recognizes defendants’ position that they
should be permitted to allege inconsistent grounds under
Federal Rule of Civil Procedure 8, the Rule does not cure
claims that are unavailable by law. Defendants’
counterclaims for conversion are subject to dismissal not
because they are inconsistent with defendants’
contract-based claims, but because they rely on a
contract-based duty. See Bittel v. Farm Credit Servs. of
Cent. Kan., 962 P.2d 491, 498 (Kan. 1998) (requiring
independent tort for a plaintiff to pursue both remedies).
Kansas law limits defendants’ counterclaims to relief
to Federal Rule of Civil Procedure 12(b)(6), because
defendants’ counterclaims for conversion are
unavailable under Kansas law, the ...