                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 13 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, ex rel.;               No. 08-16436
STATE OF HAWAII, ex rel.; KELLEY A.
WOODRUFF, M.D., in her own behalf;               D.C. No. 1:05-cv-00521-JMS-
ROBERT WILKINSON, M.D., in his own               LEK
behalf,

              Plaintiffs - Appellants,           MEMORANDUM*

  v.

HAWAII PACIFIC HEALTH;
KAPIOLANI MEDICAL CENTER FOR
WOMEN AND CHILDREN;
KAPIOLANI MEDICAL SPECIALISTS,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Hawaii
                  J. Michael Seabright, District Judge, Presiding

                     Argued and Submitted October 13, 2010
                               Honolulu, Hawaii

Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Relators Kelley Woodruff, M.D., and Robert Wilkinson, M.D., filed this qui

tam action under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729, et seq., against

Hawaii Pacific Health, Kapi’olani Medical Center for Woman and Children, and

Kapi’olani Medical Specialists (“HPH Entities”). Relators alleged that the HPH

Entities (1) submitted false UB-92 forms and cost reports to Hawaii Medicaid; (2)

falsely certified compliance with federal and state laws and regulations; and (3)

committed promissory fraud to obtain participation in Hawaii Medicaid programs.

The district court dismissed Relators’ false certification and promissory fraud

claims under Federal Rule of Civil Procedure 12(b)(6) and granted summary

judgment as to Relators’ remaining FCA claim. We have jurisdiction under 28

U.S.C. § 1291 and we affirm.

      We review de novo the district court’s decision to grant a motion to dismiss

under Rule 12(b)(6). See Decker v. Advantage Fund Ltd., 362 F.3d 593, 595-96

(9th Cir. 2004). We also review de novo the district court’s decision to grant

summary judgment. See FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009).

We review for abuse of discretion the district court’s discovery rulings. See

Childress v. Darby Lumber, Inc., 357 F.3d 1000, 1009 (9th Cir. 2004).

      Relators cannot identify any specific statute or regulation, under either

Hawaii or federal law, that would render false the UB-92 forms and related cost


                                          2
reports submitted by the HPH Entities. As the district court determined, the

undisputed evidence suggests that the nurses were properly licensed to perform the

various procedures at issue, even in the absence of physician supervision.

Relators’ bare allegations to the contrary are insufficient to survive summary

judgment. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (unsupported

allegations are insufficient to defeat summary judgment). We also note that

Relators do not address their allegation that the UB-92 forms are facially false in

their opening brief. Thus, this argument has been waived. See Smith v. Marsh,

194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party

in its opening brief are deemed waived.”). Because Relators have failed to

establish the existence of any false claim or fraudulent conduct, their claims under

the FCA must fail. See Hendow v. Univ. of Phoenix, 461 F.3d 1166, 1171, 1174

(9th Cir. 2006) (holding an essential element of FCA liability is that there is an

underlying false claim or fraudulent course of conduct).

      Relators also claim the district court erred in referencing Medicare rather

than Medicaid law. Relators do not identify any such confusion or reference and

the district court’s decision does not cite to Medicare law. This claim is without

foundation.




                                          3
      The district court did not abuse its discretion in denying Relators’ motion to

compel the deposition testimony of Dr. Lynette Honbo. Contrary to Relators’s

arguments, Dr. Honbo’s deposition testimony would not have cured the fatal defect

in Relators’ case: that Relators cannot identify any specific statute or regulation

that the HPH Entities violated or that would render false the submitted UB-92

forms. See Laub v. U.S. Dept. of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (no

abuse of discretion with respect to discovery rulings unless the party can

“establish[] . . . a reasonable probability that the outcome would have been

different had discovery been allowed”). Nor did the district court abuse its

discretion in other discovery related rulings. Relators have not established that the

admission of the HPH Entities’ exhibits or the failure to produce electronic records

was in any way prejudicial. See id.

AFFIRMED.




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