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United States ex rel. Carver v. Physicians Pain Specialists of Alabama, P.C.

United States District Court, S.D. Alabama, Southern Division

April 2, 2018

UNITED STATES OF AMERICA, ex rel. LORI L. CARVER, Plaintiff,
v.
PHYSICIANS' PAIN SPECIALISTS OF ALABAMA, P.C., et al., Defendants.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter is before the Court on two motions filed by the relator: a motion to alter, amend or vacate, (Doc. 158), and a motion for leave to file a third amended complaint. (Doc. 156). The motions address the relator's claims against defendant Castle Medical, LLC (“Castle”). The interested parties have submitted briefs and evidentiary materials in support of their respective positions, (Docs. 156-58, 166, 168, 174), [1] and the motions are ripe for resolution. After careful consideration, the Court concludes the first motion is due to be denied and the second is due to be granted.

         BACKGROUND

         The relator in this False Claims Act case was employed by defendant Physicians Pain Specialists of Alabama, P.C. (“Pain”). In August 2013, she filed this action against Pain and against the two doctors (“Ruan” and “Couch”) who owned Pain. (Doc. 1). In August 2014, she filed a first amended complaint that added a pharmacy as a defendant. (Doc. 8). In October 2016, the government filed its notice of non-intervention. (Doc. 24). The relator then filed a second amended complaint that added four more defendants, including Castle. (Doc. 29). In December 2016, the government gave notice of non-intervention as to this pleading. (Doc. 30).

         Castle was served with process in March 2017 and filed its answer on April 10, 2017. The relator served discovery requests on Castle on June 13, 2017, shortly after the parties filed their Rule 26(f) report. Castle ignored the requests, and on August 2, 2017, the relator filed a motion to compel. (Doc. 124). Castle, aware of the impending motion to compel, filed a motion for judgment on the pleadings (“JOP”) less than two hours later. (Doc. 125). Two weeks after that, Castle filed a motion to stay discovery pending resolution of its motion for JOP. (Doc. 134). The Magistrate Judge denied this motion on multiple grounds, including Castle's conduct in permitting discovery to continue for two months before filing its motion for JOP, long after it was in default of its discovery obligations. (Doc. 139). In the same order, the Magistrate Judge granted the relator's motion to compel. (Id.).

         Castle objected to the former ruling, but the Court affirmed the Magistrate Judge, noting in particular Castle's: (1) acquiescience in preparing and submitting a Rule 26(f) report (which triggered the opening of discovery); (2) ignoring of the relator's discovery requests (which placed Castle in default and exposed to a motion to compel); and (3) four-month delay in filing a motion for JOP that it conceded had been available to it from the day it was served with process. (Doc.143).[2]

         The Court's order affirming the Magistrate Judge was entered on September 22, 2017. Four days later, in compliance with the Magistrate Judge's order granting the relator's motion to compel, Castle produced 14, 000 pages of discovery material. (Doc. 158 at 2). Castle produced an additional 313 pages of material on October 25, 2017. (Id. at 2, 9 n.6).

         On October 27, 2017, the Court entered an order granting Castle's motion for JOP. (Doc. 146).[3] Although Castle raised a number of arguments, the Court found one to be dispositive: that the relator failed to plead, with the particularity required by Rule 9(b), that Castle actually submitted to the government any false claim for payment. (Id. at 2-11). Castle's brief requested as relief the dismissal with prejudice of all claims against it and the entry of judgment against the relator. (Doc. 125 at 24). The relator voiced no objection to this as the appropriate form of relief, and the Court granted it, dismissing all claims with prejudice and entering judgment in favor of Castle and against the relator. (Doc. 146 at 13; Doc. 147).

         The instant motions were filed on November 22, 2017. Briefing was completed on December 18, 2017, (Doc. 168), but when the Court reviewed the briefs in January 2018, it learned that the relator - who had filed her proposed third amended complaint and motion to alter, amend or vacate under seal - had not sent Castle a copy of these filings. The result was that Castle quietly filed its brief in opposition to the motions despite being in ignorance of what it was opposing. Once the Court discovered this, it ordered the motion and proposed pleading disclosed to Castle and afforded Castle additional time within which to file a supplemental response to the motions. (Doc. 169). Castle has done so, (Doc. 174), thereby concluding the briefing on the motions.

         DISCUSSION

         Although the relator invokes Rule 59(e), her motion is not governed by that rule. “The strictures of Rule 59(e) remain dormant … until a final judgment has been entered.” Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1132 (11th Cir. 1994). The Court entered judgment in favor of Castle, but it did not enter a final judgment. Castle is only one of five defendants to this action; while the other four have suffered entry of default, they remain as defendants. (Docs. 93, 99-100, 122-23). In such a situation, a judgment as to a single defendant such as Castle constitutes a final judgment only if the Court “expressly determines that there is no just reason for delay.” Fed.R.Civ.P. 54(b). Neither the judgment nor the order granting the motion for JOP includes such language. The order and judgment therefore did “not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.” Id. The Court's ruling, in other words, remains interlocutory and subject to revision. E.g., Harper v. Lawrence County, 592 F.3d 1227, 1231 (11th Cir. 2010) (“[A] district court may reconsider and amend interlocutory orders at any time before final judgment.”).[4] The Court therefore construes the relator's motion as one to reconsider an interlocutory order rather than as a motion to alter, amend or vacate a final judgment.

         While the nomenclature of the relator's motion changes, the governing standards remain substantially the same. As the Court has ruled countless times, “[a] motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice.” Gibson v. Mattox, 511 F.Supp.2d 1182, 1185 (S.D. Ala. 2007) (internal quotes omitted). The relator asserts that she has culled from Castle's mammoth document production several documents clearly demonstrating that Castle actually submitted false claims to the government, thus triggering the “new evidence” justification for reconsideration. (Doc. 158 at 11-14).[5]

         As noted in the Court's order granting the motion for JOP, such a motion must be based on the pleadings and any judicially noticed facts. (Doc. 146 at 2). The relator's proffered evidence is neither and thus cannot be considered on a motion for JOP or, by extension, on a motion to reconsider a ruling on a motion for JOP. The relator, recognizing this difficulty, asks the Court to convert the motion for JOP into a motion for summary judgment pursuant to Rule 12(d). (Doc. 158 at 1). Because “[a]ll parties [have not been] given a reasonable opportunity to present all the material that is pertinent to the motion, ” Fed.R.Civ.P. 12(d), the Court declines the relator's invitation.

         The relator's motion to reconsider having failed, the Court turns to her motion for leave to amend the complaint. “[W]e find it appropriate to adopt the rule that after a complaint is dismissed the right to amend under Rule 15(a) terminates; the plaintiff, however, may still move the court for leave to amend, and such amendments should be granted liberally ….” Czeremcha, 724 F.2d at 1556 (footnote omitted). The rule is otherwise only if the Court states that no amendment is possible or that dismissal of the complaint also constitutes dismissal of the action. Id. ...


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