United States District Court, S.D. Alabama, Southern Division
UNITED STATES OF AMERICA, ex rel. LORI L. CARVER, Plaintiff,
PHYSICIANS' PAIN SPECIALISTS OF ALABAMA, P.C., et al., Defendants.
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
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),  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
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).
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.).
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
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
October 27, 2017, the Court entered an order granting
Castle's motion for JOP. (Doc. 146). 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;
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.
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.”). 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
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).
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
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.