United States District Court, N.D. Mississippi, Greenville Division
Court presently has before it a motion to suspend the
briefing  on the United States' motion to dismiss in
instituted this qui tarn action against Defendant,
alleging Defendant committed numerous EMTALA violations, and
as such, Defendant fraudulently obtained Medicaid/Medicare
reimbursements to which it was not entitled. Defendant moved
to dismiss the complaint for failure to state a claim. The
Court ordered the United States government to brief the Court
on its position on the merits of Relator's claims. The
Government responded by also filing a motion to dismiss most
of Relator's claims pursuant to 31 U.S.C. §
standard applied to the Government's motion to dismiss
under § 3730(c)(2)(A) is an unresolved question of law
in the Fifth Circuit. The Government asserts in its motion to
dismiss that the Fifth Circuit would likely hold that the
Government possesses unilateral power to dismiss qui
tarn suits, and therefore, this Court should dismiss
Relator's case here. See Riley v. St. Luke's
Episcopal Hosp., 252 F.3d 749, 753-54 (5th Cir. 2001)
(dicta stating that "the government retains the
unilateral power to dismiss an action notwithstanding the
objections of the [relator]"). Alternatively, the
Government assertes that even under a more deferential
standard laid out in U.S. ex rel. Sequoia Orange Co. v.
Baird-Neece Packing Corp., 151 F.3d 1139 (9th Cir.
1998), cert, denied, 525 U.S. 1067 (1999), the claims should
be still dismissed. In Sequioa Orange, the Ninth
Circuit held that while the United States may not dismiss an
action unilaterally, it may do so when dismissal has a
rational relation to a valid government purpose. Id.
at 1145. The Government claims that proceeding on
Relator's claims would threaten to interfere with the
Department of Health and Human Services enforcement process
of EMTALA violations, that it would drain significant
government resources, and that Relator failed to allege any
viable false claims.
responded with the present motion. Relator's counsel is
also the counsel for relator in United States ex rel W
Blake Vanderlan, v. Jackson HAM, ZZC, No.
3:15-cv-00767-DPJ-FKB, a separate, but similar, action in the
Southern District of Mississippi. The United States has
likewise filed a motion to dismiss in Vanderlan. The
relator in Vanderlan has filed a motion to reopen
discovery in that case to oppose the Government's motion.
Relator here asks this Court to suspend briefing and ruling
on the Government's motion to dismiss until the
Vanderlan Court rules on the motion to reopen
discovery in that case, because the Relator may seek similar
relief in the case sub judice.
Court finds this request without merit. This Court will not
delay this case on the grounds that Relator's counsel may
succeed in reopening discovery in an entirely different case
at a different stage in litigation. The Court is further of
the opinion that evidentiary discovery would not be warranted
on the Government's motion to dismiss. Section 3730
provides that "[t]he Government may dismiss the action
notwithstanding the objections of the person initiating the
action if the person has been notified by the Government of
the filing of the motion and the court has provided the
person with an opportunity for a hearing on the motion."
31 U.S.C. § 3730(c)(2)(A). Relator's opportunity to
respond to the government's motion constitutes an
opportunity to be heard on the motion. U.S. ex rel.
Nicholson v. Spigelman, No. 10C3361, 2011 WL 2683161, at
*3 (N.D. 111. July 8, 2011) (citing Green v. Internal
Revenue Serv., 2008 WL 5378120, at *2 (N.D.N.Y.Dec. 23,
2008); United States ex rel. Pentagen Techs. Int'l
Ltd. v. United States, 2001 WL 770940, at *7 n. 13
(S.D.N.Y. July 10, 2011)). The Nicholson court,
addressing a relator's argument that she was entitled to
"an evidentiary hearing and discovery" in response
to the Government's motion to dismiss noted that
"Congress did not intend 'that evidentiary hearings
be granted as a matter of right.'" Id.
(quoting S. Rep. No. 99-345, at 26(1986)). Courts have
further noted that when the Government asserts a qui
tarn action should be dismissed due to costs in
proceeding with litigation, permitting discovery inquiries
into the Government's motivation for dismissal frustrates
"the very purpose behind the Government's motion
to dismiss." Ridenour v. Kaiser-Hill Co., 397
F.3d 925. 938 (10th Cir. 2005) (affirming district
court's denial of discovery on Government's motion to
dismiss qui tarn action).
the motion to suspend the briefing schedule is denied.
Relator shall file her response to the ...