United States District Court, District of Columbia
UNITED STATES OF AMERICA, ex rel. GOPALAKRISHNA PILLAI AJEESH KUMAR KAMMARAYIL, et al., Plaintiffs,
STERLING OPERATIONS, INC., et al., Defendants.
MEMORANDUM AND ORDER
A. Howell, Chief Judge.
before the Court is the United States' Motion to Dismiss
Pursuant to 31 U.S.C. § 3730(c)(2)(A)
(“Gov't's Mot. Dismiss”), ECF No. 35,
this qui tam action, brought pursuant to the False
Claims Act (“FCA”), 31 U.S.C. § 3730(b)(1),
and the relators' Motion for the Court to Strike [ECF]
Document 35 and Order the United States to Substitute a
Notice of Dismissal in Its Place (“Rels.'
Mot.”), ECF No. 36. For the reasons set out below, the
government's motion is granted, and the relators'
motion is denied.
relators' motion raises the threshold issue of whether
the government, in seeking dismissal of this case, properly
filed a motion to effectuate that result or, as the relators
suggest, should simply have filed a notice of dismissal,
“pursuant to the government's authority under 31
U.S.C. § 3730(c)(2)(A) or pursuant to Fed.R.Civ.P.
41(a)(1)(A)(i).” Rels.' Mem. Supp. Rels.' Mot.
(“Rels.' Mem.”) at 3, ECF No. 36-1. The
relators posit that the distinction is important because
“[t]he effect of filing [a] motion is to ask the Court
to give its approval to the government's justifications
for dismissing the action, ” id. at 1, and
“it would be improper for this Court to lend its
imprimatur to the government's unilateral decision not to
pursue this False Claims Act case, ” id. at 2.
To avoid this “imprimatur, ” the relators argue
the government's motion should have been filed as a
notice of dismissal. The relators' argument is misplaced,
however, because the FCA itself unambiguously prescribes the
government's “filing of the motion” in order
to dismiss the action. See 31 U.S.C. §
3730(c)(2)(A); see also Gov't's Reply Supp.
Mot. Dismiss (“Gov't's Reply”) at 1, ECF
No. 37 (noting that Fed.R.Civ.P. 41(a)(1) explicitly limits
its own applicability subject to any federal statute).
Therefore, the government's filing of a motion to
dismiss, rather than a notice of dismissal, is proper, and
the relator's motion is denied.
the government's motion to dismiss, the legal standard
that applies in this Circuit is clear: “the government
has what amounts to ‘an unfettered right to
dismiss' a qui tam action.” United
States ex rel. Hoyte v. Am. Nat'l Red Cross, 518
F.3d 61, 65 (D.C. Cir. 2008) (quoting Swift v. United
States, 318 F.3d 250, 252 (D.C. Cir. 2003)). The
relators concede as much. See Rels.' Mem. at 1
(noting as “given the Department of Justice's
‘unfettered discretion' to dismiss qui tam
False Claim Act cases”). The FCA sets out two
procedural requirements that the government must satisfy
before dismissing a qui tam action, namely: (1)
notify the relators of the filing of the motion, and (2)
provide the relator with “an opportunity for a hearing
on the motion.” 31 U.S.C. § 3730(c)(2)(A). The
hearing is “‘a formal opportunity to convince
the government not to end the case, '”
Hoyte, 518 F.3d at 65 (quoting Swift, 318
F.3d at 253) (emphasis added), and thus not an opportunity to
persuade the Court to deny the motion.
government has satisfied both statutory requirements for its
motion to dismiss, and the relators do not contend otherwise.
Regarding the first requirement, the government notified the
relators by email, dated January 25, 2019, of its intention
to dismiss the action. The government's email was
included by the relators as an exhibit to their motion for a
temporary restraining order (“TRO”) barring the
government from proceeding with the dismissal, which TRO
motion was denied after an oral hearing the same day it was
filed. See Relators' Sealed Motion for a
Temporary Restraining Order to Bar DOJ from Taking Any Act
Under 31 U.S.C. § 3730(c)(2)(A) Prior to Complying with
the Court's Orders of December 31, 2018 and January 25,
2019, and Meeting and Conferring with Relators' Counsel,
in Good Faith, Regarding the Merits of the Case
(“Sealed TRO Mot.”), Ex. 1, E-mail from Darrell
Valdez, Assistant U.S. Attorney, to Joseph Hennessy,
relators' counsel (Jan. 25, 2019), ECF No. 34; Sealed
Minute Entry (Feb. 1, 2019). As to the second statutory
requirement for dismissal, the government's email
notifying the relators of its intention to dismiss also
offered the relators an opportunity to be heard as to why the
complaint should not be dismissed. Whether the relators
accepted the government's offer before the TRO hearing is
unclear, but, at any rate, the relators had an opportunity to
be heard before this Court, with the government present, in
order to resolve their TRO Motion. See Sealed Minute
Entry (Feb. 1, 2019). Therefore, the government has met both
procedural requirements for its motion to dismiss, which is
addition to seeking dismissal of the complaint, the
government also requests that this Court vacate as moot (1)
the Court's Order, dated December 31, 2018
(“December 2018 Order”), directing the government
to deliver to the relators its seven sealed motions and
associated extension memoranda, see United States ex rel.
Kammarayil v. Sterling Operations, Inc., No. 15-cv-1699,
2018 WL 6839747 (D.D.C. Dec. 31, 2018), and (2) the subpoena
duces tecum served by relators upon the United
States demanding that “the United States turn over, by
February 11, 2019, all documents and other content of the
United States Attorney's Office file in this matter,
including all attorney work-product and all attorney-client
communications.” Gov't's Mot. at 1 n.2. The
explicit purpose of the December 2018 Order was “to
inform the relators about any weaknesses in their claims that
may have been uncovered by the government about which they
should be aware in deciding how or whether to pursue this
litigation.” Sterling Operations, 2018 WL
6839747, at *1. Now that the government is dismissing this
action, the decision of whether to further litigate this
claim on behalf of the United States has been made for the
relators-by the United States, the “real party in
interest to an FCA suit, regardless of whether it has
intervened.” United States ex rel. McCready v.
Columbia/HCA Healthcare Corp., 251 F.Supp.2d 114, 119-20
(D.D.C. 2003). Thus, the December 2018 Order partially
unsealing the government's seven motions for extension of
time to consider election to intervene and associated
memoranda of law, docketed at ECF Nos. 2, 4, 8, 10, 13, 15,
and 18, for delivery to relators' counsel is vacated and
those docket entries shall remain sealed.
for the same reason, the relators subpoena duces
tecum to the government should be quashed, as the
government requests, not only for “requir[ing]
disclosure of privileged or other protected matter, ”
but also because the burden of complying would be
“undue” after dismissal of the complaint to which
the subpoenaed materials may be relevant. Fed.R.Civ.P.
45(d)(3)(A)(iii) & (iv) (providing bases for quashing of
that the Complaint, ECF No. 1, is dismissed without
prejudice; and it is further
that the Court's Order, dated December 31, 2018, ECF No.
29, directing the partial unsealing for delivery to
relators' counsel of government motions and associated
memoranda of law, docketed at ECF Nos. 2, 4, 8, 10, 13, 15,
and 18, is vacated as moot; and it is further
that the relators' subpoena duces tecum served
upon the United States is quashed, pursuant to Federal Rule
of Civil Procedure 45(d)(3)(A); and it is further
that the Clerk of Court close this case.