Taul v. Nagel Enterprises, Inc. et al

Filing 138

MEMORANDUM OPINION AND ORDER DENYING 136 MOTION for Judgment on the Pleadings as set out herein. Signed by Judge Virginia Emerson Hopkins on 1/2/2018. (JLC)

FILED
2018 Jan-02 PM 04:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARRY TAUL, ex rel., UNITED
STATES OF AMERICA,
Plaintiff,
v.
NAGEL ENTERPRISES, INC., et
al.,
Defendants.

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) Case No.: 2:14-CV-0061-VEH
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MEMORANDUM OPINION AND ORDER
This False Claims Act (“FCA”) case is set for trial beginning January 29,
2018. The FCA allows private citizens, known as relators, to bring lawsuits on
behalf of the Government against companies and individuals that allegedly have
defrauded the Government. Barry Taul (hereinafter “Plaintiff”) is the relator in this
action. The Defendants are Nagel Enterprises, Inc. and Jed Nagel (collectively,
“Defendants”).
The case is now before this Court on the Defendants’ Motion for Judgment
on the Pleadings (the “Motion”), doc. 136, filed on December 28, 2017. The
Motion is untimely pursuant to Rule 12(c) of the Federal Rules of Civil Procedure,
which provides that “[a]fter the pleadings are closed--but early enough not to delay

trial--a party may move for judgment on the pleadings.” FED. R. CIV. P. 12(c).
Given the pending trial date, the deadline to file motions, exhibit lists, and witness
lists, and given the Court’s briefing order applicable to all potentially dispositive
motions, set out in its Uniform Initial Order, consideration of the Motion, if briefing
were to occur as set out in that briefing order, will delay trial.1 It also is filed after
the deadlines set out in the Court’s Scheduling Order and has been filed without
even asking the Court to reopen that Order, much less any showing by the
Defendants that they meet the standard for such re-opening. Additionally, the
Motion fails on the merits.
The Defendants have filed multiple (timely) motions to dismiss and for
summary judgment, and one (permitted-by-this-court but otherwise untimely)
motion for judgment on the pleadings, all of which have been ruled upon. More
specifically, Defendants have filed four sets of potentially dispositive motions.
First, Defendants filed a Motion To Dismiss (doc. 15) the claims in the Initial
Complaint (doc. 1). After the Court denied that motion, the Relator filed an
Amended Complaint. (Doc. 47).
Second, Defendants moved for summary judgment in July 2015. (Doc. 61).
The Court (1) granted the motion as to Plaintiff’s retaliation claims other than those
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Defendants have not asked the Court to shorten the deadlines for such briefing.
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based on the events of Fall 2012, finding that all such pre-Fall 2012 claims were
time-barred; (2) denied summary judgment on all other claims on all asserted bases,
including that they were time-barred; and (3) granted summary judgment against
Defendants and in favor of the Plaintiff on the issues of release, accord, and
satisfaction. (Doc. 80).
Third, in October 2016, Defendants filed a motion to dismiss for lack of
jurisdiction, claiming that the statute of limitations had expired on all claims. (Doc.
85). The Court granted in part and denied in part and specified that the following
claims remain for trial:
Counts I, II, and III: FCA claims brought pursuant to 31 U.S.C. §§
3729(a)(1)(A-C), occurring after January 13, 2008;
Count IV: FCA retaliation claims after Fall 2012;
Count V: FCA claims based on violations of the Anti-Kickback Statute,
where such violations occurred after January 13, 2008.
(Doc. 98).2,3
Fourth, the Court permitted Defendants to file a motion for judgment on the

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In its Opinion, the Court explained its reasons for finding that all other claims were time-

barred.
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These claims were also set out in the Court’s final pretrial Order (doc. 115), which was
entered after a pretrial conference with the parties on August 3, 2017.
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pleadings on the specific issue of “whether retaliation claims under Section 3730(h)
of the False Claims Act may only be brought by employees as to the terms and
conditions of their employment, thereby barring recovery for any post-employment
retaliation claim.” (Doc. 114). The Defendants filed a motion for judgment on the
pleadings. (Doc. 116). The Court granted that motion on November 1, 2017, and
granted judgment to the Defendants as to Plaintiff’s remaining claims in Count IV
(FCA retaliation claims after Fall 2012). (Doc. 120).
The same statute of limitations argument raised in the current Motion has
previously been raised by the Defendants and addressed by this Court. The
Defendants have presented no additional facts or law to call this Court’s prior
rulings on this issues into question, nor does their Motion meet the standard
applicable to a motion for reconsideration.
Accordingly, the Motion is DENIED as: (1) untimely under Rule 12(c); (2)
untimely under the Court’s Scheduling Order (and with no request that the
Scheduling Order be re-opened, nor any showing that the Scheduling Order is due to
be re-opened); (3) an untimely and insufficiently developed motion for
reconsideration of the Court’s prior rulings; and (4) on the merits, for the reasons
previously stated by the Court in its prior rulings.

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DONE and ORDERED this the 2nd day of January, 2018.

VIRGINIA EMERSON HOPKINS
United States District Judge

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