John Doe v. Medco Health Solutions Inc., et al.
Filing
119
MEMORANDUM OPINION regarding Motion to Dismiss (D.I. 114 ). Signed by Judge Richard G. Andrews on 10/26/2017. (nms)
Case 1:11-cv-00684-RGA Document 119 Filed 10/26/17 Page 1 of 13 PageID #: 2544
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
UNITED STATES OF AMERICA,
STATE OF CALIFORNIA,
STATE OF FLORIDA, and
STATE OF NEW JERSEY,
ex rel., PAUL DENIS,
Plaintiffs,
V.
MEDCO HEAL TH SOLUTIONS, INC.,
and EXPRESS SCRIPTS HOLDING
COMPANY,
Defendants.
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Civ. No. 11-684-RGA
Jeffrey S. Goddess, Esquire and P. Bradford deLeeuw, Esquire of Rosenthal, Monhait &
Goddess, P.A., Wilmington, Delaware. Counsel for Plaintiffs. Of Counsel: David S. Stone,
Esquire of Stone & Magnanini LLP, Berkeley Heights, New Jersey.
Jack B. Blumenfeld, Esquire and Rodger D. Smith II, Esquire of Morris, Nichols, Arsht &
Tunnell LLP, Wilmington, Delaware. Counsel for Defendants. Of Counsel: Enu Mainigi,
Esquire, Craig D. Singer, Esquire, Holly Conley, Esquire, and D. Keith Clouser, Esquire of
Williams & Connolly LLP, Washington D.C.
MEMORANDUM OPINION
L,
Dated: October C)
2017
Wilmington, DeCre
Case 1:11-cv-00684-RGA Document 119 Filed 10/26/17 Page 2 of 13 PageID #: 2545
ANDREWS, United States District Judge:
Relator Paul Denis brings this qui tam action against Medco Health Solutions, Inc. and its
parent Express Scripts Holding Company (collectively, "Medco") alleging violations of the False
Claims Act, 31 U.S.C. § 3729 et seq., and analogous state statutes. Denis' allegations mirror what
many plaintiffs before him have charged: that Medco defrauded the government by favoring
certain drugs in exchange for kickbacks from
AstraZ~eca
disguised as discounts, and Medco
failed to share these discounts with its clients as required. (D.I.
111~~1,
5). The court previously
dismissed Denis' Third Amended Complaint under two separate provisions of the False Claims
Act: the first-to-file rule and the public disclosure bar. US. ex rel Denis v. Medco Health Solutions,
Inc., 2017 WL 63006, at* 13 (D. Del. Jan. 5, 2017). Now pending before the court is Medco's
motion to dismiss Denis' Fourth Amended Complaint.
(D.I. 114).
Medco raises several
arguments, including the first-to-file rule, 31 U.S.C. § 3730(b)(5), the public disclosure bar, 31
U.S.C. § 3730(e)(4), and Federal Rules of Civil Procedure 12(b)(6) and 9(b). (D.I. 115). Because
the court finds that dismissal is warranted under the public disclosure bar, it does not reach
Medco's other arguments.
I.
BACKGROUND
The essential facts of the Fourth Amended Complaint are identical to those of the Third
Amended Complaint. (See D.I. 111-3). The new content is essentially (i) speculation that the
same conduct continued after Denis left his employment with Medco in 2008, (ii) ancillary details
about events already alleged, or (iii) legal argument. Accordingly, the court refers the reader to its
previous memorandum opinion for a general factual background and will discuss any new
allegations where relevant below. Denis, 2017 WL 63006, at *2-4.
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II.
STANDARD OF REVIEW
A.
Rule 12(b )(1)
Under Fed. R. Civ. P. 12(b)(l), the court must dismiss a complaint if it lacks subject matter
jurisdiction. Challenges to subject matter jurisdiction may be facial or factual. Lincoln Ben. Life
Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). A facial attack contests the sufficiency of
the pleadings, whereas a factual attack contests the sufficiency of jurisdictional facts. Id. The pre2010 public disclosure bar is a factual attack on subject matter jurisdiction. Denis, 2017 WL
63006, at *4. In a factual attack, the court may weigh and consider evidence outside the pleadings,
and no presumption of truthfulness attaches to plaintiffs allegations. Gould Elecs. Inc. v. United
States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass 'n, 549 F.2d
884, 891 (3d Cir. 1977).
B.
Rule 12(b)(6) & Rule 9(b)
The post-2010 public disclosure bar, if applicable, requires dismissal under Fed. R. Civ. P.
12(b)(6). US. ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 300 (3d
Cir. 2016). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a plaintiff must plead
facts sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Courts must
accept all well-pleaded factual allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. Jn re Rockefeller Ctr. Prop., Inc. Sec. Litig., 311 F.3d 198, 215
(3d Cir. 2002). The court's review is limited to the allegations in the complaint, exhibits attached
to the complaint, documents incorporated by reference, and items subject to judicial notice.
Siwulec v. JM Adjustment Serv., LLC, 465 F. App'x 200, 202 (3d Cir. 2012).
2
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Because claims under the False Claims Act allege fraud, they are also subject to the
heightened pleading requirements of Fed. R. Civ. P. 9(b). US. ex rel. Whatley v. Eastwick Coll.,
657 F. App'x 89, 93 (3d. Cir. 2016). Under Fed. R. Civ. P. 9(b), plaintiffs must "state with
particularity the circumstances constituting fraud or mistake." In other words, the complaint must
provide "all of the essential factual background that would accompany 'the first paragraph of any
newspaper story'-that is, the 'who, what, when, where and how' of the events at issue." Whatley,
657 F. App'x at 93 (quoting In re Rockefeller, 311 F.3d at 217).
III.
DISCUSSION
Denis alleges that Medco engaged in the same fraudulent scheme from 2005 to the present.
(See, e.g., D.I. 111
iii! 111-13).
Congress, however, amended the public disclosure bar in 2010,
and those changes do not apply retroactively. US. ex rel. Zizic v. Q2Administrators, LLC, 728
F.3d 228, 232 n. 3 (3d Cir. 2013). When a relator alleges a continuing fraud that spans the time
before and after the amendments, several courts in the Third Circuit have applied the pre-2010
version of the statute to pre-2010 conduct and the post-2010 statute to post-2010 conduct. See,
e.g., US. ex rel. Judd v. Quest Diagnostics Inc., 2014 WL 2435659 (D.N.J. May 30, 2014). For
reasons explained below, the court questions this approach, but will nevertheless follow it.
Accordingly, the court will first describe the changes to the public disclosure bar and why it
questions the bifurcated approach to a continuing fraud claim. Then the court will apply both
versions of the public disclosure bar to Denis' claim.
A. The Amendments to the Public Disclosure Bar
In 2010, Congress amended the public disclosure bar. Under the pre-2010 statute, the
public disclosure bar deprives the court of subject matter jurisdiction if: (1) the public disclosures
appear in certain enumerated sources; (2) the publicly disclosed information constitutes allegations
3
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or transactions of fraud; (3) the relator's complaint is "based upon" the public disclosures; and (4)
the relater is not an "original source." Zizic, 728 F.3d at 235 & 239; US. ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 519 (3d Cir. 2007); 31 U.S.C. § 3730(e)(4)(A) (2006). This
version of the statute defines "original source" as "an individual who has direct and independent
knowledge of the information on which the allegations are based." 31 U.S.C. § 3730(e)(4)(B)
(2006). In contrast, the post-2010 statute provides that the court must "dismiss an action or claim"
if: (1) the public disclosures appear in certain enumerated sources; (2) the publicly disclosed
information contains "substantially the same allegations or transactions as alleged in the action or
claim"; and (3) the relater is not an "original source." 31 U.S.C. § 3730(e)(4)(A) (2010). The
amended statute defines "original source" as an individual who has voluntarily disclosed
information to the government or one "who has knowledge that is independent of and materially
adds to" information already publicly disclosed. 31 U.S.C. § 3730(e)(4)(B) (2010).
Some of the changes to the public disclosure bar are significant. First, the pre-2010 statute
requires application of the Rule 12(b)( 1) standard for lack of subject matter jurisdiction, whereas
the post-2010 statute requires application of the Rule 12(b)(6) standard for failure to state a claim.
See Moore, 812 F.3d at 300. As a result, no presumption of truthfulness attaches to pre-2010
allegations, but post-2010 allegations receive the benefit of every reasonable inference. See Harris
v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 464 (3d Cir. 2013). Second, the amended
statute limits the sources that qualify as public disclosures by, among other things, changing "civil
hearings" to "federal civil hearings in which the government or its agent is a party." Compare 31
U.S.C. § 3730(e)(4)(A) (2006) to 31 U.S.C. § 3730(e)(4)(A)(i) (2010); see also US. ex rel.
Freedom Unlimited, Inc. v. Pittsburgh, 2016 WL 1255294, at *13 (W.D. Pa. Mar. 31, 2016)
(describing changes in enumerated sources). Third, the amended statute expands the definition of
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"original source" by removing the words "direct knowledge." Freedom Unlimited, 2016 WL
1255294, at* 13. Direct knowledge is knowledge based on first-hand information. Zizic, 728 F.3d
at 239. Previous cases have held that a relator does not have direct knowledge when the knowledge
is gained from reviewing documents and discussing them with colleagues who participated in the
underlying events. US. ex rel. Schumann v. AstraZeneca Pharm. L.P., 769 F.3d 837, 848 (3d Cir.
2014). The removal of the words "direct knowledge" suggests that a relator may now qualify as
an original source even though he or she does not have first-hand information.
In the previous motion to dismiss, the court applied the pre-2010 public disclosure bar,
because Denis failed to allege any specific facts of post-2010 conduct. Denis, 2017 WL 63006, at
*5. Instead, the Third Amended Complaint made the speculative assertion that the same fraudulent
scheme from before 2010 continued past 2010. Id. When asked to identify specific allegations in
the Third Amended Complaint ofpost-2010 conduct, Denis pointed to a conversation he had with
Regina Dennis, a Vice President at Medco. Id. The court found those allegations insufficient,
however, because no specific time was alleged and none could be reasonably inferred. Id. The
Fourth Amended Complaint confirms that the conversation occurred before 2010, not after. (D.I.
111if145). Like the Third Amended Complaint, the Fourth Amended Complaint alleges that any
post-2010 conduct is a continuation of a pre-2010 fraudulent scheme. (See, e.g., id. at if 168 ("This
scheme began in 2005, continued in 2007 when the agreements were renewed through 2009, and
was still continuing with Express Scripts until at least 2013."). The only specific allegation of
post-2010 conduct is that Medco renewed its contract with AstraZeneca in 2011. (See, e.g., id. at
if 111 ("The original AZ contract signed in 2005 expired in 2007, that contract was renewed in
2007, 2009, 2010, and again in 2011. ... ")).
5
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When the complaint alleges a continuing fraud that spans the time period before and after
the 2010 amendment, several courts in the Third Circuit have established a rule that "the court
applies the pre-amendment version ... to conduct occurring prior to the amendment's enactment
and the post-amendment version to conduct occurring after the amendment took effect." US. ex
rel LaPorte v. Premier Educ. Grp., L.P., 2016 WL 2747195, at *7 (D.N.J. May 11, 2016); Freedom
Unlimited, 2016 WL 1255294, at *12 ("[A]llegations ofpre-2010 conduct will be assessed under
the [pre-20 IO public disclosure bar] and allegations of post-2010 conduct will be assessed under
the [post-2010 public disclosure bar]."); US. ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries,
LLC, 69 F. Supp. 3d 416, 423 (D. Del. 2014) (explaining that because the complaint alleges
continuing conduct, "the court applies the [pre-2010 statute] to pre-amendment conduct and the
amended [statute] to later conduct"), rev 'don other grounds, 812 F.3d 294 (3d Cir. 2015).
All of these cases can be traced back to US. ex rel. Judd v. Quest Diagnostics Inc., 2014
WL 2435659 (D.N.J. May 30, 2014). In Judd, the relator argued that the post-2010 public
disclosure bar applied to a continuing fraud claim, because that was the version in effect at the
time he filed the complaint. Id. at *5. Defendants disagreed, arguing that the amendments were
not retroactive and, therefore, the post-2010 bar could not be applied to pre-2010 conduct. Id. The
district court agreed with the defendants and, therefore, applied the pre-2010 bar to pre-2010
conduct. Id. The Third Circuit affirmed on appeal. US. ex rel. Judd v. Quest Diagnostics Inc.,
638 F. App'x 162, 163 (3d Cir. 2015). Thus, the framing of the arguments in Judd have led to an
awkward rule where the court must arbitrarily bifurcate the claim on the date the amendments
became effective, i.e., 2010, and then evaluate the same claim using both versions of the public
disclosure bar. Not only is this approach inefficient, but it might give the relator the benefit of
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retroactive application of the 2010 amendments when the amendments are not retroactive. 1 In
addition, the Judd rule is incongruous with the general rule that relaters cannot defeat the public
disclosure bar by alleging that the same fraud continued into a new time period. See Denis, 2017
WL 63006, at *8 (collecting cases). Apparently, under the Judd rule, if relaters argue that the
same fraud continued past 2010, the claim will be treated as a separate and distinct fraud.
Since Judd, some defendants before other district courts in the Third Circuit have raised an
argument not addressed in Judd: That courts should apply the pre-2010 public disclosure bar to
the entire claim, because that was the statute in effect at the time the claim accrued. See LaPorte,
2016 WL 2747195, at *7; Freedom Unlimited, 2016 WL 1255294, at *11. Those courts, however,
have rejected the argument as contrary to the precedents established under Judd. 2 See, e.g.,
LaPorte, 2016 WL 2747195, at *7 n. 7. By contrast, some courts in other circuits have applied
the pre-2010 version of the public disclosure bar to the entire continuing fraud claim. See, e.g.,
Cause of Action v. Chicago Transit Auth., 815 F.3d 267, 271 n. 5 (7th Cir. 2016); US. ex rel.
Carter v. Bridgepoint Educ., Inc., 2015 WL 4892259, at *3 (S.D. Cal. Aug. 17, 2015). In Cause
ofAction, the Seventh Circuit recognized the general rule that courts apply the version of the public
disclosure bar in force when the underlying events took place, but thought it was not "necessary
or appropriate" to characterize a fraud continuing from 2009 to 2010 "as discrete events." 815
F.3d 267, 271 n. 14. In Bridgepoint, the court applied the pre-2010 bar to a scheme that spanned
Imagine, for example, that the pre-2010 portion of a relator's claim is dismissed after a
factual attack to subject matter jurisdiction, but the post-2010 portion survives under the more
plaintiff-friendly standard of Rule 12(b)( 6). Would the relater then be entitled to discovery of pre2010 conduct and to rely on pre-2010 facts to present his post-2010 claim? The only reason Denis'
post-2010 claim is not frivolous is because of his allegations of pre-2010 conduct.
2
Relying on those same precedents, this court recited the Judd rule in its previous motion to
dismiss without critical consideration. Denis, 2017 WL 63006, at *5. Now faced with the prospect
of having to apply the rule, the court recognizes its inefficient and incongruous nature.
7
I
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both versions of the public disclosure bar, because "the majority of the most important aspects of
the fraudulent conduct" occurred before the amendments became effective, i.e., defendants
executed a multi-year agreement and the public disclosures were issued before 2010. 2015 WL
4892259, at *3. From this court's perspective, the better approach would be to apply the pre-2010
public disclosure bar to the entire continuing fraud claim, because that was the statute in effect at
the time the claim accrued, and the statute is not retroactive. Nevertheless, the court will follow
the approach previously affirmed by the Third Circuit in Judd. 3
B.
Pre-2010 Claim
The Fourth Amended Complaint does nothing to change the court's previous conclusion
that the pre-2010 claim is barred by the pre-2010 public disclosure bar. As stated above, the pre2010 public disclosure bar deprives the court of subject matter jurisdiction if: (1) the public
disclosures appear in certain enumerated sources; (2) the publicly disclosed information constitutes
allegations or transactions of fraud; (3) the relator's complaint is "based upon" the public
disclosures; and (4) the relator is not an "original source." Zizic, 728 F.3d at 235 & 239; Atkinson,
473 F.3d at 519.
A complaint is "based upon" the public disclosures if it is "supported by" or "substantially
similar" to the public disclosures. Zizic, 728 F.3d at 237. The statute does not require that the
allegations be identical. Judd, 638 F. App'x at 166 (stating that a complete identity of allegations
is not required to implicate the public disclosure bar). Denis repeats his previous argument that
his complaint is not based upon the public disclosures, because it alleges "different time periods,
different contracts, different regulations and identiflies] a distinct fraud." (D.I. 111-3; D.I. at 116
3
I do acknowledge that Judd is not precedential and, therefore, I am not obligated to follow
it.
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at 6-7). The court, however, previously rejected that argument, because it was largely incorrect as
a matter of fact. Denis, 2017 WL 63006, at *6-7. In addition, whatever differences that did exist
were not enough to differentiate his claim from the public disclosures. Id. The Fourth Amended
Complaint alleges the same fraudulent scheme as the Third Amended Complaint. (D.I. 111-3).
Any new details elaborating on that scheme do not overcome the conclusion that it is substantially
similar to the public disclosures. 4
On the previous motion to dismiss, the court also found that Denis was not an original
source, because he lacked direct knowledge.
Denis, 2017 WL 63006, at *8. As the court
explained, the Third Amended Complaint did not allege that Denis participated in the
administration or negotiation of any contracts between Medco and AstraZeneca. Id. Instead, all
of his knowledge was gleaned from reviewing documents and having conversations with
colleagues who participated in the underlying events. Id. Contrary to Denis' assertions, this does
not result in a rule that "only instigators can qualify as original sources." (D .I. 116 at 13 ). Innocent
bystanders are often first-hand witnesses to bad acts.
Admittedly, the direct knowledge
requirement restricts the number of individuals that qualify as an original source. But perhaps that
is the reason why Congress removed the direct knowledge requirement from the amended statute.
Denis cites a collection of allegations from the Fourth Amended Complaint purportedly
demonstrating he is an original source with direct knowledge. (Id. at 11-12 (citing D.I. 111
iii!
108-09, 113, 121, 123-24, 126, 129, 132, 139-40, 142-45, 148-56, 158, 160-67, 176-81, 193-96)).
4
Denis argues that the term "purchase discounts" as used in the public disclosures is
different from the term "Purchase Discounts" as used in his complaint, because the first term refers
to "rebates or discounts" generally, and the second terms refers to a defined term in Medco's
contract with Astra Zeneca. (D.I. 116 at 7). This argument does not raise a distinction that
overcomes the substantial similarity requirement in the public disclosure bar. It is unlikely the
government would be thrown off the trail of fraud by the nuanced differences between the terms
"purchase discounts" and "Purchase Discounts."
9
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But these allegations are insufficient for one of four reasons. First, they are unchanged from the
previous complaint. (See, e.g., D.I. 111-3
~~
129, 132, 139-40). They are, therefore, insufficient
for the same reasons given on the previous motion to dismiss. See Denis, 2017 WL 63006, at *89. Second, the allegations elaborate on a fraudulent scheme proposed to Merck or another drug
company, which does not demonstrate first-hand knowledge of a fraudulent scheme related to
AstraZeneca. See, e.g., D.I.
111~~148-54;
Denis, 2017 WL 63006, at *8 n. 9; Judd, 638 F. App'x
at 168 (being an original source with respect to one health care provider does not necessarily
establish that the relator is an original source with respect to a different health care provider).
Third, the allegations show that Denis received his knowledge second-hand through reviewing
documents or being told information. (See, e.g., D.I. 111
~~
126, 193-94). This is not direct
knowledge. Denis, 2017 WL 63006, at *8. Finally, the allegations assert facts without a basis
from which the court can reasonably infer that it is coming from Denis' first-hand knowledge.
(See, e.g., D.I. 111
~~
108-09, 113). In other words, the complaint does not allege that Denis saw
or heard the information first-hand. For these reasons, Denis has not demonstrated that he qualifies
as an original source under the pre-2010 disclosure bar. Accordingly, Denis' pre-2010 claim is
dismissed with prejudice for lack of subject matter jurisdiction pursuant to the pre-2010 public
disclosure bar. US. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 517 (3d Cir. 2007)
(explaining that repleading is futile after dismissal for lack of subject matter jurisdiction because
"the legal inadequacy cannot be solved by providing a better factual account of the alleged claim").
C.
Post-2010 Claim
The issue under the post-2010 public disclosure bar is whether Denis qualifies as an
original source once the direct knowledge requirement has been removed. The post-2010 public
disclosure bar provides that the court must "dismiss an action or claim" if: (1) the public
IO
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disclosures appear in certain enumerated sources; (2) the publicly disclosed information contains
"substantially the same allegations or transactions as alleged in the action or claim"; and (3) the
relator is not an "original source." 31 U.S.C. § 3730(e)(4)(A) (2010). The first two elements of
the post-2010 public disclosure bar are not in dispute. The court determined on the previous
motion to dismiss that "the relevant allegations are essentially redundant of the claims in
Schumann and Hunt. " 5 (D.I. 109 at 3 n. 1). Schumann and Hunt are federal cases in which the
government was a party and, therefore, qualify as public disclosures under the amended statute.
See 31 U.S.C. § 3730(e)(4)(A)(i) (2010). Because "based upon" in the pre-2010 statute means
"supported by" or "substantially similar" to the public disclosures, this element is essentially
unchanged after the amendments. As a result, the court's analysis above finding that Denis'
complaint is "based upon" the public disclosures is applicable to the post-2010 claim. This leaves
for dispute whether Denis is an original source.
Under the post-2010 public disclosure bar, a relator is an original source if the relator has
"knowledge that is independent of and materially adds to" information already publicly disclosed.
31 U.S.C. § 3730(e)(4)(B). "[A] relator materially adds to the publicly disclosed allegation or
transaction of fraud when [he] contributes information-distinct from what was publicly
disclosed-that adds in a significant way to the essential factual background: the who, what, when,
where and how of the events at issue." Moore, 812 F.3d at 307. Because the court bifurcated
Denis' claim, the post-2010 original source standard applies only to conduct that occurred after
March 23, 2010. The only post-2010 conduct alleged in the complaint is that Medco renewed the
agreements with AstraZeneca in 2011, and those agreements remained in effect until 2013. (D.1.
5
Schumann and Hunt refer respectively to US. ex rel. Schumann v. Medco, No. 03-CV5423 (E.D. Pa.) and US. ex rel. Hunt et al. v. Merck-Medco Managed Care L.L.C., No. OO-CV737 (E.D. Pa.).
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111
~~
111, 166). These allegations do not add anything significant to the "who, what, when,
where and how" of the fraudulent scheme. See Judd, 638 F. App'x at 168 n. 7 (finding that relator
did not materially add to the prior disclosures by alleging that the fraud continued into a new time
frame). Accordingly, Denis does not qualify as an original source, and his post-2010 claim does
not overcome the post-2010 public disclosure bar. The court grants Medco's motion to dismiss
the post-2010 claim for failure to state a claim. Dismissal is with prejudice, because it would be
futile for Denis to file a fifth amended complaint. See Gasoline Sales, Inc. v. Aero Oil Co., 39
F.3d 70, 74 (3d Cir. 1994) (stating that the district court did not abuse its discretion in denying
amendment because "three attempts at a proper pleading is enough").
IV.
CONCLUSION
The court dismisses Denis' pre-2010 federal law claim for lack of subject matter
jurisdiction pursuant to the pre-2010 public disclosure bar, 31 U.S.C. § 3730(e)(4) (2006), and his
post-2010 federal law claim for failure to state a claim under the post-2010 public disclosure bar,
31U.S.C.§3730(e)(4)(2010). In addition, the court declines to exercise supplemental jurisdiction
over the state law claims brought under the laws of California, Florida, and New Jersey for the
same reasons set forth in the previous opinion. Denis, 2017 WL 63006, at *13. Denis has not
asked for leave to amend the complaint and, for the reasons explained above, the court will not
sua sponte grant leave as any amendment would be futile. Accordingly, Medco's motion to
dismiss (D.I. 114) is GRANTED, and the complaint is DISMISSED WITH PREJUDICE. An
appropriate order will be entered.
Dated: OctoberJli, 2017
12
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