Vargas v. Lincare, Inc. et al

Filing 82

ORDER granting 64 the motion to extend the service deadline and 59 the motion to file a new pleading and denying as moot and without prejudice 63 the motion to dismiss and 76 the motion to stay discovery. The plaintiff must file a new plea ding by September 17, 2021, in accord with the proposed pleading, Doc. 59-1, and the supplemental allegations in 66 the response to the motion to dismiss, without adding claims. See order for details. Signed by Magistrate Judge Patricia D. Barksdale on 9/8/2021. (BHC)

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United States District Court
Middle District of Florida
Jacksonville Division
UNITED STATES OF AMERICA
EX REL. JAMIE VARGAS,
Plaintiff,
NO. 3:16-cv-1329-BJD-PDB

v.
LINCARE, INC., AND OPTIGEN, INC.,
Defendants.

Order
In this action under the False Claims Act (FCA), 31 U.S.C. § 3729, Jamie
Vargas moves to file a new pleading and to extend the deadline to serve
process. Docs. 59, 64. The defendants oppose the motions. Docs. 63, 65. The
background is described in the parties’ filings and not repeated here.
Under Federal Rule of Civil Procedure 4, “[i]f a defendant is not served
within 90 days after the complaint is filed, the court—on motion or on its own
after notice to the plaintiff—must dismiss the action without prejudice against
that defendant or order that service be made within a specified time.” Fed. R.
Civ. P. 4(m). “But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.” Id. Good cause
exists only if an outside factor—for example, reliance on faulty advice but not
inadvertence or negligence—prevented service. Lepone-Dempsey v. Carroll
Cnty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2007).

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Absent good cause, a court has discretion to extend the time. Id.
Considerations may include the length and reasons for the delay, the relative
hardships of the parties, receipt of actual notice, the expiration of a statute of
limitations, eventual service,

evasion of service, whether the plaintiff

requested an extension from the court due to difficulties in perfecting service,
and the plaintiff’s diligence in pursuing service within the ninety-day period.
Cardenas v. City of Chi., 646 F.3d 1001, 1006–07 (7th Cir. 2011).
An FCA complaint “shall not be served on the defendant until the court
so orders.” 31 U.S.C. § 3730(b)(2). “The defendant shall not be required to
respond to any complaint filed under this section until 20 days after the
complaint is unsealed and served upon the defendant pursuant to Rule 4 of the
Federal Rules of Civil Procedure.” 31 U.S.C. §3730(b)(3).
If no amendment is permitted as a matter of course, “a party may amend
its pleading only with the opposing party’s written consent or the court’s leave.”
Fed. R. Civ. P. 15(a)(2). “The court should freely give leave when justice so
requires.” Id. In other words, a court should permit amendment unless an
“apparent or declared reason” justifies declining to permit amendment, “such
as undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, the Court exercises its discretion to extend the time to serve
process to March 19, 2021, considering the short length of the delay, the
circumstances described by Vargas’s counsel, and the statute of limitations.
Service of process thus is considered timely.

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The Court also exercises its discretion to permit Vargas to amend the
pleading once more considering the liberal amendment standard, the deadlines
in the case management and scheduling order, Doc. 80, and the preference for
deciding claims on the merits. Vargas must file a new pleading by September
17, 2021, in accord with the proposed pleading, Doc. 59-1, and the
supplemental allegations in the response to the motion to dismiss, Doc. 66,
without adding claims. But Vargas is cautioned that the current proposed
second amended complaint is an improper “shotgun pleading,” at a minimum
because paragraph 79 incorporates all preceding allegations. See Barmapov v.
Amuial, 986 F.3d 1321 (11th Cir. 2021); Vibe Micro, Inc. v. Shabanets, 878 F.3d
1291 (11th Cir. 2018); Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d
1313 (11th Cir. 2015); Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117 (11th Cir.
2014); Chudasama v. Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1997). If
Vargas files a shotgun pleading, the Court will strike it and may not
permit further amendment.
The defendants must respond to the new pleading within 21 days of its
filing through CM/ECF. In exercising its discretion, the Court makes no
decision on the merits of the arguments raised in the motion to dismiss. Doc.
63.
Thus,
1.

the motion to extend the service deadline, Doc. 64, is
granted;

2.

the motion to file a new pleading, Doc. 59, is granted;

3.

the motion to dismiss, Doc. 63, is denied as moot and
without prejudice; and

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4.

the motion to stay discovery, Doc. 76, is denied as moot and
without prejudice.

Ordered in Jacksonville, Florida, on September 8, 2021.

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