United States of America et al v. Institute of Cardiovascular Excellence, PLLC et al
ORDER granting 95 Motion for Reconsideration. Upon reconsideration, the Court affirms the conclusion in its April 26, 2016 Order (Doc. 94). As such, the Instant Action shall proceed through the entry of judgment. Signed by Judge Roy B. Dalton, Jr. on 5/16/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
UNITED STATES OF AMERICA ex rel.
ROBERT A. GREEN; STATE OF
FLORIDA ex rel. HOLLY TAYLOR,
Case No. 5:11-cv-406-Oc-37TBS
INSTITUTE OF CARDIOVASCULAR
EXCELLENCE, PLLC; ICE HOLDINGS,
PLLC; ASAD ULLAH QAMAR; and
HUMERA A. QAMAR,
This cause is before the Court on the following:
Fed. R. Civ. P. 54(b) (Doc. 95), filed April 29, 2016; and
United States’ Response in Opposition to Defendants’ Motion for
Reconsideration of Order Pursuant to Fed. R. Civ. P. 54(b) and
Incorporated Memorandum of Law (Doc. 98), filed May 13, 2016.
Upon notification that the Defendants in this False Claims Act (“FCA”) qui tam
action (“Instant Action”) had filed for Chapter 11 bankruptcy (see Doc. 90), the Court
considered whether the Instant Action was subject to the Bankruptcy Code’s automatic
stay provision, 11 U.S.C. § 362(a) (“Issue”). The Court took the Issue under advisement
based on Defendants’ Suggestion of Bankruptcy (Doc. 90)—which indicated their belief
that the Instant Action was automatically stayed—and the United States’ Response to the
Suggestion of Bankruptcy (Doc. 91 (“Response”)). Absent binding authority, the Court
was persuaded by the rationale that FCA actions are exempt from the automatic stay
through entry of judgment; thus, it declined to stay the Instant Action. (Doc. 94 (“Order”).)
The Order was docketed shortly after Defendants filed a reply to the Response (Doc. 93
(“Reply”)). The Court did not consider the Reply when ruling on the Issue.
Defendants now move the Court to reconsider the Order pursuant to Federal Rule
of Civil Procedure 54(b). (Doc. 95 (“Motion).) The United States opposes the Motion.
(Doc. 98.) The matter is ripe for adjudication.
Rule 54(b) permits the Court to revise interlocutory orders “at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
“While Rule 54(b) does not provide specific grounds for revision, a court has the inherent
power to revise its orders in the interest of justice.” CSX Transp., Inc. v. City of Pensacola,
Fla., 936 F. Supp. 885, 889 (N.D. Fla. 1995).
Courts in this Circuit recognize three grounds for
reconsideration of prior orders under Rule 54(b): (1) an
intervening change in controlling law; (2) newly discovered
evidence; or (3) the need to correct clear error or prevent
Iqbal v. Dep’t of Justice, No. 3:11-cv-369-J-37JBT, 2014 WL 169867, at *9 n.18 (M.D. Fla.
Jan. 15, 2014).
Defendants maintain that reconsideration is necessary to prevent “manifest
injustice.” (Doc. 95.) Specifically, Defendants argue that the Suggestion of Bankruptcy
was simply a notice to the Court and was not a request for relief; thus: (1) the Response
should be construed as a motion seeking a determination of the scope of the Bankruptcy
Code’s automatic stay provision and requesting that the Court decline to stay the action;
(2) the Reply should be construed as a response; and (3) and to satisfy due process, the
Court should consider the Reply. (Id.) While the Court does not necessarily agree with
Defendants’ argument, in the interest of justice and to fully ensure Defendants are
afforded due process, the Court finds that reconsideration is warranted. The Court,
therefore, takes the Issue under advisement again.
After considering the arguments raised in the Reply, the Court reaches the same
outcome—that a stay of the action is not warranted. First, Defendants concede that this
Court has concurrent jurisdiction with the bankruptcy court to determine the Issue and
that this Court is “considerably more competent” to do so. (Doc. 93, pp. 1–2.) Second,
Defendants fail to cite any binding authority contradicting the persuasive rationale that
FCA actions are exempt from the automatic stay through the entry of judgment. 1 (See
id. (lacking authority for any such proposition)); but see In re Commonwealth Cos., Inc.,
913 F.2d 518, 527 (8th Cir. 1990) (providing persuasive authority for exemption);
In re Bilzerian, 146 B.R. 871, 873 (M.D. Fla. 1992) (same). As such, the Court affirms its
conclusion in the Order.
Accordingly, it is hereby ORDERED AND ADJUDGED:
Fed. R. Civ. P. 54(b) (Doc. 95) is GRANTED.
Defendants incorporate by reference their arguments relating to the Issue in the
emergency motions that they filed with the bankruptcy court (“Bankruptcy Motions”);
however, the Bankruptcy Motions were not attached to the Reply.
The United States’ indicated that Defendants’ Bankruptcy Motions relied on In re
Bicoastal Corporation, 118 B.R. 854 (M.D. Fla. 1990)—a case in which U.S. Bankruptcy
Court Judge Alexander L. Paskey found that an FCA action brought by the Government
was not exempt from the automatic stay provision. (See Doc. 98, p. 4.) The Court
previously considered and declined to follow the holding of In re Bicoastal Corporation in
light of the more persuasive rationale from the Eighth Circuit and Judge Paskey’s
subsequent and contrary ruling in In re Bilzerian.
Upon reconsideration, the Court affirms the conclusion in its April 26, 2016
Order (Doc. 94). As such, the Instant Action shall proceed through the entry
DONE AND ORDERED in Chambers in Orlando, Florida, on May 16, 2016.
Counsel of Record
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