United States Of America et al v. Spanish Oaks Hospice, Inc et al
ORDER denying 62 Motion for Reconsideration re 61 Order on Motion. Signed by Magistrate Judge G. R. Smith on 9/15/17. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
UNITED STATES OF AMERICA,
ex rel. JOLIE JOHNSON and
SPANISH OAKS HOSPICE, INC.,
Relators in this False Claims Act case have moved the Court to
reconsider its Order granting defendants’ motion to file a reply -- or, as
they correctly point out, a sur-reply -- providing further argument on
relators’ Amended Complaint.1 Doc. 62. They cite authority from the
Middle District of Georgia disfavoring such sur-replies. Id. at 2 (citing,
inter alia, Sanford v. Walmart, Inc., 2016 WL 5662029 at * 9 (M.D. Ga.
Sept. 29, 2016)). In this Court, however, “‘[p]arties may file as many
reply briefs as they like . . . .’” Lee-Lewis v. Kerry, 2016 WL 6647937 at *
While relators’ motion to reconsider was pending, defendants have filed their reply.
4 (S.D. Ga. Nov. 8, 2016) (quoting Brown v. Chertoff, 2008 WL 5190638
at * 2 (S.D. Ga. Dec. 10, 2008)). Defendants’ request, therefore, was
granted as a matter of course. Given this Court’s policy, it DENIES
relators’ request to reconsider.2 Doc. 62.
Although the unlimited-reply-brief policy allows defendants’
proposed reply, relators raise a legitimate concern about possible abuse.
See doc. 62 at 1-2. Relators protest that defendants have “blackballed
them from working in their [sic] hospice profession,” thus increasing
their interest in prompt resolution of their claims. Id. at 1. Further,
they accuse the defendants of adopting a “scorched earth / eternal delay
of discovery” strategy.3 Id. Those are serious accusations.
The relators, like the defendants, are allowed by the Court’s unlimited-reply-brief
policy to file their own response, subject to Local Rule 7.6, if they believe it is
warranted. Their request to lift the stay, however, is DENIED. Doc. 62 at 2. The
Court trusts that the argument about the proposed amendment will not be, as they
suggest, “endless.” Id. Discovery was stayed pending resolution of the defendants’
dismissal motions. See doc. 47 at 4. If the outcome of the current amendment
dispute renders those motions moot, the stay may be reevaluated.
Although the Court agrees that there have been delays, perhaps unnecessary ones,
in resolving relators’ proposed amendment, they have not been exclusively caused by
defendants. Notably, the Court granted relators’ counsel’s requested extension of the
deadline to respond to defendants’ opposition. Doc. 58 (extending deadline from
August 15, 2017 through August 31, 2017). Given that at least some of the “delay”
relators protest is attributable to that extension, the emphatic tone of their motion
A motion for reconsideration is simply not the forum to litigate
If they contend that someone is maliciously
interfering with their employment -- their brief does not clearly allege
how they were “blackballed” or who is responsible -- they may have a
tort claim. Such a possible claim, however, is irrelevant to this case.
Their claim that defendants’ motion is purely dilatory implicates Fed. R.
Civ. P. 11. See Fed. R. Civ. P. 11 (b)(1) (attorney’s signature on motion
certifies, among other things, that the motion “is not being presented for
any improper purpose, such as to . . . cause unnecessary delay, or
needlessly increase the cost of litigation.”).
That Rule, subject to its
procedural requirements, see Fed. R. Civ. P. 11(c)(2), provides relators
with a remedy.
See Fed. R. Civ. P. 11(c)(4).
however, undermines the propriety of defendants submitting a sur-reply.
Although the Court will not reconsider its Order or its unlimitedreply-brief policy, relators’ concerns merit additional discussion. They
contend that an “endless volley” of briefs is antithetical to the “just,
speedy, and inexpensive determination” of actions.4
Doc. 62 at 1
(quoting Fed. R. Civ. P. 1). They’re absolutely right. However, this
Court relies on the judgement and professionalism of the members of its
bar, and the deterrent effect of Rule 11, to avoid interminable or
frivolous arguments. The Court’s long experience with its policy has
justified that reliance, and shown that it does not unduly interfere with
the speedy and inexpensive resolution of cases.
It also ensures that
parties are able to make the case they wish and are not penalized for
failing to exhaustively anticipate their opponents’ responses. That, in
turn, ensures that actions are resolved as justly as possible.
extent that there is a tension between those values, the Court errs on the
side of justice. However, it will not hesitate to invoke Rule 11 to remedy
any apparent abuse.
Relators’ motion implies that they would be disadvantaged if they do not “have the
last word.” See doc. 62 at 4 n. 2. That’s not true. They rightly point out that “each
party acts as a check on the other . . .,” in our adversarial system. Id. But, their
suggestion that defendants might derive an illegitimate advantage by unrebutted
characterizations of authority fails to recognize that, whoever gets the last word, the
Court determines the outcome.
That determination is based on a careful
consideration of the parties’ arguments and their supporting authority. The Court
expects attorneys will not misrepresent authority, but it also recognizes that they are
not disinterested scholars. Thus, it does not take any parties’ characterizations of an
authority’s weight, whether replied to or not, at face value.
SO ORDERED, this 15th day of September, 2017.
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