United States of America v. Community Care Network Inc et al

Filing 75

OPINION AND ORDER: For the reasons set forth in the Opinion and Order, Plaintiff's Motion to Allow Interlocutory Appeal 73 is DENIED, and the Report and Recommendation 61 is ADOPTED. Accordingly, the Clerk is ORDERED to DISMISS this case WITHOUT PREJUDICE. Signed by Judge Rudy Lozano on 5/15/2018. (Copy mailed to pro se party)(jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
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ALEKSANDER SKARZYNSKI,
Plaintiff,
v.
COMMUNITY CARE NETWORK,
INC., et al.,
Defendants.

NO. 2:14–CV-388

OPINION AND ORDER
This

matter

is

before

the

Court

on

the

Report

and

Recommendation of United States Magistrate Judge Pursuant to 28
U.S.C. § 636(b)(3) and Local Rule 72-1, filed on April 5, 2018
(“Report and Recommendation”) (DE #61), and the Motion to Allow
(Interlocutory) Appeal, filed by pro se Plaintiff, Aleksander
Skarzynski, on April 16, 2018 (DE #73).
below,

the

motion

(DE

#73)

is

For the reasons set forth

DENIED,

Recommendation (DE #61) is ADOPTED.

and

the

Report

and

Accordingly, the Clerk is

ORDERED to DISMISS this case WITHOUT PREJUDICE.
BACKGROUND
Plaintiff filed a pro se qui tam complaint on October 21,
2014. Plaintiff served the Government, but none of the defendants,

with his complaint. The Court ordered the Government to show cause
as to why 31 U.S.C. § 3730(b)(4) had not been complied with.
#22.)

(DE

After the Government responded to the order to show cause,

the Court sua sponte dismissed Plaintiff’s qui tam claims and
granted Plaintiff time in which to file an amended complaint
alleging only non-qui tam claims stemming from his alleged wrongful
termination.

(DE #27.)

On April 3, 2017, the Court accepted Plaintiff’s Amended
Complaint and ordered Plaintiff to serve it on the defendants in
accordance with the Federal Rules of Civil Procedure.
The

Court

extended

the

deadline

for

service

of

(DE #30.)

the

Amended

Complaint, first on Plaintiff’s motion and again when it denied
Plaintiff’s motion to transfer.

(DE #38, DE #47.)

The final

deadline of August 18, 2017, expired without any indication on the
docket that any defendant has been served.

On February 22, 2018,

the Court ordered Plaintiff to show cause why he had not complied
with the Court’s Orders to serve the defendants.

(DE #53.)

Plaintiff responded to the order to show cause, but failed to
address

service

of

the

Amended

Complaint

on

the

defendants.

Magistrate Judge Martin issued the Report and Recommendation on
April

5,

2018,

recommending

dismissal

without

prejudice,

and

notifying Plaintiff that he had fourteen days to file objections
thereto.

(DE #61.)

Thereafter, Plaintiff filed several motions,

including the instant motion for interlocutory appeal of the Report
and Recommendation on April 17, 2018.1

(DE #73.)

DISCUSSION
In response to the Report and Recommendation, Plaintiff filed
a motion to allow an interlocutory appeal of the Report and
Recommendation.

“The proper method by which to challenge a non-

dispositive order is by filing an objection or appeal of the
Magistrate Judge's decision under Federal Rule of Civil Procedure
72(a).”

Westbrook v. Bridges Cmty. Servs., No. 116CV02913TWPDML,

2017 WL 3503306, at *1 (S.D. Ind. Aug. 15, 2017).

Because

Plaintiff proceeds pro se, “the Court liberally construes his
motion and the filing is treated as a timely objection to the
[Report

and

Recommendation],

interlocutory appeal.”

as

opposed

to

a

motion

for

Id. (citing Alvarado v. Litscher, 267 F.3d

648, 651 (7th Cir. 2001)). For the reasons below, the Court denies
Plaintiff’s appeal of the Report and Recommendation.
When

a

party

makes

objections

to

a

magistrate

judge's

recommendations, “the court shall make a de novo determination of
those portions of the report or specified proposed findings or

1

  The Court notes that the Report and Recommendation that was mailed to
Plaintiff’s address in Indiana was returned as undeliverable on April 20, 2018.
(DE #74.) The envelope indicates that it had been forwarded to California,
where it was returned because Plaintiff was not at that address. Plaintiff is
reminded that he is under a continuing obligation to apprise the Clerk of Court
of any change in his address. See Robey v. Weaver Popcorn Co., Inc., No. 1:16CV-281-TLS, 2018 WL 1054156, at *1 (N.D. Ind. Feb. 26, 2018) (“[I]t is [the
plaintiff’s] responsibility to keep the Court appraised of any change of
address.”) (citation omitted).

recommendations
636(b)(1).

to

which

objection

is

made.”

28

U.S.C.

§

“[T]he court may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate
judge.” Id.; see Fed. R. Civ. P. 72(b).

Here, it is undisputed

that the Court granted Plaintiff time in which to serve the
defendants with the Amended Complaint, and that Plaintiff has not
served any of the defendants.
Plaintiff claims that he timely served the original compliant
on the U.S. Attorney and Attorney General.2

He alleges that he

was unable to serve the original complaint on the defendants
because the complaint was sealed.

He argues that service of the

Amended Complaint would have been futile because amendment does
not restart the time to serve.

(DE #73 at 13.)

It is true that

“[t]he purpose of allowing complaints to be amended is to enable
the pleadings to be conformed to the developing evidence rather
than to extend the time for service indefinitely.”
Carlson, 826 F.2d 698, 705 (7th Cir. 1987).

Del Raine v.

However, Rule 4(m) of

the Federal Rules of Civil Procedure provides that if a defendant
is not served within the applicable time limit, the court “must

2

 Plaintiff contends that the Court should apply a 120-day time limit, rather
than the current 90-day time limit under Rule 4(m), to determine whether he
timely served the original complaint on the Government. As the issue before
the Court is whether Plaintiff timely served the Amended Complaint on the
defendants, the Court need not resolve this issue and will assume the original
complaint was timely served on the Government. Moreover, even if the 120-day
deadline applied, Plaintiff did not serve any defendant within 120 days of the
acceptance of his Amended Complaint on April 3, 2017. 

dismiss the action without prejudice against that defendant or
order that service be made within a specified time.”
P. 4(m) (emphasis added).

Fed. R. Civ.

Thus, Rule 4(m) authorizes courts to

provide additional time for service “even if there is no good cause
shown.”

Notes of the Advisory Committee on 1993 Amendments to

Rule 4(m).

Here, the Court ordered Plaintiff to serve the Amended

Complaint within a specified time.

Plaintiff did not do so,

despite being provided with multiple extensions.
Plaintiff also argues that the Court improperly dismissed his
qui tam claims sua sponte, and that his original complaint should
be reinstated.

The law is clear that a plaintiff proceeding pro

se cannot pursue a qui tam claim on the government’s behalf:

“a

qui tam relator—even one with a personal bone to pick with the
defendant—sues on behalf of the government and not himself.

He

therefore must comply with the general rule prohibiting nonlawyers
from representing other litigants.”

U.S. ex rel. Szymczak v.

Covenant Healthcare Sys., Inc., 207 F. App'x 731, 732 (7th Cir.
2006); see U.S. ex rel. Lu v. Ou, 368 F.3d 773, 775-76 (7th Cir.
2004) (“a pro se relator cannot prosecute a qui tam action, because
he is acting as an attorney for the government”),  rev’d on other
grounds, Eisenstein v. City of New York, New York, 129 S. Ct. 2230
(2009).

“If a person brings a qui tam claim based on the [False

Claims Act], and he or she proceeds pro se, the district court
will lack subject matter jurisdiction over the claim.”

Deutsche

Bank Nat'l Trust Co. v. Holyfield, 309 Fed. App'x 331, 332–33 (11th
Cir. 2009) (citing Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008)); see Brantley v. Title First Titling Agency, No. 1:12-CV608, 2012 WL 6725592, at *3 (S.D. Ohio Sept. 27, 2012), R. & R.
adopted, No. 1:12CV608, 2012 WL 6725591 (S.D. Ohio Dec. 27, 2012)
(“[T]his Court lacks subject matter jurisdiction to hear a qui tam
action

brought

on

behalf

of

the

litigant.”) (collecting cases).

United

States

by

a

pro

se

“A federal district court may

dismiss sua sponte claims over which there is no subject matter
jurisdiction.”

Abramson v. Abramson, 991 F.2d 799 (7th Cir. 1993)

(citing Fed. R. Civ. P. 12(h)(3)); see Hay v. Indiana State Bd. of
Tax Comm'rs, 312 F.3d 876, 879 (7th Cir. 2002) (“[N]ot only may
the federal courts police subject matter jurisdiction sua sponte,
they must.”).

Plaintiff attempted to retain counsel, but was

unsuccessful.

Because Plaintiff has proceeded pro se, he cannot

bring qui tam claims, and the Court properly dismissed those claims
sua sponte.
Plaintiff asserts that he cannot serve the Amended Complaint
because his right-to-sue letter was stolen, and without the rightto-sue

letter,

defendant

Community

(“Community”) can object to the claim.3
required

to

attach

a

right-to-sue

Care

Network,

Inc.

But “a plaintiff is not

letter

to

her

complaint.”

3

One of the pleadings identified by Plaintiff contains a right-to-sue letter
dated July 29, 2014. (DE #35 at 68.) 

Sturgill v. Schneider Elec., No. 1:17-CV-500-TLS, 2018 WL 1257441,
at *2 (N.D. Ind. Mar. 12, 2018) (citations omitted); see Swoope v.
Gary Cmty. Sch. Corp., No. 2:10-CV-423-RL, 2012 WL 3732838, at *2
(N.D. Ind. Aug. 28, 2012) (same).

Thus, Plaintiff’s current lack

of a copy of his right-to-sue letter does not excuse him from
serving the Amended Complaint on the defendants.
The Court finds no basis for excusing Plaintiff from his duty
to comply with the time frame set forth by the Court.

It is

undisputed that Plaintiff failed to serve any of the defendants
with the Amended Complaint by the deadline of August 18, 2017.
Plaintiff has offered no evidence of any attempt to serve any of
the defendants.

Since the final deadline by which to serve the

defendants has long expired, it does not appear that Plaintiff has
proceeded diligently with his case as required by the Federal Rules
of Civil Procedure.
CONCLUSION
For the reasons set forth below, Plaintiff’s motion (DE #73)
is DENIED and the report and recommendation (DE #61) is ADOPTED.
Accordingly, the Clerk is ORDERED to DISMISS this case WITHOUT
PREJUDICE.

DATED: May 15, 2018

/s/ RUDY LOZANO, Judge
United States District Court