Wilson v. Bristol Myers Squibb, Inc. et al

Filing 158

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. In view of the foregoing, it is hereby ORDERED that: 1. Pursuant to 28 U.S.C. §1404 (a), this case is TRANSFERRED to the United States District Court for the Central District of Califor nia. 2. Wilson's request for leave to amend the SAC (Docket No. 110) is DENIED. 3. A partial final judgment is certified under Rule 54(b) of the Federal Rules of Civil Procedure as to the claims that were dismissed in the February 12, 2013 Order.(Hohler, Daniel)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA
ex reI., MICHAEL WILSON,
Plaintiff,

v.

C.A. No. 06-12195-MLW

BRISTOL-MYERS SQUIBB,
INC., et al.,
Defendants
MEMORANDUM AND ORDER
WOLF, D.J.

June 27, 2013

I. INTRODUCTION
This is a qui tam suit that relator Michael Wilson brought
against defendants Bristol-Myers Squibb
employer,

and Sanofi-Aventis U.S.

("BMS"),

Wilson's former

LLC ("Sanofi"). Wilson brought

claims against BMS and Sanofi under the False Claims Act, 31 U.S.C.
§§3729-32 (the "FCA"), and numerous state false claims statutes. In
support of those claims, Wilson alleged that defendants engaged in
the off-label marketing of certain drugs, which caused false claims
to be submitted to the federal and state governments. Wilson also
brought three claims against BMS for allegedly retaliating against
him and unlawfully terminating his employment.

Those claims are

Counts Three, Five, and Six (the "employment-related claims") .
On

February

12,

2013,

the

court

allowed BMS

and

Sanofi's

motions to dismiss relator's claims under the FCA and state false
claims

statutes

marketing.

concerning

defendants'

On March 30,2013,

alleged

off-label

drug

the court denied BMS's motion to

dismiss Wilson's employment-related claims. As the only remaining

claims in this case are the three employment-related claims, two of
which

are

California

state

law

claims

and

one

of

which

is

a

retaliation claim under the FCA, the court ordered the parties to
submit memoranda, and supplemental memoranda, concerning whether or
not this case should be transferred to the United States District
Court

for

the

Central

District

of

California,

where

it

was

Wilson seeks the transfer of this case to California.

BMS

originally filed.

opposes the transfer of this case. Sanofi does not take a position
wi th respect to the appropriate venue in which to litigate the
remaining employment-related claims because those claims are only
alleged against BMS. However,

Sanofi and BMS each request that

before any transfer of this case to California the court:
an order denying Wilson I s
Amended

Complaint

(the

pending

"SAC");

and

request
(2)

to

enter

(1) issue

amend his
a

partial

judgment under Federal Rule of Civil Procedure 54 (b)

Second
final

as to the

dismissed claims to avoid complications on appeal.
For the reasons stated in this Memorandum and Order, this case
is being transferred to the United States District Court for the
Central District of California. In addition, the court is denying
Wilson I s

request to amend the SAC,

and entering a partial final

judgment under Federal Rule of Civil Procedure 54 (b)
dismissed claims.

2

as to the

II. DISCUSSION
A. Transferring This Case to California
"For the convenience of parties and wi tnes ses, in the interest
of justice, a district court may transfer any civil action to any
other district or division where it might have been brought or to
any district or division to which all parties have consented." 28
U.S.C. §1404 (a). "The burden of proof rests with the party seeking
transfer,"

and

"there

is

a

strong presumption

in

favor

of the

plaintiff's choice of forum." Coady v. Ashcraft & Gerel, 223 F.3d
1, 11

(1st Cir. 2000); accord Astro-Med, Inc. v. Nihon Kohden Am.,

Inc., 591 F.3d 1, 13 (1st Cir. 2009).
One of the most important factors in considering a request to
transfer venue

is

the convenience for the witnesses.

Point Corp. v. Poetzsch,
J.)

See Brant

671 F. Supp. 2, 3 (D. Mass. 1987)

(Wolf,

(citing cases and treatise) .
In analyzing the convenience of the witnesses, the
[c]ourt must consider not only the number of potential
witnesses located in the transferor and transferee
districts, but also the nature and quality of their
testimony and whether they can be compelled to testify.
Thus, [w] hen a party seeks to transfer on account of the
convenience of witnesses.
., he must clearly specify
the key witnesses to be called and must make a general
statement of what their testimony will cover.

Id. at 3-4
"The

(internal quotation marks and citations omitted) .
'interest

of

justice'

is

a

separate

element

of

the

transfer analysis that relates to the efficient administration of
the court system." Research Automation, Inc. v. Schrader-Bridgeport

3

Intern., Inc., 626 F.3d 973, 978 (7th Cir. 2010). Factors that some
courts consider in determining whether transfer is in the interest
of justice include:
each district;
relevant

law;"

(2)

(1)

the time it will take to reach trial in

"each court's

(3)

"the

relative

respective

controversies in each locale;" and

familiarity with the

desirabili ty

(4)

of

resolving

"the relationship of each

communi ty to the controversy." Id.; see al so Brant Point,
Supp.

at

5

("[T]ransfer

would promote

the

671 F.

interests

of

justice by allowing the North Carolina zoning procedures at issue
in this case to be construed by a federal court sitting in that
state,

rather

than

by

a

court

unfamiliar

with

North

Carolina

law."). "[T]he interest of justice is ill served by transferring a
case

in

which

inj unction

and

the

Court

has

already

made

other

substantive

entered

a

decis ions."

preliminary
Iantosca

v.

Benistar Admin Serv., Inc., 765 F. Supp. 2d 79, 85 (D. Mass. 2011)
(Gorton, J.).
Although

some

of

the

relevant

factors

weigh

against

transferring this case, other factors weigh in favor of transfer.
On balance, it is most appropriate for the remainder of this case
to be litigated in California. First, it does not appear that the
convenience of the parties will be enhanced by transferring this
case to California. Wilson claims that it would be more convenient
to

litigate

convenient

this
for

case

BMS

to

in

California,

continue

4

while

it

would

be

more

litigating

in

Massachusetts.

Accordingly, the transfer of this case to California would simply
shift the inconvenience from Wilson to BMS, which does not militate
in favor of transferring this case. See Brant Point,

671 F. Supp.

at 3.
Second,

although there is a strong presumption in favor of

relator's preference for a California forum, see Coady, 223 F.3d at
11,

that presumption should be given limited weight in this case

because

Wilson

Massachusetts.

evidently

consented

to

litigating

States District Court for Central District of California,

and it

transferred

to

this

court.

case

in

United

subsequently

this

case

in the

was

Wilson originally filed

this

BMS

contends,

and

relator does not dispute, that Wilson sought or acquiesced in the
transfer of this case to Massachusetts.

BMS is correct to argue

that Wilson's current preference for a California forum does not
merit as much deference as it would if this court were considering
transferring

this

case

away

from

relator's

original

choice

of

forum.
Third,

as

indicated

earlier,

with

regard

to

the

factor

concerning the convenience of the non-party witnesses, "the [c] ourt
must consider not only the number of potential witnesses located in
the transferor and transferee districts,

but also the nature and

quality of their testimony and whether they can be compelled to
testify."

Brant

marks omitted).

Point,
As

671

required,

F.

Supp.

at

3-4

(internal quotation

Wilson has submitted a declaration

5

that names certain witnesses that will be relied upon at trial and
a general statement of what their testimony will address. See id.
at 4. Wilson's declaration states that approximately 20 of the non­
party witnesses that he or BMS will call at trial reside in or near
California. See Decl. of Michael Wilson. Those witnesses include:
(1)

James Main,

Wilson's

who

employment

is identified as
at

BMS;

(2)

participated in the harassment
against him; and

the person who terminated

Tracy

Ferguson,

who

of Wilson and BMS' s

allegedly

retaliation

(3) Adolfo Shroeder, who has personal knowledge

concerning BMS's practices with regard to employees who altered
drug sample cards, which is allegedly the reason why BMS terminated
Wilson's employment.
BMS maintains that Massachusetts is a more convenient forum
for

its witnesses

Jersey.

BMS

has

wi tnesses are,

because a
not

number of them are

submitted

an

affidavit

whether they are non-parties,

located in New

stating

who

those

and does not state

what their testimony will address.
A number of the witnesses who will provide what appears to be
important testimony in this case reside in or near the Central
District of California. Accordingly,

it would be more convenient

for those witnesses if this case were transferred to California so
that they would not have to travel across the country to provide
their testimony.
The parties agree that the FCA grants this court the authority

6

to compel non-party witnesses to testify in Massachusetts even if
those witnesses are outside of the court's subpoena power under
Rule 45 of the Federal Rules of Civil
§37 31 (a)

Procedure.

See 31 U.S.C.

( "A subp [0] ena requir ing the attendance of a witness at a

trial or hearing conducted under section 3730 of this title [the
FCA] may be served at any place in the United States.").
However,

there

is

about whether §3731(a)

disagreement

in

certain district

courts

creates a subpoena power that exceeds the

court's subpoena authority under Rule 45, and no circuit court of
appeals

has

interpreted

interpreted §3731(a)

§3731(a).

Some

district

courts

have

to mean that witnesses in FCA cases will be

available to testify in any judicial district.

See,

e.g., United

States ex rel. Westrick v. Second Chance Body Armor, Inc., 771 F.
Supp.

2d 42,

49

(D. D.C.

2011);

United States v.

Gwinn,

No.

06­

00267, 2008 WL 867927, at *19 (S.D. W. Va. March 31, 2008); Little
IV.

ENI Petroleum Co.,

Inc.,

No.

06-120-M,

2007 WL 2254318,

at *4

(W.O. Okla. Aug. 3, 2007). In contrast, another district court has
concluded that §3731 (a) only provides for the nationwide service of
subpoenas in FCA cases, but does not provide for the enforcement of
those subpoena. See United States ex rel. Thomas v. Siemens AG, No.
04-116,

2009 WL 1657429,

\section

3731

addresses

rnforcement thereof,
Fed. R. Civ. P.

at *2

(D.V.I.

service

of

June 12,

such

2009)

subpoenas

and

("Because
not

the

the Court finds that it does not supercede

45(c) nor does it preclude any witness outside the

7

lOO-mile
comply

I

zone

with

from moving to quash and discharge any duty to

I

such

a

subpoena.")

Although

the

question

of

the

court's subpoena power under the FCA is not resolved, the weight of
the authority supports
witnesses

from

the court's power to

anywhere

in

the

United

subpoena non-party

States

to

testify

in

Massachusetts in this case. That factor weighs against transferring
this case to California.
Finally,

it is in the interest of justice to transfer this

case to California, even though some of the relevant factors weigh
against transfer.

This case has been pending in the District of

Massachusetts for a number of years,
substantive

decisions

transfer of this case,

on

defendants

and this court has rendered
I

motions

to

dismiss.

Upon

a new judge will have to become familiar

with the case, and that could delay the time it will take to reach
trial.

Those

factors

weigh

against

transfer.

See

Research

Automation, Inc., 626 F.3d at 978; see also Iantosca, 765 F. Supp.
2d at 85.
On the other hand, there are various reasons why transferring
this case to California is in the interest of justice. Two of the
three remaining claims in this case are brought under California
state

law,

including

Count

Six

for

wrongful

termination

in

violation of public policy. In addition, the events that generated
all of the

remaining claims occurred in California.

The United

States District Court for the Central District of California is

presumably more familiar with California state law than this court.
More

significantly,

California

has

a

greater

interest

than

Massachusetts in resolving employment and retaliation disputes that
occur in California. Accordingly, it would promote the interests of
justice
occurred

by allowing
in

the

California,

employment
to

be

issues

adj udicated

in
by

this
a

case,

which

federal

court

sitting in that state. See Brant Point, 671 F. Supp. at 5; Research
Automation, Inc.,

626 F.3d at 978.

While some of the foregoing factors weigh against transferring
this case, on balance, for the convenience of the witnesses and in
the interest of justice the United States District Court for the
Central

District

of

California

should adj udicate

the

remaining

claims in this case.
B. Wilson's Request to Amend the SAC
Wilson seeks to amend the SAC pursuant to Rule 15(a) of the
Federal Rules of Civil Procedure.

1

In cases such as this one, where

1 At the February 2,
2007 hearing on defendants' motions to
dismiss, Wilson's counsel mentioned that Rule 15(d) of the
Federal Rules of Civil Procedure might provide a proper basis for
allowing relator to supplement the SAC. Rule 15(d) provides, in
pertinent part, that: "the court may, on just terms, permit a
party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of
the pleading to be supplemented. The court may permit
supplementation even though the original pleading is defective in
stating a claim or defense." Wilson's counsel did not contend
that the standard for supplementing a pleading under Rule 15(d)
is different from the standard for amending a complaint under
Rule 15(a). Accordingly, the reasons for the court's denial of
relator's request to amend the SAC under Rule 15(a) suffice to
deny Wilson's request to supplement the SAC under Rule 15(d).

9

a plaintiff cannot amend his complaint as a matter of course,

"a

party may amend its pleading only with the opposing party's written
consent or the court's leave. The court should freely give leave
when

justice

so

requires."

red.

R.

Civ.

P.

15 (a) (2).

"If

the

underlying facts or circumstances relied upon by a plaintiff may be
a proper subject of relief, he ought to be afforded an opportunity
to test his claim on the merits." roman v. Davis, 371 U.S. 178, 182
(1962).

However,

grounds

for

denying a motion to amend include

" 'undue delay, bad faith or dilatory motive . . . repeated failure
to

cure

prejudice

deficiencies
to

the

by

amendments

opposing

previously

party

allowed,

[and]

undue

futility

of

amendment. "' ACA rin. Guar. Corp. v. Advest, Inc., 512 r.3d 46, 56
(1st Cir. 2008)

(quoting roman,

371 U.S. at 182).

The court has previously denied Wilson's motion to amend the
SAC and his motion for reconsideration of that denial. See June 16,
2011 Memorandum and Order; Mar.

7, 2012 Memorandum and Order. The

court does not find any reason why it should now allow Wilson to
amend the SAC to include those claims.
Wilson admits that a substantial number of the facts that he
now seeks to add to the SAC are facts that he previously sought to
plead in his proposed Third Amended Complaint

(the "TAC"), which

was the pleading that now-retired Judge Nancy Gertner did not allow
relator to file.

See ReI. 's Opp.

to Defs.' Mot.

to Dismiss at 37

n.50. Those proposed facts are contained in §§I-III of Exhibit 0,

10

which is appended to Relator's Memorandum of Law in Opposition to
Defendants' Motion to Dismiss the Second Amended Complaint. For the
reasons stated by Judge Gertner in the June 16, 2011 Memorandum and
Order denying Wilson's motion to amend the SAC,

and the reasons

stated in the March 7, 2012 Memorandum and Order denying relator's
motion to reconsider that denial, Wilson's request to amend the SAC
with the allegations contained in §§I-III of Exhibit 0 is being
denied.
The other amendments that Wilson seeks to make to the SAC,
which are contained in §§IV and V of Exhibit 0,

are not being

allowed because of undue delay and the fact that Wilson evidently
could have acquired the information in those proposed amendments
prior to filing the SAC and his motion for leave to file the TAC.
See Foman, 371 U.S. at 182; United States ex reI. Gagne v. City of
Worcester,

565 F.3d 40,

48

(1st Cir. 2009); ACA Fin. Guar. Corp.,

512 F.3d at 56; see also Gray v. St. Martin's Press, Inc., 221 F.3d
243,

253

(1st

Cir.

2000)

(district

court

did

not

abuse

its

discretion in denying a motion to amend because the plaintiff had
access to the information in the proposed amendment at the outset
of the litigation). Where, as here, a relator has been allowed to
amend

his

original

complaint

twice,

discretion not to grant him "a fourth
right." Gagne, 565 F.3d at 48.

11

it

is

wi thin

the

court's

chance to try to get

it

When Wilson sought leave to file his proposed TAC three years
ago, Judge Gertner was troubled by the delay at that point in the
litigation, and stated that Wilson had not adequately explained it.
See June 16, 2011 Memorandum and Order at 2, 11. Similarly, Wilson
has not now adequately explained the delay in seeking to add to the
SAC the allegations contained in §§IV and V of Exhibit O.

Those

proposed allegations generally relate to the prescription writing
practices of certain doctors during 2009 and 2010, and are claimed
to

"consist

of

facts

Relator

has

acquired

through

investigation that

were

neither included in his

Amended

nor

previously

Complaint

found

by

the

independent

proposed Third
Court

jurisdictionally barred from this action." Rei. 's Opp.
Mot.

to

Dismiss

"independent

at

37

n. 50.

investigation"

Wilson

that

has

does

not

generated

explain
those

to

be

to Defs.'
why

the

proposed

allegations could not have been conducted in time to include them,
or similar allegations,

in the SAC, which was filed on March 11,

2009. Nor is it apparent why Wilson did not seek to include those
allegations in the motion for leave to file his proposed TAC, which
he filed on June 24, 2010.
The delay that concerned Judge Gertner three years ago is even
more significant at this point in the litigation. Moreover, because
Wilson has not persuasively explained why the proposed allegations
in §§IV and V of Exhibit 0

could not

have been discovered and

included in the SAC or the proposed TAC, the court finds it is most

12

appropriate to deny Wilson the opportunity to now include those
allegations in an amendment to the SAC.
C.

Partial Final Judgment Under Rule 54(b)

BMS and Sanofi request that the court enter a partial final
judgment as to the dismissed claims under Federal Rule of Civil
Procedure 54(b) before transferring this case to California. Wilson
requests the opportunity to brief the issues concerning a partial
final judgment under Rule 54(b). That request is denied.
Federal

Rule of Civil

Procedure

54 (b)

governs

the court's

authority to enter judgment as to one or more, but less than all,
claims or defendants. Rule 54(b) states, in pertinent part:
When an action presents more than one claim for
relief
whether
as
a
claim,
counterclaim,
crossclaim, or third-party claim - or when multiple
parties are involved, the court may direct entry of
a final judgment as to one or more, but fewer than
all, claims or parties only if the court expressly
determines that there is no just reason for delay.
Otherwise, any order or other decision, however
designated, that adj udicates fewer than all the
claims or the rights and liabilities of fewer than
all the parties does not end the action as to any
of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating
all the claims and all the parties' rights and
liabilities.
"When contemplating Rule 54(b)

certification,

a trial court

first must ensure that the ruling underlying the proposed judgment
is

final."

Nystedt v.

Nigro,

accord Spiegel v.

Tr.

Cir.

qualify

1998).

"To

700

F.3d 25,

of Tufts College,
as

final,

13

a

29

(1st

Cir.

2012);

843 F.2d 38,

42-43

ruling

'disposer]

must

(1st

completely either of all claims against a given defendant or of
some

discrete

defendants

substantive

claim

or

generally . • "

Castillo-Rodriguez,

23

set

of

F.3d

576,

580

against

the

Maldonado-Denis

(quoting

claims

v.

(1st

Cir.

1994)).

The

requirement of finality is satisfied in this case. The February 12,
2013 Order allowed Sanofi's motion to dismiss all of the claims
against it. In addition, that Order allowed BMS's motion to dismiss
all of the FCA and state statutory claims against it concerning
BMS's

alleged

off-label

marketing

practices.

against BMS that were not dismissed are the

The

only

claims

employment-related

claims, which constitute a distinctly discrete set of claims.
"In addition to finality, Rule 54(b) requires the trial court
to make an express determination that there is 'no just reason for
delay.'" Nystedt, 700 F.3d at 30
accord Spiegel,

843 F. 2d at

43.

(quoting Fed. R. Civ. P. 54 (b));
This determination "entails an

assessment of the litigation as a whole,
factors

relevant

to

the

desirability

and a weighing of all
of

relaxing

the

usual

prohibition against piecemeal appellate review in the particular
circumstances." Spiegel, 843 F.2d at 43. The United States Court of
Appeals for the First Circuit has recognized a non-exclusive list
of factors that other courts have considered in issuing a partial
final judgment under Rule 54(b):
(1) the relationship between the adj udicated and
non-adjudicated claims, (2) the possibility that
the need for review might be mooted by future
developments
in the district
court,
(3)
the
14

possibility that the same issue might have to be
considered again by the reviewing court, (4) the
presence or absence of a claim or counterclaim
which might result in a setoff against the judgment
which is to be made final,
(5) miscellaneous
considerations such as delay, economic and solvency
considerations, efficiency, frivolity of competing
claims, and expense.
Darr v. Muratore, 8 F.3d 854, 862 n.l0

(1st Cir. 1993).

In this case, there is no just reason for delaying entry of a
partial final judgment as to the claims that were dismissed in the
February 12, 2013 Order. With respect to the relationship between
the dismissed claims and the remaining claims, "[a] similarity of
either legal or factual issues (or both) militates strongly against
invocation of Rule 54(b)." Spiegel,
bases

for

the

dismissed

essentially distinct from,

claims

843 F.2d at 45.

are

somewhat

The factual

related

to,

but

the factual bases for the employment-

related claims. The dismissed claims were predominantly based on
allegations about defendants'

off-label marketing practices. The

employment-related claims are based on Wilson's allegations that
BMS retaliated against him and terminated his employment because of
his complaints to BMS about some of its practices,

including but

not only its off-label drug promotion.
The claims that were dismissed in the February 12, 2103 Order
were brought by Wilson under the FCA and analogous state law false
claim statutes. One of Wilson's remaining causes of action is under
the retaliation provision of the FCA, see 31 U.S.C. §3730(h), and
another

is

brought

under

the

California
15

state

false

claims

statute's

retaliation

Accordingly,

~

provision,

Cal.

Gov.

Code

§12653.

there is some overlap in the statutory schemes that

govern the dismissed claims and the remaining employment-related
claims.

However,

Wilson's

remaining claims are legally distinct

from the claims that were dismissed because the remaining claims
are for retaliation in the employment context and not defendants'
potential liability for causing false claims to be submitted to
governments.
In addition,
warranted
litigation

in

a

this

part ial final
case

concerning

in

the

judgment under Rule

order

to

February

assure

12,

2013

that
Order

54 (b)

any

is

future

dismissing

certain claims is decided based on law of the First Circuit by
judges in the First Circuit. The parties in this case have spent
years

litigating the claims that have been dismissed under the

First Circuit's jurisprudence. If the court were to transfer this
case to California without entering a partial final judgment as to
the dismissed federal claims, and there was further litigation of
those claims, the United States District Court for the District of
California and the United States Court of Appeals for the Ninth
Circui t
Thomason,
that,

would

have

to

22 F.3d 1455,

apply
1460

Ninth

Circuit

(9th Cir.

when reviewing federal claims,

1994)

law.

See

Newton

v.

("We therefore hold

a transferee court in this

circuit is bound only by our circuit's precedent. Accordingly, we
will

apply our

law to

interpret

16

the

Lanham Act

claim.").

With

regard to the dismissed state law claims, Wilson acknowledged that
the requirements for alleging valid state law claims in Counts Four
and Seven through Twenty-Nine of the

SAC are the

same as

the

requirements for alleging a valid federal law claim under the FCA.
See

February

13,

2013

Order,

~3.

Accordingly,

the

analysis

concerning the law that will be applied by the transferee court
with respect to the federal law claims that have been dismissed
applies equally to the dismissed state law claims. For purposes of
efficiency and cost, the parties in this case should not have to
appeal

or otherwise

litigate

the

dismissed

claims

under Ninth

Circuit law.
III. ORDER
In view of the foregoing, it is hereby ORDERED that:
1. Pursuant to 28 U.S.C. §1404 (a), this case is TRANSFERRED to
the

United

States

District

Court

for

the

Central

District

of

California.
2. Wilson's request for leave to amend the SAC

(Docket No.

110) is DENIED.
3. A partial final judgment is certified under Rule 54(b) of
the Federal Rules of Civil Procedure as to the claims that were
dismissed in the February 12, 2013 Order.

~S='

-e ~-v-j

• 1)..""
UNITED STATES DISTRICT COURT

17

~