Reihanifam et al v. Fresenius USA, Inc. et al

Filing 52

Judge Indira Talwani: ORDER entered denying 51 Motion for Reconsideration. See attached Order. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA et al.,
ex rel. MOHSEN REIHANIFAM

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Plaintiffs-Relators,
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v.
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FRESENIUS USA, INC. and FRESENIUS *
MEDICAL CARE HOLDINGS, INC.
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doing business as FRESENIUS MEDICAL *
CARE NORTH AMERICA
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Defendants.
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Civil Action No. 13-cv-11486-IT

ORDER
May 14, 2015
TALWANI, D.J.
On April 29, 2015, the court issued an Order Regarding Qui Tam Claims [#47]. This
order notified the parties of the court’s intent to treat Relator’s counsel’s pending motion to
withdraw as a notice of voluntary dismissal of Relator’s qui tam claims. The court construed the
motion in this manner because, in their moving papers, counsel stated that: (1) Relator consented
to counsel’s withdrawal and (2) Relator understood that qui tam claims filed on behalf of the
United States and Plaintiff States can not proceed pro se. The court noted further that more than
three months had passed since counsel notified court of Relator’s assent to their motion to
withdraw without the appearance of substitute counsel.
The court’s order solicited the United States’ and the Plaintiff States’ agreement to the
voluntary dismissal of the qui tam claims. On May 12, 2015, the United States and the Plaintiff
States filed notices of their consent. See Notice Consent Dismissal Without Prejudice [#49];
Notice Commonwealth of Mass. & Other Pl. States Consent Voluntary Dismissal [#50].

Accordingly, the court hereby orders that Relator’s qui tam claims are DISMISSED
without prejudice. This order does not dismiss Relator’s wrongful termination claims filed
pursuant to 31 U.S.C. § 3730(h), as those claims were not brought on behalf of the United States
and the Plaintiff States. It is further ordered that Relator’s counsel’s motion to withdraw1 is
ALLOWED contingent upon serving a copy of this order on Relator and filing with the court a
certificate of service, including Relator’s mailing address, for service of this order on Relator.
On May 13, 2015, Relator filed a Motion for Reinstatement or Alternatively to Modify
the Dismissal [#51]. The filing of this motion was premature, as the court had not yet dismissed
the qui tam claims or allowed counsel’s then-pending motion to withdraw. Nonetheless, the
motion raises several points the court now addresses.
First, Relator states that reconsideration should be allowed because he “was ignorant of
the fact that any consent to withdraw of prior counsel would result in the dismissal of the case.”
Relator’s Mot. Reinstatement Alternatively Modify Dismissal [#51]. The withdrawal and
absence of substitute counsel has not resulted in the dismissal of the entire case, but only of the
of the qui tam causes of action. As to those claims, on January 20, 2015, Relator’s counsel
informed the court that “[a]t or around the same time they notified Relator of the decision to
withdraw, Movants notified Relator of the importance of securing replacement counsel, given the
prohibitions against relators proceeding pro se in qui tam cases.” See Unopposed Mot. Leave
Withdraw Relator’s Counsel ¶ 13 [#32]. On March 12, 2015, the court indicated that after
service of the complaint on Defendants, it would consider “whether the qui tam causes of action
can be pursued by Reihanifam pro se, or must be dismissed unless he retains replacement

1

Counsel filed a Memorandum in Response to This Court’s January 20, 2015 Order [#36], in which
it sought to withdraw. The court previously treated this memorandum as a motion. See Order, 3
[#38].
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counsel.” See Order, 3 [# 38]. Presumably, counsel have fulfilled their obligation to Relator by
ensuring that he understood the import of his consent to their withdrawal and was provided
copies of the court’s orders. Accordingly, the court denies the request fo reconsideration on the
ground that Relator did not understand such dismissal could occur if he did not retain
replacement counsel.
Second, Relator seeks a further order that his claims may be reinstated by written notice
to the court if the United States or the Plaintiff States enter into a settlement agreement with the
Defendants on matters relevant to the qui tam claims. The court notes that dismissal of Relator’s
qui tam claims is without prejudice. At this time, the court declines to rule on what effect such a
hypothetical settlement agreement would have on reinstatement of Relator’s qui tam claims.
Should a settlement agreement be entered into, Relator may file a motion for reinstatement of his
claims which the court will treat on its merits. Accordingly, Relator’s Motion for Reinstatement
or Alternatively to Modify the Dismissal [#51] is DENIED.
IT IS SO ORDERED.
May 14, 2015

/s/ Indira Talwani
United States District Judge

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