United States of America vs. Wal-Mart Stores East, LP
Filing
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OPINION and ORDER Granting Plaintiff-Relator's 50 Motion to Amend/Correct the First Amended Complaint. Second Amended Complaint is due by 12/7/18. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA and
the STATE OF MICHIGAN, ex rel.,
ASHWANI SHEORAN, RPh,
Plaintiff-Relator,
Civil Case No. 13-10568
Hon. Linda V. Parker
Mag. Michael Hluchaniuk
v.
WAL-MART STORES EAST, LP, d/b/a
WALMART, a foreign corporation,
TOI WALKER, DOUG HENGER,
ALFRED RODRIGUEZ,
RICHARD LOCKARD, M.D.,
NAVEED MAHFOOZ, M.D., and
TAREK EZZEDDINE, M.D.,
Defendants.
_____________________________________/
OPINION AND ORDER GRANTING PLAINTIFF-RELATOR’S
MOTION TO AMEND/CORRECT THE FIRST
AMENDED COMPLAINT (ECF NO. 50)
I.
Background
Plaintiff-Relator (“Plaintiff”), Ashwani Sheoran, RPh, on behalf of himself,
the United States and the State of Michigan, initiated this lawsuit on February 11,
2013, filing a qui tam complaint under seal against Defendants (1) Wal-Mart, (2)
Toi Walker, (3) Doug Henger, (4) Alfred Rodriguez, (5) Richard Lockard, M.D.,
(6) Naveed Mahfooz, M.D., and (7) Tarek Ezzeddine, M.D., for alleged violations
of the False Claims Act (“FCA”), 31 U.S.C. § 3729 et seq., the Fraud Enforcement
Recovery Act of 2009 (“FERA”), 31 U.S.C. §§ 3729-3733, the Civil Monetary
Penalties Law (“CMPL”), 42 U.S.C. §§ 1320a-7(b)(7) and 1320a-7a, and the
Michigan Medicaid False Claims Act (“MFCA”), MCL 400.601 et seq., and for
relief from alleged retaliation, 31 U.S.C. § 3730(h). (ECF No. 1.) As a matter of
course, Plaintiff filed his First Amended Complaint on April 16, 2013 against the
same Defendants and alleging the same claims. (ECF No. 3.) On March 7, 2018,
the United States and the State of Michigan jointly elected to decline to intervene
in this suit, permitting Plaintiff to maintain the action in the name of the United
States and requesting written consent from the Attorney General prior to any grant
of dismissal by the Court. (ECF No. 24.)
Presently before the Court is Plaintiff’s Motion to Amend/Correct the First
Amended Complaint, pursuant to Fed. R. Civ. P. 15(a)(2). (ECF No. 50.)
Defendants Wal-Mart Stores East, LP (“Walmart”), Toi Walker, Doug Henger, and
Alfred Rodriguez (collectively, the “Walmart Defendants”) filed a response on
October 23, 2018 opposing Plaintiff’s motion to amend. (ECF No. 53.) The
Walmart Defendants argue that Plaintiff’s motion is unduly delayed, futile, and
prejudices them. Id. The Walmart Defendants’ response includes, in the
alternative, a motion to dismiss the second amended complaint. Id.
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The Eastern District of Michigan’s Electronic Filing Policies and Procedures
Rule 5(f) states that “a response or reply to a motion must not be combined with a
counter-motion. Papers filed in violation of this rule will be stricken.” The Court
will not strike the Walmart Defendants’ response in its entirety but will strike the
portions related to the counter-motion to dismiss and direct the Walmart
Defendants to file their motion to dismiss separately, as mandated by Rule 5(f).
Also, the Court notes that two motions to dismiss--one filed by the Walmart
Defendants and another filed by Defendant Richard Lockard, M.D.—remain
pending before this Court. (ECF Nos. 40 & 46.)
II.
Applicable Law and Analysis
Plaintiff seeks leave to amend his First Amended Complaint because it was
neither unsealed nor served until five years after its filing. (ECF No. 50 at PgID
399.) Additionally, Plaintiff has new counsel and his previous counsel wrote the
First Amended Complaint in which Defendants identified deficiencies. (Id.)
Plaintiff also added exhibits and removed and/or clarified certain claims. (Id. at
PgID 400.)
First, the Walmart Defendants argue that Plaintiff’s Second Amended
Complaint is unduly delayed, coming five years after Plaintiff’s First Amended
Complaint. (ECF No. 53) The First Amended Complaint, however, was unsealed
on June 29, 2018. (ECF No. 3.) And the Walmart Defendants filed their motion to
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dismiss thereafter on August 23, 2018. (ECF No. 40.) Second, they argue that
they would be prejudiced by the wasted resources they invested in briefing their
pending motion to dismiss. (ECF No. 53.) The Walmart Defendants, however,
have already prepared a motion to dismiss Plaintiff’s Second Amended Complaint
which was combined with its response; consequently, the Court finds their
argument unpersuasive. Lastly, the Walmart Defendants argue that the proposed
amendment is futile. The Court, however, disagrees and finds that the additional
exhibit provides supporting information that bolsters Plaintiff’s Second Amended
Complaint.
A Plaintiff is always permitted to amend their complaint, as a matter of
course, within 21 days after service of a responsive pleading. Fed. R. Civ. P.
15(a)(1)(B). Federal Rule of Civil Procedure 15(a)(2) instructs the Court to “give
leave [to amend] freely when justice so requires.” Moreover, the Sixth Circuit has
permitted amending an amended complaint to permit the inclusion of additional
information and supporting documents. See,e.g., U.S. ex rel. Bledsoe v.
Community Health Systems, 342 F.3d 634 (6th Cir. 2003). Although Plaintiff’s
motion comes 43 days after the Walmart Defendants’ motion to dismiss, the Court
does not find the delay to be so unreasonable or the proposed amendment to be so
insignificant that it should not be permitted. Neither does the Court find that the
Walmart Defendants would be prejudiced by granting the amendment. For these
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reasons, the Court will grant Plaintiff leave to amend his First Amended
Complaint.
The filing of the amended complaint renders the original complaint null and
void; accordingly, any motion to dismiss the original complaint would be rendered
moot. Glass v. the Kellogg Co., 252 F.R.D. 367, 368 (W.D. Mich. 2008)
(quotation marks and citations omitted). As such, the Court will deny as moot
Defendants’ pending motions to dismiss.
III.
Conclusion
Accordingly,
IT IS ORDERED, that Plaintiff’s Motion to Amend/Correct the First
Amended Complaint (ECF No. 50) is GRANTED;
IT IS FURTHER ORDERED, that the Walmart Defendants’ response that
combines a counter-motion to dismiss is STRICKEN, in part, in accordance with
the instant order and pursuant to Electronic Filing Policies and Procedures Rule
5(f); and
IT IS FURTHER ORDERED, that Defendants’ Motions to Dismiss (ECF
Nos. 40 & 46) are DENIED as moot.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 4, 2018
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I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, December 4, 2018, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager
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