United States of America ex rel. et al v. D.S. Medical LLC et al

Filing 573

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that, pursuant to Federal Rule of Civil Procedure 62.1(a), the Court indicates that if the Eighth Circuit were to remand for the limited purpose of ruling on the governments outstanding and unopposed motion (ECF No. 466) to voluntarily dismiss Counts IV and V of the governments complaint in intervention without prejudice, pursuant Federal Rule of Civil Procedure 41(a)(2), the Court would grant that motion and would dismiss Counts IV and V without preju dice. In accordance with Federal Rule of Civil Procedure 62.1(b) and Federal Rule of Appellate Procedure 12.1(a), the government is directed to promptly notify the Clerk of the Court of Appeals for the Eighth Circuit. Signed by District Judge Audrey G. Fleissig on 8/31/20. (CSG)

Case: 1:12-cv-00004-AGF Doc. #: 573 Filed: 08/31/20 Page: 1 of 2 PageID #: 12821

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

UNITED STATES OF AMERICA,
ex rel. PAUL CAIRNS, et al.,
Plaintiff,
vs.
D.S. MEDICAL, L.L.C., et al.,
Defendants.

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Case No. 1:12CV00004 AGF

MEMORANDUM AND ORDER
On September 25, 2018, following a jury trial in this qui tam action under the
False Claims Act (“FCA”), the Court entered judgment on Counts I, II, and III of the
government’s complaint in intervention. ECF No. 465. The Court also ordered the
government to file a notice no later than October 3, 2018, as to whether it intended to
proceed with its two remaining equitable claims, which were not part of the trial: Count
IV (payment under mistake of fact) and Count V (unjust enrichment) of the government’s
complaint in intervention. The government filed such a notice on October 2, 2018 (ECF
No. 466), asking that the Court dismiss those two claims without prejudice, pursuant to
Federal Rule of Civil Procedure 41(a)(2). Defendants did not oppose the government’s
motion. However, in light of numerous other post-trial filings by the parties, the Court
inadvertently failed to rule on the government’s motion.
The Court thereafter denied Defendants’ motions for judgment as a matter of law,
for a new trial, and to dismiss. On July 7, 2020, Defendants filed notices of appeal in the
United States Court of Appeals for the Eighth Circuit. Defendants also sought to quash

Case: 1:12-cv-00004-AGF Doc. #: 573 Filed: 08/31/20 Page: 2 of 2 PageID #: 12822

certain abstracts of judgment that the government had filed. In one such motion to quash,
Defendants alerted the Court that it had never dismissed or otherwise disposed of Counts
IV and V of the complaint. The Court held a telephone conference with counsel on
August 20, 2020 to discuss this issue and how to proceed.
Under Federal Rule of Civil Procedure 62.1, “[i]f a timely motion is made for
relief that the court lacks authority to grant because of an appeal that has been docketed
and is pending, the court may (1) defer considering the motion; (2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that
purpose or that the motion raises a substantial issue.” Fed. R. Civ. P. 62.1(a).
Accordingly, because the case is now on appeal,
IT IS HEREBY ORDERED that, pursuant to Federal Rule of Civil Procedure
62.1(a), the Court indicates that if the Eighth Circuit were to remand for the limited
purpose of ruling on the government’s outstanding and unopposed motion (ECF No. 466)
to voluntarily dismiss Counts IV and V of the government’s complaint in intervention
without prejudice, pursuant Federal Rule of Civil Procedure 41(a)(2), the Court would
grant that motion and would dismiss Counts IV and V without prejudice. In accordance
with Federal Rule of Civil Procedure 62.1(b) and Federal Rule of Appellate Procedure
12.1(a), the government is directed to promptly notify the Clerk of the Court of Appeals
for the Eighth Circuit.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 28th day of August, 2020.
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