GUARDIOLA v. RENOWN HEALTH

Filing 218

ORDER granting ECF No. 217 Stipulated Motions for Relief from Order and to Strike; Order ECF No. 214 is VACATED; Clerk direct to strike Third Amended Complaint from record; Relator and USA are directed to file a stipulated discovery scheduled re Relator's Motion for a Share of the Alternate Remedy ECF No. 179 by 12/13/2017. Signed by Judge Larry R. Hicks on 11/28/2017. (Copies have been distributed pursuant to the NEF - KW)

Case 3:12-cv-00295-LRH-VPC Document 217 Filed 11/27/17 Page 1 of 6

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Snell & Wilmer
___________
___________

L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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William E. Peterson, Bar No. 1528
Carrie L. Parker, Bar No. 10952
Nathan G. Kanute, Bar No. 12413
SNELL & WILMER L.L.P.
50 West Liberty, Suite 510
Reno, NV 89501
Telephone: [phone]
Facsimile: 775.785.5441
Email: [e-mail]
[e-mail]
[e-mail]
Mitchell R. Kreindler (Admitted Pro Hac Vice)
Sharon M. Gurak (Admitted Pro Hac Vice)
KREINDLER & ASSOCIATES
7676 Hillmont Street, Suite 240A
Houston, TX 77044-6478
Telephone: [phone]
Facsimile: 713.647.8889
Email: [e-mail]
[e-mail]

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Attorneys for Plaintiff/Relator Cecilia Guardiola

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IN THE UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CECILIA GUARDIOLA

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Plaintiff,

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v.

Case No. 3:12-cv-00295-LRH-VPC

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UNITED STATES OF AMERICA,

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STIPULATED MOTIONS FOR RELIEF
FROM ORDER AND TO
ORDER
STRIKE AND PROPOSED ORDER

Defendant.

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Relator Cecilia Guardiola (“Relator”) and the United States of America (the “United
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States”), by and through their respective counsel, file this Stipulated Motions for Relief from
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Order and to Strike pursuant to Federal Rule of Civil Procedure 60, and the following
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Memorandum of Points and Authorities.
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Case 3:12-cv-00295-LRH-VPC Document 217 Filed 11/27/17 Page 2 of 6

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MEMORANDUM OF POINTS AND AUTHORITIES
I.

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Introduction.
Relator and the United States seek to proceed in this case pursuant to the Second

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Amended Complaint (ECF No. 107) and to conduct discovery for the purpose of resolving

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Relator’s Motion for a Share of the Alternate Remedy (ECF No. 179) (“Relator’s Share Motion”).

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However, a mistake has occurred, which resulted in the clerk’s filing of the Third Amended

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Complaint, which has not been signed by Relator’s counsel. Relator seeks relief from the Order

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granting the Motion for Leave to File the Third Amended Complaint (ECF No. 214) (“Motion for

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Leave”), which ordered the Clerk to file the Third Amended Complaint. The Third Amended

filed at this point, and it should be stricken as a fugitive document.

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Snell & Wilmer
___________
___________

Complaint (ECF No. 215) was not signed, Relator and the United States did not intend for it to be

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L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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II.

Brief Procedural Background.

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Relator and the United States wish to clear up the procedural confusion in this case.

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After an agreement in principle for settlement of this underlying qui tam case, Relator

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filed a Motion for Relator’s Share of Alternate Remedy, which this Court denied because the

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United States was not a party. (ECF No. 190). Based upon that ruling, Relator filed a Motion for

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Leave (ECF No. 191), seeking to add the United States as a named defendant, so that she could

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pursue a relator’s share from the United States. In reliance upon the position of the United States,

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this Court denied the Motion for Leave on the basis of sovereign immunity. (ECF No. 197).

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Relator then appealed both orders to the Ninth Circuit Court of Appeals. While the appeal

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was pending, the United States notified the Court and Relator that is was reversing its position,

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agreeing that the doctrine of sovereign immunity did not bar Relator’s Motion for Alternate

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Remedy. Before the Court of Appeals, the government argued that “[the district court correctly

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denied the motion for leave to amend . . . . [because] the text of the FCA does not require that a

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relator be able to bring suit against the government in order to seek a share of a purported

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alternate remedy.” Brief for Intervenor United States of America, No. 16-17205 (9th Cir.), Dkt

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22-2 at 26. The government maintained that “the nature of the underlying action here makes the

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government’s status as a defendant improper,” id., explaining:
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Case 3:12-cv-00295-LRH-VPC Document 217 Filed 11/27/17 Page 3 of 6

Qui tam actions under the FCA are brought “for the United States Government”
and “in the name of the Government.” 31 U.S.C. § 3730(b)(1). They involve
litigation of “the Government’s damages claim.” Stevens, 529 U.S. at 773.
Congress expressly gave the United States discretion to intervene in FCA
actions—a decision that requires consideration of the costs and benefits of party
status.” Eisenstein, 556 U.S. at 933. Permitting a relator to amend a qui
tam complaint in the manner Guardiola has proposed would eliminate the
government’s ability to decline party status and instead make it a putative
defendant in the very action brought on its behalf. It has now been decided that
the United States does NOT have to be made a party, and should not be party.

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Id.at 26-27. In response, the Ninth Circuit remanded the matter for the limited purpose of

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allowing this Court to consider Relator’s Federal Rule of Civil Procedure 60 (b) motion. (ECF

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No. 207) Pursuant to the remand, this Court vacated both prior orders, denying Relator’s Share

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Motion and Relator’s Motion for Leave (ECF No. 208).

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Because this Court’s order denying the Relator’s Share Motion is vacated and the United

Snell & Wilmer
___________
___________

States has consented to the jurisdiction of this Court for the purpose of adjudicating Relator’s

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L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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claims for a share of the alternate remedy, Relator and the United States agree there is no longer

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any need to amend the complaint. In the Joint Motion for Entry of Scheduling Order (ECF No.

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213) (“Motion for Scheduling Order”), Relator, with the United States’ concurrence, sought to

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withdraw the Motion for Leave (ECF No. 191). Relator recognizes it would have been more

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procedurally clean to withdraw her motion in a separate filing, as opposed to submitting it as part

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of the Joint Motion for Entry of Scheduling Order.

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III.

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Legal Argument.
Rule 60(b) allows the court to relieve a party from an order based upon, among other

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reasons, mistake, inadvertence, surprise, or excusable neglect. Rule 60(b)(1) permits the Court to

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vacate its order when it decides to exercise its discretion in a manner different from the way it

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was exercised in the original determination.

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In this case, Relator and the United States sought to proceed under the Second Amended

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Complaint, and Relator attempted to withdraw the Motion for Leave, but Relator mistakenly did

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not provide such notice to the Court in a separate filing. This caused the Court not to recognize

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that the Motion for Leave had been withdrawn before entering the order and directing the clerk to

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file the Third Amended Complaint. (ECF No. 214) However, the Third Amended Complaint is

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unsigned. See Rule 11 (requiring all pleadings to be signed). Additionally, now that there is
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Case 3:12-cv-00295-LRH-VPC Document 217 Filed 11/27/17 Page 4 of 6

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agreement that Relator can pursue her claim against the United States for a relator’s share without

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making the United States a named defendant, the Third Amended Complaint is not necessary.

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Additionally, the Court may also wish to revert the style of the case to the original style.

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IV.

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Conclusion
Based upon the foregoing, Relator and the United States respectfully request that the

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Court vacate its order granting the Motion for Leave, deem the Motion for Leave withdrawn, and

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strike the Third Amended Complaint from the record. Relator and the United States have agreed

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to proceed on the Relator’s Share Motion and will submit a proposed scheduling order.

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Respectfully submitted this 27th day of November, 2017.

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Snell & Wilmer
___________
___________

L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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By:

/s/ Carrie L. Parker
William E. Peterson
Nathan G. Kanute
Carrie L. Parker
SNELL & WILMER L.L.P.
50 West Liberty, Suite 510
Reno, NV 89501

By: /s/ Roger Wenthe
STEVEN W. MYHRE
Acting United States Attorney
ROGER WENTHE
Assistant United States Attorney
501 Las Vegas Blvd. So., #1100
Las Vegas, Nevada 89101

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Mitchell R. Kreindler
Sharon M. Gurak
KREINDLER & ASSOCIATES
7676 Hillmont Street, Suite 240A
Houston, TX 77040

Counsel for United States of
America

Counsel for Plaintiff/Relator
Cecilia Guardiola

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SEE NEXT PAGE FOR ORDER

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Case 3:12-cv-00295-LRH-VPC Document 217 Filed 11/27/17 Page 5 of 6

ORDER

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The Order granting the Motion for Leave to File the Third Amended Complaint [ECF No.
214] entered on November 14, 2017 is hereby VACATED.

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The Clerk is directed to strike the unsigned Third Amended Complaint from the record.

3.

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Relator and the United States are directed to file with the Court a stipulated discovery
schedule for proceeding in this matter on Relator’s Motion for a Share of the Alternate
Remedy [ECF No. 179] within 14 days of the entry of this Order.

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IT IS SO ORDERED
DATED this __ day ofof November, 2017. 2017.
28th day ________________,

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UNITED R. HICKSDISTRICT JUDGE
LARRY STATES
UNITED STATES DISTRICT JUDGE

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Snell & Wilmer
___________
___________

L.L.P.
LAW OFFICES
50 West Liberty Street, Suite 510
Reno, Nevada 89501
775-785-5440

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