United States of America ex rel. Keisha Kelschenbach v. M&T Bank Corporation
DECISION AND ORDER DENYING the Sealed Movants' 99 Motion for Reconsideration. Signed by William M. Skretny, United States District Judge on 5/15/2017. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA ex rel.
DECISION AND ORDER
M&T BANK CORPORATION,
Presently before this Court is Patrick Lester, Marlene Miller, and Pauline
Myers’ (the “SDNY Relators”) Motion for Reconsideration of the Decision and Order
denying their Motion to Intervene. (Docket No. 99.) As held by the Second Circuit,
“[t]he standard for granting such a motion is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court
overlooked—matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
First, the SDNY Relators contend that this Court erred because the
Decision and Order did not expressly cite Walburn v. Lockheed Martin Corp., in which
the Sixth Circuit held that Rule 9(b)’s heightened pleading standard should be applied
when evaluating whether a relator’s complaint was filed first under § 3730(b)(5). 431
F.3d 966, 972 (6th Cir. 2005). The Second Circuit has not yet ruled on this issue, but
recently rejected a separate but related holding of Walburn, specifically that the
§ 3730(b)(5) first-to-file rule is jurisdictional. See United States ex rel. Hayes v. Allstate
Ins. Co., 853 F.3d 80, 85 (2d Cir. 2017) (joining the D.C. Circuit to hold “that the first-to1
file rule is not jurisdictional and instead bears on the merits of whether a plaintiff has
stated a claim”). Further, the two cases on which this Court relied in the Decision and
Order, Heineman-Guta and Batiste, both discuss Walburn. In U.S. ex rel. HeinemanGuta v. Guidant Corp., the First Circuit rejected Walburn, finding that “[i]n grafting Rule
9(b) particularity requirements onto the first-to-file rule, the Sixth Circuit did not address
in-depth the plain language of § 3730(b)(5), or the different purposes behind Rule 9(b)
and § 3730(b)(5).” 718 F.3d 28, 37 (1st Cir. 2013). The First Circuit instead agreed
with U.S. ex rel. Batiste v. SLM Corp., in which the D.C. Circuit found Walburn
“unconvincing” because the plain language of § 3730(b)(5) “militates against reading [a
Rule 9(b) particularity] requirement into the statute.” 659 F.3d 1204, 1210 (D.C. Cir.
Although this Court did not distinguish Walburn, it considered it as non-
controlling precedent and found it unpersuasive for the same reasons as expressed in
the cited cases.
Second, the SDNY Relators argue that this Court erred because it did not
consider the qui tam Complaint filed by the SDNY Relators in the Southern District of
New York on November 8, 2013 (the “SDNY Action”), which the SDNY Relators failed to
include together with the Motion to Intervene, but filed together with a later motion. In
the Decision and Order, this Court noted that the unsealed Complaint was not available
on the docket of the SDNY Action, and that this Court therefore could not even attempt
to address whether the SDNY Relators might be considered the first-to-file party with
respect to their claims. But the failure to include the Complaint with the motion to
intervene only scratched the surface of why that motion was denied. Even if this Court
were to review and consider the Complaint, the SDNY Relators still have not presented
sufficient information and argument to establish that they should be considered first-tofile, nor do they address the myriad other obstacles to intervention addressed in the
Decision and Order.
Therefore, because reconsideration could not “reasonably be expected to
alter the conclusion reached by the court,” Shrader, 70 F.3d at 257, the Motion for
Reconsideration is denied.
IT HEREBY IS ORDERED, that the Sealed Movants’  Motion for
Reconsideration is DENIED.
Dated: May 15, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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