BATES, et al., v. DENTSPLY INTERNATIONAL, INC., et al.,

Filing 77

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 10/15/2014. 10/15/2014 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
ex rel. SHAWN BATES et al.
v.

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DENTSPLY INTERNATIONAL, INC.

CIVIL ACTION

NO. 12-7199

MEMORANDUM
Bartle, J.

October 15, 2014
This is an action under the False Claims Act ("FCA"),

31 U.S.C. § 3729.1

On September 4, 2014 this court granted in

part and denied in part defendant's motion to dismiss relators'
second amended complaint under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.

In its Order, the court dismissed the claims

of two of the relators, Shawn Bates and Edward Josefoski, for
retaliation under the FCA.

Bates and Josefoski are former

employees of defendant Dentsply International, Inc. ("Dentsply").
Now before the court is the motion of relators for
reconsideration as to these claims.
In its accompanying Memorandum to its September 4, 2014
Order, this court relied on the decision of our Court of Appeals
in Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176 (3d Cir.
2001) for the proposition that "[a] claim for retaliation under
the FCA will not lie unless the employer has been put on notice

1. A claim under the Virginia Fraud Against Taxpayers Act, Va.
Code Ann. § 8.01-216.1, et seq. also remains.

of the 'distinct possibility' of FCA litigation."

United States

ex rel. Bates v. Dentsply Int'l, Inc., No. 12-7199, 2014 WL
4384503 at *9 (E.D. Pa. Sept. 4, 2014) (quoting Hutchins, 253
F.3d at 188).

This court continued:

In our view, neither Bates nor Josefoski has
sufficiently alleged that they put Dentsply
on notice of the distinct possibility of FCA
litigation. While they expressed "concerns"
to management about company practices, they
do not allege that they ever used the terms
"illegal," "unlawful," or "qui tam action,"
and never informed anyone at Dentsply that
they intended to contact the government about
false claims.
Id. at *10.
In order to succeed on a motion for reconsideration,
the relators must show that one of three conditions exists:

"(1)

an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court granted the motion for summary judgment; or (3) the need to
correct a clear error of law or fact or to prevent manifest
injustice."

Howard Hess Dental Labs., Inc. v. Dentsply Int'l,

Inc., 602 F.3d 237, 251 (3d Cir. 2010) (quoting Max's Seafood
Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d
Cir. 1999).
Relators have not pointed to an intervening change in
the controlling law or the availability of new evidence not
available when the court dismissed the retaliation claims.
Instead, relators contend there is a need to correct a clear
error of law or fact or to prevent manifest injustice.

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In essence, relators assert that in their brief in
opposition to defendant's motion to dismiss their second amended
complaint they requested the right to amend their retaliation
claims to met any deficiency the court might find.
identified no specifics.2

Relators

Nor was an amended pleading attached

for the court's or opposing counsel's consideration.

In

relators' view, it was clear error for the court to ignore their
request.
Relators' bare request fails for two reasons.

First,

such a request, which does not set forth the particular grounds
for an amendment, is not a motion under Rule 15(a) of the Federal
Rules of Civil Procedure, which governs amendments to pleadings.
Second, relators did not attach a copy of the proposed amended
pleading.

United States ex rel. Zizic v. Q2Administrators LLC,

728 F.3d 228, 243 (3d Cir. 2013); United States ex rel. Wilkins
v. United Health Group, Inc., 659 F.3d 295, 315 (3d Cir. 2011).
Under the circumstances, the court did not abuse its discretion
in not sua sponte allowing any amendment.

United States ex rel.

Zizic, 728 F.3d at 243; United States ex rel. Wilkins, 659 F.3d
at 315.
Even if the procedure used by relators were proper,
defendants maintain that any amendment would be futile.

Rule

2. At page 25 of their Memorandum of Law in Opposition to
Dentsply International's Motion to Dismiss Second Amended False
Claims Act Complaint (Doc. #63), relators simply state, "Should
the Court dismiss any aspect of Relators' Complaint, it should do
so without prejudice and grant leave to amend. . . . Should the
Court find that any aspect of Relators' Complaint is lacking,
fairness dictates that she [sic] be given an opportunity to
address any such deficiency."
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15(a)(2) of the Federal Rules of Civil Procedure provides that
"the court should freely give leave [for an amendment] when
justice so requires."

In Foman v. Davis, the Supreme Court

explained that the district court is under no obligation to allow
an amendment when it would be futile to do so.
(1962).

371 U.S. 178, 182

While this court is handicapped in not having before it

a copy of the exact amendment the relators propose, the relators
rely on a number of exhibits they have attached to their
supporting brief.

None of the exhibits, however, supports the

notion that relators put Dentsply, their employer, "on notice of
the 'distinct possibility' of False Claims Act litigation."
Hutchins, 253 F.3d at 188.

Rather, the documentation, which

consists of e-mails, deals with personal employment issues the
relators outlined to Dentsply.

Some of the e-mails included

general accusations of discrimination, harassment, fraud,
criminal activity, and retaliation.

None references any cheating

of or harm to the federal government caused by Dentsply.

None

can reasonably be construed to concern false claims under the FCA
and thus none can cure the deficiencies in the retaliation claims
in the second amended complaint.

Any third amended complaint

would be futile.
The court made no clear error of law or fact, and no
manifest injustice has occurred.

The motion of relators for

reconsideration of the court's September 4, 2014 Order and
Memorandum will be denied.

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