UNITED STATES OF AMERICA et al v. PROGRESSIVE HOLDINGS, LLC et al

Filing 19

ORDER denying 11 Motion to Reassign Case; granting in part and denying in part 12 Motion to Unseal Documents, as more fully stated in the Order. Signed by Judge Cathy Bissoon on 1/25/2012. (dad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA, ex rel. )
DONALD SMITH, Relator,
)
)
Plaintiff/Relator
)
)
v.
)
)
PROGRESSIVE HOLDINGS, LLC,
)
et al.,
)
)
Defendants.
)

Civil Action No. 11-482
Judge Cathy Bissoon

ORDER
Donald Smith (“Relator”) brings the instant case pursuant to the qui tam provisions of the
False Claims Act, 31 U.S.C. § 3729, et seq. (“FCA”), on behalf of the United States of America.
Relator alleges that Defendants engaged in violations of the FCA and the Buy American Act
(“BAA”), 41 U.S.C. §§ 8301-8305 (formerly codified at 41 U.S.C. §§ 10a-10d) by allegedly
fulfilling certain contracts with the government with products that were non-compliant with the
BAA, in spite of making certifications to the contrary.
Before this Court are two motions. The first is Defendants’ motion to reassign this case
to Judge Ambrose. (Doc. 11). The United States indicated that it was unopposed to this motion.
(Doc. 18 at 2). Relator has filed no response, despite being ordered to do so on or before January
23, 2012. See Order of Jan. 12, 2012.
The basis for the motion to transfer is Defendants’ assertion that the instant cause of
action is related to one that had been assigned to Judge Ambrose - Smith v. Progressive
Holdings, LLC, No. 10-1230 (W.D. Pa. filed Sept. 17, 2010). That case involved claims against
Defendant Progressive Holdings, LLC, as well as various other defendants, for breach of

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contract, unjust enrichment, and intentional interference with contractual relationships, in
connection to the work allegedly performed by the plaintiffs on certain government contracts.
(Doc. 1-2). The defendants to that action filed various counterclaims against the plaintiffs based
on theories of breach of contract, “overpayment,” misrepresentation, interference with
contractual relations, defamation, and wrongful use of Progressive Holding’s company credit
cards. (Doc. 4). The misrepresentation counterclaim involved allegations that the plaintiffs had
shipped non-conforming goods to the United States. That case ended in a consent judgment in
favor of the defendants prior to the filing of any dispositive motions.
Under Local Civil Rule 40.D.2, “civil actions are deemed related when an action filed
relates to property included in another action, or involves the same issue of fact, or it grows out
of the same transaction as another action . . . .” Although a court may reassign a case based on
relatedness, see LCvR 40.E.2, “reassignment is an extraordinary remedy.” Alboyacian v. BP
Prods. N. Amer., Inc., No. 09-5143, 2010 WL 56036, at *1 (D.N.J. Jan. 4, 2010) (citation
omitted). “Litigants do[] not have the right to have [their] case heard by a particular judge,” and,
although this Court has the authority and discretion to reassign a civil action, it need not exercise
that discretion. Id. (internal quotes and citations omitted, alterations in original).
Upon a review of the docket in Judge Ambrose’s case, the undersigned is unconvinced
that these two cases are related, or that judicial economy would be served by reassigning this
case to Judge Ambrose. Accordingly, this motion will be denied.
Next, this Court addresses Defendants’ motion to unseal docket entries. (Doc. 12). As of
the date of this writing, only two filings – Documents 5 and 6 – remain under seal. The United
States does not object to unsealing Document 6; however, it maintains that Document 5 reveals
confidential investigative methods utilized by the government. (Doc. 17 at 7). Upon careful in

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camera review of this document, as well as all of the other documents filed in this case, this
Court finds this argument to be persuasive, and thus will deny this motion with respect to
Document 5. See United States ex re. O’Keefe v. McDonnell Douglas Corp., 902 F. Supp. 189,
192 (E.D. Mo. 1995) (declining to unseal documents providing substantive details regarding the
government’s methods of investigation).

AND NOW, this 25th day of January, 2012,
IT IS HEREBY ORDERED Defendants’ motion to reassign cast to Judge Ambrose (Doc.
11) is DENIED.
IT IS FURTHER ORDERED that Defendants’ motion to unseal docket entries (Doc. 12)
is GRANTED in part, and DENIED in part. Document 6 shall be unsealed. The seal shall
remain on Document 5.
BY THE COURT:
s/Cathy Bissoon
CATHY BISSOON
UNITED STATES DISTRICT JUDGE
cc (via CM/ECF):
all counsel of record

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