United States of America et al v. GenPhar Inc et al

Filing 216

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Magistrate Judge's Report (ECF No. 214 ) and grants Relators' Rule 41(a)(2) conditional motion for court order of dismissal of claims (ECF No. 187 ), with prejudice as to Relators and without prejudice as to the Government. The Court also find that Defendants are not entitled to attorney's fees or costs pursuant to 31 U.S.C. § 3730(d). Furthermore, the dismissal of claims is withou t prejudice to Relators being permitted to petition the Court for attorney's fees and costs within 60 days of a final judgment affirming the convictions in the related criminal matters. Lastly, the Court denies Dong's motion for recovery of legal fees (ECF No. 194 ). IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 3/27/2018. (prou, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

United States of America, ex rel.,
Elaine Van Voris, Peter Van Voris,
and John Johnston,

)
)
)
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Plaintiffs/Relators, )
)
v.
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GenPhar, Inc.; Jian-yun Dong a/k/a
)
John Dong; Danher Wang;
)
and Vaxima, Inc.;
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Defendants.
)
________________________________)

Civil Action No. 2:09-cv-0005-BHH

ORDER

This matter is before the Court upon the motion of Plaintiffs/Relators Elaine Van
Voris, Peter Van Voris, and John Johnston (collectively, “Relators” or “Plaintiffs”) for an
order voluntarily dismissing, pursuant to Rule 41(a)(2) of the Federal Rules of Civil
Procedure, all substantive claims of this qui tam case filed under the False Claims Act, 31
U.S.C. §§ 3729 et seq. (“FCA”). (See ECF No. 187.) Also pending is pro se Defendant
Jian-yun Dong’s (“Dong”) motion for recovery of legal fees. (See ECF No. 194.)
In accordance with Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the matter was referred
to a United States Magistrate Judge for preliminary determinations. On March 5, 2018,
Magistrate Judge Kaymani D. West issued a report and recommendation (“Report”)
outlining the issues and recommending that the Court grant Relators’ Rule 41(a)(2)
conditional motion for court order of dismissal of claims (ECF No. 187). The Magistrate
Judge recommended that the dismissal be with prejudice as to Relators and without
prejudice as to the Government. In addition, the Magistrate Judge recommended that the

Court find that Defendants are not entitled to attorney’s fees or costs pursuant to 31 U.S.C.
§ 3730(d). The Magistrate Judge also recommended that the dismissal of claims be
without prejudice to Relators being permitted to petition the Court for attorney’s fees and
costs within 60 days of a final judgment affirming the convictions in the related criminal
matters. Lastly, the Magistrate Judge recommended that the Court deny Dong’s motion
for recovery of legal fees (ECF No. 194).
Attached to the Report was a notice advising the parties of their right to file written
objections to the Report within fourteen days of being served with a copy. To date, no
objections have been filed.
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court
is charged with making a de novo determination only of those portions of the Report to
which specific objections are made, and the Court may accept, reject, or modify, in whole
or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of specific
objections, the Court reviews the matter only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a
timely filed objection, a district court need not conduct a de novo review, but instead must
‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Here, because no objections were filed, the Court has reviewed the record, the
applicable law, and the findings and recommendations of the Magistrate Judge for clear
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error. After review, the Court finds no clear error and agrees with the Magistrate Judge’s
recommendations.
Accordingly, the Court adopts the Magistrate Judge’s Report (ECF No. 214) and
grants Relators’ Rule 41(a)(2) conditional motion for court order of dismissal of claims (ECF
No. 187), with prejudice as to Relators and without prejudice as to the Government. The
Court also find that Defendants are not entitled to attorney’s fees or costs pursuant to 31
U.S.C. § 3730(d). Furthermore, the dismissal of claims is without prejudice to Relators
being permitted to petition the Court for attorney’s fees and costs within 60 days of a final
judgment affirming the convictions in the related criminal matters. Lastly, the Court denies
Dong’s motion for recovery of legal fees (ECF No. 194).
IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce Howe Hendricks
United States District Judge
March 27, 2018
Charleston, South Carolina

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