USA ex rel Blyn v. Triumph Group et al
Filing
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MEMORANDUM DECISION AND ORDER Granting in Part and Denying in Part 71 MOTION to Reconsider the Court's April 26, 2016 Memorandum Decision and Order and For a Stay. The Clerk of Court is directed to immediately certify this as an interlocutory appeal to the Tenth Circuit and to stay the case. Signed by Judge Dale A. Kimball on 6/23/2016. (eat)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
UNITED STATES OF AMERICA ex rel.
JOE BLYN, DONALD LITTLE, and
KUROSH MOTAGHED,
MEMORANDUM DECISION
AND ORDER
Plaintiffs,
vs.
TRIUMPH GROUP, INC.; TRIUMPH
GEAR SYSTEMS, INC.; JEFF FRISBY;
and CARLA BOWMAN,
Case No. 2:12-CV-922-DAK
Defendants.
This matter is before the court on the Defendant Triumph Gears Systems, Inc.’s (TGS’s)
Motion to Reconsider the Court’s April 26, 2016, Memorandum Decision and Order and for a
Stay. The court’s April 26, 2016, Memorandum Decision and Order denied TGS’s Motion to
Dismiss for Failure to State a Claim. TGS moves for the court to reconsider its position
regarding the jurisdictional first-to-file bar of the False Claims Act (“FCA”) or, in the alternative,
moves for the court to certify its decision on the first-to-file issue for immediate interlocutory
appeal. In either case, TGS moves the court to stay the case until the issue is resolved.
TGS’s Motion to Reconsider has been fully briefed. The court concludes that a hearing
would not significantly aid its determination of the motion. Accordingly, the court issues the
following Memorandum Decision and Order based on the written submissions of the parties and
the law and facts relevant to the pending motion.
DISCUSSION
TGS moves the court to reconsider the first-to-file portion of its April 26, 2016,
Memorandum Decision and Order or, in the alternative, to certify the first-to-file issue for
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immediate interlocutory appeal. TGS argues that the court’s determination on the first-to-file
issue is inconsistent with the plain text of the jurisdictional first-to-file bar of the FCA, the
holding in United States ex rel. Precision Co. v. Koch Industries, Inc., 31 F.3d 1015 (10th Cir.
1994), and the Federal Rules of Civil Procedure. Plaintiffs Messrs. Little and Motaghed
(“Relators”) argue that the court’s determination on the first-to-file issue is consistent with the
Tenth Circuit’s opinion in the Precision case and that the first-to-file issue is not jurisdictional.
The court will address each of TGS’s requests.
RECONSIDERATION OF THE COURT’S FIRST-TO-FILE ANALYSIS
A non-final decision of a district court “may be revised at any time before the entry of a
judgment.” Fed. R. Civ. P. 54(b); see also Been v. O.K. Indus., Inc., 495 F.3d 1217, 1225 (10th
Cir. 2007) (“[D]istrict courts generally remain free to reconsider their earlier interlocutory
orders.”). Although a district court has the discretion to revise an earlier interlocutory decision,
“the law of the case doctrine generally requires the court to adhere to the rule throughout the
proceedings” in order to prevent “continued reargument of issues already decided.” Major v.
Benton, 647 F.2d 110, 112 (10th Cir. 1981). The law of the case doctrine is not an “‘inexorable
command,’ but is to be applied with good sense.” Id. (citation omitted). Based on these guiding
principles, a district court should generally only agree to reconsider an earlier interlocutory
decision “when substantially different, new evidence has be introduced,” when “subsequent,
contradictory controlling authority exists,” or when the decision “is clearly erroneous.” Id. A
motion for reconsideration is an Ainappropriate vehicle[] to reargue an issue previously addressed
by the court when the motion merely advances new arguments, or supporting facts which were
available at the time of the original motion. Absent extraordinary circumstances, . . . the basis for
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the second motion must not have been available at the time the first motion was filed.@ Servants
of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
No extraordinary circumstances exist in this case that would be sufficient for the court to
reconsider its decision on the first-to-file issue. The parties do not point to any substantially
different or new evidence or any subsequent and contradictory controlling authority. The parties
rely solely on evidence and authorities that were previously discussed by the parties and
considered by the court in its earlier analysis. All of the arguments advanced by TGS were
available at the time of the original motion. Therefore, the arguments do not provide grounds for
a motion to reconsider. In addition, neither TGS’s arguments nor the court’s review of the
analysis is its earlier order convince the court that its decision was clearly erroneous. Therefore,
the court declines to reconsider its April 26, 2016, Memorandum Decision and Order.
INTERLOCUTORY APPEAL OF THE COURT’S FIRST-TO-FILE ANALYSIS
“[A]n order not otherwise appealable may be immediately appealed if the district court
judge ‘shall be of the opinion that such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litigation.’” Duke v. Grady Mun. Schools,
127 F.3d 972, 973 n.1 (10th Cir. 1997) (quoting 28 U.S.C. § 1292(b)). A legal question is
“controlling” for purposes of Section 1292(b) when “resolution of the issue on appeal could
materially affect the outcome of litigation in the district court.” In re Cement Antitrust Litig., 673
F.2d 1020, 1026 (9th Cir. 1982); see also In re Indep. Serv. Orgs. Antitrust Litig., No. Civ.
A.MDL-1021, 1997 WL 450028, at *4 (D. Kan. July 17, 1997) (unpublished). “Substantial
grounds for difference of opinion on a controlling question of law exist when there is genuine
doubt or conflicting precedent as to the correct legal standard.” Flying J, Inc. v. TA Operating
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Corp., No. 1:06-CV-30-TC, 2007 WL 4165749, at *1 (D. Utah Nov. 20, 2007) (unpublished)
(citation omitted). An immediate appeal from an order may materially advance the ultimate
termination of the litigation when “the question goes to the court’s subject matter jurisdiction.”
Tank v. Chronister, 998 F. Supp. 1160, 1162 (D. Kan. 1997).
An immediate appeal is especially proper when “a final determination on [the] issue by
the circuit court . . . would best serve considerations of judicial economy and fairness to the
litigants.” Resolution Trust Corp. v. Fleischer, 871 F. Supp. 1362, 1370 (D. Kan. 1994); see also
Utah ex rel. Utah State Dep’t of Health v. Kennecott Corp., 14 F.3d 1489, 1495 (10th Cir. 1994)
(endorsing an interlocutory appeal in “cases in which extended and expensive proceedings
probably can be avoided by immediate final decision of controlling questions encountered early
in the action”); Burchett v. Bardahl Oil Co., 470 F.2d 793, 796 (10th Cir. 1972) (interlocutory
appeal is appropriate where it “might avoid protracted and expensive litigation”).
In this case, a final determination on the first-to-file issue could materially affect the
outcome of the litigation because the FCA’s first-to-file bar “is a jurisdictional limit on the
court’s power to hear certain duplicative qui tam suits.” Grynberg v. Koch Gateway Pipeline Co.,
390 F.3d 1276, 1278 (10th Cir. 2004).1 Because the FCA’s first-to-file bar is jurisdictional, a
ruling by the Tenth Circuit that the first-to-file bar precludes the intervention of the Relators in
this FCA suit will result in dismissal of this case.
In addition to being a controlling legal question, the issue of the applicability of the firstto-file bar on the Relators in this case is an issue on which substantial grounds for difference of
opinion exist. Although the Tenth Circuit directly addressed the issue of the applicability of the
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Circuit Courts are currently split on whether the first-to-file bar under the False Claims Act is jurisdictional.
Although most Circuit Courts, including the Tenth Circuit, treat the bar as jurisdictional, the District of Columbia
Circuit has recently held that the first-to-file bar is not jurisdictional. See U.S. ex rel. Heath v. AT&T, Inc., 791 F.3d
112, 119 (D.C. Cir. 2015) (“The first-to-file bar is not jurisdictional.”).
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first-to-file bar on parties who have entered an FCA action through amendment in the Precision
case, see United States ex rel. Precision Co. v. Koch Industries, Inc., 31 F.3d 1015 (10th Cir.
1994), conflicting precedent exists as to the appropriateness and applicability of the holding in
that case. Compare, e.g., U.S. ex rel. Howard v. Lockheed Martin Corp., No. 1:99-CV-285, 2011
WL 4348104, at *3 (S.D. Ohio Sept. 16, 2011) (unpublished) (“Relators cite a Tenth Circuit
opinion for the proposition that intervention for purposes of [the FCA’s first-to-file bar] is
limited to ‘intervention of the types set forth in [Fed. R. Civ. P.] 24(b)(2) and the addition of
parties does not constitute intervention.’ . . . [T]he Court agrees with Relators’ interpretation.”
(citation omitted)), with U.S. ex rel. Manion v. St. Luke’s Reg’l Med. Center, Ltd., No. CV 06498, 2008 WL 906022, at *7 (D. Idaho Mar. 31, 2008) (declining to follow “case law from
neighboring jurisdictions which decline to apply the plain meaning of the term intervene but
instead apply the more narrow meaning the term is granted in Federal Rule of Civil Procedure
Rule 24.”). In addition to conflicting precedent regarding the appropriateness and applicability of
the holding in Precision, conflicting precedent also exists regarding the scope of that holding.
Compare U.S. ex rel. Boise v. Cephalon, Inc., No. CIV.A.08-287, 2014 WL 5089671, at *2 (E.D.
Pa. Oct. 9, 2014) (“In U.S. ex rel. Precision Co. v. Koch Indus., Inc., the Court of Appeals for the
Tenth Circuit held that the addition of new relators by an amended complaint did not trigger the
application of the first-to-file rule.”), with U.S. ex rel. Fry v. Guidant Corp., No. CIV.A.3:030842, 2006 WL 1102397, at *5 (M.D. Tenn. Apr. 25, 2006) (“[T]he Tenth Circuit has essentially
carved out a limited exception to [the FCA’s first-to-file bar] for the intervention of new relator
parties, as long as they are ‘related’ to the original plaintiff.”).
Finally, an immediate appeal from the courts April 26, 2016, Memorandum Decision and
Order would materially advance the ultimate termination of the litigation. As already mentioned,
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the first-to-file bar is jurisdictional in the Tenth Circuit, so a ruling that the first-to-file bar
applies to Relators in this case will result in dismissal of the case.
Because the first-to-file issue is a controlling issue on which substantial grounds for
difference of opinion exist and because an immediate appeal of that portion of the court’s April
26, 2016, Memorandum Decision and order will materially advance the ultimate termination of
the litigation, the court concludes that a certification for an interlocutory appeal should be
granted. Because part of the purpose of granting the interlocutory appeal is to avoid protracted
and expensive litigation, the court also concludes that the case should be stayed pending the
decision by the Tenth Circuit.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that TGS’s Motion to Reconsider
the Court’s April 26, 2016, Memorandum Decision and Order and for a Stay is GRANTED in
part and DENIED in part. Although the court declines to reconsider its April 26, 2016,
Memorandum Decision and Order and dismiss the case, the court certifies the first-to-file bar
issue in its April 26, 2016, Memorandum Decision and Order for immediate appeal pursuant to
28 U.S.C. § 1292(b) and agrees to stay the case pending the disposition of proceedings in the
Tenth Circuit. The Clerk of Court is directed to immediately certify this as an interlocutory
appeal to the Tenth Circuit and to stay the case.
DATED this 23d day of June, 2016.
BY THE COURT:
_________________________________________
DALE A. KIMBALL
United States District Judge
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