United States District Court, D. Nevada
UNITED STATES OF AMERICA ex rel. ERIC MESI, Plaintiffs,
NATIONAL DEFAULT SERVICING CORPORATION et al., Defendants.
C. JONES, UNITED STATES DISTRICT JUDGE
a qui tarn action brought under the False Claims Act
("FCA"). Now pending before the Court is a Motion
to Dismiss filed by the United States. (ECF Nos. 8, 11.) For
the reasons given herein, the Court grants the motion.
FACTS AND PROCEDURAL BACKGROUND
Eric Mesi brought this action under the FCA's
whistleblower provisions. On September 6, 2016, the United
States filed a notice declining intervention in this matter.
(Notice, ECF No. 9.) The United States also filed a Motion to
Dismiss arguing that the complaint should be dismissed
because a pro se party cannot bring a qui
tarn complaint under the FCA. (Mot. Dismiss, ECF No. 8.)
On September 16, 2016, as a result of the United States'
decision not to intervene, the Court entered an order
directing Plaintiff to serve the complaint, the Court's
order, and the United States' notice on Defendants.
(Order, ECF No. 10.) To date, Plaintiff has not filed any
proofs of service with the Court as required by Federal Rule
of Civil Procedure 4(1) and District of Nevada Local Rule
United States now moves to dismiss the case.
the United States asserts its right, as the real party in
interest in this qui tarn action, to "dismiss
the action notwithstanding the objections of the person
initiating the action if the person has been notified by the
Government of the filing of the motion and the court has
provided the person with an opportunity for a hearing on the
motion." 31 U.S.C. § 3730(c)(2)(A). The Government
enjoys this right regardless of whether or not it has elected
to intervene. See Swift v. United States, 318 F.3d
250, 251-52 (D.C. Cir. 2003); Ridenour v. Kaiser-Hill
Co., 397 F.3d 925, 934-35 (10th Cir. 2005).
Ninth Circuit case law, to obtain dismissal under 31 U.S.C.
§ 3730(c)(2)(A), the Government must identify a valid
governmental purpose and demonstrate a rational relationship
between dismissal and accomplishment of the purpose. U.S.
ex rel, Sequoia Orange Co. v. Baird-Neece Packing Corp.,
151 F.3d 1139, 1145 (9th Cir. 1998). The Government has
accomplished both here, having asserted that: "Given the
procedural impropriety, lack of prosecution, and dubious
merits of this case, monitoring this matter is a waste of
governmental resources." (Mot. Dismiss 4, ECF No. 11.)
The Ninth Circuit has held that "the government can
legitimately consider the burden imposed on taxpayers by its
litigation, and that, even if the relators were to litigate
the FCA claims, the government would continue to incur
enormous internal staff costs." Sequoia Orange,
151 F.3d at 1146. Furthermore, while the FCA provides that
the United States may only dismiss after the relator has been
notified and been given the opportunity for a hearing, a
relator is only entitled to a hearing if he "presents a
colorable claim that the settlement or dismissal is
unreasonable in light of existing evidence, that the
Government has not fully investigated the allegations, or
that the Government's decision was based on arbitrary or
improper considerations." Id. at 1145. Mr. Mesi
has made no such claim, and has failed even to respond to the
United States also correctly argues that a pro se
litigant may not pursue FCA actions on behalf of the
[ W]here the government chooses not to intervene, a relator
bringing a qui tarn action for a violation of §
3729 is representing the interests of the government and
prosecuting the action on its behalf. See 31 U.S.C.
§ 3730(b)(1); see also United States v. Schimmels
(In re Schimmels), 127 F.3d 875, 882 (9th Cir.1997)
("[T]he 'United States is the real party in interest
in any False Claims Act suit, even when it permits a qui
tarn relator to pursue the action on its
behalf.'"). Nor does the FCA "support a finding
that the government and the relators can pursue their
interests ... separately, " Schimmels, 127 F.3d
at 884, such that relators could bring their "own
case" without binding the government. Rather, the United
States "is bound by the relator's actions" for
purposes of res judicata and collateral estoppel. Id.;
see also United States ex rel. Rockefeller v. Westinghouse
Elec. Co., 274 F.Supp.2d 10, 16 (D.D.C. 2003);
United States ex rel. Schwartz v. TRW Inc., 118
F.Supp.2d 991, 996 (CD. Cal. 2000). Because qui tarn
relators are not prosecuting only their "own case"
but also representing the United States and binding it to any
adverse judgment the relators may obtain, we cannot interpret
§ 1654 as authorizing qui tarn relators to
proceed pro se in FCA actions.
Stoner v. Santa Clara Cty. Office of Educ, 502 F.3d
1116, 1126-27 (9th Cir. 2007) (citations omitted). Because
Mr. Mesi is pro se, therefore, and the United States
has elected not to intervene, this FCA action must be
dismissed. See also U.S. ex rel. Lu v. Ou, 368 F.3d
773, 775 (7th Cir. 2004), abrogated on other grounds by
U.S. ex rel. Eisenstein v. City of New York, New York,
556 U.S. 928, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009);
U.S. ex rel. Mergent Servs. v. Flaherty, 540 F.3d
89, 92 (2d Cir. 2008) ("[I]n order to proceed pro se, a
person must be litigating an interest personal to
him."); Tyson v. Wells Fargo Bank & Co., 78
F.Supp.3d 360, 363 (D.D.C. 2015) ("[I]t is well
established that a relator in a FCA case cannot proceed
the Court takes up the issue of the additional claims in Mr.
Mesi's complaint. This action was expressly filed as a
whistleblower complaint under the FCA. However, Mr. Mesi has
also included allegations arising under other federal and
state statutes, e.g., the Consumer Credit Protection Act,
Fair Debt Collection Practices Act, and Racketeer Influenced
and Corrupt Organizations Act. These claims are subject to
dismissal without prejudice for failure to prosecute, based
on Mr. Mesi's nearly year-long failure to comply with the
Court's order of September 16, 2016, as well as his
failure to maintain an up-to-date mailing address on the
is further appropriate because a relator's role in an FCA
case puts him at odds with the role of a normal plaintiff
representing his own interests. In a qui tarn action
under the FCA, a private person, called a "relator,
" brings a claim against a defendant on behalf of the
government. "While relators indisputably have a stake in
the outcome of False Claims Act qui tarn cases that
they initiate, the Government remains the real party in
interest in any such action." U.S. ex rel. Mergent
Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008).
relator is not a plaintiff, and as the Ninth Circuit has
noted, the FCA does not support "a Finding that the
government and the relators can pursue their interests ...
separately." Schimmels, 127 F.3d at 884.
"[A]s the United States remains the real party in
interest in qui tarn actions, the case, albeit
controlled and litigated by the relator, is not the
relator's own case as required by 28 U.S.C. § 1654,
nor one in which he has an interest personal to
him." Flaherty, 540 F.3d at 93 (emphasis added).
The Seventh Circuit has also opined that the nature of
qui tarn litigation can make the joinder of non-FCA
claims "awkward." U.S. ex rel. Lusby v.
Rolls-RoyceCorp.,570 F.3d 849, 852 (7th Cir.
2009). "The procedural differences between personal and
quitarn litigation are so great that it is
often impractical to pursue both claims in one suit....As the
Fifth Circuit put it in [United States ex rel. Laird v.
Lockheed Martin Engineering & Science Services Co.,336 F.3d 346, 360 (5th Cir. 2003)], 'we do not see
convenience in trying the two [claims] together.' If
joined in a ...