United States District Court, D. Nevada
William E. Peterson Nathan G. Kanute Carrie L. Parker SNELL
& WILMER L.L.P. Mitchell R. Kreindler Sharon M. Gurak
KREINDLER & ASSOCIATES Counsel for Plaintiff/Relator
W. MYHRE, ROGER WENTHE Counsel for United States of America
STIPULATED MOTIONS FOR RELIEF FROM ORDER AND TO
STRIKE AND ORDER
R. HICKS, UNITED STATES DISTRICT JUDGE.
Cecilia Guardiola (“Relator”) and the United
States of America (the “United States”), by and
through their respective counsel, file this Stipulated
Motions for Relief from Order and to Strike pursuant to
Federal Rule of Civil Procedure 60, and the following
Memorandum of Points and Authorities.
OF POINTS AND AUTHORITIES
and the United States seek to proceed in this case pursuant
to the Second Amended Complaint (ECF No. 107) and to conduct
discovery for the purpose of resolving Relator's Motion
for a Share of the Alternate Remedy (ECF No. 179)
(“Relator's Share Motion”). However, a
mistake has occurred, which resulted in the clerk's
filing of the Third Amended Complaint, which has not been
signed by Relator's counsel. Relator seeks relief from
the Order granting the Motion for Leave to File the Third
Amended Complaint (ECF No. 214) (“Motion for
Leave”), which ordered the Clerk to file the Third
Amended Complaint. The Third Amended Complaint (ECF No. 215)
was not signed, Relator and the United States did not intend
for it to be filed at this point, and it should be stricken
as a fugitive document.
Brief Procedural Background.
and the United States wish to clear up the procedural
confusion in this case.
an agreement in principle for settlement of this underlying
qui tam case, Relator filed a Motion for
Relator's Share of Alternate Remedy, which this Court
denied because the United States was not a party. (ECF No.
190). Based upon that ruling, Relator filed a Motion for
Leave (ECF No. 191), seeking to add the United States as a
named defendant, so that she could pursue a relator's
share from the United States. In reliance upon the position
of the United States, this Court denied the Motion for Leave
on the basis of sovereign immunity. (ECF No. 197).
then appealed both orders to the Ninth Circuit Court of
Appeals. While the appeal was pending, the United States
notified the Court and Relator that is was reversing its
position, agreeing that the doctrine of sovereign immunity
did not bar Relator's Motion for Alternate Remedy. Before
the Court of Appeals, the government argued that “[the
district court correctly denied the motion for leave to amend
. . . . [because] the text of the FCA does not require that a
relator be able to bring suit against the government in order
to seek a share of a purported alternate remedy.”
Brief for Intervenor United States of America, No.
16-17205 (9th Cir.), Dkt 22-2 at 26. The government
maintained that “the nature of the underlying action
here makes the government's status as a defendant
improper, ” id., explaining:
Qui tam actions under the FCA are brought “for
the United States Government” and “in the name of
the Government.” 31 U.S.C. § 3730(b)(1). They
involve litigation of “the Government's damages
claim.” Stevens, 529 U.S. at 773. Congress
expressly gave the United States discretion to intervene in
FCA actions-a decision that requires consideration of the
costs and benefits of party status.”
Eisenstein, 556 U.S. at 933. Permitting a relator to
amend a qui tam complaint in the manner Guardiola
has proposed would eliminate the government's ability to
decline party status and instead make it a putative defendant
in the very action brought on its behalf. It has now been
decided that the United States does NOT have to be made a
party, and should not be party.
Id. at 26-27. In response, the Ninth Circuit
remanded the matter for the limited purpose of allowing this
Court to consider Relator's Federal Rule of Civil
Procedure 60 (b) motion. (ECF No. 207) Pursuant to the
remand, this Court vacated both prior orders, denying
Relator's Share Motion and Relator's Motion for Leave
(ECF No. 208).
this Court's order denying the Relator's Share Motion
is vacated and the United States has consented to the
jurisdiction of this Court for the purpose of adjudicating
Relator's claims for a share of the alternate remedy,
Relator and the United States agree there is no longer any
need to amend the complaint. In the Joint Motion for Entry of
Scheduling Order (ECF No. 213) (“Motion for Scheduling
Order”), Relator, with the United States'
concurrence, sought to withdraw the Motion for Leave (ECF No.
191). Relator recognizes it would have been ...