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3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA ______________________________________ 8 ) JUDY MIKOVITS, ) 9 ) Plaintiff, ) ) 3:15-cv-00409-RCJ-WGC 10 ) vs. ) 11 ) ORDER THE WHITTEMORE PETERSON ) 12 INSTITUTE, ) ) 13 Defendant. ) 14 Plaintiff alleges that Defendant submitted false claims to the United States and retaliated 15 against her for reporting this conduct. She raises one qui tam count under the Federal False Claims 16 Act (FFCA) as relator for the United States and another count for retaliation. Because the United 17 States shows a legitimate purpose rationally related to dismissal, the Court dismisses the qui tam 18 cause of action with prejudice as to the Plaintiff. Additionally, Plaintiff has failed to file proof of 19 service in violation of Federal Rule of Civil Procedure 4(m) and this Court’s Order (ECF No. 34), 20 so the Court dismisses the retaliation claim without prejudice and closes the case. 21 BACKGROUND 22 Plaintiff raised one claim under the FFCA based on Defendant allegedly submitting false 23 claims to the United States and one claim based on Defendant allegedly retaliating against her for 24 reporting this conduct. She alleged that Defendant submitted false claims to the United States, 1 based in part on Plaintiff’s research, to acquire federal grants. She further contends that she 2 informed the people in charge of the institution, but Defendant terminated her employment and 3 falsely accused her of theft resulting in government searches and imprisonment. The Court stayed 4 the case for Plaintiff to ask the United States to intervene in this action, but the Government 5 declined.1 6 Subsequently, the Court ordered the case unsealed and directed Plaintiff to file proof of 7 service. (ECF No. 28.) Plaintiff asked for a clarification of that order, specifically when the 8 deadline was to file service, since the Court did not explicitly provide one. (ECF No. 29.) The 9 Court stated that it intended the default deadline under Federal Rule of Civil Procedure 4(m), which 10 allows for ninety days. (ECF No. 30.) The service of that Order was returned undeliverable. (ECF 11 No. 31.) Then, the Government moved for dismissal and the Court issued a new Order directing 12 Plaintiff to file proof of service by November 25, 2019 and to respond to the Government motion.
13 (ECF No. 34.) There the Court noted that this was the “final opportunity” to provide proof of 14 service and threatened Plaintiff with dismissal for failure to comply. (Id. at 2:7–8.) Plaintiff 15 confirmed receipt of this Order (ECF No. 34) by responding to the Government’s motion, but she 16 still has not filed proof of service. (ECF No. 37.) 17 MOTION TO DISMISS 18 Turning first to the qui tam claim, the Court finds that the Government has a legitimate 19 purpose rationally related to dismissal. Thus, the Court dismisses this claim. 20 21
1 Plaintiff later filed a “Criminal Complaint” alleging that Defendant is criminally liable for the 22 same conduct. In a civil case, when a plaintiff files a new complaint “[t]he amended complaint supersedes the original, the latter being treated thereafter as non-existent.” Lacey v. Maricopa Cty., 23 693 F.3d 896, 925 (9th Cir. 2012) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). Plaintiff does not have authority to relate criminal cases, so, for the Plaintiff’s benefit, the Court will not 24 1 A. Legal Standard 2 The FFCA allows for the United States to move for dismissal of a qui tam case over the 3 objections of the relator if the court allows the relator to be heard on the motion. 28 U.S.C. 4 § 3730(c)(2)(A). A court conducts a burden-shifting analysis to determine if dismissal is proper 5 under Section 3730: first the Government must show “(1) identification of a valid government 6 purpose; and (2) a rational relation between dismissal and accomplishment of the purpose.” U.S. 7 ex rel., Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1998) 8 (quoting U.S. ex rel. Sequoia Orange Co. v. Sunland Packing House Co., 912 F. Supp. 1325, 1341 9 (E.D. Cal. 1995)). If the Government satisfies this burden, then the relator must show that the 10 dismissal would be “fraudulent, arbitrary and capricious, or illegal.” Id. 11 B. Analysis 12 The Government satisfied its initial burden. Plaintiff is pro se and has failed to file proof
13 of service in violation of the rules and the Court’s orders. Both of these facts independently merit 14 dismissal of the claim. See Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1127 (9th 15 Cir. 2007) (holding that a plaintiff cannot prosecute a qui tam action pro se); Yourish v. California 16 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (holding that a court may sua sponte dismiss a case 17 under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order). The 18 Government expresses concerns that allowing Plaintiff to proceed under these circumstances could 19 create a binding ruling against any meritorious claims that the Government may have. The Court 20 agrees—this is a legitimate government purpose rationally related to dismissal. 21 Plaintiff fails to meet her burden against dismissal. In her response, Plaintiff makes no 22 allegation that the dismissal would be fraudulent, arbitrary and capricious, or illegal, instead, she
23 makes two points that are irrelevant. First, Plaintiff complains that she did not initially receive 24 service of prior orders and the motion to dismiss. The Court noticed this problem and fixed it on 1 its own accord by ordering service to Plaintiff. This issue has no bearing on dismissal. Second, she 2 contends that she adequately pled the causes of action and that the Attorney’s General’s Office has
3 “mounds of evidence” to prove her claims. Again, this claim is not relevant. Accordingly, the 4 Court grants the Government’s motion. 5 When a court grants dismissal against a relator under 28 U.S.C. § 3730(c)(2)(A), the 6 appropriate procedure is to grant dismissal with prejudice as to the relator and dismissal without 7 prejudice as to the Government. See 28 U.S.C. § 3730(c)(1) (“[The Government] . . . shall not be 8 bound by an act of the person bringing the action.”). Accordingly, the Court dismisses the qui tam 9 claim with prejudice to the Plaintiff and without prejudice to Government. 10 FAILURE TO FILE PROOF OF SERVICE 11 Turning next to the retaliation claim, the Court dismisses this claim without prejudice for 12 failing to file proof of service in violation of Federal Rule of Civil Procedure 4(m) and the Court’s
13 Order (ECF No. 30). 14 A. Legal Standard 15 If a plaintiff fails to file proof of service after ninety days of filing a complaint, then a court 16 must dismiss his case without prejudice unless he can show good cause. Fed. R. Civ. P.
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3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA ______________________________________ 8 ) JUDY MIKOVITS, ) 9 ) Plaintiff, ) ) 3:15-cv-00409-RCJ-WGC 10 ) vs. ) 11 ) ORDER THE WHITTEMORE PETERSON ) 12 INSTITUTE, ) ) 13 Defendant. ) 14 Plaintiff alleges that Defendant submitted false claims to the United States and retaliated 15 against her for reporting this conduct. She raises one qui tam count under the Federal False Claims 16 Act (FFCA) as relator for the United States and another count for retaliation. Because the United 17 States shows a legitimate purpose rationally related to dismissal, the Court dismisses the qui tam 18 cause of action with prejudice as to the Plaintiff. Additionally, Plaintiff has failed to file proof of 19 service in violation of Federal Rule of Civil Procedure 4(m) and this Court’s Order (ECF No. 34), 20 so the Court dismisses the retaliation claim without prejudice and closes the case. 21 BACKGROUND 22 Plaintiff raised one claim under the FFCA based on Defendant allegedly submitting false 23 claims to the United States and one claim based on Defendant allegedly retaliating against her for 24 reporting this conduct. She alleged that Defendant submitted false claims to the United States, 1 based in part on Plaintiff’s research, to acquire federal grants. She further contends that she 2 informed the people in charge of the institution, but Defendant terminated her employment and 3 falsely accused her of theft resulting in government searches and imprisonment. The Court stayed 4 the case for Plaintiff to ask the United States to intervene in this action, but the Government 5 declined.1 6 Subsequently, the Court ordered the case unsealed and directed Plaintiff to file proof of 7 service. (ECF No. 28.) Plaintiff asked for a clarification of that order, specifically when the 8 deadline was to file service, since the Court did not explicitly provide one. (ECF No. 29.) The 9 Court stated that it intended the default deadline under Federal Rule of Civil Procedure 4(m), which 10 allows for ninety days. (ECF No. 30.) The service of that Order was returned undeliverable. (ECF 11 No. 31.) Then, the Government moved for dismissal and the Court issued a new Order directing 12 Plaintiff to file proof of service by November 25, 2019 and to respond to the Government motion.
13 (ECF No. 34.) There the Court noted that this was the “final opportunity” to provide proof of 14 service and threatened Plaintiff with dismissal for failure to comply. (Id. at 2:7–8.) Plaintiff 15 confirmed receipt of this Order (ECF No. 34) by responding to the Government’s motion, but she 16 still has not filed proof of service. (ECF No. 37.) 17 MOTION TO DISMISS 18 Turning first to the qui tam claim, the Court finds that the Government has a legitimate 19 purpose rationally related to dismissal. Thus, the Court dismisses this claim. 20 21
1 Plaintiff later filed a “Criminal Complaint” alleging that Defendant is criminally liable for the 22 same conduct. In a civil case, when a plaintiff files a new complaint “[t]he amended complaint supersedes the original, the latter being treated thereafter as non-existent.” Lacey v. Maricopa Cty., 23 693 F.3d 896, 925 (9th Cir. 2012) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)). Plaintiff does not have authority to relate criminal cases, so, for the Plaintiff’s benefit, the Court will not 24 1 A. Legal Standard 2 The FFCA allows for the United States to move for dismissal of a qui tam case over the 3 objections of the relator if the court allows the relator to be heard on the motion. 28 U.S.C. 4 § 3730(c)(2)(A). A court conducts a burden-shifting analysis to determine if dismissal is proper 5 under Section 3730: first the Government must show “(1) identification of a valid government 6 purpose; and (2) a rational relation between dismissal and accomplishment of the purpose.” U.S. 7 ex rel., Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1998) 8 (quoting U.S. ex rel. Sequoia Orange Co. v. Sunland Packing House Co., 912 F. Supp. 1325, 1341 9 (E.D. Cal. 1995)). If the Government satisfies this burden, then the relator must show that the 10 dismissal would be “fraudulent, arbitrary and capricious, or illegal.” Id. 11 B. Analysis 12 The Government satisfied its initial burden. Plaintiff is pro se and has failed to file proof
13 of service in violation of the rules and the Court’s orders. Both of these facts independently merit 14 dismissal of the claim. See Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1127 (9th 15 Cir. 2007) (holding that a plaintiff cannot prosecute a qui tam action pro se); Yourish v. California 16 Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (holding that a court may sua sponte dismiss a case 17 under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order). The 18 Government expresses concerns that allowing Plaintiff to proceed under these circumstances could 19 create a binding ruling against any meritorious claims that the Government may have. The Court 20 agrees—this is a legitimate government purpose rationally related to dismissal. 21 Plaintiff fails to meet her burden against dismissal. In her response, Plaintiff makes no 22 allegation that the dismissal would be fraudulent, arbitrary and capricious, or illegal, instead, she
23 makes two points that are irrelevant. First, Plaintiff complains that she did not initially receive 24 service of prior orders and the motion to dismiss. The Court noticed this problem and fixed it on 1 its own accord by ordering service to Plaintiff. This issue has no bearing on dismissal. Second, she 2 contends that she adequately pled the causes of action and that the Attorney’s General’s Office has
3 “mounds of evidence” to prove her claims. Again, this claim is not relevant. Accordingly, the 4 Court grants the Government’s motion. 5 When a court grants dismissal against a relator under 28 U.S.C. § 3730(c)(2)(A), the 6 appropriate procedure is to grant dismissal with prejudice as to the relator and dismissal without 7 prejudice as to the Government. See 28 U.S.C. § 3730(c)(1) (“[The Government] . . . shall not be 8 bound by an act of the person bringing the action.”). Accordingly, the Court dismisses the qui tam 9 claim with prejudice to the Plaintiff and without prejudice to Government. 10 FAILURE TO FILE PROOF OF SERVICE 11 Turning next to the retaliation claim, the Court dismisses this claim without prejudice for 12 failing to file proof of service in violation of Federal Rule of Civil Procedure 4(m) and the Court’s
13 Order (ECF No. 30). 14 A. Legal Standard 15 If a plaintiff fails to file proof of service after ninety days of filing a complaint, then a court 16 must dismiss his case without prejudice unless he can show good cause. Fed. R. Civ. P. 4(m). A 17 court analyzing good cause looks to whether the defendant had actual knowledge and whether 18 either party would suffer prejudice. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). 19 B. Analysis 20 In August 2018, the Court ordered Plaintiff to serve Defendant. (ECF No. 28.) Plaintiff 21 confirmed receipt of this order by requesting clarification of it the following October. (ECF No. 22 29.) A year later, the Court ordered Plaintiff to file proof of service by November 25 and respond
23 to the Government’s motion or face dismissal of the case. Plaintiff confirmed receipt of this order 24 /// 1 || by responding to the Government’s motion. (ECF No. 37.) In spite of these orders, Plaintiff has 2 || never filed proof of service. Thus, dismissal is proper unless Plaintiff demonstrates good cause. 3 Plaintiff has not filed anything in response to the Court’s latest mandate for service. 4 || Therefore, she has not shown how the factors would favor a finding of good cause. There is nothing 5 || in the record to suggest that Defendant is aware of this case or that dismissal would prejudice 6 || Defendant. Plaintiff does not argue that dismissal would severely prejudice her; however, since 7 || the case arises from events that occurred before this case started in 2014 her claims may be time- 8 || barred. Nonetheless, Plaintiff has failed to meet her burden for good cause. The Court dismisses 9 || her claim for retaliation and closed the case. 10 CONCLUSION ll IT IS HEREBY ORDERED that Motion to Dismiss (ECF No. 33) is GRANTED. 12 IT IS FURTHER ORDERED that the gui tam claim brought on behalf of the United States 13 || is DISMISSED WITH PREJUDICE as to Plaintiff and DISMISSED WITHOUT PREJUDICE as 14 || to the United States. 15 IT IS FURTHER ORDERED that the claim for retaliation is DISMISSED WITHOUT 16 || PREJUDICE. 17 IT IS FURTHER ORDERED that the Clerk of the Court shall close this case. 18 IT IS SO ORDERED. 19 |} Dated March 2, 2020. 20 Eee ROBER#ATC. JONES 21 United sug District Judge 22 23 24
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