United States v. Arriva Medical, LLC

Opinion

United States District Court for the Southern District of Florida

United States ex rel. Troy ) Olhausen, Plaintiff, ) ) v. ) Civil Action No. 21-23916-Civ-Scola ) Arriva Medical, LLC, and others, ) Defendants. )

Order on Order to Show Cause On May 7, 2025, the Court dismissed Counts I and II with prejudice and ordered the parties to brief whether Count III should be dismissed with or without prejudice. (Order Granting Mot. to Dismiss, ECF No. 57.) Both parties responded. (See Pl.’s Resp., ECF No. 58; Defs.’ Resp., ECF No. 60.) The Plaintiff, Troy Olhausen, simultaneously filed a notice of voluntary dismissal of Count III pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). The Court has considered the briefing, the record, the relevant legal authorities, and is otherwise fully advised. For the reasons that follow, the Court dismisses Count III without prejudice. The Court directs the clerk to close this case. To start, the Court dismissed Count III due to the False Claims Act’s first-to-file rule. Typically, dismissals due to the False Claims Act’s first-to-file rule are without prejudice. See Cho on the behalf of the United States v. Surgery Partners, Inc., 30 F.4th 1035, 1045 (11th Cir. 2022). Moreover, Olhausen was allowed under Fed. R. Civ. P. 41(a)(1)(A)(i) to voluntarily dismiss Count III without prejudice. Under such circumstances, the Court finds it appropriate to dismiss Count III without prejudice. The Court understands that the procedural posture of this case, in conjunction with Olhausen I, is unique and complex. Its uniqueness and complexity, however, is of Olhausen’s own doing. Furthermore, the Court cautions Olhausen to give serious thought before he refiles Count III. Count III is the same claim as Count II in United States ex rel. Troy Olhausen, Case No. 1:19-cv-20190-RNS (S.D. Fla.) (“Olhausen I”). (See Order at 9.) On June 11, 2015, the Court granted the motion to dismiss in Olhausen I. (See Olhausen I, ECF No. 120.) The Court specifically dismissed Count II in Olhausen I with prejudice. (See id. at 14-15.) Therefore, Count III here—should it be refiled—is likely barred by res judicata and frivolous. However, the Court need not reach the issue of res judicata, as Count II has been voluntarily dismissed by Olhausen and is barred by the False Claims Act’s first-to-file rule.

Done and ordered in Miami, Florida, on June 18, 2025.

Robert N. Scola, Jr. United States District Judge