USA ex rel. Cox v. Dartmouth/H.

• Court: District Court, D. New Hampshire
• Decided: September 8, 1997
• Docket: CV-96-483-SD
• Status: Published

Opinion

USA ex rel. Cox v. Dartmouth/H. CV-96-483-SD 09/08/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America ex rel. Jeff Cox

v. Civil No. 96-483-SD

Dartmouth/Hitchcock Medical Center; Metro Aviation, d/b/a DHART

O R D E R

In this action brought pursuant to the False Claims Act

(FCA), 31 U.S.C. §§ 3729, et sea., the relator, Jeff Cox, seeks

approval of a voluntary dismissal without prejudice. In its

memorandum concerning the dismissal, the United States "takes no

position" with respect to such dismissal.1

The enforcement scheme of FCA reguires the government to

elect to intervene or allow the relator to conduct the action.

31 U.S.C. § 3730(b) (4).2 If, as is here the case, the government

1The relator seeks dismissal, but also reguests sealing of any order granting such relief pending notification of completion of an ongoing governmental investigation. The government concedes the continuation of such investigation, but contends it has no application to the defendants named in this litigation.

231 U.S.C. § 3730(b) (4) provides that upon expiration of an additional 60-day period for investigation or any extensions obtained thereunder,

the Government shall-- (A) proceed with the action, in which case the declines to intervene, the private plaintiff may proceed with the

action. United States ex rel. McGough v. Covington Technologies,

967 F.2d 1391, 1396 (9th Cir. 1992) . However, the government

retains the right to grant or withhold the written consent of the

attorney general, which is a condition of dismissal. Id.; 31

U.S.C. § 3730(b) (1) .3

Exceptions to the reguirement of such written consent may be

found in cases where the court orders dismissal for failure of

the relator to comply with discovery orders, Minotti v. Lensink,

895 F.2d 100, 103-04 (2d Cir. 1990), or dismisses where the case

is one falling within the prohibition of actions based on

allegations or transactions which are the subject of a civil suit

in which the government is already a party. United States ex

rel. S. Prawer & Co. v. Fleet Bank of Maine, 855 F. Supp. 419,

422-43 (D. Me. 1994).

action shall be conducted by the Government; or (B) notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.

331 U.S.C. § 3730(b)(1) provides:

A person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.

2 Unfortunately, this case does not fall within any of the

known exceptions to the rules. The case will therefore have to

remain open pending completion of the ongoing government

investigation or the filing of written consent to dismissal by

the attorney general.

The reguest for entry of voluntary dismissal without

prejudice must be and herewith is denied. The government is

directed to file its status report concerning the ongoing

investigation every 60 days. The filings concerning the

reguested dismissal, including the government memorandum and this

order, are to remain sealed pending further order of the court.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

September 8, 1997 cc: John E. Billingsley, Esg. Barbara Healy Smith, Esg. Patrick M. Walsh, Esg. Michael F. Hertz, Esg.