United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
pending before the court is Relator Ebonia
Elliott-Lewis's Motion to Amend & File Her First
Amended Complaint (“Motion for Leave to
Amend”) [#61]. For the reasons set forth below, that
motion is GRANTED with respect to Counts 3 and 4, and DENIED
with respect to Counts 1 and 2.
March 28, 2016, the court granted Defendant Abbott
Laboratories, Inc.'s (“Abbott”) Motion to
Dismiss [#14], finding that Relator's
Complaint [#1] failed to adequately allege that
Abbott violated the False Claims Act (“FCA”), 31
U.S.C. § 3729, the Anti-Kickback Statute, 42 U.S.C.
§ 1320a-7b, or the retaliation provisions of the False
Claims Act, 42 U.S.C. § 3730(h). Mem. & Order [#44].
Seventeen days later, the court issued an Order of
Dismissal [#49] closing the case.
April 26, 2016, Relator filed a Notice of Appeal
[#50], and the next day, filed a Motion for Relief from
Judgment Pursuant to Federal R. Civ. Proc. Rule 60(b)(6)
(“Motion for Relief from Judgment”) [#53].
23, 2016, after this court stated that it was inclined to
allow the motion for relief from judgment if the case was
remanded, Mem. [#56], the First Circuit returned the case to
allow this court to adjudicate Relator's motions, Order
of Court [#59].
court subsequently allowed the Motion for Relief from
Judgment [#53], but denied the Motion to Amend
Complaint [#54] without prejudice. Mem. & Order
[#60]. The court noted that the Motion to Amend
Complaint [#54] was not presented to Abbott prior to
filing as required by the local rules, and that the proposed
amended complaint was not a short and plain statement as
required under Rule 8 of the Federal Rules of Civil
Procedure. Mem. & Order [#60]. Relator thereafter filed
the currently pending Motion to Amend [#61] which
attached a revised proposed First Amended Complaint
Relator's Motion May Be Considered Under Fed.R.Civ.P.
argues that Relator's Motion for Leave to Amend
[#61] falls outside of the scope of Fed. Rule Civ. P.
15(a)'s permissive amendment policy because Relator
originally requested leave to amend only in a footnote in her
opposition to the motion to dismiss, and because a ruling on
the motion to dismiss has already issued. Def.'s
Opp'n Relator's Mot. Leave Am. (“Def.'s
Opp'n”) 4, 5 n.1 [#65]. Citing Fisher v.
Kadant, Inc., 589 F.3d 505, 510 (1st Cir. 2009), Abbott
argues that Relator is not entitled to “test the mettle
of successive complaints, ” and may not file a motion
to amend after dismissal was granted. Def.'s Opp'n 4
Fisher court noted, however, the context within
which the court addresses a request for leave to amend is
important. While the district court in Fisher had no
authority to consider a motion to amend under Rule 15(a)
filed after judgment had entered, the court only lacked such
authority “until the judgment is set aside.”
Fisher, 589 F.3d at 508; Acevedo-Villalobos v.
Hernandez, 22 F.3d 384, 389 (1st Cir. 1994)
(“Unless postjudgment relief is granted, the district
court lacks power to grant a motion to amend the complaint
under Rule 15(a).”). Here, the court has set aside the
had requested leave to amend in the opposition to the motion
to dismiss and had reiterated that request during oral
argument, and the court had indicated that such a motion
could be filed after the court issued its order on the motion
to dismiss. While Relator failed to file a motion for leave
to amend before the case was closed, there was no date set by
the court for Relator to file such a motion. Relator's
counsel has explained that he failed to file a motion to
amend the complaint in a timely fashion because he had not
had the opportunity to speak with defense counsel and present
a proposed amended complaint to defense counsel prior to
final judgment being entered. Thus, given the totality of
circumstances, the court reviews Relator's request for
leave to amend pursuant to the standards governed by Rule
15(a). See United States ex rel. D'Agostino v. EV3,
Inc., 802 F.3d 188, 195 (1st Cir. 2015) (leave can be
granted even where party requested such leave after a motion
to dismiss has been fully briefed); United States ex rel.
Rost v. Pfizer, Inc., 507 F.3d 720, 734 (1st Cir. 2007),
abrogated on other grounds by Allison Engine Co., Inc. v.
United States ex rel. Sanders, 553 U.S. 662 (2008).
Compliance with Rule 8
argues that the Motion for Leave to Amend [#61]
should be denied because Relator has failed to comply with
Rule 8's “short and plain” pleading
standards. Def.'s Opp'n 6-9 [#65]. Although
Relator's First Amended Complaint is ninety-one pages,
wordiness alone would not warrant dismissal. “Dismissal
[for noncompliance with Rule 8] is usually reserved for those
cases in which the complaint is so confused, ambiguous,
vague, or otherwise unintelligible that its true substance,
if any, is well disguised.” Sayied v. White,
89 F. App'x 284 (1st Cir. Mar. 12, 2004) (unpublished)
(per curiam) (quoting Salahuddin v. Cuomo, 861 F.2d
40, 42 (2d Cir. 1988)). The complaint, while unwieldy, is not
so unintelligible as to warrant dismissal based on Rule
The Requirements of Rule 15(a)
Rule 15(a) provides that leave to amend shall be
“freely given when justice so requires, ” and
reflects a “liberal amendment policy.”
O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152,
154 (1st Cir. 2004) (citing Fed.R.Civ.P. 15(a)) (internal
quotation marks omitted). Grounds for denial include undue
delay, bad faith, dilatory motive, repeated failure to cure
deficiencies, futility of amendment, and undue prejudice to
the opposing party. Foman v. Davis, 371 U.S. 178,
182 (1962). Relator has not filed multiple amendments, there
has been no discovery, no scheduling order has issued, and