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Elliott-Lewis v. Abbott Laboratories, Inc.

United States District Court, D. Massachusetts

May 5, 2017

EBONIA ELLIOTT-LEWIS, et al., Plaintiff/Relator,



         Currently 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.

         I. Background

         On 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.

         On 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].

         On May 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].

         This 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 [#61-1].

         II. Analysis

         A. Relator's Motion May Be Considered Under Fed.R.Civ.P. Rule 15(a)

         Abbott 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 [#65].

         As the 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 judgment.

         Relator 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).

         B. Compliance with Rule 8

         Abbott 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 8.[1]

         C. The Requirements of Rule 15(a)

         Generally, 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 ...

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