United States District Court, D. Massachusetts
FRIEDRICH LU and UNITED STATES ex rel. FRIEDRICH LU, Plaintiffs,
RAMAN SAMRA, TRUSTEES OF BOSTON UNIVERSITY, and TRUSTEES OF TUFTS COLLEGE, Defendants.
MEMORANDUM & ORDER
Talwani United States District Judge
the court are the Motion to Dismiss Plaintiff's
Complaint Pursuant to Fed.R.Civ.P. 12(b)(6), 9(b), and
41(b) [#30] by Defendant Trustees of Tufts College
(“Tufts”); the Motion to Dismiss the
Complaint [#39] by Defendants Raman Samra and Trustees
of Boston University (“BU”) (together, the
“BU Defendants”); and Plaintiff Friedrich
Lu's Motion to File Footnote [#42], Notice
of a Fifth Circuit Case [#43], and Motion to Be
Heard on Fifth Circuit Decision [#45]. The latter three
filings are ALLOWED in part and DENIED in part, in that the
court has reviewed and considered each of the three filings
and no further argument is needed. For the reasons set forth
below, Tufts' motion is GRANTED, the BU Defendants'
motion is GRANTED as to the qui tam claim and is
otherwise taken under advisement, and the parties will be
permitted limited briefing as to the court's subject
matter jurisdiction over the remaining state claims against
the BU Defendants.
Qui Tam Claim
of the complaint, brought on behalf of the United States,
claims a violation of the False Claims Act, 31 U.S.C. §
3729, et seq. Tufts and the BU Defendants move to
dismiss this count because Plaintiff is proceeding pro
se. In the First Circuit, a pro se plaintiff
cannot bring a qui tam action. Nasuti v. Savage
Farms Inc., No. 14-1362, 2015 WL 9598315, at *1 (1st
Cir. Mar. 12, 2015). The rationale for this rule is that a
relator in a False Claims Act action brings suit on behalf of
the government, and pro se litigants may not bring
suit on behalf of others. Nasuti ex rel. U.S. v. Savage
Farms, Inc., No. 12-cv-30121-GAO, 2014 WL 1327015, at *7
(D. Mass. Mar. 27, 2014), aff'd, 2015 WL
9598315. This prohibition is consistent with the restrictions
placed on pro se litigants in qui tam
actions in many other circuits. See, e.g.,
United States ex rel. Brooks v. Ormsby, 869 F.3d
356, 357 (5th Cir. 2017); Gunn v. Credit Suisse Grp.
AG, 610 Fed. App'x 155, 157 (3d Cir. Apr. 21, 2015)
(collecting cases from Second, Fourth, Seventh, Eighth,
Ninth, Eleventh, and D.C. Circuits).
accordance with 31 U.S.C. § 3730(b)(1) and the
government's request in its Notice of Election to Decline
Intervention, see Order [#22], the court requested a
response from the United States. Elec. Order [#34]. The
United States responded that it supports dismissal of the
complaint “because ‘a pro se plaintiff cannot
bring this action' under the False Claims Act.”
United States' Response to Def. Trustees of Tufts College
Mot. Dismiss 1 [#37] (quoting Nasuti, 2015 WL
9598315, at *1).
on this prohibition on representation of the government by
pro se litigants, and with the consent of the
government, Count 1 of the Complaint [#1] against
all Defendants is DISMISSED.
Subject Matter Jurisdiction
courts are courts of limited jurisdiction, ' possessing
‘only that power authorized by Constitution and
statute.'” Gunn v. Minton, 568 U.S. 251,
256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)). Here, the court had
original jurisdiction pursuant to 28 U.S.C. § 1331 based
on the qui tam claim, and supplemental jurisdiction
pursuant to 28 U.S.C. § 1367(a) over the state law
claims. Now that the court is dismissing the sole count
supporting original jurisdiction, however, the court
“must reassess its jurisdiction, ” Camelio v.
Am. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998), and
may decline to exercise supplemental jurisdiction over the
state law claims, 28 U.S.C. § 1367(c)(3).
courts must weigh several factors when deciding whether to
exercise jurisdiction over pendent state law claims: assuming
jurisdiction might promote ‘judicial economy' and
‘convenience, ' but declining jurisdiction might
promote ‘comity' or afford the parties a
‘surer-footed reading of applicable law' from state
courts.” Eves v. LePage, 842 F.3d 133, 146
(1st Cir. 2016) (quoting United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966)). “[I]n the usual
case in which all federal-law claims are eliminated before
trial, the balance of factors [from Gibbs] will
point toward declining to exercise jurisdiction over the
remaining state-law claims.” Rivera-Díaz v.
Humana Ins. of P.R., Inc., 748 F.3d 387, 392 (1st Cir.
2014) (quoting Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 n.7 (1988)) (internal quotation marks omitted).
Plaintiff and the BU Defendants have not had an opportunity
to address this issue, the court will allow briefing as to
jurisdiction as set forth below, prior to ruling on the
Plaintiff Friedrich Lu's Motion to File Footnote
[#42], Notice of a Fifth Circuit Case [#43], and
Motion to Be Heard on Fifth Circuit Decision [#45]
are ALLOWED in part and DENIED in part, in that the court has
reviewed and considered each filing and no further argument
Tufts' Motion to Dismiss Plaintiff's Complaint
Pursuant to Fed.R.Civ.P. 12(b)(6), ...