United States District Court, D. Massachusetts
UNITED STATES OF AMERICA, et al., ex rel. MICHAEL BAWDUNIAK, Plaintiffs,
BIOGEN IDEC, INC., Defendant.
MEMORANDUM & ORDER
Talwani, United States District Judge
the court is Relator Michael Bawduniak's Motion for
Leave to File an Amended Complaint or, Alternatively, for
Court to revise its Order Dismissing State False Claims Act
Counts [#197]. For the following reasons, Relator's
motion is DENIED.
states that he has received Medicaid claims data from two
states, Michigan and Washington, and believes that he will
receive responses from thirteen other states and the District
of Columbia showing comparable claims data. Relator's
Mot. for Leave ¶¶ 2-3. Under Fed.R.Civ.P. 15(a)(2),
a party may amend a pleading “with the court's
leave.” “‘[U]ndue delay in moving to amend,
even standing alone,' can provide a court with adequate
grounds to deny leave.” Kader v. Sarepta
Therapeutics, Inc., 887 F.3d 48, 61 (1st Cir. 2018)
(quoting Zullo v. Lombardo (In re Lombardo), 755
F.3d 1, 3 (1st Cir. 2014)). Here, the court finds that
Relator acted with undue delay.
Motion to Dismiss pursuant to Rule 8, 9(b), and
12(b)(6) [#139] was filed in July 2016. Defendant argued
in connection with that motion that Relator's Third
Amended Complaint [#132] “fails to allege any
facts connection Biogen's purported conduct to 17 of the
States on whose behalf Relators seek to assert claims, and
thus fails to plausibly allege violations of those
States' false claims acts.” Def. Mem. 18
[#140]. The court agreed and dismissed claims
under the laws of 17 states and the District of Columbia.
Mem. & Order [#179]. Despite being alerted to this issue
in July 2016, Relator apparently made no efforts to obtain
this information, reporting instead that his counsel has been
in contact with the states since the court issued the April
2018 Memorandum and Order [#179]. See
Relator's Mem. 6 [#198]. While Relator may have hoped
that the court would overlook this ground for dismissal in
Defendant's motion, and that he could obtain the missing
information through discovery, he proceeded with that tactic
at his own peril, particularly where this qui tam
case had already been unsealed for a full year at the time
Defendant flagged the issue. The undue delay warrants denial
of Relator's leave to amend.
argues that “[i]n the absence of prejudice to the
non-moving party, ‘courts may not deny an amendment
solely because of delay.'” Relator's Mem. 9
[#198], quoting Hayes v. New Eng. Millwork Distribs.,
Inc., 602 F.2d 15, 19 (1st Cir. 1979). But, as
Hayes itself states in the same sentence that
Relator only partially quotes, “it is clear that
‘undue delay' can be a basis for denial.” 602
F.2d at 19. Here, the delay at issue is undue, regardless of
the question of prejudice.
attempting to show the absence of any prejudice to Biogen,
Relator underscores a further reason as to why Relator should
not be excused for his lack of diligence in seeking this
data. Relator argues that adding the state False Claims Act
claims would not affect Defendant's liability for actual
damages, but will only affect the amount that Relator can
recover in fees. See Relator's Mem. 4 [#198].
The qui tam provisions were set up during the Civil
War to “provide cash bounties in certain circumstances
to private citizens who successfully bring suit against those
who defraud the federal government” in order to
“set up incentives to supplement government
enforcement.” United States ex rel. Springfield
Terminal Ry. Co. v. Quinn, 14 F.3d 645, 649 (D.C. Cir.
1994); see also United States ex rel. Duxbury v. Ortho
Biotech Products, L.P., 579 F.3d 13, 16 (1st Cir. 2009)
(“The FCA contains qui tam provisions that
‘supplement federal law enforcement resources by
encouraging private citizens to uncover fraud on the
government.'” (quoting United States ex rel.
Rost v. Pfizer, Inc., 507 F.3d 720, 727 (1st Cir. 2007),
overruled on other grounds by Allison Engine Co. v.
United States ex rel. Sanders, 553 U.S. 662 (2008))).
While the public policy behind the FCA statutes and similar
state statutes is to reward private parties who assist the
government in combatting false claims, no public policy is
served by excusing Relator's inaction in seeking such
data and further delaying this action through another round
of amended pleadings, just so that Relator may be able to
obtain an additional bounty with no benefit to the
requests in the alternative that the court reconsider the
April 2018 Order [#179]. An interlocutory order may be
reconsidered by a court in limited circumstances. Relator
contends that reconsideration is warranted because the First
Circuit's decision in United States ex rel. Nargol v.
DePuy Orthopaedics, Inc., 865 F.3d 29, 42 (1st Cir.
2017) was decided “[s]ubsequent to the briefing on the
motions to dismiss” and “establishes that the
showing the Relator made in the [Third Amended Complaint] and
its exhibits adequately pled claims under the Dismissed
States' [False Claims Act] statutes.” Relator's
Mem. 2, 15 [#198].
misframes the record in this case. Nargol was not
only decided eight months before the hearing on
Defendant's Motion to Dismiss Relator's Third
Amended Complaint [#139], see [#175], but was
raised by Relator at the hearing before this court. The court
then allowed the parties to submit supplemental briefings
about the impact of Nargol on this case, which both
parties submitted. See [## 177, 178]. The court
considered Nargol, the parties' arguments, and
the supplemental briefings prior to issuing its April 2018
Order [#179]. Relator's reliance here on the issuance of
Nargol after initial briefing is misplaced. Further,
Relator has not presented a persuasive argument as to why the
court's reasoning in its April 2018 Order [#179] was
reasons set forth above, Relator's Motion for Leave
to File an Amended Complaint or, Alternatively, for Court to
revise its Order Dismissing State False Claims Act
Counts [#197] is DENIED.
 Defendant argued further that claims
under two states laws failed for other reasons under those