United States District Court, D. Massachusetts
UNITED STATES OF AMERICA, ex rel. FRIEDRICH LU, Plaintiff,
MARIELENA GAMBOA-RUIZ and TRUSTEES of TUFTS COLLEGE, Defendants.
MEMORANDUM AND ORDER
Talwani, United States District Judge.
the court are the Motion to Dismiss Plaintiff's
Complaint [#26] by Defendant Trustees of Tufts College
(“Trustees”) and the Motion to Dismiss
Plaintiff's Complaint [#33] by Defendant Marielena
Dismissal Pursuant to Fed.R.Civ.P. 41(b)
move to dismiss Plaintiff Friedrich Lu's complaint under
Fed.R.Civ.P. 41(b). Under Fed.R.Civ.P. 41(b), “[i]f the
plaintiff fails . . . to comply with . . . a court order, a
defendant may move to dismiss [an] action or any claim
against it.” Defendants point to a 2002 order requiring
Lu to “attach to any pleading, motion, complaint, or
other document that he files in the United States District
Court for the District of Massachusetts: (1) a copy of this
Order, and (2) a certification, signed under the pains and
penalties of perjury, that he has complied in good faith with
this Order” (“March 2002 Order”).
Memorandum and Order at 17, Lu v. Harvard University et
al., No. 00-cv-11492-MLW (D. Mass. Mar. 29, 2002) (Wolf,
J.), Dkt. 49. Lu does not dispute that he did not comply, but
contends that the March 2002 Order “has nothing to do
with this case” because Tufts was not a party in the
proceedings before Judge Wolf. Opp. Mot. Dismiss [#29] at 2.
the Defendants were not parties to the 2002 case is of no
consequence. As Judge Wolf explained in 2002, the parties Lu
sues “must incur the costs associated with responding
to Lu's allegations each time he files a new case.
Lu's complaints have also significantly burdened the
state and federal court systems and their limited
resources.” Lu, No. 00-cv-11492-MLW, Dkt. 49
at 15. These concerns are heightened here. Defendant Trustees
pointed out Lu's failure to comply with Judge Wolf's
order in a prior qui tam action Lu brought against
Trustees. See Mem. In Support of Mot. Dismiss at 8,
Lu v. Samra et al., No. 17-cv-10119-IT (D. Mass.
Nov. 6, 2017) (Talwani, J.), Dkt. 31. The court nonetheless
considered Lu's claim and carefully explained why Lu
could not bring a qui tam action without counsel.
Lu v. Samra et al., No. 17-cv-10119-IT, 2018 WL
283891, at *1 (D. Mass. Jan. 3, 2018), on appeal, U.S. ex
rel. Lu v. Samra, No. 18-1213 (1st Cir.). Undeterred,
and without regard to the court's prior rulings or the
burden imposed on the parties he sues or on the court, Lu
again seeks to bring a qui tam action, without
counsel, against Trustees.
been warned repeatedly that failure to comply with the March
2002 order could result in sanctions, including dismissal.
See e.g. Lu v. Menino, 98 F.Supp.3d 85, 109 (D.
Mass. 2015) (warning Lu that “[i]n the event plaintiff
continues to violate the March  Order by filing a
complaint in this district without attaching the March 
Order and without complying with the certification
requirement, he is advised that such conduct may result in a
sanction, including a monetary sanction or a stricter bar to
filing cases in this district.”); Lu v. Niles,
16-cv-12220-FDS, 2017 WL 3027251, at *2 (D. Mass. July 17,
2017) (stating that “[i]n light of Lu's continued
recalcitrance in the face of multiple warnings, defendant
would have a strong argument that the ‘harsh
sanction' of dismissal under Rule 41(b) should be imposed
in this case” citing Malot v. Dorado Beach Cottages
Assocs., 478 F.3d 40, 44 (1st Cir. 2007).
where Plaintiff not only has disregarded the March 2002
Order, but affirmatively asserts that the order “has
nothing to do with this case, ” and where he seeks to
relitigate issues Defendant Trustees have previously been
forced to defend against, the court finds that dismissal for
failure to comply with the March 2002 Order is an appropriate
sanction. Accordingly, the court grants Defendants'
motion to dismiss pursuant to Rule 41(b).
Dismissal Pursuant to Federal Rule of Civil Procedure
dismissal is appropriate under Rule 41(b), in light of
“concerns of justice, including the strong presumption
in favor of deciding cases on the merits, ”
Malot, 478 F.3d at 43, the court considers in the
alternative whether Plaintiff's complaint could withstand
scrutiny under Rule 12(b)(6).
The Allegations in the Complaint
alleges that in 2014, he became a patient of Dr. Gamboa-Ruiz
of Tufts Dental Associates (“Tufts Dental”).
Compl. ¶ 3. Lu alleges that Gamboa-Ruiz
“decided” that he needed root canal, and Lu
prepaid for the procedure, which was to occur on a different
date. Id. On the date of the scheduled procedure,
however, Gamboa-Ruiz allegedly “removed the amalgam
filling, made a diagnosis of hairline fracture, and refused
to proceed [. . .].” Id. The complaint alleges
that Lu “plead[ed] with Gamboa-Ruiz to complete the
root canal, but she instead filled the crown with a stopgap
[. . .] and went on weeks-long vacation.” Id.
Lu claims that in the intervening time, he returned to Tufts
Dental several times to tell the staff that he needed a root
canal, and asking to see a dentist. Id. Lu alleges
that Gamboa-Ruiz did not reply to the notes he left, and
would not refund any money for the procedure. Id. at
4. Lu wrote demand letters to Tufts Dental and to
Gamboa-Ruiz, to which he received no reply. Id.
Finally, Lu received a check from the Trustees in the amount
of half his deposit. Id. at 5. Lu alleges that he
later learned that his tooth was fractured in halves, that
Tufts Dental was a “front” for Defendant
Trustees, and that although Gamboa-Ruiz was not allowed to
practice independently, she saw patients paid by Medicaid and
Medicare at Tufts College, but not at Tufts Dental.
Id. at 6.
Qui Tam Claim
of the complaint, brought on behalf of the United States,
alleges a violation of the False Claims Act, 31 U.S.C. §
3729, et seq. Trustees and Gamboa-Ruiz move to
dismiss this count because plaintiff is proceeding pro
se. A pro se plaintiff cannot bring a
qui tam action under First Circuit law. 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 ...