After Carter, some courts, including the court to which Carter was remanded, have held that dismissal without prejudice is the proper procedural outcome.See, e.g., United States ex rel. Palmieri v. Alpharma, Inc., 2016 WL 7324629, at *11-12 (D. Md. Dec. 16, 2016) (reversing its earlier decision in United States ex rel. Palmieri v. Alpharma, Inc., 928 F. Supp. 2d 840 (D. Md. 2013)); United States ex rel. Carter v. Halliburton Co., 144 F. Supp. 3d 869, 880 (E.D. Va. 2015), modified in part, 315 F.R.D. 56 (E.D. Va. 2016); United States ex rel. Soodavar v. Unisys Corp., 2016 WL 1367163, at *7 (E.D. Va. Apr. 5, 2016); United States ex rel. Shea v. Verizon Commc'ns, Inc., 160 F. Supp. 3d 16, 30 (D.D.C. 2015). These courts have noted that the "first-to-file bar prohibits bringing a 'related action,' not a related complaint."
Thus, assuming for the sake of argument that Gadbois was correctly decided, it provides Carter no support.But see United States v. Medco Health Solutions, Inc., No. 11-684-RGA, 2017 WL 63006, at *12 (D. Del. Jan. 5, 2017) (arguing that Gadbois "failed to ‘give sufficient weight to the plain language’ of the first-to-file bar") (quoting Carter VI, 315 F.R.D. at 60 ); United States ex rel. Soodavar v. Unisys Corp., 178 F.Supp.3d 358, 373–74 (E.D. Va. 2016) (arguing that Gadbois conflicts with the first-to-file rule's purpose of foreclosing duplicative qui tam actions).--------
Id. (quoting Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007); United States v. Unisys Corp., 178 F.Supp.3d 358, 363, n.2 (E.D.Va. 2016)). “[A] court may properly take judicial notice of matters of public record and other information that, under Federal Rule of Evidence 201, constitute adjudicative facts.” Id. (quoting Taylor v. Go- Getters, Inc., No. 20-cv-3624-ELH, 2022 WL 1127902, at *7 (D.Md. Apr. 15, 2022)).
In addition to considering a complaint when ruling on a Rule 12(b)(6) motion to dismiss, a court may consider "matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); United States v. Unisys Corp., 178 F. Supp. 3d 358, 363, n. 2 (E.D. Va. 2016). "[A] court may properly take judicial notice of matters of public record and other information that, under Federal Rule of Evidence 201, constitute adjudicative facts."
In addition to considering the Complaint when ruling on a Rule 12(b)(6) motion to dismiss, a court may consider “matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd, 551 U.S. 308, 322 (2007); United States v. Unisys Corp., 178 F.Supp.3d 358, n. 2 (E.D. Va. 2016). Both parties rely upon the settlement agreement between Dr. Buck and DHS, and both rely upon the DHS press release pertaining to that settlement.
Finally, the Court agrees with the holding of the one case presented in the parties’ briefs that actually turned on this issue, which held that "a focus on the theory of fraud is inconsistent with the statutory language ... which expressly focuses on ‘the facts.’ " U.S. v. Unisys Corp. , 178 F. Supp. 3d 358, 369 (E.D. Va. 2016) (The relator's "argument, which is based on the distinction between the type of fraud alleged, is unpersuasive.") (emphasis in original).
However, the question the Court must answer is not whether relator Kennedy alleged the specific legal theory that the government ultimately found persuasive, but whether relator Kennedy's allegations sufficed to equip the government to investigate the fraudulent scheme alleged in the Settlement Agreement. See United States v. Unisys Corp., 178 F. Supp. 3d 358, 369 (E.D. Va. 2016) (recognizing in the first-to-file bar context that "the focus must be on the commonality of the facts" and not the "legal theory" of the fraud).
However, the question the Court must answer is not whether relator Kennedy alleged the specific legal theory that the government ultimately found persuasive, but whether relator Kennedy's allegations sufficed to equip the government to investigate the fraudulent scheme alleged in the Settlement Agreement. See United States v. Unisys Corp., 178 F. Supp. 3d 358, 369 (E.D. Va. 2016) (recognizing in the first-to-file bar context that "the focus must be on the commonality of the facts" and not the "legal theory" of the fraud).
Williams v. Wilson, 762 F.2d 357, 359 (4th Cir. 1985) (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971) ). Like all exhaustion requirements, this rule helps to avoid "premature interruption of the administrative process," McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), and allows "interested parties [to] obtain notice of the claims and have the potential to resolve disputes more quickly and inexpensively than may typically be accomplished through litigation," United States v. Unisys Corp., 178 F.Supp.3d 358, 374 (E.D. Va. 2016) (citing Sydnor v. Fairfax County, 681 F.3d 591, 593 (4th Cir. 2012) ). Plaintiffs respond by arguing that they are not required to pursue any additional administrative remedies, that an appeal to the AFBCMR would be futile, and that the burdens of requiring further exhaustion here would far outweigh the benefits.