Opinion
CASE NO. 8:13-cv-206-T-23JSS
08-27-2015
UNITED STATES OF AMERICA and STATE OF FLORIDA, ex rel. MICHAEL E. MONTEJO, M.D., Plaintiffs, v. ADVENTIST HEALTH SYSTEM SUNBELT HEALTHCARE CORP, et al., Defendants.
ORDER
A July 27, 2015 order (Doc. 73) denies the United States' motion to intervene in this qui tam action. The relator dismisses (Doc. 78) with prejudice "his claims against Defendants without impacting or prejudicing the claims or rights of the United States." Under 31 U.S.C. § 3730(b)(1), a relator must obtain consent from the United States to dismiss a qui tam action. See United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 852 (7th Cir. 2009) (Easterbrook, J.) ("Whether or not the United States intervenes, the relator can't dismiss the suit without permission of the United States and the court."). The United States consents to dismissal but only "without prejudice to the United States." (Doc. 74 at 5)
Citing United States ex rel. Eisenstein v. City of New York, New York, 556 U.S. 928, 936 (2009), and Lusby, 570 F.3d at 853, the defendants argue that the United States "is bound by judgments in qui tam actions, regardless of its participation." (Doc. 79 at 3) However, in Eisenstein and in Lusby, "the defendant ha[d] prevailed" against the relator. Lusby, 570 F.3d at 853. Because the relator voluntarily dismisses this action, "the court never reached the merits" of the relator's claims. United States ex rel. Williams v. Bell Helicopter Textron Inc., 417 F.3d 450, 453 (5th Cir. 2005) (Garza, J.). Williams, 417 F.3d at 453, holds that, if "the court never reache[s] the merits," "dismissal with prejudice . . . to the United States [i]s unwarranted." Thus, the relator's dismissal of this action is without prejudice to the United States.
In accord with the relator's notice (Doc. 78), this action is DISMISSED WITH PREJUDICE to the relator and WITHOUT PREJUDICE to the United States. The clerk is directed to terminate any pending motion and to close the case.
ORDERED in Tampa, Florida, on August 27, 2015.
/s/_________
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE