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United States ex rel. Gadbois v. PharMerica Corp.

United States Court of Appeals, First Circuit

December 16, 2015

UNITED STATES ex rel. ROBERT GADBOIS, Plaintiff, Appellant,
v.
PHARMERICA CORPORATION, Defendant, Appellee, STATES OF CA, CO, DE, FL, GA, HI, IL, IN, LA, MA, MI, MN, MT, NV, NH, NM, NC, RI, TN, TX, VA, WI, ex rel. ROBERT GADBOIS, Plaintiffs, Appellants, STATE OF MARYLAND ex rel. ROBERT GADBOIS, Plaintiff, CVS/CAREMARK CORPORATION; WALGREEN COMPANY; MEDCALL, LLC; AND RITE AID CORPORATION, Defendants

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. Mary M. Lisi, U.S. District Judge.

Robert L. Vogel, with whom Shelley R. Slade, Vogel, Slade & Goldstein, LLP, Amato A. DeLuca, DeLuca & Weizenbaum, Ltd., Louise A. Herman, and Law Offices of Louise A. Herman were on brief, for appellants.

Jeremy M. Sternberg, with whom Ralph T. Lepore, III, Michael R. Manthei, Robert M. Shaw, Nathaniel F. Hulme, and Holland & Knight LLP were on brief, for appellee.

Before Howard, Chief Judge, Selya and Stahl, Circuit Judges.

OPINION

Page 2

SELYA, Circuit Judge.

In this qui tam action, the district court dismissed the claims of the relator, Robert Gadbois, for lack of subject matter jurisdiction. While his appeal of that order

Page 3

was pending, subsequent events coalesced to dissolve the jurisdictional impediment to the relator's action. He responded to this development by broadening his appeal to include the possibility of supplementing his pleadings. We conclude, as a matter of first impression in this court, that Federal Rule of Civil Procedure 15(d) is available to cure most kinds of defects in subject matter jurisdiction. For prudential reasons, however, we decline to order such supplementation here but, rather, vacate the judgment below to allow the district court to consider the relator's request for supplementation under Rule 15(d).

I. BACKGROUND

The relator formerly worked as a pharmacist for PharMerica Corp. (PharMerica). In November of 2010, he filed this qui tam action under seal in the District of Rhode Island. His complaint alleged that PharMerica had committed numerous infractions related to its distribution of prescription drugs to long-term care facilities in violation of the False Claims Act (FCA), 31 U.S.C. § § 3729-3733, and several parallel state statutes.

The relator filed an amended complaint as of right in May of 2011. More than two years elapsed before the United States elected not to intervene in the case. In short order, the affected states took a similar stance.

The pleadings were unsealed and, in February of 2014, the relator filed a second amended complaint with leave of court. In due course, PharMerica moved to dismiss, asserting both lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(1), (6). PharMerica contended, inter alia, that the district court lacked jurisdiction by virtue of the FCA's first-to-file bar, which provides that if an action involving the same subject matter is already pending, " no person other than the Government may intervene or bring a related action based on the facts underlying the pending action." 31 U.S.C. § 3730(b)(5). In support of this contention, PharMerica highlighted similarities between the relator's action and an earlier-filed action that was pending in the United States District Court for the Eastern District of Wisconsin.

The district court, addressing only PharMerica's request for dismissal under Rule 12(b)(1) and the first-to-file bar, laid the allegations contained in the relator's second amended complaint alongside the allegations contained in the Wisconsin pleadings. It concluded that the two actions were based on substantially the same facts and conduct. See United States ex rel. Gadbois v. PharMerica Corp., No. 10-471, slip op. at 22-23 (D.R.I. Oct. 3, 2014) (unpublished). Consequently, the court -- citing the first-to-file bar -- dismissed the relator's FCA claim for want of subject matter ...


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