United States Ex Rel. Vaughn v. United Biologics, L.L.C.

Case: 17-20389 Document: 00514684347 Page: 1 Date Filed: 10/16/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

October 16, 2018

No. 17-20389

Lyle W. Cayce

Clerk

United States of America, ex rel. MICHAEL VAUGHN; THEODORE

FREEMAN; WILLIAM MCKENNA; WESLEY STAFFORD,

Plaintiffs - Appellees

v.

UNITED BIOLOGICS, L.L.C.,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before CLEMENT, HIGGINSON, and HO, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

The opinion issued September 7, 2018 is withdrawn by the panel, and

the following is issued in its place:

The plaintiffs-relators initiated a qui tam action under the False Claims

Act (“FCA”), Anti-Kickback Statute, and related state statutes, suing on behalf

of the United States, the District of Columbia, and twelve states. The

Government tarried in deciding whether to intervene, but eventually

demurred, leaving the relators to go it alone. The relators persisted a little

while longer on their own, but they grew tired of the litigation. They moved to

voluntarily dismiss their case with prejudice as to themselves only, so that

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their decision to quit would not hamstring the Government’s efforts against

the defendant elsewhere.

The district court consented to the relators’ motion. That decision is

challenged on appeal. For the reasons set forth, we affirm.

I.

Plaintiffs-relators Michael Vaughn, Theodore Freeman, William

McKenna, and Wesley Stafford (collectively, “Vaughn relators”) are board-

certified allergists licensed to practice medicine in Texas. Defendant United

Biologics, L.L.C., (“United”) owns and operates remote allergy centers that

provide allergy screenings and treatments. 1 United contracted with non-

allergist physicians, who permitted United to run its remote allergy centers in

their offices or clinics and referred their patients to those services. The Vaughn

relators alleged that United improperly billed government healthcare

providers for unnecessary or unapproved medical treatments through these

clinics. They also alleged that United paid illegal kickbacks to contracting

physicians from subsequent Medicare reimbursements. 2

The relators filed suit on April 16, 2013. The Government, which had

been investigating United’s practices in Atlanta since January 2013 (prior to

the filing of the litigation and unbeknownst to the Vaughn relators), made its

initial entry of appearance on May 1, 2013. The Government petitioned for,

and received, five extensions to the initial 60-day deadline to make its

1 The complaint initially included two other such companies, but they were dismissed

by the court in response to the Vaughn relators’ motion in September 2016.

2 Record evidence suggests that the Vaughn relators had been concerned about these

remote allergy centers for some time. Vaughn himself unsuccessfully petitioned the Texas

Medical Board to review the practice, and allegedly threatened United’s physicians. In

response, United successfully filed a lawsuit against Vaughn, which resulted in an agreed

permanent injunction impeding his efforts in 2011. The remaining Vaughn relators are board

members of the trade association, Texas Allergy, Asthma and Immunology Society (“TAAIS”),

who shared Vaughn’s concerns and engaged in similar efforts. United also sued these

relators, and was again successful in receiving a favorable agreed injunction in 2013.

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intervention decision. See 31 U.S.C. § 3730(b)(2)–(4). The Government’s

memos in support of the extensions noted that the investigation was

nationwide in scope, involved the cooperation of “Districts, States and various

agencies,” and required the gathering and review of a voluminous record. The

court first granted the Government the discretion to reveal a redacted version

of the complaint to United on February 9, 2014. The Government did not do so

until after the court unsealed the case in April 2015.

In May 2014, while this case was still under seal, a similar qui tam claim

was filed in the Northern District of Georgia, United States and the State of

Georgia, et al. ex rel. Nix v. United Biologics et al., 1:14-CV-1486. The relator,

Terri Nix, sued on behalf of 21 states. The court partially unsealed the Vaughn

relators’ case to permit the Government to notify the court, named states, and

Nix on August 11, 2014. According to United, the Government did not reveal

the Nix lawsuit to the Vaughn relators until after its fifth extension, filed

January 13, 2015.

In March 2015, Terri Nix and the Vaughn relators entered into a Sharing

Agreement, whereby the parties would “share statutory relator share award(s),

if any, . . . resulting from the qui tam actions [they had] separately filed.”

According to the Agreement, 85% would be allocated to the Vaughn relators

and the remaining to Nix. The Agreement also noted that the parties “agree

that all of the lawyers and law firms identified in this Agreement as

representing [Nix and the Vaughn relators] have served and are serving as

limited co-counsel for all of them, to the extent of the work they have performed

and are continuing to perform to advance the common interests” of the relators.

The parties further agreed to “work together and consult with each other”

regarding strategy. The existence of this settlement agreement was revealed

to the court and the Government at the first conference held on April 1, 2015.

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Leading up to the April 1 conference, the Government moved for the case

to be transferred to the Northern District of Georgia in light of the ongoing

federal investigation there. The court rejected the petition at the subsequent

hearing. It noted that the Vaughn relators had sued in Texas, and that this

suit was the principal qui tam case. The Nix case was a “tagalong.” During a

colloquy, the court also expressed its frustration with the Government for

taking so long to decide whether to intervene while leaving the Vaughn

relators in the dark.

United filed a motion to dismiss for failing to state a claim on October

2015, soon after it discovered the lawsuit. The next month, the Government

gave notice that it had decided not to intervene. The court then vacated the

sealing order and required the relators to disclose “a list of every case,

investigation, inquiry, or process of which they know involving the defendants

or relating to this scheme.” The court ultimately denied United’s motion to

dismiss on August 24, 2016. United then filed an answer on September 12,

2016. It also notified the district court that it had filed a motion to transfer

venue in the Nix action on the grounds that this was the first-filed.

The first hearing involving United was a scheduling conference held on

October 3, 2016. During the colloquy, the court decided to hold off conducting

formal discovery. Instead, it required the parties to submit an exemplar

contract United used with physicians, highlighting key portions and

explaining how the agreements worked in hypotheticals. The ensuing order,

entered October 4, 2016, required the submission of the contracts. It also

indicated that “discovery is quashed” and that “[t]he parties will talk.”

United submitted the modified contract with hypotheticals on October

11, 2016. It also submitted a motion requesting the district court order the

Georgia qui tam case be transferred or enjoin the parties. The Vaughn relators

filed their response to the hypotheticals one week later.

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On October 24, 2016, the Vaughn relators notified opposing counsel that

they had “decided to dismiss their case with prejudice as to them but without

prejudice as to” the Government. Instead of notifying the relators whether it

opposed the motion, United filed a motion for summary judgment the next day.

Hours later, the Vaughn relators filed their motion to voluntarily dismiss the

case with prejudice as to themselves but without prejudice to the Government.

They also responded to the pending issues before the court: the motion to

transfer and the motion for summary judgment. 3

Their response to United’s motion to transfer explained the reasons for

their withdrawal. They noted that the Nix case was ongoing, which ensured

that United would still be investigated. They also said that they “decided to

voluntarily dismiss their case after being rebuffed in informal discovery,

reviewing the transcript of the October 3, 2016 conference, and considering the

difficulty of proceeding since the government has declined to intervene.”

The Government filed a written consent to the dismissal, “provided the

dismissal [was] without prejudice” as to it. United contested the motion. United

argued that the court should grant its pending motions (including the

summary judgment motion without discovery) first or, in the alternative, deny

the motion altogether.

The court then held a hearing on this issue in January 2017. The Vaughn

relators’ counsel explained that the purpose of the suit was to make the

Government aware of United’s fraud, which it had achieved, but the Vaughn

relators had tired of litigation without the Government’s assistance. Counsel

noted that his clients had “no intention of ever suing these people again.” As

3The relators contested summary judgment in part by noting that discovery had not

yet been conducted. They also filed a motion for continuance to allow for such discovery if the

motion for dismissal were denied. The district court allowed for certain discovery on

November 30, 2017.

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evidence of his clients’ good faith, counsel further explained that if the court

agreed to its terms, the Vaughn relators would waive their claim to the Sharing

Agreement.

At the court’s request, the Government was summoned to the hearing.

The Government explained that it understood the Vaughn relators to have

chosen to “step back and then allow for the relators in the Northern District of

Georgia to go forward with their action.” When pressed by the court to give a

reason “why it[] [was] not willing to jump into this” case, the Government

replied that “it’s typical that the United States does not state a specific reason

why.” Such a specific reason “could arguably influence any sort of litigation

that comes after.” Instead, the Government contended that “[w]e have, by

granting consent, that shows [sic] by inference that there has been some

thoughtful procedure into the decision to consent.” The Government did note

that it had not yet decided whether to intervene in the Georgia case, however.

Although the court was skeptical, it ultimately seemed to affirm the

Government’s reasoning, noting that “[t]he proposal here is if the United

States has permitted two indictments to persist for seven years collectively,

overlapping each other for three years, and has decided to pick one and not the

other and then turn it over to somebody else to try. . . . I’m inferring the choice.”

Responding to United’s concerns, the court affirmed that it was “absolutely

clear” the Government simply decided to pursue the same claims against the

defendant in Georgia.

On March 31, 2017, the court handed down an order “dismiss[ing the

case] with prejudice as to the relators.” On April 14, 2017, United filed a Rule

59 motion for clarification, seeking to include the Government and Nix in the

dismissal, or require Nix to join this case as a condition of dismissal. The court

denied this motion in a “Clarification” order on April 17, 2017, stating, “This

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case was dismissed with prejudice as to Michael Vaughn, Theodore Freeman,

William McKenna, and Wesley Stafford.”

United then filed a second Rule 59 motion on April 28, 2017, based on

new evidence that the Government had altered its course in the Nix litigation

in light of the dismissal of the Vaughn relators. United also filed a motion for

fees and costs. On May 11, 2017, the court denied the second motion to amend

its order, denied the request for fees, and ordered Vaughn relators to pay court

costs. It noted that “[t]he time for the parties to appeal runs from the entry of

this order.” United timely appealed.

II.

United raises three challenges on appeal: (1) the court erred when it

dismissed the relators with prejudice and the Government without prejudice;

(2) the Government’s and district court’s consent to the relators’ motion to

dismiss failed to satisfy FCA requirements; and (3) the district court erred

when it granted the relators’ voluntary motion to dismiss under Rule 41(a)(2).

We review resolution of a voluntary motion to dismiss for abuse of discretion,

Phillips v. Ill. Cent. Gulf R.R., 874 F.2d 984, 986 (5th Cir. 1989), while pure

legal questions are reviewed de novo, Trient Partners I Ltd. v. Blockbuster

Entm’t Inc., 83 F.3d 704, 708 (5th Cir. 1996). Applying the relevant standards,

all three fail.

A.

We begin with a question that has not yet been answered by this court—

namely, whether the non-intervening Government may be dismissed without

prejudice when relators voluntarily dismiss themselves with prejudice. Its

answer implicates the fundamental relationship between a relator and the

Government in qui tam actions, so we begin with first principles and build from

there. For the reasons set forth, we conclude that because the Government

never intervened in the case, and therefore never became a “party” to the

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litigation, no dismissal as to the Government would be appropriate. As for

whether and to what extent the Government is bound by the qui tam relators’

voluntary decision to quit the case, that is a question to be answered by the

court in the Georgia litigation.

The FCA prohibits individuals from “present[ing], or caus[ing] to be

presented, . . . a false or fraudulent claim for payment or approval” to a

Government officer or employee. 31 U.S.C. § 3729(a)(1). Although the law

generally does not permit an individual to file a lawsuit to remedy harm

suffered by others, the FCA creates an exception. The statute permits “a

person” acting on his own behalf and “for the United States Government”—i.e.,

the relator—to remedy certain frauds. Id. § 3730(b)(1). The individual brings

his claim “in the name of the Government.” Id. As we have noted, this

empowerment served the statute’s original purpose: “to stem widespread fraud

by private Union Army suppliers in Civil War defense contracts.” United States

ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 184 (5th Cir. 2009).

Once the relator files suit, the Government must investigate the matter

and determine whether it will intervene and take “primary responsibility for

prosecuting the action,” or so decline. 31 U.S.C. § 3730(b)(4); 3730(c)(1). If the

Government declines to intervene, then “the person who initiated the action

shall have the right to conduct the action.” Id. § 3730(c)(3). In this capacity, the

relator stands in the place of the Government, representing its interests. Cf.

Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1126–27 (9th Cir.

2007) (requiring the relators to have counsel because they are not only

“prosecuting . . . their ‘own case’ but also representing the United States”).

Even when the Government declines to intervene, it remains a distinct

entity in the qui tam litigation with protected interests. This fact is established

by the FCA itself, which affords the Government certain rights in the litigation

regardless of its decision not to intervene. For example, it is to be supplied with

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“all pleadings filed in the action” and “copies of all deposition transcripts.” 31

U.S.C. § 3730(c)(3). Moreover, the Government may stay discovery if it can

show that the litigation is obstructing a separate investigation or prosecution.

Id. § 3730(c)(4). The Government still receives at least 70% of the remedy

award. Id. § 3730(d)(2). And the Government must still give its consent before

the relator dismisses the action. Id. § 3730(b)(1).

Yet courts have consistently held that a non-intervening Government

does not stand as an independent party in a lawsuit. Instead, we have

categorized the non-intervening Government as a mere “passive beneficiary of

the relator’s efforts.” Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 156

(5th Cir. 1997). Along the same lines, the Supreme Court has explained that a

non-intervening Government is a mere “real party in interest,” not a formal

“party,” for the purposes of the appellate filing deadline. United States ex rel.

Eisenstein v. City of New York, 556 U.S. 928, 934–36 (2009). We have also

described a non-intervening state government as “merely chimerical,” lacking

“control over the litigation process.” United States v. Tex. Tech. Univ., 171 F.3d

279, 290–94 (5th Cir. 1999) (holding that Eleventh Amendment immunity was

not waived on this basis).

So although the non-intervening Government has both an independent

and derivative presence in a qui tam lawsuit regardless of whether it chooses

to intervene, treating the non-intervening Government as a “party” is

inappropriate. “To hold otherwise would render the intervention provisions of

the FCA superfluous, as there would be no reason for the United States to

intervene in an action in which it is already a party.” Eisenstein, 556 U.S. at

933. The district court was correct not to dismiss the Government (either with

prejudice or without prejudice), because the Government was never a “party”

to begin with.

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But whether the Government is a party in this litigation should not be

conflated with the separate question of whether the Government should be

bound by the judgment in this case. On the one hand, it is well-settled that a

final judgment on the merits of a relator’s claim will have a binding effect on

even the non-intervening Government. See Eisenstein, 556 U.S. at 933–34, 936

(noting that “the United States is bound by the judgment in all FCA actions

regardless of its participation in the case” based on nonparty claim preclusion

principles (citing Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008))); United

Sates ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 853 (7th Cir. 2009) (“If

[the relator] had litigated a qui tam action to the gills [by himself] and lost,

neither another relator nor the United States could start afresh.”). Conversely,

when the case’s outcome is decided by the relator’s voluntary decision to quit,

courts tend not to bind the Government to that decision automatically. See

Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 135 S. Ct.

1970, 1979 (2015) (“Why would Congress want the abandonment of an earlier

suit [not decided on the merits] to bar a later potentially successful suit that

might result in a large recovery for the Government?”); Youssef v. Tishman

Constr. Corp., 744 F.3d 821, 826 (2d Cir. 2014) (“[N]othing in the False Claims

Act requires that a voluntary dismissal be accorded res judicata effect.”);

Searcy, 117 F.3d at 160 (holding that the FCA authorizes the non-intervening

Government to “stand on the sidelines and veto a voluntary settlement”);

United States ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391, 1397

(9th Cir. 1992) (noting it would be inappropriate “[t]o hold that the

government’s initial decision not to take over the qui tam action is the

equivalent of its consent to a voluntary dismissal of a defendant with

prejudice”).

And, relevant to the matter at hand, this court has also found that even

when the relator’s case loses on a motion to dismiss, the Government should

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not be bound if the dismissal is for reasons not tied to the underlying legal

merit. Specifically, in United States ex rel. Williams v. Bell Helicopter Textron

Inc., we concluded that it was an abuse of discretion for the district court to

dismiss the Government with prejudice based on the relator’s dismissal for

failing to adequately plead its cause of action. 417 F.3d 450, 453, 456 (5th Cir.

2005). In support, we noted that our holding “guard[ed] against concerns

previously raised . . . that the FCA allows a relator . . . to make sweeping

allegations that, while true, he is unable to effectively litigate, but which

nonetheless bind the government, via res judicata, and prevent it from suing

over those concerns at a later date when more information is available.” Id. at

455 (internal quotation omitted). We explained that the non-intervening

Government should not be bound by the fate of an incompetent relator, lest it

be forced to intervene in every action. 4 Id.; see United States ex rel. Holmes v.

Northrop Grumman Corp., 642 F. App’x 373, 378 (5th Cir. 2016) (affirming the

dismissal of a relator with prejudice due to the malfeasance of his lawyer in

part because the Government had been dismissed without prejudice).

In any event, the district court in the Georgia litigation must decide

whether the Government is bound under the claim preclusion principles

described above by the judgment in this case. See, e.g., In re Schimmels, 127

F.3d 875, 881 (9th Cir. 1997) (holding that summary judgment for the

defendant in relator’s FCA suit was res judicata as to the Government); cf.

United States v. Quest Diagnostics Inc., 734 F.3d 154, 167 (2d Cir. 2013)

4In Williams, we modified the district court’s order to provide that the Government

was dismissed without prejudice. But our dismissal of the United States in that case, which

was decided before the Supreme Court’s Eisenstein decision, does not change the fact that a

dismissal of any kind is inappropriate as to the non-intervening Government. The focus in

Williams—like the focus of the parties in this case—was on whether the dismissal of the

United States should be with prejudice or without prejudice. Williams, 417 F.3d at 455–56.

The appropriateness of the dismissal itself was not addressed.

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(concluding that dismissal due to ethical violations by the relators “did not

foreclose the government (or, for that matter, a different relator) from bringing

suit”). United’s counterarguments from case law and the FCA are

unpersuasive.

United tries to distinguish the present case from Williams because the

relator’s claim was dismissed at the pleading stage with little opportunity for

the Government to participate. See, e.g., Williams, 417 F.3d at 455. But this

was only one aspect of the court’s reasoning, which, for reasons just stated,

squarely supports the district court’s order here. Moreover, this case also had

not gone far when the relators petitioned to get out: no formal discovery had

been conducted, nor had there been a summary judgment ruling when the

relators filed their Rule 41(a)(2) motion.

United also cites Eisenstein’s general statement that the “United States

is bound by the judgment in all FCA actions regardless of its participation in

the case.” Eisenstein, 556 U.S. at 936. Notably, the statement was followed by

a citation to a case discussing claim preclusion. Id. Accordingly, this general

principle regarding the binding effect of a final merits determination on the

Government is perfectly consonant with an enforcement of the district court’s

ruling here. Moreover, in light of Eisenstein’s narrow holding—that the

Government was not a “party” for the purposes of Federal Rule of Appellate

Procedure 4(a)(1)(B), id.—it would be inappropriate to interpret this passing

observation so broadly.

Last, relying on the expressio unius canon, United argues that FCA does

not expressly permit relators “to seek a Rule 41(a)(2) voluntary dismissal . . .

with prejudice as to their case but without prejudice as to the Government.”

But this canon “must be applied with great caution” and generally requires a

specific, enumerated list of options. Antonin Scalia & Bryan Garner, Reading

Law: The Interpretation of Legal Texts 107–19 (2012). The complex web of

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disjointed FCA subsections at issue here does not offer the correct context.

More fundamentally, as noted above, there is simply nothing untoward about

the district court’s refusal to dismiss the Government with prejudice when the

Government never intervened in—and hence never became a “party” to—this

litigation.

B.

United next challenges the Government’s and district court’s consent to

the relators’ voluntary dismissal insofar as they (1) were not written down and

(2) provided an inadequate explanation. Both fail.

1.

United contends that a written explanation for the Government’s and

the court’s consent is required by both the text of the FCA and the provision’s

underlying policy concern—namely, to ensure that the dismissal is in the

public interest. We disagree.

The relevant FCA provision is found at 31 U.S.C. § 3730(b)(1), which

states, “The [FCA] action [brought by the relator] may be dismissed only if the

court and the Attorney General give written consent to the dismissal and their

reasons for consenting.” United argues that the modifier “written” applies both

to “consent” and to “reasons for consenting,” so it was entitled to a written

explanation for the consent the relators’ motion received.

But this is an incorrect and awkward reading of the text—one that has

never been promoted by courts. The correct and more natural one is to

interpret “written consent to the dismissal” and “their reasons for consenting”

as two separate requirements. There are occasions, to be sure, in which a single

adjective can be used to modify a series of subsequent nouns or verbs. But this

principle of interpretation, known as the “Series-Qualifier Canon,” applies only

when context clearly establishes that it is intended. Reading Law at 147–51.

This is usually the case when the nouns and verbs are listed without any

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intervening modifiers. So for example, in “unreasonable searches and

seizures,” the adjective “unreasonable” is clearly meant to modify both

“searches” and “seizures.” The typical way to break the series is to insert a

determiner. Reading Law at 148. Here, the possessive determiner, “their,” is

attached to the second noun in the list, “reasons.” This makes clear that

“written” was not intended to modify both “consent” and “reasons.”

Congress has clearly communicated its intent through the text of the

statute. We will not refer to other policy considerations for further guidance.

Accordingly, we discern no basis for United’s insistence that it is entitled to

written explanation for consent under § 3730(b)(1).

2.

United also baldly asserts that it was entitled to a more thorough

explanation for the Government’s or the district court’s reasons for consenting

to the dismissal. Here again, we disagree.

The argument, made on the basis of § 3730(b)(1), fails because it is

unsupported by the text and contrary to its purpose. Of course, as a general

matter, a sufficient “statement of reasons is one of the handmaidens of

judging,” which assists our review. See Schwarz v. Folloder, 767 F.2d 125, 133

(5th Cir. 1985). Nevertheless, the detail required varies with context. And this

court, as well as other circuits, has concluded that the Government retains

absolute discretion to consent (or withhold consent) to a dismissal under §

3730(b)(1)—even when it does not intervene in the litigation. Searcy, 117 F.3d

at 158, 160; see also United States ex rel. Michaels v. Agape Senior Comm., Inc.,

848 F.3d 330, 339 (4th Cir. 2017) (“[Section] 3730(b)(1) does not overtly require

the Government to satisfy any standard or make any showing reviewable by

the court.”); United States v. Health Possibilities, P.S.C., 207 F.3d 335, 336,

340 (6th Cir. 2000). In light of that authority, we decline to impose a high

requirement on the justifying articulation—either for the Government itself or

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the district court’s review of that decision. Cf. Hill v. Schilling, 593 F. App’x

330, 334 (5th Cir. 2014) (no explanation required for judge’s decision to recuse

himself).

Here, the Vaughn relators requested dismissal with prejudice because

they were tired of litigating the action without the Government’s intervention

and were satisfied that the other qui tam case against United was sufficient to

handle their concerns. The court held a hearing to discuss the matter, and

required the Government to attend. The Government explained that its

interests were not harmed by the Vaughn relators’ decision, noting in part the

ongoing litigation in Georgia. It explained that a more specific response would

compromise its litigation strategy.

While the court was frustrated by the lack of detail in this response, it is

clear that the court—and, notably, the defendants—understood the

Government’s reasoning: it was consenting to the dismissal of these relators

because of the ongoing qui tam litigation elsewhere. The district court’s order,

by dismissing only the relators with prejudice, clearly reflects an ultimate

acceptance of the Government’s explanation.

In short, there is enough in the record here to discern an adequate basis

for the Government’s and district court’s consent to the relators’ dismissal.

Even if we were to require some baseline explanation requirement, this would

meet it.

C.

Last, United challenges the court’s grant of the relators’ voluntary

motion to dismiss as an abuse of discretion. For the reasons set forth, we

discern none.

If a plaintiff moves to voluntarily dismiss after a summary judgment

motion has been filed, it must first receive the court’s consent. Fed. R. Civ. P.

41(a)(2). This court has explained that, “as a general rule, motions for

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voluntary dismissal should be freely granted unless the non-moving party will

suffer some plain legal prejudice other than the mere prospect of a second

lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002).

And the mere fact that the plaintiff “may gain a tactical advantage by

dismissing its suit without prejudice and refiling in another forum is not

sufficient legal prejudice.” Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287,

299 (5th Cir. 2016) (internal quotation omitted). The “purpose of the grant of

discretion under Rule 41(a)(2) . . . is primarily to prevent voluntary dismissals

which unfairly affect the other side[.]” 9 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 2364 (3d ed. 2018 Update) (internal

quotation omitted). Absent such a showing or other “evidence of abuse by the

movant,” the motion should be granted. Elbaor, 279 F.3d at 317.

United attempts to show that such abuse occurred here by citing various

factors that this court has found persuasive in finding plain prejudice, but they

fail to demonstrate an abuse of discretion. First, United argues that the

Vaughn relators were merely seeking to avoid an imminent adverse result on

the merits. Cf. In re FEMA Trailer Formaldehyde Prods. Liability Litig., 628

F.3d 157, 162 (5th Cir. 2010) (noting that a “typical example[]” of prejudice

occurs when the motion is a means of “avoid[ing] an imminent adverse ruling”).

But we discern no evidence of this secret intent. Notably, although

United had filed a motion for summary judgment just before, no formal

discovery had been conducted at the time of the relators’ motion except for the

court’s request for a sample contract. And, notably, the most recent disposition

had been in the relators’ favor—the court’s denial of United’s motion to dismiss

on the pleadings. It is unlikely that the relators filed their motion for dismissal

out of fear of an adverse result. Cf. Robles v. Atl. Sounding Co., Inc., 77 F. App’x

274, 275 (5th Cir. 2003) (noting arguments based on timing usually involve

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cases “where the movant suffered an adverse legal decision prior to moving for

voluntary dismissal.”)

United also contends significant resources have been expended in this

qui tam lawsuit. Cf. Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193,

199 (5th Cir. 1991) (“When a plaintiff fails to seek dismissal until a late stage

of trial, after the defendant has exerted significant time and effort, then a court

may, in its discretion, refuse to grant a voluntary dismissal.”). But those

instances in which this court has justified the denial of a voluntary motion to

dismiss on this basis, the parties had engaged in significantly more litigation

than here at the time of filing. E.g., Hartford Accident & Indem. Co. v. Costa

Lines Cargo Servs., Inc., 903 F.2d 352, 360–61 (5th Cir. 1990) (motion filed

after ten months of litigation, numerous hearings, significant discovery,

summary judgment grant in one defendant’s favor, and scheduled jury trial for

remaining defendants); see also United States ex rel. Doe v. Dow Chem. Co.,

343 F.3d 325, 330 (5th Cir. 2003). By contrast, when the Vaughn relators filed

their motion for voluntary dismissal, the parties had conducted no discovery,

and only weeks had passed since United filed its answer. In other words, the

litigation had just gotten passed the pleading stage. And only one hearing

involving United had occurred—a scheduling conference.

United’s arguments to the contrary are unpersuasive. It is true that the

case had been “on file” for a number of years, but the case was largely under

seal during that time while the Government conducted its investigation.

Whatever burdens imposed by the Government’s actions, they are not the sort

of “litigation” expenses for which this court has held relators responsible. Nor

is United’s reference to later burdens it suffered based on the relators’ response

to its own motion for summary judgment persuasive.

United also argues that the Vaughn relators’ motion risks depriving

United of a legal defense. This court has consistently found that, when a

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voluntary dismissal might strip the defendant of a “viable . . . defense” in the

first action that it might not be able to raise if the plaintiff were to bring the

action again, the motion for dismissal must be denied. See Elbaor, 279 F.3d at

317–19 (finding abuse of discretion when defendant had a non-frivolous statute

of limitations defense); see also Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506,

510–14 (5th Cir. 2007) (defense under Texas choice-of-law rules); Ikospentakis

v. Thalassic Steamship Agency, 915 F.2d 176, 179 (5th Cir. 1990) (forum non

conveniens defense).

But these cases all deal with distinguishable circumstances. In each

case, the court was concerned that the plaintiff was using a voluntary dismissal

to escape from a potentially meritorious defense by filing in a different venue

or jurisdiction that avoided that defense. Here, the Vaughn relators sought to

dismiss themselves with prejudice. In other words, it cannot be claimed that

the relators were using the motion as a means of self-preserving

gamesmanship.

United argues that the Vaughn relators are dismissing themselves from

this litigation in order to thwart United’s defense in the Georgia litigation

involving an entirely different relator. But United’s invocation of this basis for

establishing plain prejudice is inapt and unpersuasive. After all, at the time of

the relators’ motion, the Government had not yet intervened in Georgia.

Moreover, the Vaughn relators are not participating in that litigation, and they

severed their settlement agreement with the Georgia relator as a condition of

their dismissal. The Vaughn relators have assured this court that they will not

receive any benefit from the Nix litigation—an assurance that we will credit

here, and that we expect the parties in Nix will no doubt enforce as they deem

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appropriate. We decline to overturn the district court’s discretion on this

basis. 5

In sum, United has failed to articulate the sort of plain prejudice

required to prove the district court abused its discretion.

III.

AFFIRMED.

5 United also seems to imply that the motion was made in bad faith because the

relators share the same counsel and that the TAAIS may still receive some recovery if the

Georgia lawsuit is meritorious. It asserts that the Vaughn relators are trying to “have their

cake and eat it too.” They provide no legal basis for this assertion, except two cases that are

factually distinct from this case. First, in In re FEMA, this court affirmed a district court’s

discretion to deny a voluntary dismissal when the plaintiffs sought to withdraw temporarily

“from a bellwether trial and then sit[] back to await the outcome of another plaintiff’s

experience.” 628 F.3d at 163. Even if this case provided a basis to overturn the district court,

the Vaughn relators dismissed themselves with prejudice. Second, Federal Recovery Services,

Inc. v. United States, 72 F.3d 447, 453 (5th Cir. 1995) concerned deceptive acts of an attorney

to cure jurisdictional defects in a single qui tam action. We fail to see a persuasive application

to the circumstances here.

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