Opinion
CASE NO. 8:13-cv-206-T-23JSS
07-27-2015
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
After initially declining (Doc. 24) to intervene in this qui tam action, the United States moves (Doc. 63) to intervene. Under 31 U.S.C. § 3730(c)(3), if the United States "elects not to proceed with the action . . . the court . . . may nevertheless permit the [United States] to intervene at a later date upon a showing of good cause." The United States argues that good cause exists (1) because the relator assents to the proposed intervention, (2) because the United States has only now "completed its investigation" of the claims, and (3) because "government intervention at this stage will not prejudice the Defendants or this proceeding." (Doc. 63 at 1)
After initially declining to intervene, the United States intervened (Doc. 31) in part and settled (Doc. 40) the claims against one defendant. The relator amended (Doc. 41) the complaint to allege claims against only the two remaining defendants. Now the United States moves to intervene in the remaining claims.
The defendants dispute that the relator assents to the proposed intervention, and the relator declares (Doc. 71-1) that he opposes the proposed intervention. The relator's counsel admits (Doc. 72-1) that he (either fraudulently or mistakenly) "informed [the United States] that Relator consent[s]" to the proposed intervention.
A July 16, 2015 order (Doc. 67) directs the relator to respond to the United States' motion to intervene. --------
Further, the defendants correctly respond that good cause "is not established merely because the United States continued its investigation." (Doc. 66 at 11) The United States fails to assert discovery of new evidence justifying intervention. See United States v. Aseracare Inc., 2012 WL 4479123, at *3 (N.D. Ala. Sept. 24, 2012) (Bowdre, J.) (granting intervention because of new evidence and because of the "full support" of the relators); United States ex rel. Hall v. Schwartzman, 887 F. Supp. 60, 62 (E.D.N.Y. 1995) (Gold, Mag. J.) (granting intervention because the United States discovered "new and significant evidence which . . . altered its view of the magnitude of the alleged fraud").
Finally, the defendants respond that "Defendants and Relator would be substantially prejudiced by intervention at this time." (Doc. 66 at 15) The relator confirms (1) that he "desire[s] to dismiss [the action] consistent with the mediated settlement agreement" with the defendants and (2) that he "feel[s] that [he] will be greatly prejudiced if the United States is permitted to intervene at this late date." (Doc. 71-1 at 2) See United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., 2011 WL 4480846, at *2 (M.D. Fla. Sept. 27, 2011) (Presnell, J.) (granting intervention because the "Defendants offer nothing to suggest that they (or the relator) would be unduly prejudiced by the Government's intervention in this matter"); see also United States ex rel. Stone v. Rockwell Int'l Corp., 950 F. Supp. 1046, 1049 (D. Colo. 1996) (Matsch, J.) ("[T]he 'good cause' requirement of § 3730(c)(3) was intended to protect the interests of the relator.").
Because the United States fails to show good cause for intervention, the motion (Doc. 63) to intervene is DENIED. The United States' motion (Doc. 68) for leave to reply is DENIED. The relator's motion (Doc. 60) for an extension of time to file a case management report is GRANTED IN PART. No later than AUGUST 7, 2015, the relator must file a case management report.
ORDERED in Tampa, Florida, on July 27, 2015.
/s/ _________
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE