Opinion
Case no. 8:06-CV-40-T-24MAP.
July 25, 2008
ORDER
At the July 16, 2008, hearing, counsel for Defendant Lincare advised the Court that Lincare contemplated filing a motion to dismiss this action grounded on Rule 12(b)(1) claiming this Court lacks jurisdiction over the Relator's allegations under the False Claims Act pursuant to 31 U.S.C. § 3730(e)(4)(A) because the allegations described in the second amended complaint were "publicly disclosed" prior to the filing of this lawsuit and the Relator is not the original source of the information defined by 31 U.S.C. § 3730(e)(4)(B). See generally United States ex rel. McElmurray v. Consolidated Govt. of Augusta-Richmond County, 501 F.3d 1244 (11th Cir. 2007) (affirming district court's dismissal of qui tam action where relator's claims based upon public disclosures and relator not original source of information); United States ex rel Brickman v. Business Loan Express, LLC (N.D. Ga. 2007) (dismissing relator's action for lack of subject matter jurisdiction under public disclosure bar where relator who was not the original source of the information relied in part on information from prior foreclosure action, deposition testimony, and publicly disclosed documents). Given that this issue had not surfaced earlier and that this Court should address questions of jurisdiction as early as possible, it appears prudent to modify the dispositive motion deadline to address any jurisdictional issues first.
At the June 16, 2008, hearing, the Relator's counsel did not object to the Court's proposal that it address jurisdictional issues first, before addressing the parties' pending discovery motions.
Accordingly, it is hereby
ORDERED:
1. The Defendants are directed to file any motion to dismiss per Rule 12(b)(1) by August 6, 2008, and the Relator is directed to file any responses thereto by August 11, 2008.
2. Any dispositive motions aside from the Rule 12(b)(1) motions shall be filed twenty days after the Court rules on the motion to dismiss. In the event that Defendants do not file motions to dismiss, all dispositive motions are due by August 26, 2008.
3. The Clerk of Court is directed to forward a copy of this Order to the Breathe Easy Defendants at the following addresses: Kim Johns, 115 Deer Path Drive, Oldsmar, Florida 34677, and Breathe Easy Pulmonary Services, Inc., 22089 U.S. Highway 19 North, Clearwater, Florida 33765.
DONE AND ORDERED in chambers at Tampa, Florida.