United States District Court, E.D. Virginia, Alexandria Division
UNITED STATES ex rel. BENJAMIN CARTER, Plaintiff,
HALLIBURTON CO., et al., Defendants.
James C. Cacheris Judge
This matter came before the Court on Relator Benjamin Carter’s (“Relator”) Motion for Reconsideration of this Court’s November 12, 2015 Memorandum Opinion (“November 12 Opinion”). [Dkt. 129.] Relator argues that an intervening change in law indicates that the False Claims Act’s first-to-file bar would not apply to his amended complaint. Additionally, Relator seeks clarification on whether the Court would deny leave to amend based on three arguments that were raised, but not addressed, in the November 12 Opinion. As described below, those alternative arguments would not preclude amendment, but the first-to-file bar continues to make amendment futile.
The Court’s many prior opinions describe the facts and procedural history of this case in full. That background is presumed known and repeated here only to the extent necessary to resolve the current motion.
On October 15, 2015, this Court held a hearing on how this case should proceed on remand from the Court of Appeals for the Fourth Circuit and the United States Supreme Court. Defendants moved to dismiss the case with prejudice, arguing that the False Claims Act’s first-to-file bar requires dismissal and the statutes of limitations and repose would prevent the filing of a new lawsuit. Relator, by contrast, sought to amend his complaint in the belief that, according to the Supreme Court’s decision in this case, amendment would clear away the first-to-file bar attached to the Original Complaint. See Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 135 S.Ct. 1970 (2015) [hereinafter Kellogg]. The Court agreed with Defendants and issued its November 12 Opinion concluding that the first-to-file bar renders amendment futile. Because this was a dispositive ground for denying leave to amend, the Court did not address Defendants’ alternative arguments that the statute of limitations, the statute of repose, and the prejudice of delay should also preclude amendment.
Relator motioned for the Court to reconsider its denial of leave to amend,  or in the alternative, to decide whether Defendants’ alternative arguments have merit. Relator contends that such a clarification would promote judicial economy by presenting a complete record and reduce the need for additional motions practice if he successfully appeals to the Fourth Circuit. Defendants oppose this motion, arguing that Relator seeks an advisory opinion that does not satisfy any of the Rule 59(e) grounds for reconsideration. For the following reasons, the Court agrees with Relator that a clarification of the November 12 Opinion is necessary to prevent manifest injustice.
II. Standard of Review
Amending a judgment “is an extraordinary remedy that should be applied sparingly.” Mayfield v. NASCAR, Inc., 674 F.3d 369, 379 (4th Cir. 2012). A court may amend a judgment under Rule 59(e) “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). Merely attempting to “reargue the facts and law originally argued in the parties’ briefs, ” however, is not a proper use of Rule 59(e). Projects Mgmt. Co. v. DynCorp Int’l, LLC, 17 F.Supp.3d 539, 541 (E.D. Va. 2014) (quoting United States v. Smithfield Foods, Inc., 969 F.Supp. 975, 977 (E.D. Va. 1997)).
With those principles in mind, the Court turns now to Relator’s arguments that a change in law and the need to prevent manifest injustice support reconsideration in this case.
A. Intervening Change in Law
The Court first addresses Relator’s argument that the First Circuit opinion in United States ex rel. Gadbois v. Pharmerica Corp., 809 F.3d 1 (1st Cir. 2015), is an intervening change in controlling law justifying reconsideration. For several reasons, Gadbois does not convince the Court to reconsider its judgement that the first-to-file bar renders amendment futile.
As an initial and dispositive point, Gadbois is not “controlling law” for this Court. Rule 59(e)’s “controlling law” prong “refers specifically to binding precedent only.” McNamara v. Royal Bank of Scotland Grp, PLC, No. 11-cv-2137, 2013 WL 1942187, at *3 (S.D. Cal. May 9, 2013). Although the Court may consider nonbinding opinions as persuasive authority, they certainly do not “control” this Court’s decisions. Thus, Gadbois does not justify reconsideration under Rule 59(e). See Local 703 v. Regions Fin. Corp., No. CV 10-2847-IPJ, 2011 WL 4431154, at *1 (N.D. Ala. Sept. 7, 2011) (“[A] decision by the Second Circuit Court of Appeals is not binding on this Court, and therefore, is not an intervening change in controlling law.”); D&D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, No. 03-1026, 2009 WL 904054, at *2 (D.N.J. Mar. 31, 2009) (“[A] decision that is not controlling precedent is not an intervening change in the controlling law for purposes of a motion for reconsideration.”).
Furthermore, even considering Gadbois, the Court would have denied Relator’s motion to amend due to the first-to-file bar. In Gadbois, the First Circuit found that an FCA relator could avoid the first-to-file bar by supplementing his complaint to note that an earlier related case was dismissed. Gadbois, 809 F.3d at 3. The court reasoned that Federal Rule of Civil Procedure 15(d) permits supplements to a complaint, even to correct jurisdictional deficiencies. Id. at 5. Additionally, the court noted that the “familiar rule that jurisdiction is determined by the facts existing at the time of filing of an original complaint” primarily governs in diversity jurisdiction cases. Id. And, because Kellogg and the dismissal of the earlier-filed action “dissolved the jurisdictional bar that the court below ...