United States District Court, W.D. Virginia, Danville Division
THE UNITED STATES OF AMERICA, ex rel. JOSEPH M. THOMAS, Plaintiffs,
DUKE UNIVERSITY, et al., Defendants.
Jackson L. Kiser SENIOR UNITED STATES DISTRICT JUDGE
me is Defendants Duke University (“Duke”), Duke
University Health Systems, Inc. (“DUHS”), and Dr.
William M. Foster's Motion to Transfer. [ECF No. 68]. The
issue was fully briefed, and the United States filed a
Statement of Interest in opposition of the Motion. [ECF No.
94]. I held oral arguments on March 21, 2017. For the reasons
stated below, I will grant the Motion to Transfer this case
to the United States District Court for the Middle District
of North Carolina.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Joseph M. Thomas initiated this qui tam action on
May 17, 2013, alleging that Defendants violated the False
Claims Act (“FCA”). 31 U.S.C. § 3729 et
seq; (see generally Compl., May 17, 2013 [ECF
No. 1].) On November 11, 2015, Relator filed an Amended
Complaint which remained under seal while the U.S.
Attorney's Office for the Western District of Virginia
(“USAO-WDVA”) investigated and decided whether to
intervene. (Am. Compl., Nov. 13, 2015 [ECF No. 25]
(hereinafter “the Complaint”).) Relator's
suit alleges that Defendants knowingly falsified medical
research data in order to obtain federal grants from various
agencies, including the Environmental Protection Agency and
National Institutes of Health. (See Am. Compl.
none of the alleged events took place in the Western District
of Virginia (“the WDVA"), the FCA has a broad
venue provision which allows venue in “any judicial
district in which . . . any one defendant can be
found, resides, [or] transacts business . . . .” 31
U.S.C. § 3732(a) (emphasis added). Relator alleges that
“Duke University solicited and enrolled students from
the [WDVA], advertised in the [WDVA], [and] participated in
academic activities in the [WDVA] . . . . Likewise, DUHS
transacted business at its Cardiovascular Surgery of Danville
clinic in Danville, VA.” (Am. Compl. ¶ 12.) DUHS
is a subsidiary of Duke. (Id. at ¶ 20.)
time of the alleged events, Relator was a Laboratory Research
Analyst in the Pulmonary, Asthma and Critical Care Division
of Duke University Health Systems (“the Pulmonary
Division”). (Am. Compl. ¶ 18.) Relator resides in
North Carolina. (Id. at ¶ 16). Appearing
pro se, Defendant Erin Potts-Kant resides in Durham,
but she has not joined her co-Defendants'
Motion. Potts-Kant was a Clinical Research
Coordinator in the Pulmonary Division, (id. at
¶ 23), and is charged with directly manipulating the
research in question. (Id. at ¶ 156.) Defendant
William M. Foster, who also resides in the MDNC, was a
Research Professor of Medicine in the Pulmonary Division and
was Potts-Kant's direct supervisor. (Id. at
August 8, 2016, nearly three and a half years after Relator
filed his Complaint, the United States notified this Court
that it would not exercise its right to intervene in this
suit as provided by 31 U.S.C. § 3730(b)(4). (Notice,
Aug. 8, 2016 [ECF No. 35]). Accordingly, I entered an Order
unsealing the Complaint and allowing Relator to proceed on
behalf of the United States. (Order, Aug. 9, 2016 [ECF No.
36].) Duke, DUHS, and William Foster, filed a motion to
transfer this case to the Middle District of North Carolina
(“the MDNC”) on January 4, 2017 [ECF No. 68].
Relator filed a response, opposing the Motion, [ECF No. 92],
and Defendants filed their Reply on February 24, 2017. [ECF
No. 102]. The United States filed a Statement of Interest in
opposition of Defendants' Motion. (Statement of Interest,
Feb. 10, 2017 [ECF No. 94].)
STANDARD OF REVIEW
U.S.C. § 1404(a) states that “[f]or the
convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to
any other district or division where it might have been
brought . . . .” It is well settled that
“[d]ecisions whether to transfer a case pursuant to 28
U.S.C. § 1404(a) are committed to the discretion of the
transferring judge.” Brock v. Entre Computer Ctrs.,
Inc., 933 F.2d 1253, 1257 (4th Cir. 1991). In
determining whether transfer is proper, a court should
consider four factors: “(1) the weight accorded to
plaintiff's choice of venue; (2) witness convenience and
access; (3) convenience of the parties; and (4) the interest
of justice.” Trustees of the Plumbers &
Pipefitters Nat'l Pension Fund v. Plumbing Servs.,
Inc., 791 F.3d 436, 444 (4th Cir. 2015). The movant has
the burden of showing that a transfer is proper under the
circumstances. Gen. Creation LLC v. Leap Frog
Enterprises, Inc., 192 F.Supp.2d 503, 504 (W.D. Va.
2002). Transfer will not be granted if it would only shift
the inconvenience to the non-moving party. JTH Tax, Inc.
v. Lee, 482 F.Supp.2d 731, 738 (E.D. Va. 2007). The
plaintiff's choice of forum should rarely be disturbed
unless the balance is strongly in favor of the defendant.
Alpharma, Inc. v. Purdue Pharma L.P., 634 F.Supp.2d
626, 632 (W.D. Va. 2009).
The United States' Status as a Party
turning to the merits of Defendants' Motion, I want to
address the United States' position in this litigation.
The Government filed a Statement of Interest opposing the
Motion to Transfer. They have a statutory right to do so. 28
U.S.C. § 517 (“The Solicitor General, or any
officer of the Department of Justice, may be sent by the
Attorney General to any State or district in the United
States to attend to the interests of the United States in a
suit pending in a court of the United States. . . .”)
At oral arguments, however, I rejected the Government's
request to argue against the Motion to Transfer. I did so
because the United States, by virtue of declining to
intervene, is not a party to this litigation. While the
United States remains the real party in interest, its ability
to direct the course of the litigation is highly limited.
See United States v. Whyte, No. 4:12-cr-00021-002,
2017 WL 377949, at *4 (W.D. Va . Jan. 26, 2017) (“[I]f
the government elects not to intervene [in an FCA case], it
retains no right to control the litigation in any meaningful
way. . . . It is entitled to receive pleadings and deposition
transcripts, but no more.”) (citing 31 U.S.C. §
3730(c)(3)). At oral arguments, the Government asserted that
it had issued a “no decision” in terms of
intervention, and that a request to intervene was in the
process of being approved by “Main Justice” in
statute could not be clearer: the Government is either in or
out. See 31 U.S.C. § 3730(b)(4) (giving the
Government the option to either “proceed with the
action” or “notify the court that it declines to
take over the action, in which case the person bringing the
action shall have the right to conduct the action.”).
There is no middle-ground. The Government declined to
intervene, and while it may change its decision and seek to
intervene at a later date, it cannot do so as a matter of
right. Id. at § 3730(c)(3) (requiring the
Government to seek leave to intervene once it has initially
declined to do so). As a result, the United States'
preferred forum has no bearing on this Court's decision,
and even if it did, the United States' argument is
United States argues that the U.S. Attorney's Office for
the Western District of Virginia (“USAO-WDVA”)
has spent years investigating this case, and if this case was
transferred, new prosecutors in the MDNC would need to start
“from scratch.” This conflicts with
Defendants' assertions that attorneys, agents, and
investigators for USAO-WDVA have interviewed witnesses all
over the country, and that the bulk of the witness interviews
took place in Durham. The United States' argument that it
would have to restart its investigation if the Motion is
granted seems exaggerated. U.S. Attorney's Offices
regularly coordinate on matters across jurisdictional lines.
Given that attorneys from USAO-WDVA reportedly went to Durham
multiple times to conduct witness interviews and participate
in a settlement conference, it would be a minimal burden to
litigate in North Carolina. The local rules of the MDNC would
not bar an AUSA from the WDVA to appear before an MDNC court.