United States of America et al v. Massachusetts General Hospital et al
| Charles F. Paradise and United States of America |
| MGH Optimum Care Committee, Massachusetts General Physicians Organization, Inc. and Massachusetts General Hospital |
| 1:2013cv11070 |
| May 8, 2013 |
| US District Court for the District of Massachusetts |
| Boston Office |
| Middlesex |
| Denise J Casper |
| Other Statutory Actions |
| 31 U.S.C. § 3729 |
| Plaintiff |
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| Filing 53 Judge Denise J. Casper: ORDER entered. ORDER DISMISSING CASE(Hourihan, Lisa) |
| Filing 52 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #24 Motion to Dismiss for Failure to State a Claim. In light of D. 50, the motion to dismiss is DENIED as moot. (Hourihan, Lisa) |
| Filing 51 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #46 Motion for Leave to Proceed in forma pauperis. In light of D. 50, the motion for in forma pauperis is DENIED as moot. (Hourihan, Lisa) |
| Filing 50 Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with this Court's prior orders regarding the prohibition against a pro se relator prosecuting a qui tam action on behalf of the United States, D. 40; D. 43, this case cannot proceed and is dismissed without prejudice.The Court recites the relevant procedural history. On October 6, 2014, the United States filed a notice of objection to the plaintiff-relator Charles F. Paradise ("Paradise") proceeding pro se in this qui tam action. D. 39. The Court found ample support for the government's position, but allowed Paradise until October 30, 2014 to respond to the government's objection, or, in the alternative, gave Paradise until November 6, 2014 to retain counsel. Id. On October 31, 2014, Paradise filed a response to the Government's objection. D. 42. After considering the papers and the case law, the Court concluded that Paradise could not pursue this qui tam action pro se and allowed Paradise more time, until December 15, 2014, to retain counsel. D. 43. Paradise did not retain counsel, but, on December 16, 2014, filed a motion for the appointment of counsel, D. 45, which the Court denied on December 23, 2014, D. 49. Accordingly, despite several extensions, Paradise remains unrepresented and, therefore, cannot currently pursue this qui tam action.The Court notes that the Court denied Paradise's motion for appointment of counsel, in part, due to concerns regarding the merits of the underlying case. Although the Court has discretion to "request an attorney to represent any such person [who is otherwise] unable to employ counsel," the plaintiff "must demonstrate that he was indigent and that exceptional circumstances were present such that a denial of counsel was likely to result in fundamental unfairness impinging on his due process rights." DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). To determine whether there are exceptional circumstances warranting appointment of counsel, the Court may consider a number of factors including, but not limited to "the merits of the case." Id.Paradise filed this lawsuit against the Defendants alleging a violation of the False Claims Act (the "FCA"), 31 U.S.C. 3729-3733, as well as common law fraud and unjust enrichment claims. D. 22. Defendants moved to dismiss the action, D. 24, arguing, in part, that Paradise failed to "allege with particularity that the defendant submitted any false claim to the Government," D. 25 at 4, and that Paradise lacks standing to pursue common law claims under the FCA on behalf of the government, id. at 11.To prevail on his FCA claim, Paradise must show that the Defendants "(1) present[ed] or cause[ed] to be presented to the United States government, a claim for approval or payment, where (2) that claim is false or fraudulent, and (3) the action was undertaken 'knowingly,' in other words, with actual knowledge of the falsity of the information contained in the claim, or in deliberate ignorance or reckless disregard of the truth or falsity of that information." U.S. ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 225 (1st Cir. 2004) (citing 31 U.S.C. 3729(a)(1), (b)). Relators must also satisfy the requirements of Rule 9(b) by setting forth the "the time, place, and content of an alleged false representation." United States ex rel. Gagne v. City of Worcester, 565 F.3d 40, 45 (1st Cir. 2009) (citing United States ex rel. Rost v. Pfizer, Inc., 507 F.3d 720, 731 (1st Cir.2007)); see also Doyle v. Hasbro, Inc., 103 F.3d 186, 194 (1st Cir.1996); Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29 (1st Cir. 2004) (noting that Rule 9(b) requires the pleader "to specify the who, what, where, and when of the allegedly false or fraudulent representation"). The relevant "false representation" is not "the underlying fraudulent activity," nor is it "the government's wrongful payment." Karvelas, 360 F.3d at 225. Rather, the FCA attaches liability to the fraudulent claim for payment. Id. Paradise, therefore, "must provide details that identify particular false claims for payment that were submitted to the government." Karvelas, 360 F.3d at 232; see United States ex rel. Ge v. Takeda Pharm. Co. Ltd., 737 F.3d 116, 123 (1st Cir. 2013) (citing Karvelas). Here, the complaint alleges misconduct related to Defendants' allegedly inadequate care of elderly patients, including Paradise's mother, Ms. Paradise. D. 22. The complaint fails, however, to connect this alleged misconduct with any specific claims made to the government and while Paradise does detail the allegedly inadequate services that were provided to his mother, D. 22 at 12-15, the complaint does not identify the services for which the Defendants actually sought payment from the government or the amount that was billed to the government, which is the crux of any FCA claim. The complaint does not identify any specific claims made to the Government or include any bill identification numbers or any of the details regarding same. Nor does the complaint allege the content of those claims, the dates on which they were submitted, who submitted the claims to the government or any information about MGH's billing practices and where and how such claims are made. Accordingly, the Court cannot conclude that Paradise is likely to succeed on the merits of his FCA claim.Furthermore, it is not clear from the complaint that Paradise has standing to pursue his common law claims under the FCA on behalf of the government. See e.g., U.S. ex rel. Walsh v. Eastman Kodak Co., 98 F. Supp. 2d 141 (D. Mass. 2000) (noting that "the FCA allows a private citizen to bring a civil action for a violation of section 3729 of the Act, on behalf of both himself and the United States... [b]ut the FCA does not give relators the right to assert common law claims on behalf of the United States") (internal citation and quotation marks omitted). Although Paradise contends that he was injured directly and personally, D. 26 at 7, he does not allege that he was, for example, defrauded by the defendants. Walsh, 98 F. Supp. 2d at 149. Rather, Paradise alleges only that the Defendants submitted false claims to the Government and that "[a]s a result, the United States is entitled to compensatory damages consisting of the total amount paid by Medicare for the fraudulent claims" and that "Defendants have been unjustly enriched with federal monies from the Medicare programs" D. 22 at 17. These allegations are likely insufficient to grant Paradise standing to assert any common law claims.Accordingly, the Court concluded that appointment of counsel was not warranted, D. 49 and, as Paradise remains unrepresented, that this action cannot proceed. Accordingly, the Court DISMISSES this action without prejudice.In light of this ruling, the motion hearing previously scheduled for January 14, 2015 is cancelled. (Hourihan, Lisa) |
| Filing 49 Judge Denise J. Casper: ELECTRONIC ORDER entered denying #45 Motion to Appoint Counsel (Hourihan, Lisa) |
| Filing 48 Opposition re #45 MOTION to Appoint Counsel filed by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc.. (Moriello, Antonio) |
| Filing 47 NOTICE of Appearance by Antonio Moriello on behalf of MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc. (Moriello, Antonio) |
| Filing 46 MOTION for Leave to Proceed in forma pauperis by Charles F. Paradise.(Maynard, Timothy) |
| Filing 45 MOTION to Appoint Counsel by Charles F. Paradise.(Maynard, Timothy) |
| Filing 44 ELECTRONIC NOTICE Resetting Hearing on Motion #24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 1/14/2015 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 43 Judge Denise J. Casper: ELECTRONIC ORDER entered. In accordance with this Court's October 10, 2014 order, D. 40, Paradise has filed a response to the United States' statement of interest, D. 39, arguing that he should be granted leave to proceed pro se, D. 42. After review of the papers and the case law, however, the Court concludes that Paradise may not pursue this qui tam action pro se. Under the Federal Claims Act ("FCA"), private persons may bring qui tam actions on behalf of the United States against entities who knowingly submit false claims to the government. United States ex rel. Ondis v. City of Woonsocket, 587 F.3d 49, 53 (1st Cir. 2009) (citing 31 U.S.C. 3730(b)(1)). "[A]lthough relators have standing as 'partial assignees' of the Government's damages claim, they bring suit, in the name of the Government, to redress injuries in fact suffered by the Government, and not their own injuries." United States ex rel. Nasuti v. Savage Farms, Inc., No. 12-30121-GAO, 2014 WL 1327015 at *7 (D. Mass. March 27, 2014) (emphasis in original) (quoting Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 772-74 (2000)). Therefore, the government is the real party in interest in an FCA action. Id. Accordingly, since the statute permitting litigants to proceed pro se in federal courts provides only that "parties may plead and conduct their own cases," 28 U.S.C. 1654, the statute does not authorize a relator to proceed pro se.In support of his position, Paradise argues that his "mother was inflicted with the brunt of the [f]raud alleged in this suit," D. 42 at 5, but "[t]he FCA makes clear that notwithstanding the relator's statutory right to the government's share of the recovery, the underlying claim of fraud always belongs to the government." Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1126 (9th Cir. 2007). Paradise further argues that he should be allowed to continue to pursue the case because the operative complaint was prepared by an attorney. D. 42 at 1-2. However, even in cases of attorney-relators, courts have held "that a pro se relator cannot prosecute a qui tam action on behalf of the United States." Id. (concluding that a licensed attorney, who had not been admitted to practice before the court, could not proceed pro se in a qui tam action).Paradise also contends that this Court effectively authorized Paradise to proceed pro se by indicating at the September 3, 2014 hearing that he could proceed pro se after his attorney withdrew. D. 42 at 2. However, after review of the government's filing on this particular issue, not raised at the hearing, and after careful review of the case law, the Court has found overwhelming support for the government's position. See e.g., United States ex rel. Nasuti, 2014 WL 1327015 at *7 (noting that "there is nearly universal support for the principle that a pro se litigant may not pursue a qui tam action. In fact, every circuit that has addressed the issue is in agreement"); U.S. ex rel., Barlow v. Bristol-Meyers Squibb Co., C.A. 04-11540-MLW, 2010 WL 3824108 at *1 (D. Mass. Sept. 27, 2010) (noting that a "[relator], who is not an attorney, is unable to pursue the remaining qui tam claims on behalf of the United States if he is not represented by counsel") (citing Local Rule 83.5.3(c)); United States ex rel. Mergent Services v. Flaherty, 540 F.3d 89, 93-94 (2d Cir. 2008) (holding that non-lawyer relator could not bring qui tam action pro se); Timson v. Sampson, 518 F.3d 870, 873-74 (11th Cir. 2008) (per curiam) (holding that qui tam relator could not maintain action pro se, and stating that this holding is in accordance with all circuits to address the issue); Stoner, 502 F.3d at 1126-27 (holding that relator could not proceed pro se). Finally, Paradise seems to suggest that he is not effectively pro se because the government "can influence the conduct of the case by communication with [Paradise]." D. 42 at 6. However, "[f]or purposes of 28 U.S.C. 1654, an unrepresented relator is not transformed into a relator represented by counsel merely because the government has some oversight of the case." Stoner, 502 F.3d at 1128.Accordingly, the Court concludes that Paradise may not pursue this FCA action pro se. Paradise will have until December 15, 2014 to retain counsel. Failure to do so likely will result in dismissal without prejudice. The motion hearing previously scheduled for November 20, 2014 is rescheduled for January 14th at 2:00PM. (Hourihan, Lisa) |
| Filing 42 Response by Charles F. Paradise to #39 Statement of Interest by the United States of America. (Maynard, Timothy) |
| Filing 41 ELECTRONIC NOTICE Resetting Hearing on Motion #24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 11/20/2014 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 40 Judge Denise J. Casper: ELECTRONIC Order entered. The United States has filed a statement of interest objecting to the plaintiff-relator proceeding pro se in this case, D. 39. "The FCA allows private persons, called relators, to bring qui tam actions on behalf of the United States against persons or entities who knowingly submit false claims to the federal government." United States ex rel. Ondis v. City of Woonsocket, 587 F.3d 49, 53 (1st Cir. 2009) (citing 31 U.S.C. 3730(b)(1)). However, the Government argues that a pro se litigant may not pursue a qui tam action because the statute permitting litigants to proceed pro se in federal courts provides only that "parties may plead and conduct their own cases." See D. 39 at 2 (quoting 28 U.S.C. 1654). Since FCA actions are not the relators' own cases, the Government argues that 28 U.S.C 1654 does not allow a relator to proceed pro se. D. 39 at 2-3.The FCA itself is silent on whether a relator can bring a qui tam action pro se. 31 U.S.C.A. 3730 (b)(1). However, after review of the case law, the Court finds support for the government's position. While the First Circuit has yet to address this specific issue, two courts in this district have concluded that relators may not pursue qui tam actions pro se. See United States ex rel. Nasuti v. Savage Farms, Inc., Civil Action No. 12-30121-GAO, 2014 WL 1327015 at *7 (D. Mass. March 27, 2014) (noting that "there is nearly universal support for the principle that a pro se litigant may not pursue a qui tam action. In fact, every circuit that has addressed the issue is in agreement"); U.S. ex rel., Barlow v. Bristol-Meyers Squibb Co., C.A. 04-11540-MLW, 2010 WL 3824108 at *1 (D. Mass. Sept. 27, 2010) (noting that a "[relator], who is not an attorney, is unable to pursue the remaining qui tam claims on behalf of the United States if he is not represented by counsel") (citing Local Rule 83.5.3(c)). Furthermore, every other Circuit to address the issue has found that relators are unable to pursue qui tam actions pro se. See e.g., United States ex rel. Mergent Services v. Flaherty, 540 F.3d 89, 93-94 (2d Cir. 2008) (holding that non-lawyer relator could not bring qui tam action pro se); Timson v. Sampson, 518 F.3d 870, 873-74 (11th Cir. 2008) (per curiam) (holding that qui tam relator could not maintain action pro se, and stating that this holding is in accordance with all circuits to address the issue; Stoner v. Santa Clara Cnty Office of Educ., 502 F.3d 1116, 1126-27 (9th Cir. 2007) (holding that relator could not proceed pro se).Paradise has until October 30, 2014 to file any motion objecting to the Government's statement of interest regarding the Plaintiff's pro se status, if he chooses to do so. Absent such a filing, Paradise will have until November 6, 2014 to retain counsel. Failure to do so will likely result in dismissal without prejudice. The motion hearing previously scheduled for October 16, 2014 at 3:00PM is rescheduled for November 20, 2014 at 2:00PM. (Hourihan, Lisa) |
| Filing 39 NOTICE by United States of America (Statement of Interest) (Driscoll, Jessica) |
| Filing 38 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) |
| Filing 37 Transcript of Conference held on September 3, 2014, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 9/29/2014. Redacted Transcript Deadline set for 10/9/2014. Release of Transcript Restriction set for 12/8/2014. (Scalfani, Deborah) |
| Filing 36 ELECTRONIC NOTICE Setting Hearing on Motion #24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : Motion Hearing set for 10/16/2014 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 35 ELECTRONIC Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 9/3/2014 re #31 MOTION to Continue Hearing on Defendant's Motion to Dismiss to 1/7/15 filed by Charles F. Paradise, #33 MOTION to Appoint Guardian ad Litem filed by Charles F. Paradise, #32 MOTION to Withdraw as Attorney for Charles F. Paradise filed by Charles F. Paradise. Court hears from counsel. For reasons stated on the record, the Court grants in part and denies in part #31 Motion to Continue; grants #32 Motion to Withdraw as Attorney. Attorney John R. Getsinger terminated; denies #33 Motion to Appoint Guardian ad Litem. Hearing on the motion to dismiss set for 10/16/14 at 3:00PM. If new counsel files an appearance for the plaintiff, the Court will not grant a continuance of the motion hearing.(Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Jessica Driscoll and John Getsinger for the plaintiffs. Alan Rose and Brian Lipkin for the defendants.) (Hourihan, Lisa) |
| Filing 34 MEMORANDUM in Opposition re #31 MOTION to Continue Hearing on Defendant's Motion to Dismiss to 1/7/15 , #32 MOTION to Withdraw as Attorney for Charles F. Paradise, #33 MOTION to Appoint Guardian ad Litem filed by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc.. (Lipkin, Brian) |
| Filing 33 MOTION to Appoint Guardian ad Litem by Charles F. Paradise.(Getsinger, John) |
| Filing 32 MOTION to Withdraw as Attorney for Charles F. Paradise by Charles F. Paradise.(Getsinger, John) |
| Filing 31 MOTION to Continue Hearing on Defendant's Motion to Dismiss to 1/7/15 by Charles F. Paradise.(Getsinger, John) |
| Filing 30 Response by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc. to #29 Letter/request (non-motion) . (Lipkin, Brian) |
| Filing 29 Letter/request (non-motion) regarding his attorney filing a motion to extend time from Charles F. Paradise. (Maynard, Timothy) |
| Filing 28 ELECTRONIC NOTICE Setting Hearing on Motion #24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM : NOTICE TO COUNSEL re: Cameras in the Courtroom Project. The parties in this case are hereby notified that this scheduled proceeding is eligible for video recording. Counsel are directed to the district court web site at #http://www.mad.uscourts.gov/general/cameras.html to determine if they wish to consent to video recording. Responses are due seven days from the date of this notice. A RESPONSE FROM EACH PARTY IS REQUIRED. Motion Hearing set for 9/3/2014 03:30 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) |
| Filing 27 Judge Denise J. Casper: ORDER entered re: #18 Motion to Dismiss for Failure to State a Claim. In light of the filing of the amended complaint, D. 22, the Defendant's original motion to dismiss, D. 18, is DENIED as moot. (Hourihan, Lisa) |
| Filing 26 Opposition re #24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Charles F. Paradise. (Getsinger, John) |
| Filing 25 MEMORANDUM in Support re #24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc.. (Lipkin, Brian) |
| Filing 24 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc..(Lipkin, Brian) |
| Filing 23 Opposition re #18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Charles F. Paradise. (Getsinger, John) |
| Filing 22 AMENDED COMPLAINT First against All Defendants, filed by Charles F. Paradise.(Getsinger, John) |
| Filing 21 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #20 Motion for Extension of Time to File Response/Reply re #18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Responses due by 3/28/2014 (Hourihan, Lisa) |
| Filing 20 Assented to MOTION for Extension of Time to 3-28-14 to File Response/Reply as to #18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Charles F. Paradise.(Getsinger, John) |
| Filing 19 MEMORANDUM in Support re #18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc.. (Lipkin, Brian) |
| Filing 18 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc..(Lipkin, Brian) |
| Filing 17 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #16 Motion for Extension of Time to Respond to the Complaint to 2/28/14 (Hourihan, Lisa) |
| Filing 16 Assented to MOTION for Extension of Time to February 28, 2014 to File Response/Reply as to #1 Complaint, 15 Order on Motion for Extension of Time by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc..(Rose, Alan) |
| Filing 15 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #14 Motion for Extension of Time to Answer to 1/31/14 (Hourihan, Lisa) |
| Filing 14 Assented to MOTION for Extension of Time to January 31, 2014 to Respond to Complaint by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc..(Rose, Alan) |
| Filing 13 NOTICE of Withdrawal of Appearance by Zachary A. Cunha (Cunha, Zachary) |
| Filing 12 NOTICE of Appearance by Jessica P. Driscoll on behalf of United States of America (Driscoll, Jessica) |
| Filing 11 NOTICE of Appearance by Alan D. Rose, Sr on behalf of MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc. (Rose, Alan) |
| Filing 10 NOTICE of Appearance by Brian D. Lipkin on behalf of MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc. (Lipkin, Brian) |
| Filing 9 Judge Denise J. Casper: ELECTRONIC ORDER entered granting #8 Motion for Extension of Time to File Responsive Pleading to 12/31/13. (Hourihan, Lisa) |
| Filing 8 Assented to MOTION for Extension of Time to December 31, 2013 to File Response/Reply to Complaint by MGH Optimum Care Committee, Massachusetts General Hospital, Massachusetts General Physicians Organization, Inc..(Rose, Alan) |
| Filing 7 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Anderson, Jennifer) |
| Filing 6 Judge Denise J. Casper: ORDER entered. (Anderson, Jennifer) |
| Filing 5 NOTICE of Election to Decline Intervention by United States of America (Attachments: #1 Proposed Order)(Maynard, Timothy) |
| Filing 1 COMPLAINT against Massachusetts General Physicians Organization, Inc., Massachusetts General Hospital, MGH Optimum Care Committee, filed by Charles F. Paradise. (Attachments: #1 Civil Cover Sheet and Category Form)(Danieli, Chris) |
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