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May v. United States

United States District Court, D. Colorado

February 26, 2018

SAMUEL J. MAY, Plaintiff,
UNITED STATE OF AMERICA; THE DEPARTMENT OF JUSTICE, an agency of the United States; THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, an agency of the United States; FOOD AND DRUG ADMINISTRATION, an agency of the United States; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, an agency of the United States; DEBORAH ZWANY, in individual capacity, Department of Justice; SARA WINSOW, in individual capacity, Department of Justice; PATRICK HANNIGAN, in individual capacity, Office of Criminal Investigations; OMOTUNDE OSUNSANMI, in individual capacity, Food and Drug Administration; and AMGEN USA INC., et al., a California and Delaware Corporation, Defendants.



         This case is before the Court pursuant to an Order Referring Case entered by Judge Raymond P. Moore on March 22, 2017. (Docket No 7.) Now before the Court are seven motions, all of which have been referred to the undersigned Magistrate Judge. (Docket Nos. 19, 24, 26, 44 & 45:) They are, in chronological order:

• Plaintiff Samuel J. May's (“Plaintiff”) Unopposed Motion for Declaratory Judgment Directing Payment of Qui Tam Share of Alternate Remedy Proceeds, filed on May 1, 2017 (Docket No. 15);
• Plaintiff's Unopposed Notice of Motion and Motion for an Evidentiary Hearing Pursuant to 28 U.S.C. § 2202 and 31 U.S.C. § 3730(c)(2)(B), in Support of Concurrent Motion for Declaratory Judgment Directing Payment of Qui Tam Share, filed on May 1, 2017 (Docket No. 16);
• Plaintiff's Unopposed Notice of Motion and Motion for Declaratory Relief Requesting Judicial Notice of the Dismissed Qui Tam Complaint in Support of Motion for Relator Share and Hearing, filed on May 1, 2017 (Docket No. 17);
• Defendant Amgen USA Inc.'s (“Amgen”) Motion to Dismiss, filed on May 1, 2017 (Docket No. 22), to which Plaintiff filed a response (Docket No. 33), and Amgen filed a reply (Docket No. 33);
• Amgen's Motion for Attorney Fees, filed on May 2, 2017 (Docket No. 25);
• Defendants United States of America, U.S. Department of Justice, and U.S. Department of Health and Human Services' (collectively the “Federal Defendants”) Partial Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)(b), filed August 25, 2017 (Docket No. 42), to which Plaintiff filed a response (Docket No. 46); and
• The Federal Defendants' Partial Motion for Summary Judgment, filed August 25, 2017 (Docket No. 43), to which Plaintiff filed a response (Docket No. 47).

         The Court has taken judicial notice of the Court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.

         I. BACKGROUND

         In his Complaint (Docket No. 1), Plaintiff essentially combines into one pleading two separate legal proceedings that he has pursued for several years in various trial and appellate courts. One relates to litigation surrounding an arbitration award entered in Amgen's favor as to employment claims brought by Plaintiff. The other is a qui tam False Claims Act (“FCA”) action Plaintiff brought against Amgen. Both cases have run their course, but Plaintiff seeks further redress in this Court.

         Plaintiff was employed by Amgen as a Validation Specialist/Engineer III from April 2002 through June 2006. (Docket No. 1 at ¶ 63.) After Plaintiff's employment ended, he filed a lawsuit in California state court against Amgen. (Docket No. 22-1.)[1]That lawsuit was dismissed because the parties had entered into an arbitration agreement. (Docket No. 1 at ¶78.) Following a three-day arbitration hearing, on October 14, 2011, the arbitrator ruled against Plaintiff and in favor of Amgen on Plaintiff's one remaining claim for Constructive Termination in Violation of Public Policy. (Docket No. 22-4.) Plaintiff's motion to reconsider the arbitration award was subsequently denied. (Docket No. 22-5.)

         On February 24, 2012, Amgen filed a Motion to Confirm the Arbitration Award in the Denver District Court (Docket No. 22-6), which was granted on March 23, 2012. (Docket No. 22-10.) Rather than challenge Amgen's motion in Colorado state court, on March 16, 2012, Plaintiff initiated a proceeding to vacate or modify the arbitration award in the United States District Court for the Northern District of California, Civil Action No. 12-cv-01367. (Docket Nos. 22-7 - 22-9.) Then, on April 13, 2012, Plaintiff sought to vacate the arbitration award in the Denver District Court. (Docket No. 22-11.) Plaintiff's request was rejected as untimely. (Id.)

         On June 14, 2012, Judge William Alsup of the Northern District of California dismissed Plaintiff's petition to vacate or modify the arbitration award. See May v. Amgen, No. 12-cv-01367, 2012 WL 2196151 (N.D. Cal. June 14, 2012) (unpublished) (also filed at Docket No. 22-12). Judge Alsup decided on the merits of the petition, despite finding it “disturbing that plaintiff has fled from the Colorado state court and come here seeking yet another opinion on his case[, ]” and recognizing that “[a] strong abstention argument is made[.]” Id. at *4. He ultimately concluded, “This is a case in which both sides received a fair hearing and the losing side simply refuses to accept the outcome.” Id. at *7.

         The Ninth Circuit Court of Appeals affirmed the district court's order on March 18, 2014. May v. Amgen, Inc., 564 F. App'x 313, 314 (9th Cir. 2014) (unpublished) (also filed at Docket No. 22-13). The United States Supreme Court denied Plaintiff's petition for writ of certiorari on March 2, 2015. May v. Amgen, 135 S.Ct. 1493 (2015) (also filed at Docket No. 22-14). His motion for reconsideration was also denied. May v. Amgen, 135 S.Ct. 1889 (2015) (also filed at Docket No. 22-15).

         After yet another motion to reconsider was denied in the Northern District of California and subsequently appealed, Judge Alsup revoked Plaintiff's in forma pauperis status. (Docket No. 22-17.) Plaintiff's second appeal and request for a panel rehearing were rejected by the Ninth Circuit. (Docket Nos. 22-18 & 22-19.)

         While the arbitration proceedings were winding their way through the various courts, Plaintiff was also pursuing a qui tam FCA action against Amgen in the Northern District of California, which he brought pro se on June 11, 2010. (Docket Nos. 22-20 -22-22.) Plaintiff alleged that Amgen had manufactured tainted and nonconforming drugs and failed to comply with tracking procedures. (Docket No. 22-20 at pp. 9-11.) On September 28, 2010, the United States declined to intervene in the action, and suggested to the district court that the case be dismissed unless Plaintiff obtained counsel. (Docket No. 22-23.) The action was unsealed on October 31, 2011, the district court informed Plaintiff that his case would be dismissed if he did not obtain counsel within 60 days. (Docket No. 22-24 at p. 4.) On January 5, 2012, Plaintiff's qui tam lawsuit was dismissed without prejudice for lack of prosecution because Plaintiff had not retained counsel. (Docket No. 22-25.)

         Plaintiff's attempt to reopen the case four years later was summarily denied by Judge Alsup because he “still has not retained counsel, and his filings are untimely and plainly frivolous.” (Docket No. 22-34.) On appeal, the Ninth Circuit informed Plaintiff that he cannot maintain a qui tam suit pro se. (Docket No. 22-35.) On March 2, 2015, his appeal was dismissed when no counsel had entered an appearance. (Docket No. 22-36.)

         On December 13, 2012, Amgen and the United States entered into a settlement agreement in which Amgen agreed to pay a civil fine of $612, 174, 030 to resolve a number of pending qui tam actions concerning Amgen's off-label marketing activities. (Docket No. 22-37 at p. 7.) Plaintiff was not a party to the settlement agreement. (Id. at pp. 1-2.)

         Plaintiff's Complaint seeks his “relator share” of that settlement. He requests between 25 and 35 percent of the entire proceeds or, in the alternative, a proportionate award of Amgen's total value. (Docket No. 1 at p. 32.) Plaintiff brings seven claims for relief against Amgen and the United States: (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Fraud and Fraudulent Concealment; (4) Breach of Fiduciary Duty; (5) Conversion; (6) Intentional Infliction of Emotional Distress (Outrageous Conduct); and (7) Negligent Infliction of Emotional Distress.[2]

         II. ANALYSIS

         a. Amgen's Motion to Dismiss (Docket No. 22)

         Amgen seeks to dismiss Plaintiff's Complaint on several grounds. First, Amgen argues that Plaintiff cannot maintain a claim against Amgen for a portion of the proceeds of the qui tam FCA settlement agreement. Second, Amgen asserts that any claim arising from the arbitration proceeding and subsequent litigation is barred by issue and claim preclusion. Third, Amgen argues that Plaintiff's claims for relief are barred by the statute of limitations. Finally, Amgen states that Plaintiff's specific claims for relief fail as a matter of law.

         i. Standard of Review

         As an initial matter, the Court notes that Plaintiff is proceeding pro se. The Court must liberally construe the pleadings of a pro se plaintiff. Haines v. Kerner, 104 U.S. 519, 520-21 (1972). Nevertheless, the Court cannot act as advocate for a pro se litigant, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

         Amgen brings its motion pursuant to Federal Rule of Civil Procedure 12(b)(6), which provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at1198. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         However, the Court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

         In assessing a motion to dismiss under Rule 12(b)(6), the usual rule is that a court should consider no evidence beyond the pleadings. See Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1216 (10th Cir.2007). If, on a motion under Rule 12(b)(6), “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). As noted above, however, “the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity.” Alvarado, 493 F.3d at 1216 (quoting Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). See also GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)(“[i]f a document is referenced in and central to a complaint, a court need not convert the motion but may consider that document on a motion to dismiss.). In addition, “facts subject to judicial notice may be considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th Cir.2006).

         ii. Plaintiff's Claim for Qui Tam Settlement Money

         Amgen argues that to the extent that Plaintiff's Complaint can be interpreted as asserting a claim against Amgen for a portion of the settlement proceeds, it must be dismissed because the United States, not Amgen, is responsible for paying relators who successfully bring a FCA action. The Court agrees. Notwithstanding the fact that Plaintiff has not sufficiently alleged that he is entitled to any portion of the settlement proceeds (as further discussed below), even if he was, Amgen is not the proper defendant to sue. Amgen paid the settlement funds to the United States. (Docket No. 22-37 at p. 7.) By statute, the United States is responsible for paying the relators' share. See 31 U.S.C.A. § 3730(d). Plaintiff acknowledges as much in his Complaint. (Docket No. 1 at ¶ 88.) Accordingly, Plaintiff cannot maintain a claim against Amgen for his claim to a relators' share of the settlement money.

         Amgen also argues that if Plaintiff's Complaint is construed as attempting to bring a new qui tam action or revive his old one, he is time barred. The Court finds that not only would such a claim time-barred, it would also be groundless and frivolous. As Plaintiff has been informed multiple times, a pro se plaintiff cannot prosecute a qui tam ...

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