United States District Court, D. Colorado
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.
REPORT AND RECOMMENDATION ON THE PARTIES' MOTIONS
(DOCKETS NOS. 15, 16, 17, 22, 25, 42, & 43)
MICHAEL J. WATANABE UNITED STATES MAGISTRATE JUDGE
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
• 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).
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
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.
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.)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.)
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.
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.
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).
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.)
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.)
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.)
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.)
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
Amgen's Motion to Dismiss (Docket No. 22)
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.
Standard of Review
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).
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
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.
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).
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).
Plaintiff's Claim for Qui Tam Settlement
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.
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