United States District Court, E.D. North Carolina, Western Division
UNITED STATES OF AMERICA and THE STATE OF NORTH CAROLINA, EX REL.STEPHEN GUGENHEIM, Plaintiff,
MERIDIAN SENIOR LIVING, LLC, et al. Defendants.
TERRENCE W. BOYLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on defendants' motion to
amend order to include certification for interlocutory
appeal. Plaintiff has responded and the motion is ripe for
ruling. For the reasons that follow, defendants' motion
Court dispenses with a recitation of the factual and
procedural background of this matter and incorporates by
reference as if fully set forth herein those portions of its
23 March 2018 order. In an order entered on the Court's
docket on March 23, 2018, the Court granted in part and
denied in part defendants' motion to dismiss and denied
as moot their motion to stay discovery. [DE 55]. Defendants
now seek an immediate appeal of the Court's 23 March 2018
order in order to resolve three issues:
1. Can a relator sufficiently allege claims against all
defendants under Rule 9(b) without setting forth specific
factual allegations about each defendant?
2. Does the NC FCA cede authority to Congress or the federal
judiciary to rewrite a North Carolina statute based solely on
amendments to the FCA and thereby:
• require that the federal government be a party to
litigation in order for that litigation to trigger the public
disclosure bar; and
• remove the statutorily required jurisdictional bar
under the NC FCA for allegations based on public disclosures.
3. What level of specificity is required to trigger the
public disclosure bars under both the FCA and NC FCA for
industry-wide practices known to the government?
U.S.C. § 1292(b) provides that a district judge may
certify an order as immediately appealable if he finds that
it "involves a controlling question of law as to which
there is a substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation . .
.." 28 U.S.C. § 1292(b). While section 1292(b) was
enacted in order to permit interlocutory appeals under some
circumstances, "it is a rare exception to the final
judgment rule that generally prohibits piecemeal
appeals." Koehler v. Bank of Bermuda, Ltd., 101
F.3d 863, 865 (2nd Cir. 1996).
requirements of § 1292(b) must be strictly construed.
Myles v. Lqffitte, 881 F.2d 125, 127 (4th Cir.
1989). A controlling question of law is "a narrow
question of pure law whose resolution will be completely
dispositive of the litigation, either as a legal or practical
matter, whichever way it goes." Fannin v. CSX
Tramp., Inc., 873 F.2d 1438, *5 (4th Cir. 1989)
(unpublished). Additionally, certification of an
interlocutory appeal is "appropriate where 'the
court of appeals can rule on a pure, controlling question of
law without having to delve beyond the surface of the record
in order to determine the facts.'" United States
ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d
330, 340-41 (4th Cir. 2017) (quoting McFarlin v. Conseco
Servs., ZZC, 381 F.3d 1251, 1259 (11th Cir. 2004)). Even
where the requirements of § 1292(b) have been satisfied,
the decision to certify an interlocutory appeal lies soundly
within the discretion of the court that has issued the order.
State of N.C ex rel. Howes v. W.R. Beele, Sr. Trust,
889 F.Supp.849, 852 (E.D. N.C. 1995); Picard v.
Katz, 466 B.R. 208, 210 (S.D.N.Y. 2012) (quotation and
citation omitted) (district court has "unfettered
discretion" to decline to certify an interlocutory
appeal in absence of exceptional circumstances). As the
defendants have recognized in their motion, the Court was not
of the opinion that interlocutory appeal of any issue
addressed in its order on the motion to dismiss was warranted
at the time the order was entered, and thus defendants have
requested that the Court amend its prior order to include
§ 1292(b) certification.
review of defendants' request, the Court finds no
exceptional circumstances which would warrant certification
of an interlocutory appeal. In essence, defendants contend
that, in denying their motion to dismiss for failure to
satisfy Fed.R.Civ.P. 9(b), the Court has failed to properly
apply settled law to the facts or evidence of this case,
which is inappropriate for § 1292(b) review.
Michaels, 848 F.3d at 341. Defendants have cited no
difference of opinion as to this Court's interpretation
of the North Carolina False Claims Act as consistent with the
federal False Claims Act, as was requested by the State of
North Carolina. [DE 45]. Finally, as plaintiff correctly
notes, any review of the Court's determination regarding
the public disclosure bar would not materially advance the
litigation as the Court made an alternative finding that
plaintiff could proceed as an original source.
the Court is simply not persuaded that this case presents an
exception to the general rule that requires entry of a final
decision prior to appellate review. See Cobbledick v.
United States,309 U.S. 323, 324 (1940). The ...