144 F. Supp. 3d 869
E.D. Va.2015Background
- Relator Benjamin Carter filed qui tam False Claims Act (FCA) allegations that KBR/Halliburton personnel submitted false timecards for water-purification work in Iraq (2005). Most alleged claims fell outside the six-year limitations period; only $673.56 in claims were within the applicable window.
- Carter’s suit underwent multiple filings and dismissals across districts and appeals (Carter I–III), and related earlier suits (Maryland and sealed Texas actions) were pending when Carter III was filed in June 2011.
- This Court previously dismissed Carter III under the FCA first-to-file bar and (initially) with prejudice for statute-of-limitations reasons; the Fourth Circuit and Supreme Court later addressed tolling, first-to-file, and repose issues in related appeals.
- The Supreme Court in Kellogg held that a qui tam suit ceases to be “pending” once dismissed and reversed dismissal-with-prejudice of Carter’s one remaining claim; it did not resolve whether refiling would be time-barred.
- On remand, Defendants moved to dismiss; Carter sought to amend his complaint to avoid the first-to-file bar and revive time-barred claims. The Court denied amendment and dismissed the action without prejudice under the first-to-file rule, declining to rule on whether refiling would be time-barred.
Issues
| Issue | Plaintiff's Argument (Carter) | Defendant's Argument (KBR/Halliburton) | Held |
|---|---|---|---|
| Applicability of first-to-file bar | Earlier cases were dismissed before final resolution, so they no longer bar Carter; once dismissed, Carter becomes first-to-file | First-to-file is assessed based on facts when the later suit was filed; Maryland and Texas actions were pending when Carter sued in 2011, so bar applies | First-to-file applies based on the time the suit was filed; Carter’s case is barred and must be dismissed for lack of jurisdiction (without prejudice) |
| Does Kellogg automatically make a later-filed case the first-filer after earlier dismissal? | Kellogg means dismissal of earlier suits makes later suits first-to-file automatically | Kellogg does not change law-of-the-case/Fourth Circuit precedent that focus is on the time of filing | Kellogg is read narrowly; it does not automatically advance Carter to first-filer status; prior Fourth Circuit law controls |
| Right to amend as a matter of course under Rule 15(a)(1)(B) after multiple motions to dismiss | Carter asserts a 21-day right to amend in response to Defendants’ 2015 motion | Defendants: 21-day period ran from the earliest defensive action in 2011; no new right arose in 2015 | 21-day right is not cumulative; Carter’s request is untimely as a matter of course |
| Leave to amend under Rule 15(a)(2) and futility | Amendment could cure defects, relate back, and avoid first-to-file bar | Any amendment would be futile because first-to-file is assessed at the time of initial filing and cannot be cured by amendment | Amendment denied as futile: amending cannot cure the jurisdictional first-to-file bar; dismissal without prejudice follows |
Key Cases Cited
- Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015) (Supreme Court held a qui tam suit ceases to be “pending” once dismissed and reversed dismissal-with-prejudice on that ground)
- United States ex rel. Carter v. Halliburton Co., 710 F.3d 171 (4th Cir. 2013) (Fourth Circuit: first-to-file is assessed by looking at facts when the later claim was filed; dismissal-with-prejudice was error under first-to-file)
- Rockwell Intern. Corp. v. United States, 549 U.S. 457 (2007) (Supreme Court: amended complaints may be considered for certain jurisdictional questions but do not supply jurisdiction where none existed)
- Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276 (10th Cir. 2004) (first-to-file bar analyzed by reference to facts as they existed when the later action was brought)
- United States ex rel. Shea v. Cellco P’ship, 748 F.3d 338 (D.C. Cir. 2014) (D.C. Circuit held first-to-file could apply even after initial action dismissed; later vacated/remanded consistent with Kellogg)
- TFWS, Inc. v. Franchot, 572 F.3d 186 (4th Cir. 2009) (law-of-the-case doctrine explained; prior appellate rulings govern subsequent stages unless narrow exceptions apply)