United States Ex Rel. D'Agostino v. EV3, Inc.
802 F.3d 188
1st Cir.2015Background
- Relator Jeffrey D'Agostino filed a sealed qui tam FCA suit in 2010 against ev3, later amending the complaint multiple times and adding defendants. The U.S. declined to intervene in 2013 and the case was unsealed.
- Relator used his one Rule 15(a)(1) amendment as of course in February 2011, then obtained leave for second and third amended complaints in 2012 and 2013.
- In mid-2014 defendants filed timely motions to dismiss (arguing public-disclosure bar and Rule 9(b) failure). The district court entered a scheduling order under Rule 16(b) but the order did not set a pleading-amendment deadline.
- Four days before the opposition deadline, relator filed a fourth amended complaint without seeking leave, asserting he had an absolute right under Rule 15(a)(1). Defendants moved to strike; the court treated the filing as a request for leave and applied Rule 16(b)’s good-cause standard, denying leave and striking the pleading.
- The district court then dismissed the complaint with prejudice on jurisdictional and Rule 9(b)/failure-to-state-a-claim grounds but did not rule on the relator’s conditional request to amend.
- On appeal the First Circuit rejected relator’s novel reading of Rule 15(a)(1) (one amendment only), held the district court erred by applying Rule 16(b) without a scheduling-order amendment deadline, vacated the dismissal, and remanded for reconsideration under Rule 15(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 15(a)(1) permits repeated amendments as of course after each responsive pleading | D'Agostino argued the 2009 Rule 15 changes allow a new 21‑day amendment window after each responsive pleading, effectively renewing the as‑of‑course right | Defendants argued the one‑time as‑of‑course amendment remains intact and was already used in 2011 | Court held Rule 15(a)(1) still permits only one amendment as of course; relator had exhausted it in 2011 |
| Whether the district court should have applied Rule 16(b)’s good‑cause standard to deny leave to amend where the scheduling order contained no amendment deadline | D'Agostino argued Rule 15(a) (leave freely given) governed and the court erred by using Rule 16(b) absent a deadline | Defendants argued the court reasonably applied an elevated standard to preserve its briefing schedule and prevent prejudice | Court held application of Rule 16(b) was error because the scheduling order set no deadline for amending pleadings; Rule 15(a) applies absent a Rule 16 deadline |
| Whether the district court’s erroneous standard requires remand or is harmless | N/A (relator sought remand) | Defendants implied denial was justified by prejudice or case posture so remand unnecessary | Court held remand required because the district court made no Rule 15(a) findings and it was not certain a different standard would produce the same result |
| Whether appellate court should reach the merits of dismissal (public‑disclosure, Rule 9(b), failure to state a claim) | Argued merits errors below | Defendants defended district court’s dismissal reasoning | Court declined to decide the merits, remanding so district court can reconsider amendment request under the correct standard first |
Key Cases Cited
- Nikitine v. Wilmington Trust Co., 715 F.3d 388 (1st Cir.) (standard of review for denial of leave to amend)
- Cruz v. Bristol-Myers Squibb Co., P.R., Inc., 699 F.3d 563 (1st Cir.) (Rule 16(b) governs amendments after scheduling‑order deadline)
- Trans‑Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315 (1st Cir.) (good‑cause standard for post‑deadline amendments)
- O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152 (1st Cir.) (importance of enforcing scheduling orders)
- In re Grand Jury Subpoena, 138 F.3d 442 (1st Cir.) (application of wrong legal standard is per se abuse of discretion warranting remand, with narrow exception)
- Foman v. Davis, 371 U.S. 178 (U.S.) (factors that may justify denial of leave to amend)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S.) (fair notice and reliance on established procedural rules)
- United States ex rel. Poteet v. Bahler Med., Inc., 619 F.3d 104 (1st Cir.) (interpretation of Rule 15(a)(1) amendment as of course)