Qui tarn relator Henry Roop appeals the dismissal of his complaint alleging that his former employer, Hypoguard USA, Inc., violated the False Claims Act (“FCA”), 31 U.S.C. § 3729(a). Conceding that his initial Complaint failed to plead an FCA claim with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure, Roop argues that the district court 1 abused its discretion by denying him leave to amend and then denying his motion to alter or amend the judgment to permit him to file a proposed First Amended Complaint. We affirm.
Roop worked as a Medicare sales specialist for Hypoguard, a Minnesota-based manufacturer of blood glucose monitoring systems that are sold to diabetics, many of whom are eligible under Medicare for federal reimbursement of their purchases. Hypoguard sells these medical devices to distributors who submit Medicare reimbursement claims for their sales to nursing homes and individual consumers.
Roop commenced this action in March 2004 by filing a sealed complaint in the Northern District of Mississippi. The complaint alleged, inter alia, that Hypo-guard blood glucose monitors and test strips were defective, and that Hypoguard knew they were defective and failed to file reports of defects required by the Food and Drug Administration’s Medical Device Reporting (“MDR”) regulations, 2 which caused Medicare to pay countless fraudulent reimbursement claims submitted by Hypoguard distributors. In May 2006, after a lengthy FDA investigation, the United States filed a Notice of Election to Decline Intervention. See 31 U.S.C. § 3730(b)(4)(B). Roop elected to continue the action. Hypoguard was then served and in October 2006 filed motions to dismiss and to transfer venue to the District of Minnesota.
In support of its motion to dismiss, Hy-poguard argued that Roop failed to plead fraud with the specificity required by Rule 9(b) because he failed to allege “a single *821 specific false claim or statement submitted to the government,” details concerning the alleged failures to submit proper MDRs, and “what was false in any statement to the Government, why it was false, and when the allegedly fraudulent statements were made.” In his Memorandum in Opposition, Roop argued at length that the complaint sufficiently pleaded an FCA claim and then concluded: “Alternatively, if this Court finds that Plaintiffs False Claims Act claims lack specificity as required by Rule 9(b), Plaintiff should be granted leave to file an amended complaint.” The Northern District of Mississippi transferred venue to the District of Minnesota in March 2007 without ruling on the motion to dismiss.
The district court held a hearing on Hypoguard’s motion to dismiss on September 6, 2007. Roop had not complied with the local rule requiring that a party who moves to amend a pleading “shall attach a copy of the amended pleading to the motion.” D. Minn. LR 15.1. Accordingly, at the hearing, the district court asked:
If I were to require there to be a real-leging under Rule 9, what further facts do you think could be adduced to shore this up?
Counsel for Roop responded:
Well, number one, I can allege that people were injured by it. I do have evidence of that. My client as a regional sales manager was involved in some telephone conferences with groups of sales reps as well as management of Hypoguard in which people gave instances of where people were injured by the device, so I could allege that....
THE COURT: Injured in the sense of requiring hospitalization—
[COUNSEL]: Yeah, and I think one person died.... I guess I could more clearly allege the reimbursement ... it’s not Hypoguard being reimbursed, but that they’re causing reimbursements to be made. So I could more specifically allege regarding the MDRs and that they were required to be reported and not reported and provide the basis un-» der the regulations with some evidence as to — particular evidence as to people that were injured, or at least discussions where Hypoguard employees acknowledged that people were injured by the device.
THE COURT: Okay.
[COUNSEL]: I would like the opportunity ... to do Rule 26 disclosures and I’d like to take the depositions of some Hypoguard employees and some ex-employees .... And I would like to get copies of all the MDRs they did file and just internal documents regarding the device....
After the hearing, the district court issued a Memorandum Opinion and Order dismissing Roop’s Complaint with prejudice and denying his request for leave to amend.
United States ex rel. Roop v. Hypoguard USA, Inc.,
On October 9, 2007, Roop filed a Motion to Alter or Amend the Judgment and Motion for Leave to File a First Amended Complaint, attaching a 25-page, 63-para-graph First Amended Complaint. His nine-page Memorandum in Support asserted that he “has now alleged in compliance with [Rule] 9(b) the instances of the false and fraudulent claims, and violations of
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FDA regulations,” but he failed to provide a detailed comparison of how the lengthy First Amended Complaint cured deficiencies in the initial Complaint. The district court denied that motion in a Memorandum Opinion and Order explaining that Roop “failed to present any reason why he is entitled to relief under Rule 59(e) or 60(b).”
United States ex rel. Roop v. Hypoguard USA, Inc.,
1. On appeal, Roop first argues that the district court abused its discretion in dismissing his Complaint with prejudice and denying as futile his request for leave to amend to cure its Rule 9(b) deficiencies. Futility is a valid basis for denying leave to amend. We review the denial of leave to amend for abuse of discretion and questions of futility
de novo. United States ex rel. Joshi v. St. Luke’s Hosp., Inc.,
The FCA imposes liability if a defendant (1) “knowingly presents, or causes to be presented, [to a federal official] a false or fraudulent claim for payment or approval,” or (2) “knowingly makes ... a false record or statement to get a false or fraudulent claim paid or approved.” 31 U.S.C. § 3729(a)(l)-(2).
3
Grounded in fraud, FCA claims must satisfy Rule 9(b)’s heightened pleading requirement: “[A] party must state with particularity the circumstances constituting fraud or mistake.” To meet this standard and enable the defendant to respond “specifically and quickly,” a complaint alleging fraud “must identify who, what, where, when, and how.”
United States ex rel. Costner v. United States,
Though the district court “should freely give leave [to amend] when justice so requires,” Fed.R.Civ.P. 15(a)(2), plaintiffs do not enjoy “an absolute or automatic right to amend” a deficient FCA Complaint.
United States ex rel. Lee v. Fairview Health Sys.,
2. Roop next argues that the district court abused its discretion in denying his motion to alter or amend the judgment to allow him to file the proposed First Amended Complaint. He complains on appeal that only after the court dismissed his Complaint did he become “aware ... of the facts which the Court believed were required to be set forth with particularity.” In a word, this is balderdash. Roop adopted a strategy of vigorously defending his initial Complaint, despite its numerous and obvious Rule 9(b) deficiencies. He now wants a judicial reprieve.
Review of this motion raises an issue of law ignored by the parties — when a complaint is dismissed for failure to state a claim, and plaintiff files a post-judgment motion for leave to file an amended complaint, is that motion reviewed under the liberal “freely give” standard of Rule 15(a)(2), or under the more restrictive standards applicable to post-judgment motions under Rules 59(e) and 60(b)? All circuits acknowledge that post-judgment leave to amend may be granted if timely requested. That conclusion is compelled by the Supreme Court’s summary reversal of the denial of such a motion in
Foman v. Davis,
We have found two circuits that have addressed this question in reviewing the denial of post-judgment motions for leave to amend an FCA complaint dismissed for failure to comply with Rule 9(b). Both held that Rule 59(e) and Rule 60(b) apply at this stage of the proceedings. But the Fifth Circuit held that, in this situation, “the considerations for a motion under Rule 59(e) are the same as those governing a motion under Rule 15(a).”
United States ex rel. Hebert v. Dizney,
In
Parnes v. Gateway 2000, Inc.,
In this case, Roop did seek prejudgment leave to amend his complaint, and that relief was properly denied. Thus, in denying the post-judgment motion, the district court correctly observed that “Roop’s argument regarding Rule 15’s policy for granting leave to amend is an attempt to reargue an issue already addressed by this Court.” 4 On appeal, Roop chides the district court for failing to undertake a detailed analysis of whether his proposed First Amended Complaint was futile, or stated viable FCA claims. But the court’s lack of patience was understandable. Though Roop corrected his pre-judgment failing by submitting a proposed pleading with his post-judgment motion, his supporting memorandum did not explain how this lengthy pleading — on its face substantially similar to the initial Complaint — cured the Rule 9(b) deficiencies in the initial Complaint. Roop’s Memorandum in Support gave the district court no reason to believe that the proposed First Amended Complaint was different than the insufficient amendments counsel orally described at the motion hearing. The court was not obligated to ferret out well-hidden changes in a post-judgment amended pleading without guidance from Roop. In these circumstances, there was no abuse of discretion in denying the post-judgment motion.
Moreover, our detailed review of the proposed First Amended Complaint confirms that it did not cure the Rule 9(b) deficiencies in the initial Complaint. The more-detailed allegations that Hypoguard failed to file required MDR reports did not identify specific false or fraudulent Medicare reimbursement claims by Hypoguard distributors, nor did Roop allege that Hy-poguard falsely “certifiefd] compliance with a statute or regulation as a condition to governmental payment.”
Mikes v. Straus,
The proposed First Amended Complaint did not plead with particularity the details
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of any false Medicare reimbursement claim presented to, or paid by, the United States or its agent.
See Joshi
Finally, in paragraphs 56, 60, and 62 of the First Amended Complaint, Roop alleged for the first time that Hypoguard assisted one distributor in submitting fraudulent Medicare reimbursement claims by “artificially inflating” the price of blood glucose monitors and reducing the price of blood glucose test strips. He did not even mention these deeply-buried allegations in his Memorandum in Support to the district court. Thus, the issue was not properly preserved. And in any event, a post-judgment motion for leave to assert an entirely new claim is untimely.
For these reasons, and the reasons stated by the district court in its two opinions and orders, the judgment of the district court is affirmed.
Notes
. The HONORABLE ANN D. MONTGOMERY, United States District Judge for the District of Minnesota.
. The FDA granted pre-market approval of the Hypoguard glucose monitoring products. See 21 U.S.C. §§ 360c(f), 360e; 21 C.F.R. Part 814. The MDR regulations require a medical device manufacturer to submit an “adverse event report” to the FDA if it receives information suggesting that a device may have caused or contributed to a death or serious injury, or has malfunctioned and would likely cause or contribute to a death or serious injury if the malfunction recurred. 21 C.F.R. § 803.50(a).
. A claim under § 3729(a)(2) requires proof “that the defendant intended that the false record or statement be material to the Government's decision to pay or approve the false claim.”
Allison Engine Co. v. United States ex rel. Sanders,
- U.S. -,
. Roop’s contention that the district court’s order explaining its denial of his post-judgment motion was a ''nullity” because he had already appealed the earlier dismissal order is without merit. See Fed. R.App. P. 4(a)(4)(B)(i);
MIF Realty L.P. v. Rochester Assoc.,