UNITED STATES OF AMERICA and STATE OF MICHIGAN ex rels. MOHAMED SY and DOSHAUN EDWARDS v. OAKLAND PHYSICIANS MEDICAL CENTER, LLC, dba Pontiac General Hospital; SANYAM SHARMA
No. 22-1011
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 12, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0186p.06
Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:18-cv-10458—Nancy G. Edmunds, District Judge.
Decided and Filed: August 12, 2022
Before: GILMAN, GRIFFIN, and THAPAR, Circuit Judges.
COUNSEL
ON BRIEF: Adam S. Akeel, AKEEL & VALENTINE, PLC, Troy, Michigan, for Appellants. Kathleen H. Klaus, Jesse L. Roth, MADDIN HAUSER ROTH & HELLER, P.C., Southfield, Michigan, for Appellees.
RONALD LEE GILMAN, Circuit Judge. Mohamed Sy and Doshaun Edwards (the Plaintiffs) brought this qui tam action against their former employer, Oakland Physicians Medical Centеr, LLC, d/b/a Pontiac General Hospital, and against Sanyam Sharma, the Chief Executive Officer and Chairman of Pontiac General Hospital (the Defendants). The Plaintiffs filed their complaint under seal pursuant to
Pursuant to
I. BACKGROUND
The Plaintiffs were employed by Pontiac General Hospital (Pontiac) until their termination on November 22, 2017. At that time, Sy served as Pontiac‘s Director of Nursing, and Edwards served as a Nurse Educator. In December 2017, the Plaintiffs filed separate charges of discrimination—alleging race, gender, and religious discrimination, as wеll as retaliation, under Title VII—with the Equal Employment Opportunity Commission (EEOC). The EEOC, a year later, declined to pursue the charges and issued “Right to Sue” letters to the Plaintiffs. But neither of the Plaintiffs exercised their right to file a Title VII suit.
While the EEOC charges were pending, however, the Plaintiffs initiated this qui tam action against the Defendants. The action alleged that Pontiac rendered unnecessary patient procedures in order to unduly inflate its Medicare and Medicaid payments. According to the Plaintiffs, this violated the False Claims Act (FCA),
On October 23, 2020, the government declined to intervene in the qui tam action. The district court unsealed the complaint on October 26, 2020, which began the 90-day period for service under
The Plaintiffs, however, never got confirmation that the Defendants received the amended complaint. One hundred and twenty-eight days after the seal was lifted, the Plaintiffs realized that no summons had been issued. Upon realizing this oversight, the Plaintiffs sought the issuance of a summons, which was provided on March 4, 2021. The Plaintiffs then served the Defendants with the amended complaint and summons on March 15, 2021, which was approximately 50 days after the 90-day period to effect service of process had already expired.
On April 26, 2021, the Defendants moved to dismiss the amended complaint under
II. ANALYSIS
A. Standard of review
We review a district court‘s judgment dismissing a complaint for failure to effect timely service of process under the abuse-of-discretion standard. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). “A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an[] erroneous legal standard.” Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995) (citation omitted). We may reverse only if we are “firmly convinced that a mistake has been made, i.e., when we are left with a definite and firm conviction that the trial court committed a clear error of judgment.” United States v. Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (citation omitted).
B. The relevant test
If a defendant is not served within 90 days after thе complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Rule 4‘s service-of-proсess requirements apply to claims brought under the FCA. See
How a district court should respond to a motion to enlarge the time for service of process depends on the circumstances. If a plaintiff demonstrates good cause for the failure to timely serve process, the court must extend the time for service.
This court has not yet announced a test that district courts should employ when assessing whether to exercise their discretion to enlarge the service-of-process period. The district courts in this circuit, however, including the district court in thе present case, have consistently balanced the following five factors:
[whether] (1) a significant extension of time was required; (2) an extension of
time would prejudice the defendant other than the inherent “prejudice” in having to defend the suit; (3) the defendant had actual notice of the lawsuit; (4) a dismissal without prejudice would substantially prejudice the plaintiff; i.e., would his lawsuit be time-barred; and (5) the plaintiff had made any good faith efforts at effecting proper service of process.
Slenzka v. Landstar Ranger, Inc., 204 F.R.D. 322, 326 (E.D. Mich. 2001); see also In re Ohio Execution Protocol Litig., 370 F. Supp. 3d 812, 821 (S.D. Ohio 2019).
Other circuits have looked to the Advisory Committee‘s note to
Based on the foregoing, we conclude that a district сourt should consider the following factors when deciding whether to grant a discretionary extension of time in the absence of a finding of good cause:
- whether an extension of time would be well beyond the timely service of process;
- whether an extension of time would prejudice the defendant other than the inherent prejudice in having to defend the suit;
- whether the defendant had actual notice of the lawsuit;
- whethеr the court‘s refusal to extend time for service substantially prejudices the plaintiff, i.e., would the plaintiff‘s lawsuit be time-barred;
- whether the plaintiff had made any good faith efforts to effect proper service of process or was diligent in correcting any deficiencies;
- whether the plaintiff is a pro se litigant deserving of additional latitude to correct defects in service of process; and
- whether any equitable factors exist that might be relevant to the unique circumstances of the case.
C. The district court did not abuse its discretion
In the present case, the district court applied the five factors that other district courts in this circuit have consistently considered. See Slenzka, 204 F.R.D. at 326. The court concluded that, although the applicable statutе of limitations would bar the Plaintiffs from refiling their claims, the remaining factors weighed in favor of the Defendants. Specifically, the court concluded that factors two, three, and five weighed in the Defendants’ favor. The court reasoned that “an extension may prejudice Defendants in light of the fact that Plaintiffs brought this case as a qui tam action and it remained under sеal for
In response, the Plaintiffs contend that, because their claims will be time-barred by the applicable statute of limitations, the dismissal of their case substantially prejudices them and warrants an extension. But whether the applicable statute of limitations has run is only one of several factors that a court must consider in deciding whether to grant a discretionary extension of time. Persuasive authority from other circuits concludes that the running of the statute of limitations does not require a court to grant a discretionary extension, a conclusion with which we agree. See Morrissey, 17 F.4th at 1160; Jones, 12 F.4th at 750–51; Zapata v. City of New York, 502 F.3d 192, 197–98 (2d Cir. 2007); Petrucelli, 46 F.3d at 1306. But see Thrasher v. City of Amarillo, 709 F.3d 509, 512 (5th Cir. 2013) (“If the applicable statute of limitations likely bars future litigation, a district court‘s dismissal of claims under Rule 4(m) should be reviewed under the same heightened standard used to review a dismissal with prejudice.” (citation and internal quotation marks omitted)).
We are thus left with the overarching question of whether the district court in the present case made a сlear error of judgment in its overall balancing of the factors. Specifically, the Plaintiffs take issue with the court‘s conclusion that the Defendants lacked actual notice of the Plaintiffs’ suit (factor three), and that the Defendants would be prejudiced by that lapse of time (factor two). But the Plaintiffs, in framing the issues, fail to encompass all that the court considered in rendering its decision. So long as the court “clearly weighed, on the record, the impact that a dismissal or an extension would have on the parties before ordering a dismissal,” the court does not abuse its discretion. Harmon v. Bogart, 788 F. App‘x 808, 810 (2d Cir. 2019); see also Morrissey, 17 F.4th at 1160 (affirming the district court‘s conclusion that, although “the statute of limitations weighed in favor of an extension[,] . . . other factors tipped the balance against an extension“).
The record before us demonstrates that the district court weighed the relevant factors and reached a reasonable conclusion, which belies an abuse-of-discretion claim. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (explaining that, under the abuse-of-discretion standard, “where the court has considered all relevant public and private interеst factors [required in a forum non conveniens analysis], and where its balancing of these factors is reasonable, its decision deserves substantial deference“).
As to actual notice, the district court focused its reasoning on the fact that the Plaintiffs failed to establish that the Defendants had notice of the lawsuit prior to the late service on March 15, 2021. The court also faсtored in the Plaintiffs’ lack of good cause for the delay—the Plaintiffs’ “sole attempt at service” was “mailing the complaint (without a summons) 88 days after unsealing.” And even then, the Defendants ultimately did not receive notice of the lawsuit until approximately 50 days after the initial 90-day period had already expired.
And as to the prejudicial effect of the delay, the Defendants did not make a clear showing that they will suffer actual prejudice, such as the loss of records or the death of a witness. See, e.g., Nartron Corp. v. Borg Indak, Inc., 848 F. Supp. 2d 725, 748 (E.D. Mich. 2012) (listing, in the context of the laches defense, examples of prejudice, such as “a defendant‘s inability to present a full and fair defense on the merits due to a loss of records, the death of a witness, or the unreliability of memories of long past events” (citation omitted)). The district court nevertheless found that this factor weighed in the Defendants’ favor, reasoning that both the “lapse in time“—due in part to the nature of the qui tam action and the extensions sought by the government—and the Plaintiffs’ “delay in service,” in combination, could prejudice the Defendants. This reasoning, the Plaintiffs argue, demonstrates little more than “inherent prejudice in having to defend this suit.”
But the question before us is whether the district court‘s analysis under this factor reflects such a clear error of judgment that its reasoning essentially upends the remainder of the court‘s multi-factor balancing. In general, appellate courts leave it “to the district courts to decide on the facts of each case how to weigh the prejudice to the defendant that arises from the necessity of defending an action after both the original service period and the statute of limitations have passed before service.” Zapata, 502 F.3d at 198. “[N]o weighing of the prejudices between the two parties can ignore that the situation is the result of the plaintiff‘s neglect.” Id. On this record, we cannot conclude that the court engaged in a clear error of judgment.
If the standard of review in this case were de novo, reversal based on an insufficient showing of actual prejudice to the Defendants might be warranted. But prejudice to the Defendants is not the singular or dispositive factor of the analysis and should thus not be considered in isolation. See Harmon, 788 F. App‘x at 810 (explaining that a court does not abuse its discretion if the record shows that the court “clearly weighed . . . the impact that a dismissal or an extension would have on the parties before ordering a dismissal“).
In the present case, although the length of time that passed between the original incident (the termination of the Plaintiffs in 2017) and the unsealing of the complaint was not due to any fault of the Plaintiffs, it was also not due to any fault of the Defendants. And nothing in the record indicates that the Defendants were evading service. At least one court of appeals has affirmed a district court‘s finding that the defendants were more likely to be prejudiced than the plaintiffs where the defendants,
Here, more than three years had passed since the Plaintiffs’ termination. The same reasoning that the court of appeals upheld in Jones is applicable in this case, where the district court found that the lapse of time, plus the Plaintiffs’ untimely service of process, would be more likely to prejudice the Defendants. Moreover, the district court in this case observed that because the Plaintiffs never filed a Title VII suit after the EEOC declined to pursue their charges, the Defendants could reasonably have expected no further legal action—at least none arising out of the Plaintiffs’ termination.
On balance, the district court considered and weighed the relevant factors, and its analysis did not treаt any one factor as dispositive of the outcome. Although the Plaintiffs disagree with how the district court weighed the relevant factors—and even if we might have reached a different result under a de novo standard of review—“mere disagreement [between reasonable jurists] does not amount to an abuse of discretion.” United States v. Dunn, 728 F.3d 1151, 1159 (9th Cir. 2013). We therefore conclude that the court did not abuse its discretion when it declined to enlarge the service-of-process timeframe.
III. CONCLUSION
For all of the foregoing reasons, we AFFIRM the judgment of the district court.