United States District Court, N.D. Oklahoma
UNITED STATES OF AMERICA, Ex rel. NICOLE OLCOTT, Plaintiff,
SOUTHWEST HOME HEALTH CARE, INC., KINNSER SOFTWARE, INC., and DR. ROGER LEE KINNEY, Defendants.
OPINION AND ORDER
TERENCE C. KERN UNITED STATES DISTRICT JUDGE
the Court is Defendant Kinnser Software, Inc.'s Motion
for Entry of Final Judgment. Doc. 91. Relator Nicole Olcott
(âRelatorâ) opposes the motion. Doc. 92.
action was originally filed under seal on October 29, 2012 by
qui tam Relator Olcott as an action to recover
damages for alleged violations of the Federal Civil False
Claims Act, 31 U.S.C. § 3729. Doc. 2. On June 13, 2013,
Relator filed her First Amended Complaint under seal
“to clarify details of the allegations of the
Complaint, to include specificity, and to amend allegations
with regard to the failure by defendants to meet the
Conditions of Participation and the Conditions of Payment
required in order to seek reimbursement from the United
States under the Medicare Home Health Program.” Doc.
December 11, 2017, the United States elected to intervene as
to a claim Relator alleged against defendant Southwest Home
Health Care, Inc. (“Southwest”), that Southwest
“submitted false claims to the United States by
submitting bills for services rendered to patients that were
not homebound.” Doc. 37 at 1. The United States
declined to intervene as to all other allegations, including
those against Kinnser Software, Inc. (“Kinnser”).
March 27, 2018, Kinnser filed a Motion to Dismiss pursuant to
Rules 12(b)(6)and 9(b) of the Federal Rules of Civil
Procedure. Doc. 68. Specifically, Kinnser argued (1) the
Amended Complaint failed to allege facts supporting her
allegations that Kinnser knew, encouraged, and conspired with
the other defendants for Southwest to submit false or
misleading claims to Medicare, and (2) the Relator failed to
plead fraud with particularity, as required by Fed.R.Civ.P.
9(b). Id. Relator opposed the motion, and in the
alternative, requested that, in the event the Court granted
the Motion, she be given leave to file a Second Amended
Complaint. Doc. 78 at 28.
September 24, 2018, the Court granted Kinnser's Motion to
Dismiss and denied the Relator's request for leave to
file a Second Amended Complaint. Doc. 87 at 14-15. In so
ruling, the Court concluded that the Amended Complaint
contained no facts supporting her allegations that Kinnser
ever submitted or falsified a claim for payment or
reimbursement to the government or that Kinnser impliedly or
expressly agreed with any defendant to defraud or scheme to
defraud the government. Id. at 7-15. The Court also
denied the Relator's request to amend her complaint
again. Id. at 14.
pending motion, Kinnser seeks entry of final judgment under
Fed.R.Civ.P. 54(b). Relator contends entry of judgment should
be delayed until all remaining claims and issues are
resolved, because she would be unduly burdened, “as she
would be forced to simultaneously litigate her claims against
the remaining defendants, while at the same time prosecute an
appeal of the judgment entered in favor of Kinnser.”
Doc. 92 at 7.
multiple parties are involved, the court may direct entry of
a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that
there is no just reason for delay.” Fed.R.Civ.P. 54(b).
“The purpose of Rule 54(b) is to avoid the possible
injustice of a delay in entering judgment on a distinctly
separate claim or as to fewer than all of the parties until
the final adjudication of the entire case by making an
immediate appeal available.” Okla. Turnpike Auth.
v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001)
(quotations omitted). In order to enter a Rule 54(b)
certification, the court must make two express
determinations. First, the court must determine that its
judgment is final. Stockman's Water Co., LLC v. Vaca
Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005)
(citation omitted). Second, the court must determine that no
just reason for delay of entry of its judgment exists.
Court may also consider “whether the claims under
review [are] separable from the others remaining to be
adjudicated and whether the nature of the claims already
determined [are] such that no appellate court would have to
decide the same issues more than once even if there were
subsequent appeals.'” Id., quoting
Curtiss-Wright Corp. v. General Elec. Co., 446 U.S.
1, 8 (1980).
granting Kinnser's Motion to Dismiss, the Court denied
Relator's request for leave to file a second amended
complaint, concluding that request was untimely and Relator
had failed to describe what additional factual allegations
would be included in a second amended complaint or how any
additional allegations would cure the deficiencies in her
claims against Kinnser. Doc. 87 at 14. Accordingly, the
Court's judgment with respect to Relator's claims
against Kinnser is final. Stockman's Water co., LLC,
respect to the second issue-whether there is just reason to
delay entry of judgment- Relator argues that she should not
be forced to simultaneously litigate her claims against the
remaining defendants, while at the same time prosecuting an
appeal of the judgment entered in favor of Kinnser. Relator
has cited no authority supporting a conclusion that the
inconvenience of ...