May v. United Am.
| Decision Date | 26 February 2018 |
| Docket Number | Civil Action No. 17-cv-00637-RM-MJW |
| Parties | SAMUEL J. MAY, Plaintiff, v. UNITED STATE OF AMERICA; THE DEPARTMENT OF JUSTICE, an agency of the United States; THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, an agency of the United States; FOOD AND DRUG ADMINISTRATION, an agency of the United States; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, an agency of the United States; DEBORAH ZWANY, in individual capacity, Department of Justice; SARA WINSOW, in individual capacity, Department of Justice; PATRICK HANNIGAN, in individual capacity, Office of Criminal Investigations; OMOTUNDE OSUNSANMI, in individual capacity, Food and Drug Administration; and AMGEN USA INC., et al., a California and Delaware Corporation, Defendants. |
| Court | U.S. District Court — District of Colorado |
REPORT AND RECOMMENDATION ON THE PARTIES' MOTIONS
(DOCKETS NOS. 15, 16, 17, 22, 25, 42, & 43)
This case is before the Court pursuant to an Order Referring Case entered by Judge Raymond P. Moore on March 22, 2017. (Docket No 7.) Now before the Court are seven motions, all of which have been referred to the undersigned Magistrate Judge. (Docket Nos. 19, 24, 26, 44 & 45:) They are, in chronological order:
The Court has taken judicial notice of the Court's file and has considered the applicable Federal Rules of Civil Procedure and case law. The Court now being fully informed makes the following findings of fact, conclusions of law, and recommendation.
In his Complaint (Docket No. 1), Plaintiff essentially combines into one pleading two separate legal proceedings that he has pursued for several years in various trial and appellate courts. One relates to litigation surrounding an arbitration award entered in Amgen's favor as to employment claims brought by Plaintiff. The other is a qui tam False Claims Act ("FCA") action Plaintiff brought against Amgen. Both cases have run their course, but Plaintiff seeks further redress in this Court.
Plaintiff was employed by Amgen as a Validation Specialist/Engineer III from April 2002 through June 2006. (Docket No. 1 at ¶ 63.) After Plaintiff's employment ended, he filed a lawsuit in California state court against Amgen. (Docket No. 22-1.)1 That lawsuit was dismissed because the parties had entered into an arbitration agreement. (Docket No. 1 at ¶78.) Following a three-day arbitration hearing, on October 14, 2011, the arbitrator ruled against Plaintiff and in favor of Amgen on Plaintiff's one remaining claim for Constructive Termination in Violation of Public Policy. (Docket No.22-4.) Plaintiff's motion to reconsider the arbitration award was subsequently denied. (Docket No. 22-5.)
On February 24, 2012, Amgen filed a Motion to Confirm the Arbitration Award in the Denver District Court (Docket No. 22-6), which was granted on March 23, 2012. (Docket No. 22-10.) Rather than challenge Amgen's motion in Colorado state court, on March 16, 2012, Plaintiff initiated a proceeding to vacate or modify the arbitration award in the United States District Court for the Northern District of California, Civil Action No. 12-cv-01367. (Docket Nos. 22-7 - 22-9.) Then, on April 13, 2012, Plaintiff sought to vacate the arbitration award in the Denver District Court. (Docket No. 22-11.) Plaintiff's request was rejected as untimely. (Id.)
On June 14, 2012, Judge William Alsup of the Northern District of California dismissed Plaintiff's petition to vacate or modify the arbitration award. See May v. Amgen, No. 12-cv-01367, 2012 WL 2196151 (N.D. Cal. June 14, 2012) (unpublished) (also filed at Docket No. 22-12). Judge Alsup decided on the merits of the petition, despite finding it "disturbing that plaintiff has fled from the Colorado state court and come here seeking yet another opinion on his case[,]" and recognizing that "[a] strong abstention argument is made[.]" Id. at *4. He ultimately concluded, "This is a case in which both sides received a fair hearing and the losing side simply refuses to accept the outcome." Id. at *7.
The Ninth Circuit Court of Appeals affirmed the district court's order on March 18, 2014. May v. Amgen, Inc., 564 F. App'x 313, 314 (9th Cir. 2014) (unpublished) (also filed at Docket No. 22-13). The United States Supreme Court denied Plaintiff's petitionfor writ of certiorari on March 2, 2015. May v. Amgen, 135 S. Ct. 1493 (2015) (also filed at Docket No. 22-14). His motion for reconsideration was also denied. May v. Amgen, 135 S. Ct. 1889 (2015) (also filed at Docket No. 22-15).
After yet another motion to reconsider was denied in the Northern District of California and subsequently appealed, Judge Alsup revoked Plaintiff's in forma pauperis status. (Docket No. 22-17.) Plaintiff's second appeal and request for a panel rehearing were rejected by the Ninth Circuit. (Docket Nos. 22-18 & 22-19.)
While the arbitration proceedings were winding their way through the various courts, Plaintiff was also pursuing a qui tam FCA action against Amgen in the Northern District of California, which he brought pro se on June 11, 2010. (Docket Nos. 22-20 - 22-22.) Plaintiff alleged that Amgen had manufactured tainted and nonconforming drugs and failed to comply with tracking procedures. (Docket No. 22-20 at pp. 9-11.) On September 28, 2010, the United States declined to intervene in the action, and suggested to the district court that the case be dismissed unless Plaintiff obtained counsel. (Docket No. 22-23.) The action was unsealed on October 31, 2011,the district court informed Plaintiff that his case would be dismissed if he did not obtain counsel within 60 days. (Docket No. 22-24 at p. 4.) On January 5, 2012, Plaintiff's qui tam lawsuit was dismissed without prejudice for lack of prosecution because Plaintiff had not retained counsel. (Docket No. 22-25.)
Plaintiff's attempt to reopen the case four years later was summarily denied by Judge Alsup because he "still has not retained counsel, and his filings are untimely and plainly frivolous." (Docket No. 22-34.) On appeal, the Ninth Circuit informed Plaintiff thathe cannot maintain a qui tam suit pro se. (Docket No. 22-35.) On March 2, 2015, his appeal was dismissed when no counsel had entered an appearance. (Docket No. 22-36.)
On December 13, 2012, Amgen and the United States entered into a settlement agreement in which Amgen agreed to pay a civil fine of $612,174,030 to resolve a number of pending qui tam actions concerning Amgen's off-label marketing activities. (Docket No. 22-37 at p. 7.) Plaintiff was not a party to the settlement agreement. (Id. at pp. 1-2.)
Plaintiff's Complaint seeks his "relator share" of that settlement. He requests between 25 and 35 percent of the entire proceeds or, in the alternative, a proportionate award of Amgen's total value. (Docket No. 1 at p. 32.) Plaintiff brings seven claims for relief against Amgen and the United States: (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Fraud and Fraudulent Concealment; (4) Breach of Fiduciary Duty; (5) Conversion; (6) Intentional Infliction of Emotional Distress (Outrageous Conduct); and (7) Negligent Infliction of Emotional Distress.2
Amgen seeks to dismiss Plaintiff's Complaint on several grounds. First, Amgen argues that Plaintiff cannot maintain a claim against Amgen for a portion of the proceeds of the qui tam FCA settlement agreement. Second, Amgen asserts that anyclaim arising from the arbitration proceeding and subsequent litigation is barred by issue and claim preclusion. Third, Amgen argues that Plaintiff's claims for relief are barred by the statute of limitations. Finally, Amgen states that Plaintiff's specific claims for relief fail as a matter of law.
As an initial matter, the Court notes that Plaintiff is proceeding pro se. The Court must liberally construe the pleadings of a pro se plaintiff. Haines v. Kerner, 104 U.S. 519, 520-21 (1972). Nevertheless, the Court cannot act as advocate for a pro se litigant, who must comply with the fundamental requirements of the Federal Rules of Civil Procedure. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
Amgen brings its motion pursuant to Federal Rule of Civil Procedure 12(b)(6), which provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether...
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