United States ex rel. Alexander Volkhoff, LLC, Plaintiff-Appellant, [*]
Janssen Pharmaceutica N.V.; Janssen Pharmaceuticals, Inc.; Janssen Research And Development, LLC; Johnson & Johnson; Ortho-McNeil, Defendants-Appellees.
and Submitted November 14, 2019 Pasadena, California
from the United States District Court for the Central
District of California R. Gary Klausner, District Judge,
Presiding D.C. No. 2:16-cv-06997-RGK-RAO
Brooks Cutter (argued) and John R. Parker, Jr., Cutter Law
P.C., Sacramento, California; Audra Ibarra, Law Office of
Audra Ibarra, Palo Alto, California; Mychal Wilson, Law
Offices of Mychal Wilson, Santa Monica, California; for
Michael A. Schwartz (argued) and Erin Colleran, Pepper
Hamilton LLP, Philadelphia, Pennsylvania; Jeffrey M. Goldman,
Pepper Hamilton LLP, Los Angeles, California; for
Before: FERDINAND F. FERNANDEZ, MILAN D. SMITH, JR., and ERIC
D. MILLER, Circuit Judges.
Tam / Appellate Jurisdiction
panel dismissed for lack of jurisdiction Alexander Volkhoff,
LLC's appeal from the dismissal of a first amended qui
tam complaint filed by relator Jane Doe pursuant to the False
Claims Act and state false claims laws.
panel held that this court lacks jurisdiction to hear
nonparty Volkhoff's appeal, where Volkhoff, which
substituted itself out when Jane Doe filed the first amended
complaint, chose not to participate in the district court
proceedings; and where Volkhoff failed to show that the
equities favor hearing its appeal.
panel rejected Volkhoff's argument that this court should
infer from the notice of appeal that Jane Doe - a party in
the district court proceedings - intended to appeal. The
panel wrote that it is not clear from the notice, as required
by Fed. R. App. P. 3(c), that Jane Doe intended to appeal.
The panel rejected the proposition that Volkhoff, an LLC, is
interchangeable with Jane Doe, a natural person; and wrote
that the record undermines Volkhoff's argument that
failure to name Jane Doe as an appellant was an inadvertent
SMITH, Circuit Judge.
Volkhoff, LLC (Volkhoff) appeals the district court's
dismissal of the qui tam complaint filed by relator Jane Doe
pursuant to the False Claims Act (FCA), 31 U.S.C.
§§ 3729-3733, and analogous state false claims
laws.However, Volkhoff was not a party to Jane
Doe's complaint. Moreover, it is not clear from
Volkhoff's notice of appeal (Notice), as required by
Federal Rule of Appellate Procedure 3(c), that Jane Doe also
sought to take an appeal. Because Volkhoff is a nonparty that
cannot appeal, and Jane Doe was not properly named as an
appellant, we dismiss this appeal for lack of appellate
AND PROCEDURAL BACKGROUND
September 16, 2016, shortly after its incorporation as a
Delaware limited liability company, Volkhoff filed a qui tam
complaint (the Original Complaint) in federal district court.
The Original Complaint named Volkhoff as the relator and
alleged violations of the FCA and various states' false
claims laws by Defendants Janssen Pharmaceutica N.V., Janssen
Pharmaceuticals, Inc., Janssen Research & Development,
LLC, Johnson & Johnson, and Ortho-McNeil (Defendants). In
particular, the Original Complaint alleged that Defendants
fraudulently and unlawfully marketed their medications.
Neither the United States nor any state elected to intervene,
allowing Volkhoff to proceed with the Original
Defendants' motion to dismiss the Original Complaint,
Volkhoff did not oppose the motion. Instead, Volkhoff's
counsel filed a First Amended Complaint (FAC). The FAC
alleged the same claims as those Volkhoff alleged in the
Original Complaint. The FAC, however, removed Volkhoff as ...