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United States ex rel. Alexander Volkhoff, LLC v. Janssen Pharmaceutica N.V.

United States Court of Appeals, Ninth Circuit

January 2, 2020

United States ex rel. Alexander Volkhoff, LLC, Plaintiff-Appellant, [*]
v.
Janssen Pharmaceutica N.V.; Janssen Pharmaceuticals, Inc.; Janssen Research And Development, LLC; Johnson & Johnson; Ortho-McNeil, Defendants-Appellees.

          Argued and Submitted November 14, 2019 Pasadena, California

          Appeal 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

          C. 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 Plaintiff-Appellant.

          Michael A. Schwartz (argued) and Erin Colleran, Pepper Hamilton LLP, Philadelphia, Pennsylvania; Jeffrey M. Goldman, Pepper Hamilton LLP, Los Angeles, California; for Defendants-Appellees.

          Before: FERDINAND F. FERNANDEZ, MILAN D. SMITH, JR., and ERIC D. MILLER, Circuit Judges.

         SUMMARY [**]

         Quit Tam / Appellate Jurisdiction

         The 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.

         The 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.

         The 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

         Volkhoff's failure to name Jane Doe as an appellant was an inadvertent omission.

          OPINION

          M. SMITH, Circuit Judge.

         Alexander 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.[1]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 jurisdiction.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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 Complaint.[2]

         Following 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 ...


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