     Case: 17-20389    Document: 00514684347     Page: 1   Date Filed: 10/16/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                          FILED
                                                                      October 16, 2018
                                  No. 17-20389
                                                                        Lyle W. Cayce
                                                                             Clerk

United States of America, ex rel. MICHAEL VAUGHN; THEODORE
FREEMAN; WILLIAM MCKENNA; WESLEY STAFFORD,

             Plaintiffs - Appellees

v.

UNITED BIOLOGICS, L.L.C.,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:

      The opinion issued September 7, 2018 is withdrawn by the panel, and
the following is issued in its place:

      The plaintiffs-relators initiated a qui tam action under the False Claims
Act (“FCA”), Anti-Kickback Statute, and related state statutes, suing on behalf
of the United States, the District of Columbia, and twelve states. The
Government tarried in deciding whether to intervene, but eventually
demurred, leaving the relators to go it alone. The relators persisted a little
while longer on their own, but they grew tired of the litigation. They moved to
voluntarily dismiss their case with prejudice as to themselves only, so that
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                                     No. 17-20389
their decision to quit would not hamstring the Government’s efforts against
the defendant elsewhere.
      The district court consented to the relators’ motion. That decision is
challenged on appeal. For the reasons set forth, we affirm.
                                            I.
      Plaintiffs-relators Michael         Vaughn,     Theodore Freeman, William
McKenna, and Wesley Stafford (collectively, “Vaughn relators”) are board-
certified allergists licensed to practice medicine in Texas. Defendant United
Biologics, L.L.C., (“United”) owns and operates remote allergy centers that
provide allergy screenings and treatments. 1 United contracted with non-
allergist physicians, who permitted United to run its remote allergy centers in
their offices or clinics and referred their patients to those services. The Vaughn
relators alleged that United improperly billed government healthcare
providers for unnecessary or unapproved medical treatments through these
clinics. They also alleged that United paid illegal kickbacks to contracting
physicians from subsequent Medicare reimbursements. 2
       The relators filed suit on April 16, 2013. The Government, which had
been investigating United’s practices in Atlanta since January 2013 (prior to
the filing of the litigation and unbeknownst to the Vaughn relators), made its
initial entry of appearance on May 1, 2013. The Government petitioned for,
and received, five extensions to the initial 60-day deadline to make its


      1  The complaint initially included two other such companies, but they were dismissed
by the court in response to the Vaughn relators’ motion in September 2016.
       2 Record evidence suggests that the Vaughn relators had been concerned about these

remote allergy centers for some time. Vaughn himself unsuccessfully petitioned the Texas
Medical Board to review the practice, and allegedly threatened United’s physicians. In
response, United successfully filed a lawsuit against Vaughn, which resulted in an agreed
permanent injunction impeding his efforts in 2011. The remaining Vaughn relators are board
members of the trade association, Texas Allergy, Asthma and Immunology Society (“TAAIS”),
who shared Vaughn’s concerns and engaged in similar efforts. United also sued these
relators, and was again successful in receiving a favorable agreed injunction in 2013.
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intervention decision. See 31 U.S.C. § 3730(b)(2)–(4). The Government’s
memos in support of the extensions noted that the investigation was
nationwide in scope, involved the cooperation of “Districts, States and various
agencies,” and required the gathering and review of a voluminous record. The
court first granted the Government the discretion to reveal a redacted version
of the complaint to United on February 9, 2014. The Government did not do so
until after the court unsealed the case in April 2015.
      In May 2014, while this case was still under seal, a similar qui tam claim
was filed in the Northern District of Georgia, United States and the State of
Georgia, et al. ex rel. Nix v. United Biologics et al., 1:14-CV-1486. The relator,
Terri Nix, sued on behalf of 21 states. The court partially unsealed the Vaughn
relators’ case to permit the Government to notify the court, named states, and
Nix on August 11, 2014. According to United, the Government did not reveal
the Nix lawsuit to the Vaughn relators until after its fifth extension, filed
January 13, 2015.
      In March 2015, Terri Nix and the Vaughn relators entered into a Sharing
Agreement, whereby the parties would “share statutory relator share award(s),
if any, . . . resulting from the qui tam actions [they had] separately filed.”
According to the Agreement, 85% would be allocated to the Vaughn relators
and the remaining to Nix. The Agreement also noted that the parties “agree
that all of the lawyers and law firms identified in this Agreement as
representing [Nix and the Vaughn relators] have served and are serving as
limited co-counsel for all of them, to the extent of the work they have performed
and are continuing to perform to advance the common interests” of the relators.
The parties further agreed to “work together and consult with each other”
regarding strategy. The existence of this settlement agreement was revealed
to the court and the Government at the first conference held on April 1, 2015.


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      Leading up to the April 1 conference, the Government moved for the case
to be transferred to the Northern District of Georgia in light of the ongoing
federal investigation there. The court rejected the petition at the subsequent
hearing. It noted that the Vaughn relators had sued in Texas, and that this
suit was the principal qui tam case. The Nix case was a “tagalong.” During a
colloquy, the court also expressed its frustration with the Government for
taking so long to decide whether to intervene while leaving the Vaughn
relators in the dark.
      United filed a motion to dismiss for failing to state a claim on October
2015, soon after it discovered the lawsuit. The next month, the Government
gave notice that it had decided not to intervene. The court then vacated the
sealing order and required the relators to disclose “a list of every case,
investigation, inquiry, or process of which they know involving the defendants
or relating to this scheme.” The court ultimately denied United’s motion to
dismiss on August 24, 2016. United then filed an answer on September 12,
2016. It also notified the district court that it had filed a motion to transfer
venue in the Nix action on the grounds that this was the first-filed.
      The first hearing involving United was a scheduling conference held on
October 3, 2016. During the colloquy, the court decided to hold off conducting
formal discovery. Instead, it required the parties to submit an exemplar
contract United used with physicians, highlighting key portions and
explaining how the agreements worked in hypotheticals. The ensuing order,
entered October 4, 2016, required the submission of the contracts. It also
indicated that “discovery is quashed” and that “[t]he parties will talk.”
      United submitted the modified contract with hypotheticals on October
11, 2016. It also submitted a motion requesting the district court order the
Georgia qui tam case be transferred or enjoin the parties. The Vaughn relators
filed their response to the hypotheticals one week later.
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                                       No. 17-20389
       On October 24, 2016, the Vaughn relators notified opposing counsel that
they had “decided to dismiss their case with prejudice as to them but without
prejudice as to” the Government. Instead of notifying the relators whether it
opposed the motion, United filed a motion for summary judgment the next day.
Hours later, the Vaughn relators filed their motion to voluntarily dismiss the
case with prejudice as to themselves but without prejudice to the Government.
They also responded to the pending issues before the court: the motion to
transfer and the motion for summary judgment. 3
       Their response to United’s motion to transfer explained the reasons for
their withdrawal. They noted that the Nix case was ongoing, which ensured
that United would still be investigated. They also said that they “decided to
voluntarily dismiss their case after being rebuffed in informal discovery,
reviewing the transcript of the October 3, 2016 conference, and considering the
difficulty of proceeding since the government has declined to intervene.”
       The Government filed a written consent to the dismissal, “provided the
dismissal [was] without prejudice” as to it. United contested the motion. United
argued that the court should grant its pending motions (including the
summary judgment motion without discovery) first or, in the alternative, deny
the motion altogether.
       The court then held a hearing on this issue in January 2017. The Vaughn
relators’ counsel explained that the purpose of the suit was to make the
Government aware of United’s fraud, which it had achieved, but the Vaughn
relators had tired of litigation without the Government’s assistance. Counsel
noted that his clients had “no intention of ever suing these people again.” As



       3The relators contested summary judgment in part by noting that discovery had not
yet been conducted. They also filed a motion for continuance to allow for such discovery if the
motion for dismissal were denied. The district court allowed for certain discovery on
November 30, 2017.
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                                   No. 17-20389
evidence of his clients’ good faith, counsel further explained that if the court
agreed to its terms, the Vaughn relators would waive their claim to the Sharing
Agreement.
      At the court’s request, the Government was summoned to the hearing.
The Government explained that it understood the Vaughn relators to have
chosen to “step back and then allow for the relators in the Northern District of
Georgia to go forward with their action.” When pressed by the court to give a
reason “why it[] [was] not willing to jump into this” case, the Government
replied that “it’s typical that the United States does not state a specific reason
why.” Such a specific reason “could arguably influence any sort of litigation
that comes after.” Instead, the Government contended that “[w]e have, by
granting consent, that shows [sic] by inference that there has been some
thoughtful procedure into the decision to consent.” The Government did note
that it had not yet decided whether to intervene in the Georgia case, however.
      Although the court was skeptical, it ultimately seemed to affirm the
Government’s reasoning, noting that “[t]he proposal here is if the United
States has permitted two indictments to persist for seven years collectively,
overlapping each other for three years, and has decided to pick one and not the
other and then turn it over to somebody else to try. . . . I’m inferring the choice.”
Responding to United’s concerns, the court affirmed that it was “absolutely
clear” the Government simply decided to pursue the same claims against the
defendant in Georgia.
      On March 31, 2017, the court handed down an order “dismiss[ing the
case] with prejudice as to the relators.” On April 14, 2017, United filed a Rule
59 motion for clarification, seeking to include the Government and Nix in the
dismissal, or require Nix to join this case as a condition of dismissal. The court
denied this motion in a “Clarification” order on April 17, 2017, stating, “This


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                                 No. 17-20389
case was dismissed with prejudice as to Michael Vaughn, Theodore Freeman,
William McKenna, and Wesley Stafford.”
      United then filed a second Rule 59 motion on April 28, 2017, based on
new evidence that the Government had altered its course in the Nix litigation
in light of the dismissal of the Vaughn relators. United also filed a motion for
fees and costs. On May 11, 2017, the court denied the second motion to amend
its order, denied the request for fees, and ordered Vaughn relators to pay court
costs. It noted that “[t]he time for the parties to appeal runs from the entry of
this order.” United timely appealed.
                                       II.
      United raises three challenges on appeal: (1) the court erred when it
dismissed the relators with prejudice and the Government without prejudice;
(2) the Government’s and district court’s consent to the relators’ motion to
dismiss failed to satisfy FCA requirements; and (3) the district court erred
when it granted the relators’ voluntary motion to dismiss under Rule 41(a)(2).
We review resolution of a voluntary motion to dismiss for abuse of discretion,
Phillips v. Ill. Cent. Gulf R.R., 874 F.2d 984, 986 (5th Cir. 1989), while pure
legal questions are reviewed de novo, Trient Partners I Ltd. v. Blockbuster
Entm’t Inc., 83 F.3d 704, 708 (5th Cir. 1996). Applying the relevant standards,
all three fail.
                                       A.
      We begin with a question that has not yet been answered by this court—
namely, whether the non-intervening Government may be dismissed without
prejudice when relators voluntarily dismiss themselves with prejudice. Its
answer implicates the fundamental relationship between a relator and the
Government in qui tam actions, so we begin with first principles and build from
there. For the reasons set forth, we conclude that because the Government
never intervened in the case, and therefore never became a “party” to the
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litigation, no dismissal as to the Government would be appropriate. As for
whether and to what extent the Government is bound by the qui tam relators’
voluntary decision to quit the case, that is a question to be answered by the
court in the Georgia litigation.
      The FCA prohibits individuals from “present[ing], or caus[ing] to be
presented, . . . a false or fraudulent claim for payment or approval” to a
Government officer or employee. 31 U.S.C. § 3729(a)(1). Although the law
generally does not permit an individual to file a lawsuit to remedy harm
suffered by others, the FCA creates an exception. The statute permits “a
person” acting on his own behalf and “for the United States Government”—i.e.,
the relator—to remedy certain frauds. Id. § 3730(b)(1). The individual brings
his claim “in the name of the Government.” Id. As we have noted, this
empowerment served the statute’s original purpose: “to stem widespread fraud
by private Union Army suppliers in Civil War defense contracts.” United States
ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 184 (5th Cir. 2009).
      Once the relator files suit, the Government must investigate the matter
and determine whether it will intervene and take “primary responsibility for
prosecuting the action,” or so decline. 31 U.S.C. § 3730(b)(4); 3730(c)(1). If the
Government declines to intervene, then “the person who initiated the action
shall have the right to conduct the action.” Id. § 3730(c)(3). In this capacity, the
relator stands in the place of the Government, representing its interests. Cf.
Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1126–27 (9th Cir.
2007) (requiring the relators to have counsel because they are not only
“prosecuting . . . their ‘own case’ but also representing the United States”).
      Even when the Government declines to intervene, it remains a distinct
entity in the qui tam litigation with protected interests. This fact is established
by the FCA itself, which affords the Government certain rights in the litigation
regardless of its decision not to intervene. For example, it is to be supplied with
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“all pleadings filed in the action” and “copies of all deposition transcripts.” 31
U.S.C. § 3730(c)(3). Moreover, the Government may stay discovery if it can
show that the litigation is obstructing a separate investigation or prosecution.
Id. § 3730(c)(4). The Government still receives at least 70% of the remedy
award. Id. § 3730(d)(2). And the Government must still give its consent before
the relator dismisses the action. Id. § 3730(b)(1).
      Yet courts have consistently held that a non-intervening Government
does not stand as an independent party in a lawsuit. Instead, we have
categorized the non-intervening Government as a mere “passive beneficiary of
the relator’s efforts.” Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 156
(5th Cir. 1997). Along the same lines, the Supreme Court has explained that a
non-intervening Government is a mere “real party in interest,” not a formal
“party,” for the purposes of the appellate filing deadline. United States ex rel.
Eisenstein v. City of New York, 556 U.S. 928, 934–36 (2009). We have also
described a non-intervening state government as “merely chimerical,” lacking
“control over the litigation process.” United States v. Tex. Tech. Univ., 171 F.3d
279, 290–94 (5th Cir. 1999) (holding that Eleventh Amendment immunity was
not waived on this basis).
      So although the non-intervening Government has both an independent
and derivative presence in a qui tam lawsuit regardless of whether it chooses
to intervene, treating the non-intervening Government as a “party” is
inappropriate. “To hold otherwise would render the intervention provisions of
the FCA superfluous, as there would be no reason for the United States to
intervene in an action in which it is already a party.” Eisenstein, 556 U.S. at
933. The district court was correct not to dismiss the Government (either with
prejudice or without prejudice), because the Government was never a “party”
to begin with.


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                                 No. 17-20389
      But whether the Government is a party in this litigation should not be
conflated with the separate question of whether the Government should be
bound by the judgment in this case. On the one hand, it is well-settled that a
final judgment on the merits of a relator’s claim will have a binding effect on
even the non-intervening Government. See Eisenstein, 556 U.S. at 933–34, 936
(noting that “the United States is bound by the judgment in all FCA actions
regardless of its participation in the case” based on nonparty claim preclusion
principles (citing Taylor v. Sturgell, 553 U.S. 880, 893–95 (2008))); United
Sates ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 853 (7th Cir. 2009) (“If
[the relator] had litigated a qui tam action to the gills [by himself] and lost,
neither another relator nor the United States could start afresh.”). Conversely,
when the case’s outcome is decided by the relator’s voluntary decision to quit,
courts tend not to bind the Government to that decision automatically. See
Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 135 S. Ct.
1970, 1979 (2015) (“Why would Congress want the abandonment of an earlier
suit [not decided on the merits] to bar a later potentially successful suit that
might result in a large recovery for the Government?”); Youssef v. Tishman
Constr. Corp., 744 F.3d 821, 826 (2d Cir. 2014) (“[N]othing in the False Claims
Act requires that a voluntary dismissal be accorded res judicata effect.”);
Searcy, 117 F.3d at 160 (holding that the FCA authorizes the non-intervening
Government to “stand on the sidelines and veto a voluntary settlement”);
United States ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391, 1397
(9th Cir. 1992) (noting it would be inappropriate “[t]o hold that the
government’s initial decision not to take over the qui tam action is the
equivalent of its consent to a voluntary dismissal of a defendant with
prejudice”).
      And, relevant to the matter at hand, this court has also found that even
when the relator’s case loses on a motion to dismiss, the Government should
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not be bound if the dismissal is for reasons not tied to the underlying legal
merit. Specifically, in United States ex rel. Williams v. Bell Helicopter Textron
Inc., we concluded that it was an abuse of discretion for the district court to
dismiss the Government with prejudice based on the relator’s dismissal for
failing to adequately plead its cause of action. 417 F.3d 450, 453, 456 (5th Cir.
2005). In support, we noted that our holding “guard[ed] against concerns
previously raised . . . that the FCA allows a relator . . . to make sweeping
allegations that, while true, he is unable to effectively litigate, but which
nonetheless bind the government, via res judicata, and prevent it from suing
over those concerns at a later date when more information is available.” Id. at
455 (internal quotation omitted). We explained that the non-intervening
Government should not be bound by the fate of an incompetent relator, lest it
be forced to intervene in every action. 4 Id.; see United States ex rel. Holmes v.
Northrop Grumman Corp., 642 F. App’x 373, 378 (5th Cir. 2016) (affirming the
dismissal of a relator with prejudice due to the malfeasance of his lawyer in
part because the Government had been dismissed without prejudice).
       In any event, the district court in the Georgia litigation must decide
whether the Government is bound under the claim preclusion principles
described above by the judgment in this case. See, e.g., In re Schimmels, 127
F.3d 875, 881 (9th Cir. 1997) (holding that summary judgment for the
defendant in relator’s FCA suit was res judicata as to the Government); cf.
United States v. Quest Diagnostics Inc., 734 F.3d 154, 167 (2d Cir. 2013)




       4In Williams, we modified the district court’s order to provide that the Government
was dismissed without prejudice. But our dismissal of the United States in that case, which
was decided before the Supreme Court’s Eisenstein decision, does not change the fact that a
dismissal of any kind is inappropriate as to the non-intervening Government. The focus in
Williams—like the focus of the parties in this case—was on whether the dismissal of the
United States should be with prejudice or without prejudice. Williams, 417 F.3d at 455–56.
The appropriateness of the dismissal itself was not addressed.
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(concluding that dismissal due to ethical violations by the relators “did not
foreclose the government (or, for that matter, a different relator) from bringing
suit”). United’s counterarguments from case law and the FCA are
unpersuasive.
      United tries to distinguish the present case from Williams because the
relator’s claim was dismissed at the pleading stage with little opportunity for
the Government to participate. See, e.g., Williams, 417 F.3d at 455. But this
was only one aspect of the court’s reasoning, which, for reasons just stated,
squarely supports the district court’s order here. Moreover, this case also had
not gone far when the relators petitioned to get out: no formal discovery had
been conducted, nor had there been a summary judgment ruling when the
relators filed their Rule 41(a)(2) motion.
      United also cites Eisenstein’s general statement that the “United States
is bound by the judgment in all FCA actions regardless of its participation in
the case.” Eisenstein, 556 U.S. at 936. Notably, the statement was followed by
a citation to a case discussing claim preclusion. Id. Accordingly, this general
principle regarding the binding effect of a final merits determination on the
Government is perfectly consonant with an enforcement of the district court’s
ruling here. Moreover, in light of Eisenstein’s narrow holding—that the
Government was not a “party” for the purposes of Federal Rule of Appellate
Procedure 4(a)(1)(B), id.—it would be inappropriate to interpret this passing
observation so broadly.
      Last, relying on the expressio unius canon, United argues that FCA does
not expressly permit relators “to seek a Rule 41(a)(2) voluntary dismissal . . .
with prejudice as to their case but without prejudice as to the Government.”
But this canon “must be applied with great caution” and generally requires a
specific, enumerated list of options. Antonin Scalia & Bryan Garner, Reading
Law: The Interpretation of Legal Texts 107–19 (2012). The complex web of
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disjointed FCA subsections at issue here does not offer the correct context.
More fundamentally, as noted above, there is simply nothing untoward about
the district court’s refusal to dismiss the Government with prejudice when the
Government never intervened in—and hence never became a “party” to—this
litigation.
                                      B.
      United next challenges the Government’s and district court’s consent to
the relators’ voluntary dismissal insofar as they (1) were not written down and
(2) provided an inadequate explanation. Both fail.
                                       1.
      United contends that a written explanation for the Government’s and
the court’s consent is required by both the text of the FCA and the provision’s
underlying policy concern—namely, to ensure that the dismissal is in the
public interest. We disagree.
      The relevant FCA provision is found at 31 U.S.C. § 3730(b)(1), which
states, “The [FCA] action [brought by the relator] may be dismissed only if the
court and the Attorney General give written consent to the dismissal and their
reasons for consenting.” United argues that the modifier “written” applies both
to “consent” and to “reasons for consenting,” so it was entitled to a written
explanation for the consent the relators’ motion received.
      But this is an incorrect and awkward reading of the text—one that has
never been promoted by courts. The correct and more natural one is to
interpret “written consent to the dismissal” and “their reasons for consenting”
as two separate requirements. There are occasions, to be sure, in which a single
adjective can be used to modify a series of subsequent nouns or verbs. But this
principle of interpretation, known as the “Series-Qualifier Canon,” applies only
when context clearly establishes that it is intended. Reading Law at 147–51.
This is usually the case when the nouns and verbs are listed without any
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intervening modifiers. So for example, in “unreasonable searches and
seizures,” the adjective “unreasonable” is clearly meant to modify both
“searches” and “seizures.” The typical way to break the series is to insert a
determiner. Reading Law at 148. Here, the possessive determiner, “their,” is
attached to the second noun in the list, “reasons.” This makes clear that
“written” was not intended to modify both “consent” and “reasons.”
      Congress has clearly communicated its intent through the text of the
statute. We will not refer to other policy considerations for further guidance.
Accordingly, we discern no basis for United’s insistence that it is entitled to
written explanation for consent under § 3730(b)(1).
                                       2.
      United also baldly asserts that it was entitled to a more thorough
explanation for the Government’s or the district court’s reasons for consenting
to the dismissal. Here again, we disagree.
      The argument, made on the basis of § 3730(b)(1), fails because it is
unsupported by the text and contrary to its purpose. Of course, as a general
matter, a sufficient “statement of reasons is one of the handmaidens of
judging,” which assists our review. See Schwarz v. Folloder, 767 F.2d 125, 133
(5th Cir. 1985). Nevertheless, the detail required varies with context. And this
court, as well as other circuits, has concluded that the Government retains
absolute discretion to consent (or withhold consent) to a dismissal under §
3730(b)(1)—even when it does not intervene in the litigation. Searcy, 117 F.3d
at 158, 160; see also United States ex rel. Michaels v. Agape Senior Comm., Inc.,
848 F.3d 330, 339 (4th Cir. 2017) (“[Section] 3730(b)(1) does not overtly require
the Government to satisfy any standard or make any showing reviewable by
the court.”); United States v. Health Possibilities, P.S.C., 207 F.3d 335, 336,
340 (6th Cir. 2000). In light of that authority, we decline to impose a high
requirement on the justifying articulation—either for the Government itself or
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                                 No. 17-20389
the district court’s review of that decision. Cf. Hill v. Schilling, 593 F. App’x
330, 334 (5th Cir. 2014) (no explanation required for judge’s decision to recuse
himself).
      Here, the Vaughn relators requested dismissal with prejudice because
they were tired of litigating the action without the Government’s intervention
and were satisfied that the other qui tam case against United was sufficient to
handle their concerns. The court held a hearing to discuss the matter, and
required the Government to attend. The Government explained that its
interests were not harmed by the Vaughn relators’ decision, noting in part the
ongoing litigation in Georgia. It explained that a more specific response would
compromise its litigation strategy.
      While the court was frustrated by the lack of detail in this response, it is
clear that the court—and, notably, the defendants—understood the
Government’s reasoning: it was consenting to the dismissal of these relators
because of the ongoing qui tam litigation elsewhere. The district court’s order,
by dismissing only the relators with prejudice, clearly reflects an ultimate
acceptance of the Government’s explanation.
      In short, there is enough in the record here to discern an adequate basis
for the Government’s and district court’s consent to the relators’ dismissal.
Even if we were to require some baseline explanation requirement, this would
meet it.
                                       C.
      Last, United challenges the court’s grant of the relators’ voluntary
motion to dismiss as an abuse of discretion. For the reasons set forth, we
discern none.
      If a plaintiff moves to voluntarily dismiss after a summary judgment
motion has been filed, it must first receive the court’s consent. Fed. R. Civ. P.
41(a)(2). This court has explained that, “as a general rule, motions for
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                                  No. 17-20389
voluntary dismissal should be freely granted unless the non-moving party will
suffer some plain legal prejudice other than the mere prospect of a second
lawsuit.” Elbaor v. Tripath Imaging, Inc., 279 F.3d 314, 317 (5th Cir. 2002).
And the mere fact that the plaintiff “may gain a tactical advantage by
dismissing its suit without prejudice and refiling in another forum is not
sufficient legal prejudice.” Bechuck v. Home Depot U.S.A., Inc., 814 F.3d 287,
299 (5th Cir. 2016) (internal quotation omitted). The “purpose of the grant of
discretion under Rule 41(a)(2) . . . is primarily to prevent voluntary dismissals
which unfairly affect the other side[.]” 9 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2364 (3d ed. 2018 Update) (internal
quotation omitted). Absent such a showing or other “evidence of abuse by the
movant,” the motion should be granted. Elbaor, 279 F.3d at 317.
      United attempts to show that such abuse occurred here by citing various
factors that this court has found persuasive in finding plain prejudice, but they
fail to demonstrate an abuse of discretion. First, United argues that the
Vaughn relators were merely seeking to avoid an imminent adverse result on
the merits. Cf. In re FEMA Trailer Formaldehyde Prods. Liability Litig., 628
F.3d 157, 162 (5th Cir. 2010) (noting that a “typical example[]” of prejudice
occurs when the motion is a means of “avoid[ing] an imminent adverse ruling”).
      But we discern no evidence of this secret intent. Notably, although
United had filed a motion for summary judgment just before, no formal
discovery had been conducted at the time of the relators’ motion except for the
court’s request for a sample contract. And, notably, the most recent disposition
had been in the relators’ favor—the court’s denial of United’s motion to dismiss
on the pleadings. It is unlikely that the relators filed their motion for dismissal
out of fear of an adverse result. Cf. Robles v. Atl. Sounding Co., Inc., 77 F. App’x
274, 275 (5th Cir. 2003) (noting arguments based on timing usually involve


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                                  No. 17-20389
cases “where the movant suffered an adverse legal decision prior to moving for
voluntary dismissal.”)
      United also contends significant resources have been expended in this
qui tam lawsuit. Cf. Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193,
199 (5th Cir. 1991) (“When a plaintiff fails to seek dismissal until a late stage
of trial, after the defendant has exerted significant time and effort, then a court
may, in its discretion, refuse to grant a voluntary dismissal.”). But those
instances in which this court has justified the denial of a voluntary motion to
dismiss on this basis, the parties had engaged in significantly more litigation
than here at the time of filing. E.g., Hartford Accident & Indem. Co. v. Costa
Lines Cargo Servs., Inc., 903 F.2d 352, 360–61 (5th Cir. 1990) (motion filed
after ten months of litigation, numerous hearings, significant discovery,
summary judgment grant in one defendant’s favor, and scheduled jury trial for
remaining defendants); see also United States ex rel. Doe v. Dow Chem. Co.,
343 F.3d 325, 330 (5th Cir. 2003). By contrast, when the Vaughn relators filed
their motion for voluntary dismissal, the parties had conducted no discovery,
and only weeks had passed since United filed its answer. In other words, the
litigation had just gotten passed the pleading stage. And only one hearing
involving United had occurred—a scheduling conference.
      United’s arguments to the contrary are unpersuasive. It is true that the
case had been “on file” for a number of years, but the case was largely under
seal during that time while the Government conducted its investigation.
Whatever burdens imposed by the Government’s actions, they are not the sort
of “litigation” expenses for which this court has held relators responsible. Nor
is United’s reference to later burdens it suffered based on the relators’ response
to its own motion for summary judgment persuasive.
      United also argues that the Vaughn relators’ motion risks depriving
United of a legal defense. This court has consistently found that, when a
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                                  No. 17-20389
voluntary dismissal might strip the defendant of a “viable . . . defense” in the
first action that it might not be able to raise if the plaintiff were to bring the
action again, the motion for dismissal must be denied. See Elbaor, 279 F.3d at
317–19 (finding abuse of discretion when defendant had a non-frivolous statute
of limitations defense); see also Hyde v. Hoffmann-La Roche, Inc., 511 F.3d 506,
510–14 (5th Cir. 2007) (defense under Texas choice-of-law rules); Ikospentakis
v. Thalassic Steamship Agency, 915 F.2d 176, 179 (5th Cir. 1990) (forum non
conveniens defense).
      But these cases all deal with distinguishable circumstances. In each
case, the court was concerned that the plaintiff was using a voluntary dismissal
to escape from a potentially meritorious defense by filing in a different venue
or jurisdiction that avoided that defense. Here, the Vaughn relators sought to
dismiss themselves with prejudice. In other words, it cannot be claimed that
the relators were using the motion as a means of self-preserving
gamesmanship.
      United argues that the Vaughn relators are dismissing themselves from
this litigation in order to thwart United’s defense in the Georgia litigation
involving an entirely different relator. But United’s invocation of this basis for
establishing plain prejudice is inapt and unpersuasive. After all, at the time of
the relators’ motion, the Government had not yet intervened in Georgia.
Moreover, the Vaughn relators are not participating in that litigation, and they
severed their settlement agreement with the Georgia relator as a condition of
their dismissal. The Vaughn relators have assured this court that they will not
receive any benefit from the Nix litigation—an assurance that we will credit
here, and that we expect the parties in Nix will no doubt enforce as they deem




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                                        No. 17-20389
appropriate. We decline to overturn the district court’s discretion on this
basis. 5
       In sum, United has failed to articulate the sort of plain prejudice
required to prove the district court abused its discretion.
                                              III.
       AFFIRMED.




       5  United also seems to imply that the motion was made in bad faith because the
relators share the same counsel and that the TAAIS may still receive some recovery if the
Georgia lawsuit is meritorious. It asserts that the Vaughn relators are trying to “have their
cake and eat it too.” They provide no legal basis for this assertion, except two cases that are
factually distinct from this case. First, in In re FEMA, this court affirmed a district court’s
discretion to deny a voluntary dismissal when the plaintiffs sought to withdraw temporarily
“from a bellwether trial and then sit[] back to await the outcome of another plaintiff’s
experience.” 628 F.3d at 163. Even if this case provided a basis to overturn the district court,
the Vaughn relators dismissed themselves with prejudice. Second, Federal Recovery Services,
Inc. v. United States, 72 F.3d 447, 453 (5th Cir. 1995) concerned deceptive acts of an attorney
to cure jurisdictional defects in a single qui tam action. We fail to see a persuasive application
to the circumstances here.
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