                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

                                     )
ANDREW HALLDORSON,                   )
                                     )
                   Plaintiff,        )
                                     ) Civil Action No. 06-1618 (EGS)
              v.                     )
                                     )
THE SANDI GROUP and RUBAR S.         )
SANDI,                               )
                                     )
                   Defendants.       )
                                     )

                             MEMORANDUM OPINION

         This case is before the Court on defendant The Sandi

Group’s Motion to Dismiss Counts III and IV of the Third Amended

Complaint and defendant Rubar S. Sandi’s Motion to Dismiss

Counts II, III, and IV of the Third Amended Complaint.       Upon

consideration of the motions, the responses and replies thereto,

the applicable law, the entire record, and for the reasons

explained below, defendants’ motions will be GRANTED.

    I.     BACKGROUND

         Plaintiff Andrew Halldorson brought this case originally as

a qui tam action on behalf of the United States under the False

Claims Act, 31 U.S.C. § 3729, et seq. 1      Plaintiff alleged, inter

alia, that defendants submitted false claims to the United

States in connection with certain contracts in Iraq and


1
  Plaintiff initially brought this action with another Relator,
Brian Evancho, who is no longer a party.
Afghanistan.    On March 16, 2011, the United States filed a

notice of intervention, stating that it would intervene for the

limited purpose of settlement and to file a stipulation of

dismissal.    ECF No. 39.

     In the Amended Complaint, which was the operative complaint

at the time the settlement was reached, Halldorson alleged two

retaliation claims.    ECF No. 37.       Specifically, in Count III,

titled “False Claims Retaliation,” Halldorson alleged that he

“was an employee who was discharged, suspended, threatened,

harassed, and in other manners discriminated against in the

terms and conditions of employment by his employer because of

lawful acts done by the employee on behalf of the employee or

others in furtherance of a False Claims Act action under this

section.”    Amend. Compl. ¶ 59.   In Count IV of the Amended

Complaint, titled “State Law Retaliation,” Halldorson alleged

that he “threatened to disclose, to a supervisor or to a public

body, an activity, policy or practice of the Defendant that was

in violation of law, rule, or regulation.         This violation

created and presented a substantial and specific danger to

public health and safety.”    Amend. Compl. ¶ 61.       He further

alleged that he “provided information to a public body

conducting an inquiry into this violation” and that he “objected

to and refused to participate in, this violation.”         Amend.

Compl. ¶¶ 62-63.

                                     2
     On April 18, 2011, the parties filed a joint stipulation of

dismissal (“Stipulation”).    ECF No. 42.   The Stipulation stated

that the parties had entered into a settlement agreement

effective April 5, 2011 (“Settlement Agreement”) that resolved

nearly all of the claims set forth in the relators’ Amended

Complaint.    The Stipulation further stated that the Amended

Complaint would be dismissed with prejudice to the Relators,

except that “Relators’ claims for reasonable attorneys’ fees,

expenses and costs pursuant to 31 U.S.C. § 3730(d) are not

dismissed.”    The Stipulation also stated that “Halldorson’s

claims for retaliation under state and federal law against TSG

Group [defined in the Stipulation as The Sandi Group, Dr. Rubar

S. Sandi, and Corporate Bank Financial Services], including

claims pursuant to 31 U.S.C. § 3730(h), are not dismissed.”

     The Settlement Agreement was not filed on the docket in

this case, though it was referenced in the Stipulation of

Dismissal and plaintiff’s Third Amended Complaint (TAC ¶ 59),

and was attached to The Sandi Group’s motion to dismiss.    In the

Settlement Agreement, Halldorson released TSG Group (defined as

all defendants at the time: Corporate Bank Financial Services,

Inc., Dr. Rubar S. Sandi, and The Sandi Group)

     from any civil monetary claim [Halldorson] may have on
     behalf of [himself] or of the United States that was
     alleged or could have been alleged in the Civil
     Action, or that is in any way related to the subject
     matter of the Civil Action, including but not limited

                                  3
     to claims under the False Claims Act, 31 U.S.C. §§
     3729-3722, or the common law theories of recovery,
     except for claims for attorneys’ fees, expenses and
     costs pursuant to 31 U.S.C. § 3730(d), and claims for
     retaliation under state and federal law, including
     claims pursuant to 31 U.S.C. § 3730(h).

Settlement Agreement, ECF No. 76-2, at ¶ 6.

     Following settlement, plaintiff Halldorson filed an

unopposed motion for leave to file a Second Amended Complaint,

which the Court granted.   ECF Nos. 50-51.   In the motion for

leave to amend, Halldorson stated that the proposed amendment

“eliminate[d] a state law retaliation claim (leaving only the

statutory claim for retaliation under FCA Section 3730(h));

[and] eliminate[d] Dr. Rubar Sandi as a Defendant. . . .”    ECF

No. 50 at 1.   In arguing that amendment was in the interests of

justice, Halldorson contended that amendment would “expedite and

streamline further proceedings by narrowing the action to the

pending Section 3730(h) claim and particularizing the

allegations that pertain to the sole remaining claim.”    Id. at

2.   In the Second Amended Complaint (“SAC”), Halldorson alleged

one count of False Claims Act retaliation, pursuant to 31 U.S.C.

§ 3730(h), against defendant The Sandi Group.    See SAC ¶¶ 45-46.

No other claims were alleged and no other parties were named as

defendants in the Second Amended Complaint.

     After the Second Amended Complaint was filed, plaintiff and

the sole remaining defendant The Sandi Group engaged in


                                 4
mediation.   Following mediation, Halldorson obtained new counsel

and filed a motion for leave to file a Third Amended Complaint

(“Third Amended Complaint” or “TAC”).    ECF No. 70.   The Court

granted leave to amend over objection on March 16, 2012.     The

Third Amended Complaint includes the FCA retaliation claim under

Section 3703(h) that was included in the Second Amended

Complaint.   See TAC, Count I.   The Third Amended Complaint also

includes several new claims and purports to bring Dr. Sandi back

into the litigation.   Count II, alleged against Dr. Sandi, seeks

compensatory and punitive damages for Dr. Sandi’s alleged

tortious interference with Halldorson’s business expectancies.

See TAC, Count II.   Count III alleges fraudulent

misrepresentation against The Sandi Group and Dr. Sandi and

seeks compensatory and punitive damages.    See TAC, Count III.

Count IV, asserted against The Sandi Group and Dr. Sandi,

alleges that defendants intentionally inflicted emotional

distress on Halldorson and seeks compensatory and punitive

damages.   See TAC, Count IV.

     Defendants have separately moved to dismiss the new counts

in the Third Amended Complaint.    The motions are ripe for the

Court’s decision.

  II.   STANDARD OF REVIEW

     A motion to dismiss under Rule 12(b)(6) tests the legal

sufficiency of the complaint.    Browning v. Clinton, 292 F.3d

                                  5
235, 242 (D.C. Cir. 2002). A complaint must contain “a short and

plain statement of the claim showing that the pleader is

entitled to relief, in order to give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

quotation marks and citations omitted).    “[W]hen ruling on

defendant's motion to dismiss, a judge must accept as true all

of the factual allegations contained in the complaint.”

Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.

Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

The court must also grant the plaintiff “the benefit of all

inferences that can be derived from the facts alleged.”      Kowal

v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).      A

court need not, however, “accept inferences drawn by plaintiffs

if such inferences are unsupported by the facts set out in the

complaint.”   Id.   In addition, “[t]hreadbare recitals of

elements of a cause of action, supported by mere conclusory

statements, do not suffice.”    Ashcroft v. Iqbal, 556 U.S. 662

(2009).   Only a complaint that states a plausible claim for

relief survives a motion to dismiss.    Id.

  III. DISCUSSION

     Defendant The Sandi Group moves to dismiss Counts III and

IV of the Third Amended Complaint.    Dr. Sandi moves to dismiss

Counts II, III and IV of the Third Amended Complaint.    The

                                  6
parties’ arguments are discussed below.   Because of the

substantial similarity between the arguments made in the motions

to dismiss and plaintiff’s arguments in opposition, defendants

will be referred to collectively where possible.

  A. Effect of the Settlement Agreement

     The Sandi Group argues that the Settlement Agreement

released all of the new claims (Count III and IV) asserted

against it in the Third Amended Complaint.   Dr. Sandi argues

that the Settlement Agreement released all claims asserted

against him (Counts II, III and IV) in the Third Amended

Complaint.

  1. Whether the Court may consider the terms of the Settlement

     Agreement

     As an initial matter, the parties dispute whether the Court

may properly consider the Settlement Agreement in connection

with defendants’ Motions to Dismiss.   In ruling on a 12(b)(6)

motion to dismiss, the Court “may consider only the facts

alleged in the complaint, [and] any documents either attached to

or incorporated in the complaint,” EEOC v. St. Francis Xavier

Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997), or those

“documents upon which the plaintiff’s complaint necessarily

relies . . . produced not by the plaintiff in the complaint but

by the defendant in a motion to dismiss,” Hinton v. Corrections

Corp. of Amer., 624 F. Supp. 2d 45, 46 (D.D.C. 2009); accord

                                7
Kaempe v. Myers, 367 F.3d 958, 965 (D.C. Cir. 2004) (court may

consider documents appended to a motion to dismiss if their

authenticity is not disputed and they are referred to in the

complaint).    The Court may also consider matters of which it may

take judicial notice, such as public records.    See Kaempe, 367

F.3d at 965.

     Plaintiff argues that the Court cannot consider the

Settlement Agreement because the Court’s focus is “restricted to

the facts alleged in the pleading and any documents attached

thereto.”   Pl.’s Opp. to The Sandi Group’s Mot. to Dismiss at 7,

n.4; see Pl.’s Opp. to Dr. Sandi’s Mot. to Dismiss at 6.    The

Court disagrees.    First, plaintiff’s argument that the Court may

only consider the facts in the complaint and any documents

attached to the complaint is not an accurate statement of the

law, as discussed above.   Furthermore, the Court finds that the

Settlement Agreement has been incorporated by reference into the

Third Amended Complaint.   In paragraph 59 of the complaint,

plaintiff alleges that his “complaints led to an $8.7 million

settlement between The Sandi Group, Dyncorp, and the U.S.

Government, with The Sandi Group paying $1.01 million to resolve

the allegations.”   TAC ¶ 59.   In addition, the Court notes that

plaintiff does not challenge the validity of the Settlement

Agreement or its terms, only the effect of those terms on this

litigation.    See Rogers v. Johnson-Norman, 466 F. Supp. 2d 162,

                                  8
170 n.5 (D.D.C. 2006) (holding that court could appropriately

consider effect on current case of settlement agreement in

another litigation where parties did not dispute the validity of

the agreement, only the meaning of its terms).   Finally, even if

the Settlement Agreement were not properly incorporated by

reference into the Third Amended Complaint, the Court finds that

it may take judicial notice of the terms of the Settlement

Agreement because it is referenced extensively in the

Stipulation of Dismissal, which was filed on the public docket

for this matter.   See ECF No. 42. 2

    2. Whether Plaintiff’s New Claims Are Barred by the Settlement

       Agreement

      Defendants argue that plaintiff’s new claims are barred by

the Settlement Agreement.   In the Settlement Agreement,

Halldorson released TSG Group (defined as all defendants at the

time: Corporate Bank Financial Services, Inc., Dr. Rubar S.

Sandi, and The Sandi Group)

      from any civil monetary claim [Halldorson] may have on
      behalf of [himself] or of the United States that was
      alleged or could have been alleged in the Civil

2
  Although not argued by the parties, the Court finds that the
Stipulation of Dismissal itself incorporates the relevant
language from the Settlement Agreement regarding plaintiff’s
remaining claims. See Stip. of Dismissal at 2 (stating that the
Amended Complaint would be dismissed with prejudice except for
“Halldorson’s claims for retaliation under state and federal
law”). Thus, even if the Settlement Agreement were not properly
incorporated by reference, the Court could refer to the
Stipulation.
                                  9
       Action, or that is in any way related to the subject
       matter of the Civil Action, including but not limited
       to claims under the False Claims Act, 31 U.S.C. §§
       3729-3722, or the common law theories of recovery,
       except for claims for attorneys’ fees, expenses and
       costs pursuant to 31 U.S.C. § 3730(d), and claims for
       retaliation under state and federal law, including
       claims pursuant to 31 U.S.C. § 3730(h).

Settlement Agreement, ECF No. 76-2, at ¶ 6.      Because the Motions

to Dismiss do not focus on any issues relating to fees, and

because The Sandi Group is not seeking to dismiss Count I, 3 which

alleges a violation of 31 U.S.C. § 3730(h), the only question

before the Court is whether plaintiff’s new claims against Dr.

Sandi and The Sandi Group are “claims for retaliation under

state and federal law.”

       Settlement agreements are governed by principles of

contract law.    Green v. AFL-CIO, 657 F. Supp. 2d 161, 165

(D.D.C. 2009) (citing Gaines v. Cont’l Mort. & Inv. Corp., 865

F.2d 375, 378 (D.C. Cir. 1989)).      Where a contract is clear and

unambiguous on its face, its plain language controls in

determining the parties’ intentions.     Washington Inv. Partners

of Del., LLC v. Sec. House, K.S.C.C., 28 A.3d 566, 573 (D.C.

2011).    If claims have been released through a settlement

agreement, a court will bar those claims and grant a motion to

dismiss.    Sparrow v. Interbay Funding, LLC, No. 05-581, 2006 WL

2844254, at *3 (D.D.C. 2006) (citing Sirmans v. Caldera, 138 F.


3
    Count I is only alleged against The Sandi Group, not Dr. Sandi.
                                 10
Supp. 2d 14, 19 (D.D.C. 2001); Schmidt v. Shah, 696 F. Supp. 2d

44, 62 (D.D.C. 2010).   Furthermore, a settlement agreement may

be drafted to release certain claims but not others.    Ohio v.

Bristol-Myers Squibb Co., No. 02-1080, 2003 WL 21105104, at *9

(D.D.C. 2003).   Where a contract contains language of release, a

court “must rely solely on its language as providing the best

objective manifestation of the parties’ intent,’ and ‘where the

terms of the document leave no room for doubt, [its] effect . .

. can be determined as a matter of law.”    Washington Inv.

Partners of Del., LLC, 28 A.3d at 573 (quoting Bolling Fed.

Credit Union v. Cumis Ins. Soc’y, Inc., 475 A.2d 382, 385 (D.C.

1984)).

     Plaintiff contends that the Settlement Agreement permits

plaintiff to “proceed with claims arising from the retaliation

he suffered from Dr. Sandi and TSG as a result of his reporting

False Claims to the government.”     Pl.’s Opp. to Dr. Sandi’s Mot.

to Dismiss at 8-9 (emphasis added); see Pl.’s Opp. to TSG’s Mot.

to Dismiss at 8.   Plaintiff also argues that because the

District of Columbia has no state law equivalent to a

retaliation claim and the parties did not capitalize the word

“retaliation” in the Settlement Agreement, the inclusion of such

language “presupposed” that the retaliation claims would be

similar to the state law claims asserted by plaintiff in Counts

II, III and IV of the Third Amended Complaint.    Pl.’s Opp. to

                                11
Dr. Sandi’s Mot. to Dismiss at 9; see Pl.’s Opp. to The Sandi

Group’s Mot. to Dismiss at 8.

     The Sandi Group argues that Counts III and IV fall under

the terms of plaintiff’s release because they could have been

previously alleged in the action and because they are related to

the subject matter of the action, since they are based on

alleged conduct that occurred during plaintiff’s alleged

employment by The Sandi Group.    The Sandi Group also argues that

Counts III and IV, alleging fraud and intentional infliction of

emotional distress, are not retaliation claims under state or

federal law. 4   Dr. Sandi makes similar arguments regarding Counts

II, III and IV.    Defendants also argue that the new state law

claims should not be considered “retaliation” claims under the

Settlement Agreement simply because no state law retaliation

claim is available to plaintiff under District of Columbia law. 5


4
  As The Sandi Group notes, a cause of action for False Claims
Act retaliation under 31 U.S.C. ¶ 3730(h) is a very specific
cause of action. It requires an employee, contractor or agent
to provide he was “discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated against in the
terms and conditions of employment because of lawful acts done
by the employee, contractor, agent or associated others in
furtherance of an action under this section or other efforts to
stop 1 or more violations of this subchapter.” 31 U.S.C. ¶
3730(h).
5
  Although the Court need not look beyond the four corners of the
Settlement Agreement to determine that Counts II, III and IV do
not fall within the “claims for retaliation under federal and
state law” exempted under the Settlement Agreement, the Court
notes that plaintiff had previously alleged a claim for “State
Law Retaliation” in the Amended Complaint, which was the
                                 12
     The Court agrees with defendants.   In the Settlement

Agreement, plaintiff clearly and unambiguously released all

claims he had that were alleged or “could have been alleged” in

this action or that were “in any way related to the subject

matter” of this action, other than claims for attorneys’ fees,

expenses and costs, and claims for retaliation under state and

federal law.   Settlement Agreement at ¶ 6.   Counts II, III and

IV are all claims that “could have been alleged” previously in

this action and are “related to the subject matter” of this

action because they relate to plaintiff’s employment at The

Sandi Group.   Accordingly, plaintiff forfeited his right to

assert those claims when he agreed to a settlement.

     Because Counts II, III and IV are claims that could have

been alleged previously, the only way they are not barred by the

Settlement Agreement is if they are “claims for retaliation

under state and federal law.”   Plaintiff argues that the

Settlement Agreement permitted the subsequent filing of claims

“arising from” the retaliation plaintiff allegedly suffered.

The Court disagrees.   The Settlement Agreement expressly limited

itself to “claims for retaliation” not claims arising from

retaliation.   This language is clear and unambiguous and



operative complaint at the time the Settlement Agreement was
executed. See ECF No. 37. This very strongly suggests that the
parties had plaintiff’s “state law retaliation” claim in mind
when they executed the Settlement Agreement.
                                13
controls the Court’s analysis when determining the parties’

intent.   See Wash. Inv. Partners of Del., 28 A.3d at 574.     The

Court reads this language to permit new claims alleging only

retaliation, not individual acts of wrongdoing that may have

arisen from or have some connection to retaliation.    Counts II,

III and IV are therefore barred because they are not retaliation

claims.   The wrongdoing alleged in those claims may provide the

context for plaintiff’s existing False Claims Act retaliation

claim, but they cannot stand alone as “state law retaliation

claims” under the terms of the Settlement Agreement.

     Nor is the Court persuaded by plaintiff’s argument that

because the District of Columbia has no state law equivalent to

a retaliation claim, the parties “presupposed” that other state

law claims would be asserted in place of a retaliation claim

under state law.   The Settlement Agreement says nothing of the

sort.   Moreover, to the extent that plaintiff misunderstood the

applicable law or the availability of a remedy, plaintiff cannot

stretch the plain meaning of the language in the Settlement

Agreement to compensate for that misunderstanding.    See 75

C.J.S. Release § 25 (“In the absence of fraud, a releasor cannot

escape from the effects of his or her agreement, in whole or in

part, by merely showing that he or she was mistaken as to the

law or as to the legal import and effect of the terms used.”).



                                14
     Settlement Agreements are intended to end litigation on a

particular matter and free the parties from any concern of

resurrection of the claims.   See Healy v. Labgold, 271 F. Supp.

2d 303, 305 (D.D.C. 2003) (“Why settle a case, pay good money,

and leave oneself exposed to another lawsuit?”).   Here,

plaintiff entered into a settlement agreement that permitted him

only to file “claims for retaliation under state and federal

law.”   Settlement Agreement at ¶ 6.   Plaintiff does not dispute

the validity of the Settlement Agreement.   Accordingly, the

Court will enforce the Settlement Agreement as written and hold

that “claims for retaliation under state and federal law” do not

include claims for tortious interference with business

expectancies, fraud, or intentional infliction of emotional

distress.

  B. Statute of Limitations

     The Court also finds that Counts II, III and IV are barred

by the statute of limitations.   Under District of Columbia law,

claims for fraud/fraudulent inducement, intentional infliction

of emotional distress, and tortious interference with business

expectancies are governed by a three-year statute of

limitations.   See D.C. Code § 12-301 (providing for a three-year

statute of limitations for any cause of action “for which a

limitation is not otherwise specifically prescribed”); see King

v. Kitchen Magic, Inc., 391 A.2d 1184, 1186 (D.C. 1978) (fraud);

                                 15
Advantage Health Plan, Inc. v. Knight, 139 F. Supp. 2d 108, 112

(D.D.C. 2001) (tortious interference); Rendall-Speranza v.

Nassim, 107 F.3d 913, 920 (D.C. Cir. 1997) (intentional

infliction of emotional distress).

     A statute of limitations begins to run on the date that an

alleged event occurred.    Zhi Chen v. Monk, 701 F. Supp. 2d 32,

36 (D.D.C. 2010).    Because plaintiff’s claims arise from his

employment at The Sandi Group, which ended in January 2006, the

statute of limitations for all claims expired no later than

January 2009. 6   Accordingly, unless plaintiff can establish that

the statute of limitations for Counts II, III, and IV has been

tolled, the new claims are time-barred.

     In order to determine whether the statute of limitations

has been tolled, the Court must focus on the somewhat peculiar

procedural history of the case.    Here, plaintiff agreed in the

Settlement Agreement to dismiss all claims against defendants

except for “claims for retaliation under state and federal law”

and certain claims for fees and costs.    At the time of

settlement, the operative complaint was the Amended Complaint,


6
  The parties dispute whether certain claims relate to
plaintiff’s first period of employment at TSG that ended in
October 2005, or to his second period of employment between
December 2005 and January 2006. The distinction is not material
for purposes of this Opinion and, viewing the facts in the light
most favorable to the plaintiff, the Court will assume without
deciding that all three of the new causes of action accrued on
the later date of January 2006.
                                  16
which had alleged a claim titled “state law retaliation” against

The Sandi Group and Dr. Sandi.    Following settlement, plaintiff

filed a Second Amended Complaint against only one defendant, The

Sandi Group, and asserted only one claim for False Claims Act

retaliation pursuant to 31 U.S.C. ¶ 3730(h).     Excluded from the

Second Amended Complaint was the “state law retaliation” claim

alleged in the Amended Complaint.      Also excluded were all claims

against Dr. Sandi.   Critically, in plaintiff’s unopposed motion

for leave to file a Second Amended Complaint, plaintiff

represented to the Court and the defendants that the proposed

amendment “eliminates a state law retaliation claim” and

“eliminates Dr. Rubar Sandi as a defendant.”     ECF No. 50 at 1-2.

Plaintiff further stated that the amendment would “expedite and

streamline further proceedings by narrowing the action to the

pending Section 3730(h) claim and particularizing the

allegations that pertain to the sole remaining claim.”     ECF No.

50 at 2 (emphasis added).   After the Second Amended Complaint

was filed, the parties engaged in mediation.     Shortly

thereafter, plaintiff’s counsel withdrew from the case and

plaintiff obtained new counsel.    Plaintiff’s new counsel then

sought leave to file the Third Amended Complaint that is the

subject of this Opinion.

     Plaintiff argues that Counts II, III and IV are properly

before the Court and were timely filed, and that the statute of

                                  17
limitations should accordingly be deemed tolled because The

Sandi Group and Dr. Sandi “were well aware” at the time of

settlement that plaintiff “would pursue employment-related

retaliation claims against them.”    Plaintiff argues that the

claims therefore relate back to the allegations in the

“Complaint, Amended Complaint, and Second Amended Complaint.”

Pl.’s Opp. to The Sandi Group’s Mot. to Dismiss at 9; see Pl.’s

Opp. to Dr. Sandi’s Mot. to Dismiss at 10. 7

     The Court disagrees.   As an initial matter, plaintiff’s

specific and deliberate elimination of the state law retaliation

claims and all claims against Dr. Sandi in the Second Amended

Complaint operated as a voluntary dismissal of those claims.        It

is hornbook law that an amended complaint supersedes the prior

complaint and renders it of no legal effect.      See Adams v.

Quattlebaum, 219 F.R.D. 195, 197 (D.D.C. 2004) (citing Washer v.

Bullitt Cnty., 110 U.S. 558, 562 (1884)).      In this case, even

though plaintiff avoided using the word “dismiss,” and instead

chose the word “eliminate,” he cannot avoid the practical effect

of having dismissed the “state law retaliation” claim and all

claims against Dr. Sandi.   See Merriam-Webster Dictionary

7
  As defendants point out, plaintiff has not identified any
reason to equitably toll the statute of limitations. Cf. Carter
v. WMATA, 764 F.2d 854, 858 (D.C. Cir. 1985) (noting that
“[e]xceptions to the general rule of strict application are seen
as justifiable only when the court perceives that an
extraordinarily inequitable outcome would otherwise obtain”).


                                18
Online, http://www.merriam-webster.com/dictionary/eliminate

(last visited Mar. 27, 2013) (defining “eliminate” as “to put an

end to or get rid of” or “to remove from consideration”).    The

Court finds that the filing of the Second Amended Complaint thus

operated as a voluntary dismissal by plaintiff of his “state law

retaliation” claims against The Sandi Group and of all claims

against Dr. Sandi.

     In deciding whether Counts II, III and IV are barred by the

statute of limitations, the Court is faced with two related

questions: whether the voluntary dismissal of Dr. Sandi

prohibits plaintiff from asserting new claims against him, and

whether the voluntary dismissal of certain—but not all—claims

against The Sandi Group prohibits plaintiff from asserting new

claims against it.

     It is well-established that the statute of limitations on a

claim in a case that is voluntarily dismissed is no longer

subject to tolling once the case has been voluntarily or

involuntary dismissed.   See Ciralsky v. CIA, 355 F.3d 661, 672

(D.C. Cir. 2004) (“[O]nce a lawsuit is dismissed, even if

without prejudice, “the tolling effect of the filing of the suit

is wiped out and the statute of limitations is deemed to have

continued running from whenever the cause of action accrued,

without interruption by that filing.”) (citing Elmore v.

Henderson, 227 F.3d 1009, 1011 (7th Cir. 2000)).   This principle

                                19
has been extended to apply to the dismissal of certain parties

in a particular lawsuit, even if the entire case is not

dismissed.   See Breen v. Peters, 529 F. Supp. 2d 24, 28-29

(D.D.C. 2008) (statute of limitations on claims alleged by

plaintiff who voluntarily withdrew from case would not be

subject to tolling when plaintiff attempted to rejoin suit);

Wagner v. Georgetown Univ. Med. Center, 768 A.2d 546, 558-559

(D.C. 2001) (claims against doctor that had been voluntarily

dismissed were barred by the statute of limitations when

plaintiff attempted to re-assert those claims at a later date). 8

Accordingly, plaintiff’s voluntary dismissal of Dr. Sandi from

the case operated to cease tolling on all claims against him,

and the claims against Dr. Sandi are time-barred.

     The second question, whether the voluntary dismissal of

“state law retaliation” claims against The Sandi Group ceased

the tolling on those claims, is less clear.   None of the cases


8
  The fact that plaintiff may not have understood that no “state
law retaliation” claim existed under D.C. law is also
insufficient to toll the statute of limitations. “[I]f a
plaintiff mistakes his remedy, in the absence of any statutory
provisions saving his rights, or where from any cause . . . the
action abates or is dismissed, and during the pendency of the
action, the limitation runs, the remedy is barred.” Carter, 764
F.2d at 856 (citing Willard v. Wood, 164 U.S. 502, 523 (1896)).
This premise applies whether the action was dismissed
voluntarily or involuntarily. See Dupree v. Jefferson, 666 F.2d
606, 611 (D.C. Cir. 1981) (addressing the pendency of
voluntarily dismissed actions); York & York Constr. Co. v.
Alexander, 296 A.2d 710, 712 (D.C. 1972) (addressing pendency of
involuntarily dismissed actions).
                                20
cited by the parties appear to involve the dismissal or

withdrawal of only certain claims against a party who remained

in the case, in contrast to the dismissal of a party or the

dismissal of an entire case.   See, e.g., Wagner, 768 A.2d at 559

(dismissal of all claims against doctor ceased tolling on

statute of limitations, such that plaintiffs were time-barred

from asserting new claims against the doctor at a later stage of

the litigation).   On the facts of this case, however, the Court

finds that plaintiff expressly waived any additional claims

against The Sandi Group when he represented to the Court that

the Second Amended Complaint “eliminated” the state law

retaliation claims against The Sandi Group, and stated that the

purpose of the Second Amended Complaint was to “expedite and

streamline further proceedings by narrowing the action to the

pending Section 3730(h) claim and particularizing the

allegations that pertain to the sole remaining claim.”    ECF No.

50 at 2 (emphasis added).   These representations were made by

plaintiff to the Court in support of leave to amend.    These

representations were also likely made to defendants, presumably

serving as the basis for their consent to the motion to amend.

Having made these representations to the Court and the parties

that he was withdrawing his “state law retaliation” claims and

that he intended to proceed against The Sandi Group with only

one claim, plaintiff cannot now attempt to bring additional

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claims into this litigation.   Under these circumstances, the

Court finds that the rationale in Ciralski applies to claims

dismissed by plaintiff against The Sandi Group even though The

Sandi Group remained in the litigation.    Accordingly, the Court

finds that the statute of limitations on Counts II, III and IV

has expired and the claims are time-barred.

     For similar reasons, the Court finds that Counts II, III

and IV do not relate back under Federal Rule of Civil Procedure

15(c) to the filing of prior complaints.    Under Rule 15(c), an

amended pleading relates back to the date of the original

pleading when the amendment “asserts a claim or defense that

arose out of the conduct, transaction, or occurrence set out—or

attempted to be set out—in the original pleading.”    Plaintiff

argues that “the allegations in the Third Amended Complaint

relate back to those alleged in the Complaint, Amended

Complaint, and Second Amended Complaint.”   Pl.’s Opp. to The

Sandi Group’s Mot. to Dismiss at 10; see Pl.’s Opp. to Dr.

Sandi’s Mot. to Dismiss at 14.

     Here, plaintiff’s new claims could only relate back to the

Second Amended Complaint, since that was the operative complaint

prior to the filing of the Third Amended Complaint.    See Adams,

219 F.R.D. at 197 (citing Washer, 110 U.S. at 562) (filing of an

amended complaint renders the prior complaint to be of no legal

effect); Wagner, 768 A.2d at 558-59 (where prior claim against

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doctor had been dismissed, new claim against doctor did not

relate back within the meaning of Rule 15 because there were no

existing claims for the new claim to relate back to, and the new

claim did not reinstate the original complaint against the

doctor).     With respect to the claims against Dr. Sandi, there is

nothing in the Second Amended Complaint that the new claims

could relate back to, since all claims against Dr. Sandi were

eliminated from the Second Amended Complaint.     Under Rule 15(c),

when an amendment “changes the party or the name of the party

against whom a claim is asserted,” an amendment will only relate

back if the new party “knew or should have known that the action

would have been brought against it, but for a mistake concerning

the proper party’s identity.”     Fed. R. Civ. P. 15(c)(1)(C).

Plaintiff has alleged no such mistake..     Accordingly, the claims

against Dr. Sandi cannot relate back to the Second Amended

Complaint. 9

     The Court also finds that the new claims asserted against

The Sandi Group do not relate back to the Second Amended

Complaint.     Assuming that plaintiff is attempting to revive his

“state law retaliation” claims, the claims do not relate back

9
  The Court also notes that it would be particularly unfair to
require Dr. Sandi, who had been “eliminated” from the
litigation, to participate again as a litigant. See, e.g., U.S.
ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 516 (3d
Cir. 2007) (“[P]arties that do not appear in amended complaints
have a legitimate expectation that they are no longer involved
in the litigation.”).
                                  23
because they were eliminated from the Second Amended Complaint. 10

See SAC, ECF No. 50.   If, instead, the new claims are other

common law theories of recovery that relate back to the False

Claims Act retaliation claim, they are barred by the Settlement

Agreement.   See Settlement Agreement ¶ 6 (barring “common law

theories of recovery”).

     The sole case cited by plaintiff in support of his

arguments on the statute of limitations and the issue of

relation back does not lead to a different result; indeed, it

supports defendants’ arguments.    In Miller v. Holzman, No. 95-

1231, 2006 U.S. Dist. LEXIS 9165 (D.D.C. Mar. 9, 2006) aff’d in

part, vacated in part by Miller v. Bill Harbert Intern. Const.,

Inc., 608 F.3d 871, 391 (D.C. Cir. 2010), the court held that

the “government’s claims may relate back if they arose out of

the same conduct as the relator’s claims.”   (emphasis added).

This case is distinguishable for two reasons.   First, the issue

in Miller was whether the government’s claims at the time of

intervention will relate back to an original qui tam complaint.

Here, plaintiff has been a party to this action from the outset,

unlike the government when it elects to intervene in an ongoing

qui tam action.   Any special consideration given to the

government when joining a qui tam would therefore not apply

10
  As explained elsewhere in this Opinion, the Court does not
find that Counts II, III, and IV are “state law retaliation
claims” under the Settlement Agreement.
                                  24
here.   Furthermore, the Miller court held that new claims not

specifically relating back to the existing claims must “rest on

their own feet.”       Id. at 18.   Here, plaintiff’s new claims do

not relate back to their existing claims because they are either

barred by the Settlement Agreement or there are no claims in the

Second Amended Complaint that the new claims could relate back

to.

      Accordingly, the Court finds that Counts II, III and IV of

the Third Amended Complaint are barred by the statute of

limitations and do not relate back to any prior complaint under

Rule 15(c).

  IV.     CONCLUSION

      For all of the foregoing reasons, defendants’ motions to

dismiss are GRANTED and Counts II, III and IV of the Third

Amended Complaint are hereby DISMISSED.        An appropriate Order

accompanies this Memorandum Opinion.



Signed:     Emmet G. Sullivan
            United States District Judge
            March 29, 2013




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