May v. USA et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00637-RM-MJW
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.
REPORT AND RECOMMENDATION ON THE PARTIES’ MOTIONS
(DOCKETS NOS. 15, 16, 17, 22, 25, 42, & 43)
MICHAEL J. WATANABE
United States Magistrate Judge
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:
• Plaintiff Samuel J. May’s (“Plaintiff”) Unopposed Motion for Declaratory
Judgment Directing Payment of Qui Tam Share of Alternate Remedy
Proceeds, filed on May 1, 2017 (Docket No. 15);
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• Plaintiff’s Unopposed Notice of Motion and Motion for an Evidentiary
Hearing Pursuant to 28 U.S.C. § 2202 and 31 U.S.C. § 3730(c)(2)(B), in
Support of Concurrent Motion for Declaratory Judgment Directing
Payment of Qui Tam Share, filed on May 1, 2017 (Docket No. 16);
• Plaintiff’s Unopposed Notice of Motion and Motion for Declaratory Relief
Requesting Judicial Notice of the Dismissed Qui Tam Complaint in
Support of Motion for Relator Share and Hearing, filed on May 1, 2017
(Docket No. 17);
• Defendant Amgen USA Inc.’s (“Amgen”) Motion to Dismiss, filed on May
1, 2017 (Docket No. 22), to which Plaintiff filed a response (Docket No.
33), and Amgen filed a reply (Docket No. 33);
• Amgen’s Motion for Attorney Fees, filed on May 2, 2017 (Docket No. 25);
• Defendants United States of America, U.S. Department of Justice, and
U.S. Department of Health and Human Services’ (collectively the “Federal
Defendants”) Partial Motion to Dismiss Pursuant to Fed. R. Civ. P.
12(b)(1)(b), filed August 25, 2017 (Docket No. 42), to which Plaintiff filed a
response (Docket No. 46); and
• The Federal Defendants’ Partial Motion for Summary Judgment, filed
August 25, 2017 (Docket No. 43), to which Plaintiff filed a response
(Docket No. 47).
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.
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I. BACKGROUND
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.
1 The Court takes judicial notice of the various state and federal civil proceedings
involving Plaintiff and their related records. See Van Woudenberg ex rel. Foor v.
Gibson, 211 F.3d 560, 568 (10th Cir. 2000) (“[T]he court is permitted to take judicial
notice of its own files and records, as well as facts which are a matter of public record.”)
(citing St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)),
abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001).
Because the Court may consider judicially noticed facts at the motion to dismiss stage,
it need not convert the motions to dismiss into ones for summary judgment. See
Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1 (10th Cir. 2004)
(permitting judicial notice of facts in motions to dismiss). Moreover, Plaintiff refers to the
legal proceedings throughout his Complaint, providing the Court with a second basis for
considering those filings without converting Amgen’s motion to dismiss into a motion for
summary judgment. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)
(explaining that courts may consider documents referenced in a complaint at the motion
to dismiss stage). Finally, Plaintiff himself requests that the Court take judicial notice of
the qui tam action. (Docket No. 17 at p. 3.)
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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 petition
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for 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 f ilings are untimely and
plainly frivolous.” (Docket No. 22-34.) On appeal, the Ninth Circuit informed Plaintiff that
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he 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 settlem ent
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
II. ANALYSIS
a. Amgen’s Motion to Dismiss (Docket No. 22)
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 any
2 Plaintiff did not serve process on four defendants: Deborah Zwany, Sara
Winslow, Patrick Hannigan, and Omotunde Osunsanmi.
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claim 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.
i. Standard of Review
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 the plaintiff’s complaint alone is legally sufficient
to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d
1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at1198. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
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U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the court identifies “the allegations in the complaint that are
not entitled to the assumption of truth,” that is, those allegations which are legal
conclusion, bare assertions, or merely conclusory. Id. at 679–81. Second, the Court
considers the factual allegations “to determine if they plausibly suggest an entitlement
to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim
survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. Southern Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th
Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ Nor does the
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. (citation omitted).
In assessing a motion to dismiss under Rule 12(b)(6), the usual rule is that a
court should consider no evidence beyond the pleadings. See Alvarado v. KOB–TV,
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L.L.C., 493 F.3d 1210, 1216 (10th Cir.2007). If , on a motion under Rule 12(b)(6),
“matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d). As noted above, however, “the district court may consider documents referred to
in the complaint if the documents are central to the plaintiff’s claim and the parties do
not dispute the documents’ authenticity.” Alvarado, 493 F.3d at 1216 (quoting Jacobsen
v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002)). See also GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir.1997)(“[i]f a
document is referenced in and central to a complaint, a court need not convert the
motion but may consider that document on a motion to dismiss.). In addition, “facts
subject to judicial notice may be considered in a Rule 12(b)(6) motion without
converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan,
453 F.3d 1244, 1264 n. 24 (10th Cir.2006).
ii. Plaintiff’s Claim for Qui Tam Settlement Money
Amgen argues that to the extent that Plaintiff’s Complaint can be interpreted as
asserting a claim against Amgen for a portion of the settlement proceeds, it must be
dismissed because the United States, not Amgen, is responsible for paying relators
who successfully bring a FCA action. The Court agrees. Notwithstanding the fact that
Plaintiff has not sufficiently alleged that he is entitled to any portion of the settlement
proceeds (as further discussed below), even if he was, Amgen is not the proper
defendant to sue. Amgen paid the settlement funds to the United States. (Docket No.
22-37 at p. 7.) By statute, the United States is responsible for paying the relators’ share.
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See 31 U.S.C.A. § 3730(d). Plaintiff acknowledges as much in his Complaint. (Docket
No. 1 at ¶ 88.) Accordingly, Plaintiff cannot maintain a claim against Amgen for his
claim to a relators’ share of the settlement money.
Amgen also argues that if Plaintiff’s Complaint is construed as attempting to
bring a new qui tam action or revive his old one, he is time barred. The Court finds that
not only would such a claim time-barred, it would also be groundless and frivolous. As
Plaintiff has been informed multiple times, a pro se plaintiff cannot prosecute a qui tam
action. Plaintiff proceeds pro se. Therefore, by law, he cannot maintain any qui tam
claim, new or old.
iii. Plaintiff’s Claims Arising Out of the Arbitration Proceedings
In an extremely convoluted way, Plaintiff’s Complaint seems to assert that the
order confirming the arbitration award somehow entitles him to a relators’ share of the
settlement funds. (Docket No. 1 at ¶¶ 18, 83-84, 96-97, 105-06, 115-16, 124, 142-43.)
The Court cannot see how this could be the case, given that the two proceedings were
wholly unrelated. Moreover, the Court notes that Amgen, not Plaintiff, prevailed in the
arbitration.
The Complaint also challenges the fairness and propriety of the arbitration
proceedings. (Id. at ¶¶ 22-29.) Plaintiff does not appear to bring any specific claims for
relief based upon these allegations, but, out of caution, the Court finds that Plaintiff is
barred from relitigating any claims stemming from his arbitration with Amgen. Any such
claim would be untimely. See 9 U.S.C. § 12 (requiring that notice of a motion to vacate,
modify, or correct an award must be served upon the adverse party or his attorney
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within three months after the award is filed or delivered). It would also run afoul of the
doctrines of issue and claim preclusion, as both the Denver District Court and the
Northern District of California, in cases involving the same parties and the same claims
and issues, rejected Plaintiff’s challenges to the arbitration award. See Park Lake Res.
Ltd. Liab. v. U.S. Dep’t Of Agr., 378 F.3d 1132, 1136 (10th Cir. 2004) (discussing the
doctrines of claim and issue preclusion). Plaintiff had an opportunity to litigate these
issues, and he lost. As Judge Alsup noted, Plaintiff continues to refuse to accept the
outcome.
iv. The Statute of Limitations
Next, Amgen argues that Plaintiff’s Complaint is barred by the statute of
limitations. Plaintiff’s specific claims for relief are governed by a two-year (negligence
and outrageous conduct) and a three-year (contract, fraud, misrepresentation,
conversion and breach of fiduciary duty) statute of limitations. See Colo. Rev. Stats. §
13-80-101(a), (c), (f) and (h). Tort claims accrue “on the date both the injury and its
cause are known or should have been known by the exercise of reasonable diligence.”
Id. § 13-80-108(1). Fraud claims accrue “on the date such fraud . . . is discovered or
should have been discovered by the exercise of reasonable diligence.” Id. § 13-80-
108(3). Breach of contract claims accrue “on the date the breach is discovered or
should have been discovered by the exercise of reasonable diligence.” Id. § 13-80-
108(6). Claims for conversion accrue “at the time the wrongful possession is discovered
or should have been discovered by the exercise of reasonable diligence.” Id. § 13-80-
108(7).
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Plaintiff filed this lawsuit on March 10, 2017. Thus, his claims are required to
have accrued after March 10, 2014, and March 10, 2015, respectively. Plaintiff’s claims
all center around being shut out from the qui tam FCA settlement agreement, which
was entered into in December 2012. Plaintiff was undisputably aware in March 2012
that Amgen and the United States had entered into an ag reement in principle to settle
qui tam actions. (Docket No. 22-7.) However, Plaintiff alleges that he was not aware of
the specifics of the settlement agreement until November 2015. (Docket No. 47 at 11.)
Thus, a factual dispute exists, and “[i]ssues such as when a cause of action accrues,
whether a claim is barred by a statute of limitations, and whether a statute of limitations
should be equitably tolled, are issues of fact.” Olson v. State Farm Mut. Auto. Ins. Co.,
174 P.3d 849, 853 (Colo. App. 2007). On the inf ormation before it, the Court cannot
determine as a matter of law that Plaintiff’s specific claims are barred by the statute of
limitations.
v. Plaintiff’s Specific Claims for Relief
Finally, Amgen argues that none of Plaintiff’s specifically enumerated claims
state a claim upon which relief can be granted. The Court addresses each in turn.
A. Breach of Contract and Breach of Good Faith and Fair Dealing
Under Colorado law, a breach of contract claim has four elements: “‘(1) the
existence of a contract; (2) performance by the plaintiff or some justification for
nonperformance; (3) failure to perform the contract by the defendant; and (4) resulting
damages to the plaintiff.’” Contrada, Inc. v. Parsley, No. 10–cv–00646–WYD–CBS,
2012 WL 573918, at *2 (D. Colo. Feb. 22, 2012) (citing Western Distrib. Co. v.
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Diodosio, 841 P.2d 1053, 1058 (Colo.1992)). “A contract is f ormed when one party
makes an offer and the other accepts it, and the agreement is supported by
consideration.” Legro v. Robinson, 2012 COA 182, ¶ 50, 328 P.3d 238, 246, aff’d but
criticized, 2014 CO 40, ¶ 50, 325 P.3d 1053 (citation om itted).
Here, Plaintiff does not sufficiently allege that he entered into a valid contract
with Amgen for the payment of the settlement proceeds. Indeed, Amgen could not have
entered into such a contract; as noted above, it is the United States that determines
and distributes the relators’ shares. It hardly matters, though, because Plaintiff’s
unrelated qui tam action was dismissed, and he was not a party to the FCA settlement
agreement. His breach of contract claim should therefore be dismissed under Rule
12(b)(6).
As for Plaintiff’s allegation that Amgen breached the implied covenant of good
faith and fair dealing, such a claim requires the existence of a contract. See Denny
Const., Inc. v. City & Cty. of Denver ex rel. Bd. of Water Comm’rs, 170 P.3d 733, 737
(Colo. App. 2007), rev’d on other grounds, 199 P.3d 742 (Colo. 2009) (recognizing that
“the implied covenant of good faith and fair dealing is a contractual covenant”). Here,
Plaintiff does not sufficiently allege the existence of a valid contract, and therefore he
cannot maintain a claim for an implied breach of that contract. This claim should also
be dismissed.
B. Fraud and Fraudulent Concealment
The elements of fraud under Colorado law are:
(1) a false representation of a material existing fact; (2)
knowledge on the part of the one making the representation
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that it was false; (3) ignorance on the part of the one to
whom the representation was made of its falsity; (4) the
representation was made with an intention that it be acted
on; and (5) the representation resulted in damage.
Bangert Bros. Const. Co., Inc. v. Kiewit Western Co., 310 F.3d 1278, 1286 n. 4 (10th
Cir. 2002) (quoting Southeastern Colo. Water Conservancy Dist. v. Cache Creek Mining
Trust, 854 P.2d 167, 172 (Colo. 1993)). The elements of fraudulent concealment are
functionally identical. See BP Am. Prod. Co. v. Patterson, 263 P.3d 103, 109 (Colo.
2011).
Rule 9(b) provides that “[i]n alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge,
and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. P. 9(b).
Under this standard, a plaintiff must “set forth the time, place, and contents of the false
representation, the identity of the party making the false statements and the
consequences thereof.” United States ex rel. Sikkenga v. Regence Bluecross Blueshield
of Utah, 472 F.3d 702, 727 (10th Cir. 2006) (citations omitted).
Here, Plaintiff alleges
Defendants’ action, inaction, and or omission (with held [sic]
evidentiary & relator share) set forth constitute fraudulent
misrepresentations, self-dealing, and purposeful and
fraudulent concealment of material fact information to the
ultimate determine of plaintiff, who relied upon Defendants’
fraudulent statements, representations, and omissions
before and after the 2012 large settlement.
(Docket No. 1 at ¶ 108.) The Court finds this allegation to be merely conclusory and not
entitled to the assumption of truth. Moreover, Plaintiff fails to meet any of the
requirements of Rule 9(b)’s heightened pleading standards, as his Complaint is devoid
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of any specific information about the nature of allegedly fraudulent statements.
Therefore, the Court recommends that this claim be dismissed.
C. Breach of Fiduciary Duty
The elements of a claim for breach of fiduciary duty are: “1) the existence of a
fiduciary relationship between plaintiff and defendant; 2) defendant’s breach of the
fiduciary duty; and 3) damages as a result of the breach.” F.D.I.C. v. Refco Grp., Ltd.,
989 F. Supp. 1052, 1080 (D. Colo. 1997) (citations om itted). “A fiduciary relation[ship]
exists between two persons when one of them is under a duty to act for or to give
advice for the benefit of another upon matters within the scope of the relation[ship].”
Moses v. Diocese of Colo., 863 P.2d 310, 321 (Colo.1993) (citation and quotation
marks omitted). Plaintiff does not plausibly allege that Amgen was ever his fiduciary,
and therefore his claim cannot stand.
D. Conversion
Conversion is “any distinct, unauthorized act of dominion or ownership exercised
by one person over personal property belonging to another.” Glenn Arms Associates v.
Century Mortg. & Inv. Corp., 680 P.2d 1315, 1317 (Colo. Ct. App.1984). “Predicates to
a successful claim for conversion are the owner’s demand for the return of the property,
and the controlling party’s refusal to return it.” Id. Here, Plaintiff does not plausibly
allege that Amgen had control over any of Plaintiff’s personal property, so the claim
fails.
E. Intentional and Negligent Infliction of Emotional Distress
To prevail on a claim for intentional inflection of emotional distress, also known
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as a claim for outrageous conduct, a plaintiff must show that (1) the defendant engaged
in extreme and outrageous conduct; (2) recklessly or with the intent of causing the
plaintiff severe emotional distress; (3) causing the plaintiff severe emotional distress.
Matthys v. Narconon Fresh Start, 104 F. Supp. 3d 1191, 1206 (D. Colo. 2015) (citing
Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App. 2003)). W ith regard to the first
element, the Court must determine as a matter of law whether “reasonable persons
could differ on whether the defendant's conduct was sufficiently outrageous” before
submitting the claim to the jury. Id. Outrageous conduct is conduct “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious and utterly intolerable in a civilized community.” Coors
Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999).
Plaintiff alleges that the Defendants “knew or reasonably should have known that
the failure to include him in settlement procedures and to exercise due care toward
plaintiff and due care in the performance of the employment agreement would cause
plaintiff severe emotional harm.” (Docket No. 1 at ¶ 135.) He claims that this caused
him to feel “anger, fear, shock embarrassment, and humiliation.” (Id.)
The Court finds that no reasonable person could conclude, based on these
allegations, that Amgen’s alleged conduct was extreme and outrageous. As Amgen
notes, it did not have the ability to include Plaintiff in the settlement agreement, and the
government controlled the settlement funds. Also, Plaintiff’s qui tam case had already
been dismissed for failure to prosecute. Finally, any claim arising out the “performance
of the employment agreement” is barred as a matter of law for the reasons set forth
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above. In short, nothing Amgen is alleged to have done rises to the level of outrageous
conduct.
F. Negligent Infliction of Emotional Distress
To make a negligent infliction of emotional distress claim, “‘a plaintiff must show
that the defendant’s negligence created an unreasonable risk of physical harm and
caused the plaintiff to be put in fear for his or her own safety, that this fear had physical
consequences or resulted in long-continued emotional disturbance, and that the
plaintiff’s fear was the cause of the damages sought.’” Matthys, 104 F. Supp. 3d at
1206 (quoting Draper v. DeFrenchi–Gordineer, 282 P.3d 489, 496–97 (Colo. App.
2011)). “The plaintiff must show that any physical injury or long-continued emotional
disturbance ‘was caused by [his] fear for [his] own safety.’” Id. (quoting Scharrel v.
Wal–Mart Stores, Inc., 949 P.2d 89, 93 (Colo. App. 1997)).
Plaintiff alleges that Amgen’s conduct caused him to have a heart attack.
(Docket No. 1 at ¶ 147.) The Court concludes that this allegation is not plausible. Also,
Plaintiff fails to state any claim that Amgen was negligent. Nor does he allege that he
was put in fear for his physical safety. This claim should be dismissed.
For these reasons, the Court recommends that Plaintiff’s claims against Amgen
be dismissed.
b. The Federal Defendants’ Motions (Docket Nos. 42 & 43)
The Federal Defendants move to dismiss Plaintiff’s contract claims for lack of
subject matter jurisdiction under the Tucker and Little Tucker Acts. They also move for
summary judgment on Plaintiff’s tort claims.
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i. Motion to Dismiss (Docket No. 42)
A. Standard of Review
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a
complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case. Rather, it calls
for a determination that the court lacks authority to adjudicate the matter, attacking the
existence of jurisdiction rather than the allegations of the complaint. See Castaneda v.
INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of
limited jurisdiction and may only exercise jurisdiction when specifically authorized to do
so). The burden of establishing subject matter jurisdiction is on the party asserting
jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A
court lacking jurisdiction “must dismiss the case at any stage of the proceedings in
which it becomes apparent that jurisdiction is lacking.” See Basso, 495 F.2d at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218
(10th Cir. 2006)
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of
fact in the complaint, without regard to mere conclusionary allegations of jurisdiction.”
Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). W hen considering a Rule
12(b)(1) motion, however, the Court may consider matters outside the pleadings without
transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d
1000, 1003 (10th Cir. 1995). W here a party challenges the facts upon which subject
matter jurisdiction depends, a district court may not presume the truthfulness of the
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complaint’s “factual allegations . . . [and] has wide discretion to allow affidavits, other
documents, and [may even hold] a limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id.
B. Analysis
The Federal Defendants argue that Plaintiff’s claims for breach of contract and
breach of implied covenant of good faith and fair dealing should be dismissed under the
“Tucker Act” and “Little Tucker Act.” The Court agrees.
The Tucker Act, 28 U.S.C. § 1491, provides that “[t]he United States Court of
Federal Claims shall have jurisdiction to render judgment upon any claim against the
United States founded . . . upon any express or implied contract with the United States.”
Id . § 1491(a)(1). The Little Tucker Act, 28 U.S.C. § 1346(a)(2), grants federal district
courts concurrent jurisdiction over contract claims against the government where
plaintiffs seek no more than $10,000.00 in damages. Thus, the Tucker Act “‘vests
exclusive jurisdiction’ with the Court of Federal Claims for claims against the United
States founded upon the Constitution, Acts of Congress, executive regulations, or
contracts and seeking amounts greater than $10,000.” Burkins v. United States, 112
F.3d 444, 449 (10th Cir. 1997).
With this in mind, there are two obvious problems with Plaintiff’s contract claims.
First, Plaintiff seeks damages of over $100,000,000, which exceeds the $10,000
jurisdictional limit of this Court. Thus, Plaintiff’s claims could only been brought in the
Court of Federal Claims. Second, Plaintiff does not plausibly allege that he ever had a
contractual relationship with the Federal Defendants. He was not a party to the
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settlement agreement. In fact, his qui tam complaint had been dismissed before the
agreement was signed. Furthermore, his qui tam claims were unrelated to those that
were resolved by the settlement agreement, which means that FCA’s “alternate
remedy” provision is inapplicable. See 31 U.S.C. § 3730(c)(5). See also U.S. ex rel.
Newell v. City of St. Paul, Minn., 728 F.3d 791, 799 (8th Cir. 2013) (“As defined in §
3730(c)(5), the term alternate remedy’ does not include the government’s settlement of
unrelated claims against unrelated parties in unrelated lawsuits.”). Therefore, the
government owed him no duty or obligation to include him in the settlement agreement,
or share with him the settlement proceeds. Accordingly, Plaintiff’s breach of contract
and breach of implied covenant and good faith and fair dealing should be dismissed for
lack of jurisdiction against the Federal Defendants.
ii. Motion for Summary Judgment (Docket No. 43)
The Federal Defendants seek summary judgment that Plaintiff’s five remaining
tort claims are time-barred.
A. Standard of Review
Summary judgment is appropriate when there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A material fact is one that might affect the outcome of the dispute under the
applicable law. Ulissey v. Shvartsman, 61 F.3d 805, 808 (10th Cir. 1995). A genuine
issue of material fact exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The burden shifts to the party opposing summary judgment once the movant
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has made its initial showing.
A movant who does not have the burden of proof at trial must show the absence
of a genuine fact issue. Once the motion has been properly supported, the burden
shifts to the nonmovant to show, by tendering depositions, affidavits, and other
competent evidence, that summary judgment is not proper. Wausau Bus. Ins. Co. v.
U.S. Motels Mgmt., Inc., 341 F. Supp. 2d 1180, 1182–83 (D. Colo. 2004) (citations
omitted). “[T]he nonmovant’s affidavits must be based upon personal knowledge and
set forth facts that would be admissible in evidence; conclusory and self-serving
affidavits are not sufficient.” Hall, 935 F.2d at 1111. See also World of Sleep, Inc. v.
La–Z–Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985) (only admissible evidence
may be considered when ruling on a motion for summary judgment).
The Court must view the factual record and draw all reasonable inferences
therefrom in the light most favorable to the party opposing the motion for summary
judgment. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, the Court
“must resolve any factual issues of controversy in favor of the non-moving party only in
the sense that, where the facts specifically averred by the party contradict facts
specifically averred by the movant, the motion must be denied.” Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990) (internal quotation marks omitted). Thus, while “[t]he
nonmovant is given wide berth to prove a factual controversy exists,” Davidson v. Am.
Online, Inc., 337 F.3d 1179, 1182 (10th Cir. 2003) (quotation omitted), the evidence
must be based on more than conjecture, speculation, or surmise. Bones v. Honeywell
Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). “Affidavits or other evidence offered by a
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nonmovant must create a genuine issue for trial; . . . it is not enough that the evidence
be merely colorable or anything short of significantly probative.” Hall, 935 F.2d at 1111
(citation and internal quotation marks omitted). Thus, the Court must determine whether
Plaintiff has met his burden of presenting sufficient facts to overcome the Federal
Defendants’ motion.
B. Analysis
The Federal Defendants argue that summary judgment in their favor is warranted
because Plaintiff’s tort claims are barred by the Federal Tort Claims Act’s (“FTCA”) two-
year statute of limitations. The FTCA bars any tort claim against the United States
unless it is presented to the appropriate federal agency within two years of the claim’s
accrual, and filed within six months after notice of denial of the claim by that agency. 28
U.S.C. § 2401(b). Because the FTCA represents a waiver of the sovereign immunity of
the United States, it must be strictly construed. Pipkin v. U.S. Postal Serv., 951 F.2d
272, 275 (10th Cir. 1991).
Federal law governs the point at which a claim accrues under the FTCA. See
Hoery v. United States, 324 F.3d 1220, 1222 (10th Cir. 2003). “In the T enth Circuit, the
general rule for accrual of an FTCA claim outside the medical malpractice context is the
‘injury-occurrence rule.’” Cannon v. United States, 338 F.3d 1183, 1190 (10th Cir.
2003). Thus, unlike the state of Colorado statutes of limitations discussed above, which
provide that a tort claim accrues on the date of the injury or when that injury could have
reasonably been discovered, an FTCA tort claim is considered to accrue on the date of
the injury’s occurrence, and the “discovery rule” applies only in the “exceptional case”
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where a reasonably diligent plaintiff could not immediately know of the injury and its
cause. Id. (quoting Plaza Speedway Inc. v. United States, 311 F.3d 1262, 1267–68
(10th Cir. 2002).
In the case at bar, although Plaintiff filed his Complaint on March 10, 2017
(Docket No. 1), his alleged injury occurred on December 13, 2012, when the settlement
agreement was executed. He knew in March 2012 that a settlement agreement was in
the works. (Docket No. 22-7.) Therefore, no exceptional circumstances exist that would
justify applying the discovery rule. Plaintiff’s administrative tort claim was received on
February 19, 2016. (Docket No. 43-1.) This is beyond the December 14, 2014 deadline
mandated by the FTCA. Plaintiff also did not file suit within six months of March 17,
2016, the date of the government’s final, written denial. (Id.) Thus, Plaintiff’s tort claims
are untimely.
Finally, the Court agrees with the Federal Defendants that equitable tolling is not
warranted in this case. The FTCA’s time bars are nonjurisdictional and subject to
equitable tolling. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015). To
successfully claim the benefits of equitable tolling, Plaintiff bears the burden of showing
that he pursued his claims, but that some extraordinary circumstances stood in his way.
Barnes v. United States, 776 F.3d 1134, 1150 (10th Cir. 2015). Nothing in the record
indicates that Plaintiff’s failure to file his lawsuit in a timely manner was due to any
extraordinary circumstances. His argument that he was waiting for the Ninth Circuit
Panel’s decision to be issued is unavailing because the only issue there–whether he
could pursue qui tam claims without counsel–is unrelated to the tort claims now before
the Court. Moreover, Plaintiff fails to substantiate his claim that he is subject to
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“continuing harm.” His alleged injury is a discrete one: the failure to receive funds from
the December 2012 settlement agreement.
Accordingly, the FTCA’s statute of limitations bars Plaintiff’s tort claims against
the Federal Defendants. Because he cannot remedy the untimeliness by refiling,
Plaintiff’s claims should be dismissed with prejudice.
c. Plaintiff's "Unopposed" Motions (Docket Nos. 15, 16, & 17)
On May 1, 2017, Plaintiff filed three motions, two of which are dispositive in
nature, that are described as “unopposed.” (Docket Nos. 15, 16, & 17.) In each m otion,
Plaintiff states that Amgen’s counsel did not oppose the relief sought and that the
Federal Defendants “waived limited sovereign immunity and have elected not to
respond to the request to confer when this motion was filed.”
That same day, Amgen filed a notice with the Court (Docket No. 21) indicating
that it did, in fact, oppose the motions, and clarified that the
only request by May that Amgen does not oppose is for the
Court to take judicial notice of prior court orders and rulings
against Mr. May from various courts, including Denver
District Court, United States District Court for the Central
District of California, the United States Court of Appeals for
the Ninth Circuit, and the United States Supreme Court.
Plaintiff’s apparent misrepresentations to the Court are disconcerting. Be that as
it may, the relief requested in the motions is foreclosed by the Court’s recommendation
that Plaintiff’s Complaint be dismissed. Therefore, the Court further recommends that
Plaintiff’s motions (Docket Nos. 15, 16, & 17) be denied as m oot.
d. Amgen’s Motion for Attorney Fees
Finally, Amgen states that it is entitled to attorney fees under Colo. Rev. Stat. §
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13-17-102 and 28 U.S.C. § 1927.
Colorado law provides mandates as follows:
The court shall assess attorney fees if, upon the motion of
any party or the court itself, it finds that an attorney or party
brought or defended an action, or any part thereof, that
lacked substantial justification or that the action, or any part
thereof, was interposed for delay or harassment or if it finds
that an attorney or party unnecessarily expanded the
proceeding by other improper conduct, including, but not
limited to, abuses of discovery procedures available under
the Colorado rules of civil procedure or a designation by a
defending party under section 13-21-111.5(3) that lacked
substantial justification. As used in this article, “lacked
substantial justification” means substantially frivolous,
substantially groundless, or substantially vexatious.
Colo. Rev. Stat. § 13-17-102(4) (emphasis added). “A vexatious claim or defense is one
brought or maintained in bad faith. Bad faith may include conduct that is arbitrary,
vexatious, abusive, or stubbornly litigious, and may also include conduct aimed at
unwarranted delay or disrespectful of truth and accuracy.” Zivian v. Brooke–Hitching, 28
P.3d 970, 974 (Colo. Ct. App. 2001). A claim lacks substantial justification if it “lacks
supporting evidence or the party pursing the claim cannot make a rational argument in
its support based on the evidence or governing law.” Lorillard Tobacco Co. v. Engida,
611 F.3d 1209, 1219 (10th Cir. 2010).
In determining when an award of attorney fees is appropriate, Colo. Rev. Stat. §
13–17–103(1) directs that the Court “shall consider the f ollowing factors, among others,
in determining whether to assess attorney fees,” including, for example, “[t]he extent of
any effort made to determine the validity of any action or claim before said action or
claim was asserted,” “[w]hether or not the action was prosecuted or defended, in whole
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or in part, in bad faith,” and “[w]hether or not issues of fact determinative of the validity
of a party's claim or defense were reasonably in conflict.” Id. § 13–17–103(1)(a), (e), &
(f). Attorney fees can be assessed against a pro se plaintiff who knew or reasonably
should have know that his action was substantially vexatious. See Bockar v. Patterson,
899 P.2d 233, 235 (Colo. App. 1994).
Considering the appropriate factors, the Court recommends that Amgen should
be awarded its reasonable attorney’s fees and costs related to defending this action.
First, Plaintiff clearly made little to no effort to determine the validity of his claims for
relief. Plaintiff failed utterly to make a rational argument that he was entitled to a portion
of the qui tam settlement proceeds, and his other allegations have been raised and
rejected in other forums. Second, Plaintiff did not seek to amend his Complaint in
response to Amgen’s motion to dismiss, but instead filed a long and borderline
incomprehensible response. Third, Plaintiff had all the facts before him necessary to
determine that his claims were frivolous. Fourth, while the Court does not have specific
information relating to the financial positions of the parties, it is undeniable that Plaintiff
is willing to expend money to continue to pursue his vexatious litigation. Fifth, Plaintiff’s
claims were brought in bad faith, a conclusion that is supported by his documented
history of filing meritless motions and appeals, in this and other litigation. Sixth, there
are no disputed facts that support Plaintiff’s claims. Finally, because the Court
recommends that Amgen’s motion be granted in its entirety and all of Plaintiff’s claims
be dismissed, Plaintiff has failed to prevail on any of his claims.
For these reasons, the Court recommends that Amgen be awarded its
reasonable attorney fees and costs incurred in defending this lawsuit. The Court
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declines to address whether Amgen is also entitled to fees under 28 U.S.C.A. § 1927.
III. RECOMMENDATION
Based upon the foregoing, it is hereby RECOMMENDED as follows:
• That Defendant Amgen USA Inc.’s Motion to Dismiss (Docket No. 22) and
Motion for Attorney Fees (Docket No. 25) be GRANTED;
• That Defendants United States of America, U.S. Department of Justice,
and U.S. Department of Health and Human Services’ Partial Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1)(b) (Docket No. 42) and
Partial Motion for Summary Judgment (Docket No. 43) be GRANTED;
• That Plaintiff’s Complaint (Docket No. 1) be DISMISSED WITH
PREJUDICE; and
• That Plaintiff Samuel J. May’s Unopposed Motion for Declaratory
Judgment Directing Payment of Qui Tam Share of Alternate Remedy
Proceeds (Docket No. 15); Unopposed Notice of Motion and Motion for an
Evidentiary Hearing Pursuant to 28 U.S.C. § 2202 and 31 U.S.C. §
3730(c)(2)(B), in Support of Concurrent Motion for Declaratory Judgment
Directing Payment of Qui Tam Share (Docket No. 16); and Notice of
Motion and Motion for Declaratory Relief Requesting Judicial Notice of the
Dismissed Qui Tam Complaint in Support of Motion for Relator Share and
Hearing (Docket No. 17) be DENIED as moot.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
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and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).
Dated: February 26, 2018 s/ Michael J. Watanabe
Denver, Colorado Michael J. Watanabe
United States Magistrate Judge
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