Walden-Bing et al v. Horne, LLP et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
United 	States 	of 	America 	ex 	rel.
Amy C. Walden-Bing,
Plaintiffs,
v.
Horne LLP, Deloitte, CohnReznick,
and Witt-O’Briens,
Defendants.
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Civil Action No. 4:23-cv-01792
MEMORANDUM, RECOMMENDATION, AND ORDER
The United States of America (“the Government”) has filed a notice of
intervention and motion to dismiss this False Claims Act (“FCA”) suit without
prejudice under 31 U.S.C. § 3730(c)(2)(A). 	Dkts. 45 & 46. 	Relator Amy C.
Walden-Bing filed both a response, Dkt. 52, and a separate motion for a
hearing on the Government’s motion, Dkt. 51. 	In the meantime, Defendant
Deloitte LLP filed an opposed motion to extend its deadline to respond to the
amended complaint, citing this Court’s order granting Defendant Horne LLP’s
request to defer filing a response until the motion to dismiss is resolved.
See Dkt. 50 (referencing Dkt. 49).
After carefully considering the parties’ submissions, it is recommended
that the Government’s motion to dismiss (Dkt. 46) be granted, and that
United States District Court
Southern District of Texas
ENTERED
January 06, 2026
Nathan Ochsner, Clerk
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Walden-Bing’s 	claims 	in 	the 	amended 	complaint 	be 	dismissed 	without
prejudice. 	It is ordered that Walden-Bing’s motion for hearing (Dkt. 51) is
denied, and her request for leave to amend (Dkt. 52 at 4) is denied without
prejudice. 	Deloitte LLP’s motion for an extension (Dkt. 50) to respond to the
amended complaint is granted.
Background
Walden-Bing, at that time represented by counsel, filed this qui tam
action under seal on May 8, 2023. Dkt. 1. The Government ultimately declined
to intervene and moved to unseal the case, Dkt. 22, prompting this Court to lift
the seal on July 18, 2025, and set the initial conference for October 24, 2025.
Dkts. 23 & 24.
Because Walden-Bing failed to timely serve the defendants, this Court
issued a show cause order and reset the initial conference for January 9, 2026.
Dkt. 25. 	Walden-Bing’s attorney then filed a motion to withdraw as counsel,
citing “an irreparable breakdown in the attorney-client relationship.” Dkt. 27;
see also Dkt. 29 (supplement).
At an October 27, 2025 hearing, the Court addressed the motion to
withdraw. 	Counsel disclosed that he had told Walden-Bing of his intent to
withdraw as early as July 2025. See Dkt. 31 at 2 n.1. Walden-Bing consented
to her attorney’s withdrawal and stated that she was looking for new counsel.
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See id. at 1. 	The Court granted counsel’s motion to withdraw and extended
Walden-Bing’s deadlines for filing returns of service. See id. at 2.
A few months later, Walden-Bing filed an amended complaint that bore
the signature of her prior counsel who had withdrawn. See Dkt. 32. The Court
struck the pleading and directed Walden-Bing to show cause why sanctions
should 	not 	be 	imposed 	for 	signing 	counsel’s 	name 	without 	permission.
See Dkt. 40. Walden-Bing responded that counsel had prepared the amended
complaint before withdrawing, and she had simply sent the pleading to the
clerk’s office as-is. Dkt. 41 at 1-2. In that submission, Walden-Bing explicitly
stated her “intention to proceed pro se ....” Id. at 3.
Separately, 	Walden-Bing 	filed 	a 	revised 	pleading 	bearing 	her 	own
signature. See Dkt. 42. That live amended complaint asserts that Horne LLP
and Deloitte LLP (collectively, “Defendants”) violated the False Claims Act,
31 U.S.C. § 3729(a)(1)(A), (a)(1)(B), (a)(1)(G) (Counts I through III) and raises
claims for payment by mistake (Count IV), unjust enrichment (Count V), and
negligence (Count VI). 	Id. at 23-26. Two other entities named in the original
complaint, CohnReznick and Witt O’Briens, see Dkt. 1 at 2, were dropped with
the amended complaint, see Dkt. 42 at 1.
On December 22, 2025, the Government filed a notice of its election to
intervene for the sole purpose of seeking dismissal. Dkt. 45. Its related motion
maintains that because a relator cannot prosecute an FCA action pro se,
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Walden-Bing’s failure to retain counsel requires that this case be dismissed
without prejudice. Dkt. 46.
Horne LLP requested and received an extension of its answer deadline,
which this Court deferred pending resolution of the Government’s motion to
dismiss. See Dkt. 49 at 2-3. Deloitte LLP sought an analogous extension of its
answer deadline. 	Dkt. 50. 	Walden-Bing then filed a motion requesting a
hearing on the Government’s motion, Dkt. 51, and a substantive response to
the motion to dismiss, Dkt. 52, rendering it ripe for resolution.
Analysis
I. 	The 	Government 	is 	entitled 	to 	dismissal 	of 	the 	amended
complaint.
As explained below, the Government is correct that settled law bars
Walden-Bing from continuing this FCA action pro se. It is equally settled that
Walden-Bing 	lacks 	standing 	to 	pursue 	the 	common-law 	claims 	on 	the
Government’s behalf. 	This Court should grant the Government’s motion to
dismiss all claims under 31 U.S.C. § 3730(c)(2)(A) and Fed. R. Civ. P. 41(a)(1).
A. 	Walden-Bing cannot prosecute the FCA claims pro se.
Citing decisions from the Fifth Circuit and this Court, the Government
argues that Walden-Bing’s pro se status precludes her pursuit of the FCA
claims. 	See Dkt. 46 at 5-7. 	Walden-Bing responds with the general rule that
parties may “plead and conduct their own cases personally.” 	Dkt. 52 at 2
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(quoting 28 U.S.C. § 1654). But the injury underlying a qui tam action “belongs
exclusively 	to 	the 	government,” 	who 	is 	the 	real 	party 	in 	interest. 	See
Vanderlan v. United States, 135 F.4th 257, 262 (5th Cir. 2025). This means a
relator “is not representing [herself] when [she] brings an action solely as
relator” for the Government “and therefore cannot do so pro se.” 	See U.S. ex
rel. Brooks v. Ormsby, 869 F.3d 356, 357 (5th Cir. 2017) (applying this principle
and affirming dismissal of relator’s pro se FCA suit); Jones III v. The Park at
Lakeside Apartments, 2008 WL 4820083, at *1 (S.D. Tex. Nov. 5, 2008) (same
principle; dismissing pro se FCA suit).
The Government warned Walden-Bing about her need for counsel in a
March 7, 2024 letter. 	See Dkt. 46 at 7. 	And Walden-Bing admitted knowing
at least since July 2025 that she must retain counsel. 	See Dkt. 52 at 2. 	She
concedes having spoken to “more than thirty Texas attorneys” during the six
months since her counsel disclosed his intent to withdraw. 	See id. at 3. 	Yet
none of them have been willing to take the case on a contingency fee, and she
has no resources to pay an attorney. 	See id. 	The fact that scores of attorneys
have declined to represent her makes it unlikely that Walden-Bing can cure
her lack of counsel. She cannot pursue the FCA claims.
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B. 	Walden-Bing 	lacks 	standing 	to 	assert 	the 	common-law
claims.
Although not explicitly addressed, the Government’s motion to dismiss
presumes 	that 	the 	common-law 	claims 	for 	payment 	by 	mistake, 	unjust
enrichment, and negligence are likewise barred. 	Indeed, Walden-Bing lacks
standing to assert them, which requires their dismissal for lack of jurisdiction.
Article III of the U.S. Constitution limits federal courts to resolving
“Cases” or “Controversies.” 	U.S. Const., art. III § 2, cl. 1. 	One “essential and
unchanging part” of that case-or-controversy limitation requires a party to
establish that she has standing to sue. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992). 	Specifically, “[t]he plaintiff must have (1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of the defendant[s],
and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,
Inc. v. Robins, 578 U.S. 330, 338 (2016). Failure to establish all three elements
“deprives federal courts of jurisdiction to hear the plaintiff’s suit.” Delta Com.
Fisheries Ass’n v. Gulf of Mex. Mgmt. Council, 364 F.3d 269, 273 (5th Cir.
2004). 	And because of its jurisdictional nature, courts must address the lack
of standing sua sponte where necessary. See Ford v. NYLCare Health Plans of
the Gulf Coast, Inc., 301 F.3d 329, 331-32 (5th Cir. 2002) (holding that the
plaintiff lacked standing even though the issue “was not raised by the parties
or considered by the district court”).
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Walden-Bing cannot satisfy the first requirement for standing because
her claims do not state an injury to her own interests. 	Instead, they seek
recovery for harm to the Government. 	See Dkt. 42 at 25-26 (asserting, for
payment by mistake, that Defendants “are liable to make restitution to the
United States”); id. at 26 (alleging that Defendants were unjustly enriched and
“are liable to account for and pay” amounts “to the United States”); id. at 26-
27 (basing negligence claim on “damages to the United States”).
Walden-Bing’s lack of injury bars her common-law claims even if she
could pursue her FCA claims. As this Court has concluded, “[a] relator in a qui
tam FCA action does not have standing to assert common law claims based
upon injury sustained by the United States.” 	Voorhees v. Kelsey-Seybold
Clinic, P.A., 2021 WL 742887, at *5 (S.D. Tex. Jan. 29, 2021) (quoting U.S. ex
rel. Rockefeller v. Westinghouse Elec. Co., 274 F. Supp. 2d 10, 14 (D.D.C. 2003)
and citing other authorities reaching the same conclusion), adopted by 2021
WL 737122 (S.D. Tex. Feb. 25, 2021). This is because “there is no assignment
to individuals to bring qui tam claims under the common law or other statutes”
apart from the FCA. 	See id. at *4-5 (dismissing unjust enrichment claim for
lack of standing even though relator had sufficiently stated an FCA claim). As
a matter of law, Walden-Bing lacks standing to pursue the claims for payment
by mistake, unjust enrichment, and negligence on the Government’s behalf.
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C. 	The 	Government 	has 	satisfied 	the 	requirements 	for
dismissal.
The Government invokes 31 U.S.C. § 3730(c)(2)(A) and Fed. R. Civ. P.
41(a)(1) 	as 	the 	basis for 	dismissal. 	Section 	3730(c)(2)(A) authorizes 	the
Government to dismiss the FCA suit over a relator’s objections if the relator
was notified about the motion and had “an opportunity for a hearing on the
motion.” 	31 U.S.C. § 3730(c)(2)(A). 	Rule 41(a)(1) authorizes a plaintiff to
dismiss an action “without a court order” by filing a notice of dismissal before
the opposing party serves an answer or a summary-judgment motion. See Fed.
R. Civ. P. 41(a)(1). 	That tracks the procedural posture here, as Defendants
have yet to answer or file motions for summary judgment.
Construing the interplay between the foregoing provisions, the Supreme
Court has noted that the Government’s motion to dismiss under § 3730(c)(2)(A)
“will satisfy Rule 41 in all but the most exceptional cases.” U.S. ex rel. Polansky
v. Exec. Health Res., Inc., 599 U.S. 419, 437 (2023). 	Because qui tam actions
are brought on the Government’s behalf, “the Government’s views are entitled
to substantial deference” even when the motion to dismiss is governed by Rule
41(a)(2). See id. at 437. But when the Government has moved to dismiss under
Rule 41(a)(1)—which is the case here, see Dkt. 46—the Fifth Circuit instructs
that the motion “warrants even greater deference than if brought under Rule
41(a)(2).” Vanderlan, 135 F.4th at 268.
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Walden-Bing 	insists 	that 	the 	Government 	has 	not 	provided 	an
“evidentiary basis” for dismissing the case, arguing that she has alleged
wrongdoing that warrants further scrutiny. 	See Dkt. 52 at 1-2. 	But the law
fully supports the Government’s position that the claims cannot proceed.
As 	concluded 	above, 	binding 	authority 	prohibits 	Walden-Bing 	from
pursuing her FCA claims case pro se, and her inability to retain replacement
counsel for nearly six months makes it improbable that she could rectify that
deficiency. 	See supra Part I.A. 	That legal barrier mandates dismissal and
cannot be overcome by Walden-Bing’s position that her claims are meritorious.
See Dkt. 52 at 2-3. 	After all, a qui tam action seeks to “vindicate the
[government’s] interests”—not the relator’s. 	See Vanderlan, 135 F.4th at 268
(quoting Polansky, 599 U.S. at 438) (emphasis added) (rejecting relator’s
reliance on the merits to thwart the Government’s request for dismissal). Nor
does Walden-Bing have a constitutional or statutory right to appointment of
counsel, notwithstanding her request. 	See Dkt. 52 at 2. 	And Walden-Bing
lacks standing to pursue any common-law claims on the Government’s behalf,
whether pro se or otherwise. See supra Part I.B. All pertinent considerations
favor granting the Government’s motion to dismiss all claims without prejudice
under Rule 41(a)(1).
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D. 	A hearing is unwarranted.
Walden-Bing’s further request for a hearing on the Government’s motion
to dismiss presupposes that an evidentiary hearing is necessary. 	See Dkt. 51
at 2. 	That, too, is foreclosed. 	Under Fifth Circuit law, the term “hearing” in
Section 3730(c)(2)(A) “only requires a hearing on the briefs.” 	Vanderlan,
135 F.4th at 	266 (emphasis added) (construing 	31 U.S.C. § 3730(c)(2)(A)).
Walden-Bing has already exercised her opportunity to be heard by filing a
written response, see Dkt. 52, and that response fails to raise any tenable
arguments 	against 	dismissal. 	Moreover, 	the 	legal 	issues 	raised 	by 	the
Government do not require evidentiary development. 	Walden-Bing’s motion
for a hearing is denied.
II. 	Walden-Bing’s request for leave to amend is denied.
Merely in passing, Walden-Bing’s response embeds a conclusory request
for “leave to amend to add claims under applicable Whistleblower Protection
Acts and related statutes, as referenced in Doc. 46.” Dkt. 52 at 4. But the cited
document—which is the Government’s motion to dismiss, Dkt. 46—includes no
such references. It is unclear what theories Walden-Bing wishes to invoke.
Such a barebones request for leave to amend “in an opposition to a
motion to dismiss—without any indication of the particular grounds on which
the amendment is sought, cf. Fed. R. Civ. P. 7(b)—does not constitute a motion
within the contemplation of [Fed. R. Civ. P.] 15(a).” 	U.S. ex rel. Willard v.
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Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir. 2003) (internal
quotation marks omitted). And the hypothetical addition of other non-qui tam
claims cannot salvage the current FCA claims, nor could they cure Walden-
Bing’s lack of standing to pursue the common-law claims.
Moreover, the Court cannot determine at this juncture whether any non-
qui tam claims can be brought. Although Rule 15(a)(2) “evinces a bias in favor
of granting leave to amend,” Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987,
994 (5th Cir. 2005) (quotation marks omitted), leave can be denied “where the
proposed amendment would be futile because it could not survive a motion to
dismiss,” Rio Grande Royalty Co. v. Energy Transfer Partners, L.P., 620 F.3d
465, 468 (5th Cir. 2010). 	Whether amendment would be futile hinges on “the
same standard of legal sufficiency as applies under Rule 12(b)(6).” Stripling v.
Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2000) (quotation marks omitted).
That analysis is premature because Walden-Bing has not explained what new
claims she may wish to raise, nor to which defendant(s) those claims apply.
Defendants also need an opportunity to address them.
The proper course is to deny Walden-Bing’s request for leave to amend
without prejudice to seeking it through a standalone motion for leave to amend
that 	includes 	a 	proposed 	amended 	pleading 	that 	states 	the 	new 	claims.
Walden-Bing 	must 	also 	fully 	confer 	with 	Defendants’ 	counsel 	before
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submitting any motion for leave. 	If Defendants oppose the request, they may
file a response under the Court’s default timelines for briefing motions.
III. 	Deloitte LLP’s motion for extension is granted.
After this Court granted Horne LLP’s request to defer the deadline for
responding to the amended complaint pending resolution of the motion to
dismiss, see Dkt. 49, Deloitte LLP sought the same relief. 	See Dkt. 50. Given
the recommendation that all current claims be dismissed, Deloitte should
likewise be entitled to defer its response to the amended complaint until the
District Judge resolves any objections. 	That disposition does not, however,
stay the deadline for addressing any motion that Walden-Bing may file that
seeks leave to amend that pleading.
Recommendation and Order
For the foregoing reasons, it is RECOMMENDED that the United
States of America’s motion to dismiss (Dkt. 46) be GRANTED, and that
Relator Amy C. Walden-Bing’s claims in her amended complaint (Dkt. 42) be
DISMISSED WITHOUT PREJUDICE.
It is ORDERED that Walden-Bing’s motion for hearing (Dkt. 51) is
DENIED.
It is further ORDERED that Walden-Bing’s request for leave to amend
(Dkt. 52 at 4) is DENIED WITHOUT PREJUDICE to being raised in a
separate motion that must (a) comply with the undersigned’s procedural
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requirements, including the required certificate of conference, and (b) attach a
draft pleading that states the proposed new claims. Any such motion must be
filed by January 20, 2026.
It is further ORDERED that Defendant Deloitte LLP’s motion for
extension 	(Dkt. 	50) 	to 	answer 	or 	respond 	to 	the 	amended 	complaint 	is
GRANTED, and that no such answer or response is necessary unless the
District Judge declines to adopt the foregoing recommendation to dismiss the
claims, and 30 days have passed thereafter. 	This extension does not affect
Deloitte’s deadline for responding to any motion for leave to amend that
Walden-Bing may choose to file.
It is further ORDERED that the January 9, 2026 initial conference
(Dkt. 28) is CANCELED and will be reset by separate notice.
The Clerk of Court is directed to send a copy of this opinion to Walden-
Bing by email and regular mail to her record addresses.
The parties have fourteen days from service of this Report and
Recommendation to file written objections. 28 U.S.C. § 636(b)(1); Fed.
R. 	Civ. 	P. 	72(b). 	Failure 	to 	file 	timely 	objections 	will 	preclude
appellate review of factual findings and legal conclusions, except for
plain error. 	Ortiz v. City of San Antonio Fire Dep’t, 806 F.3d 822, 825
(5th Cir. 2015).
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Signed on January 6, 2026, at Houston, Texas.
______________________________
Yvonne Y. Ho
United States Magistrate Judge
____________________________________
Yvooon	nn	n	ne Y. Ho
Uniited States Magistrate Judge
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