4:23-cv-01792•Walden-Bing et al v. Horne, LLP et al
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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. § § § § § § § § § § § § § 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 Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 1 of 14
2 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. Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 2 of 14
3 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, Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 3 of 14
4 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 Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 4 of 14
5 (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. Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 5 of 14
6 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”). Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 6 of 14
7 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. Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 7 of 14
8 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. Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 8 of 14
9 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). Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 9 of 14
10 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. Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 10 of 14
11 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 Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 11 of 14
12 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 Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 12 of 14
13 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). Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 13 of 14
14 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 Case 4:23-cv-01792 Document 53 Filed 01/06/26 in TXSD Page 14 of 14
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