by Ben Vernia | September 28th, 2010
In a decision on September 15 in U.S. ex rel. Wickliffe v. EMC Corp., District Judge Dale Kimball of Utah granted the government’s motion to dismiss a qui tam, under either of what the court characterized as the government’s two shifting arguments: a motion to dismiss under 31 U.S.C. 3730(c)(2)(A) (“The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion”), or under the first-to-file rule, 31 USC 3730(b)(5).
Judge Kimball rejected the relators’ argument that a dismissal under the government-discretion provision was necessarily with prejudice, found that a hearing it had conducted on the motion satisfied the notice and hearing requirements of the False Claims Act, and granted the government’s motion on both grounds.
