United States District Court, D. South Dakota, Northern Division
UNITED STATES OF AMERICA, ex rel. DR. JOHN A. MILLIN; and DR. JOHN A. MILLIN, individually, Relator,
LARRY F. KRAUSE, an individual; and KRAUSE-ALLBEE TRUCKING, INC., a South Dakota Corporation, Defendants.
CHARLES B. KORNMANN, United States District Judge
4, 2018, defendants filed a motion requesting this Court
amend its prior order on the defendants' motion to
dismiss to certify two questions of law undecided in the
Eighth Circuit: (1) whether, the False Claims Act is subject
to a six- or ten-year statute of limitations where the
government declines to join a claim brought by a private
party and (2) whether the intracorporate conspiracy doctrine
applies to bar conspiracy claims brought under the False
Claims Act. Relator opposes any such certification.
Standard for Interlocutory Appeal Certification
to 28 U.S.C. § 1292(b), when a district court issues an
order "involv[ing] a controlling question of law as to
which there is substantial ground for difference of
opinion" and determines that "an immediate appeal
from the order may materially advance the ultimate
termination of the litigation, " an appeal may be taken
from such order. Three criteria for certification are
required: "the district court must be of the opinion
that (1) the order involves a controlling question of law;
(2) there is substantial ground for difference of opinion;
and (3) certification will materially advance the ultimate
termination of the litigation." White v. Nix,
43 F.3d 374, 377 (8th Cir. 1994) (internal citations
omitted). While § 1292(b) provides an avenue for
interlocutory appeals, "[p]ermission to allow
interlocutory appeals should ... be granted sparingly and
with discrimination" as "most often such appeals
result in additional burdens on both the court and the
litigants." Union Ctv, Iowa v. Piper Jaffrav &
Co,, Inc., 525 F.3d 643, 646 (8th Cir. 2008) (per
curiam). It has "long been the policy of the courts
to discourage piece-meal appeals." Id.
(internal citations omitted). Further, § 1292(b) should
be invoked "only in extraordinary cases where decision
of an interlocutory appeal might avoid protracted and
expensive litigation"; it was not "intended merely
to provide review of difficult rulings in hard cases."
Id. (internal citations omitted). When requesting
certification, the movant "bears the heavy burden of
demonstrating that the case is an exceptional one in which
immediate appeal is warranted." White. 43 F.3d
Defendants do not meet the requirements for certification
the three criteria for certification, this Court finds that
defendants have not met their burden of demonstrating that
the case warrants interlocutory appeal.
Controlling Question of Law:
controlling question of law "must raise some question of
law which governs at least a claim, if not the whole case or
defense." 4 Am. Jur. 2d Appellate Review §
120 (2018). The question "need not be dispositive of the
lawsuit in order to be regarded as controlling."
Id. A case must be sufficiently ripe to warrant
certification, so that certification does not result in
"advisory opinions rendered on hypotheses" which
evaporate "in the light of full factual
development"; as such, denial of certification is
appropriate where the factual basis of the claim is not
sufficiently developed. Paschall v. Kansas City Star
Co., 605 F.2d 403, 406 (8th Cir. 1979) (internal
citations omitted). The questions defendants seek to certify
represent possible controlling questions of law governing
both the conspiracy claim and claims that antedate the
six-year statute of limitations period. However, the factual
record is not sufficiently developed so that certification
would not amount to a request for an advisory opinion.
Substantial Difference of Opinion:
matters of first impression in the Eighth Circuit, on which
other circuits disagree, it is certain that a substantial
difference of opinion could arise with regard to both the
limitations period and applicability of the intracorporate
conspiracy doctrine to the False Claims Act. U.S. ex rel.
Millin v. Krause, 2018 WL 1885672 (D.S.D. 2018): see
also White, 43 F.3d at 378. However, the differences of
opinion are not simply questions of law, but also questions
of fact, which I will later discuss. See, e.g., McCardle
v. Mitchell School Dist., 2005 WL 1532597, * 1 (D.S.D.
2005). The Court agrees with defendants that a substantial
difference of opinion exists with regard to at least one
question which defendants seek to certify.
Materially Advance Outcome of Case:
interlocutory appeal pursuant to § 1292(b) must
materially advance the ultimate termination of litigation.
When litigation "will be conducted in substantially the
same manner regardless of [appellate] decision, the appeal
cannot be said to materially advance the ultimate termination
of the litigation." White, 43 F.3d at 378.
Defendants have not met their burden of establishing that an
interlocutory appeal satisfies this criterion. Regardless of
how the Eighth Circuit would decide the questions that
defendants seek to certify, a jury trial on substantially the
same issues regarding defendants' false claims must still
transpire. Conducting discovery and trial as to farm
operating plans and ...