Johnson v. The University of Rochester Me, No. 10-2258 (2d Cir. 2011)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Second Circuit U.S. Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Second Circuit U.S. Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Plaintiff filed a qui tam action pursuant to 31 U.S.C. 3729 alleging that defendants fraudulently billed Medicare/Medicaid for medical procedures performed by unsupervised residents. At issue was whether the court had appellate jurisdiction over plaintiff's appeal from the district court's judgment and order dismissing his complaint and denying leave to amend. Also at issue was whether the district court abused its discretion by declining to reconsider its order that denied plaintiff's request for leave to amend. Further at issue was whether the district court erred in imposing an order granting sanctions under Federal Rule of Civil Procedure 11 or, alternatively, 28 U.S.C. 1927. The court held that it lacked appellate jurisdiction where plaintiff's Federal Rule of Civil Procedure 60(b) motion failed to toll his deadline to timely file a notice of appeal. The court also held that the district court properly exercised its discretion when it denied plaintiff's Rule 60(b) motion where plaintiff had not requested permission to amend as of right and that it made no mistake in not divining that he actually intended to do so. The court further held that the district court properly exercised its discretion to sanction pursuant to section 1927 and did not need to reach the court's alternative Rule 11 sanctions ruling.
Download PDF
10-2258-cv(L) Johnson, et al. v. Univ. of Rochester Med. Ctr., et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: March 15, 2011 Decided: April 19, 2011) Docket Nos. 10-2258-cv(L); 10-2267-cv (con) KEITH JOHNSON, M.D., bringing this action on behalf of the United States of America, Plaintiff-Appellant, LAURA SCHMIDT, R.N., bringing this action on behalf of the United States of America, Plaintiff, - v. THE UNIVERSITY OF ROCHESTER MEDICAL CENTER, STRONG MEMORIAL HOSPITAL, Defendants-Appellees.* Before: WESLEY, CHIN, and LOHIER, Circuit Judges. Appeal from a judgment and orders of the United States District Court for the Western District of New York (Larimer, J.) that: (1) dismissed Appellant s complaint and denied leave to amend; (2) denied relief pursuant to Federal * We direct the Clerk of the Court to amend the official caption in accordance with this opinion. Page 1 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Rule of Civil Procedure 60(b)(1); and (3) sanctioned Appellant s counsel pursuant to Federal Rule of Civil Procedure 11 or, alternatively, 28 U.S.C. § 1927. We DISMISS the appeal from the district court s judgment and order that dismissed Appellant s complaint and denied leave to amend. We AFFIRM the orders that denied relief pursuant to Federal Rule of Civil Procedure 60(b)(1) and sanctioned Appellant s attorney pursuant to § 1927. CHRISTINA A. AGOLA, Christina A. Agola, PLLC, Rochester, NY, for Plaintiff-Appellant. THOMAS S. D ANTONIO, (Christin M. Murphy, on the brief), Ward Greenberg Heller & Reidy LLP, Rochester, NY, for Defendants-Appellees. PER CURIAM: Appellant Keith Johnson, M.D.1 appeals from a judgment 26 and three orders of the United States District Court for the 27 Western District of New York (Larimer, J.) that: (1) 28 dismissed his complaint and denied leave to amend; (2) 29 denied relief under Federal Rule of Civil Procedure 30 60(b)(1); and (3) sanctioned his attorney. 1 Laura Schmidt, R.N. brought the qui tam action in conjunction with Johnson. This appeal, however, is brought solely on Johnson s behalf. Accordingly, we refer solely to Johnson throughout. Page 2 of 10 1 For the reasons stated below, we DISMISS the appeal 2 from the judgment and order that dismissed his complaint and 3 denied leave to amend for lack of appellate jurisdiction. 4 We AFFIRM the orders that denied Rule 60(b)(1) relief and 5 imposed § 1927 sanctions. I. Background 6 7 Johnson filed a qui tam action pursuant to 31 U.S.C. 8 § 3729, alleging that the University of Rochester Medical 9 Center and Strong Memorial Hospital (the University ) 10 fraudulently billed Medicare/Medicaid for medical procedures 11 performed by unsupervised residents. 12 declined to intervene, the district court unsealed the 13 complaint, and Johnson served the University. 14 The United States The University then moved to dismiss Johnson s 15 complaint for failure to state a claim. In response, 16 Johnson moved for leave to amend, arguing that leave should 17 be freely given in the absence of bad faith, repeated 18 failures to cure deficiencies, or futility of the 19 amendment. 2 Johnson did not assert that he was entitled to 2 Johnson moved for leave to amend on December 31, 2008. Thus, former Rule 15 governed the amendment. Former Rule 15 stated: A party may amend the party s pleading once Page 3 of 10 1 amend as of right. 2 Johnson s motion, it moved for sanctions pursuant to Federal 3 Rule of Civil Procedure 11. 4 In the University s opposition to In a judgment entered February 19, 2010, the district 5 court dismissed the action and denied Johnson leave to 6 amend, holding that Johnson s request to amend his complaint 7 would prove futile because he repeated the original 8 complaint s insufficient allegations and added two new, but 9 ultimately defective, causes of action. The court also 10 denied, without prejudice, the University s sanctions motion 11 because the University failed to file the motion separately, 12 as required by Federal Rule of Civil Procedure 11(c)(2). 13 On March 22, 2010, Johnson moved for reconsideration 14 pursuant to Federal Rule of Civil Procedure 60(b)(1). 15 Johnson argued that the district court should have granted 16 leave to amend because former Federal Rule of Civil 17 Procedure 15(a) allowed one amendment as of right. as a matter of course at any time before a responsive pleading is served . . . . Otherwise a party may amend the party s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a) (1998). Page 4 of 10 The 1 district court denied reconsideration, reasoning that it 2 made no mistake since Johnson committed the decision asking 3 whether to allow amendment to the court s discretion by 4 asking for permission to amend. The University subsequently filed a separate sanctions 5 6 motion pursuant to Federal Rule of Civil Procedure 11 or, 7 alternatively, 28 U.S.C. § 1927, alleging that Johnson s 8 attorney knowingly included a false accusation in the 9 amended complaint. The district court granted the sanctions 10 motion, holding that Johnson s attorney relentlessly pursued 11 claims without basis in law or fact and knowingly included a 12 false statement in the proposed amended complaint. II. Discussion 13 14 A. Jurisdiction to Review the District Court s Judgment 15 This Court lacks appellate jurisdiction over Johnson s 16 appeal from the district court s February 19, 2010 judgment 17 and order dismissing his complaint and denying leave to 18 amend. 19 party must file a notice of appeal within thirty days from 20 the date judgment is entered. 21 A party tolls its filing deadline, however, by filing a Rule 22 60(b) motion within twenty-eight days of the judgment s Pursuant to Federal Rule of Appellate Procedure 4, a Fed. R. App. P. 4(a)(1)(a). Page 5 of 10 1 entry. 2 are mandatory and jurisdictional. 3 Cruises, Inc., 333 F.3d 355, 363 (2d Cir. 2003). 4 Accordingly, failure to comply with Rule 4 warrants 5 dismissal. 6 1996) (citation omitted). 7 Fed. R. App. P. 4(a)(4)(A)(vi). Filing deadlines Silivanch v. Celebrity Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir. Johnson filed his Rule 60(b) motion on March 22, 2010, 8 three days after the twenty-eight day tolling deadline 9 expired. Because Johnson s Rule 60(b) motion failed to toll 10 his deadline to file a notice of appeal, his June 4, 2010 11 notice of appeal was untimely.3 12 lacks appellate jurisdiction over the judgment and order 13 dismissing Johnson s complaint and denying leave to amend. Accordingly, this Court 3 Johnson also argues that the district court s order denying the University s sanctions motion without prejudice rendered the February 19th judgment and order non-final. Although Johnson is correct that some sanctions orders (e.g., discovery sanctions) are inextricably intertwined with the merits of a case when the order appealed from is a sanctions order, see Cunningham v. Hamilton Cnty., 527 U.S. 198, 205-06 (1999), there was no reasonable possibility in this case that resolving the University s sanction motion would require further analysis of the merits. The pendency of the sanctions motion therefore did not extend the time to appeal the merits judgment. Cf. Salovaara v. Eckert, 222 F.3d 19, 27 n.4 (2d Cir. 2000) ( Salovaara s time to appeal from the District Court s decision on the merits began to run in July 1998, notwithstanding the fact that Eckert was granted leave to file a motion for attorney s fees and/or sanctions. ) Page 6 of 10 1 2 B. Johnson s Request for Reconsideration Johnson contends that the district court abused its 3 discretion by declining to reconsider its order that denied 4 his request for leave to amend. Federal Rule of Civil 5 Procedure 60(b)(1) permits a district court to grant relief 6 from a judgment based on mistake, inadvertence, surprise, 7 or excusable neglect. 8 review a district court s decision on a Rule 60(b) motion 9 for abuse of discretion. Fed. R. Civ. P. 60(b)(1) (2010). We Ins. Co. of N. Am. v. Pub. Serv. 10 Mut. Ins. Co., 609 F.3d 122, 127 (2d Cir. 2010). 11 abuses it discretion when (1) its decision rests on an error 12 of law or a clearly erroneous factual finding; or (2) cannot 13 be found within the range of permissible decisions. 14 v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2010). 15 A court Zervos Here, the district court denied reconsideration after 16 concluding that Johnson had not requested permission to 17 amend as of right, and that it made no mistake in not 18 divining that Johnson actually intended to do so. 19 held that because Johnson sought leave to amend, it was 20 within the court s discretion to deny his request.4 4 The court We Johnson cites Kassner v. 2nd Avenue Delicatessen, Inc., 496 F.3d 229 (2d Cir. 2007), to support his contention that a Page 7 of 10 1 agree; the district court properly exercised its discretion 2 when it denied Johnson s Rule 60(b) motion. 3 C. 4 The District Court s Order Granting Sanctions Johnson also appeals from the district court s order 5 imposing sanctions under Rule 11 or, alternatively, 28 6 U.S.C. § 1927. 7 for abuse of discretion. Gollomp v. Spitzer, 568 F.3d 355, 8 368 (2d Cir. 2009). 9 We review a district court s sanctions order Johnson s attorney contends that the court abused its 10 discretion because the University failed to serve the 11 sanctions motion twenty-one days before filing it, in 12 violation of Rule 11(c)(2) s safe-harbor provision. The 13 University argues that it substantially complied with the 14 safe-harbor provision by delineating Appellant-counsel s 15 sanctionable conduct in its opposition to Johnson s motion 16 for leave to amend. 17 properly exercised its discretion to sanction pursuant to 18 § 1927, we need not reach the court s alternate Rule 11 Because we hold that the district court district court must grant a motion for leave to amend when the plaintiff can also amend as of right. Kassner does not stand for the broad proposition that Johnson asserts. Rather, Kassner states that a plaintiff s right to amend as a matter of course is subject to the district court's discretion to limit the time [to amend] the pleadings in a scheduling order issued under Rule 16(b). Id. at 244. Page 8 of 10 1 2 sanctions ruling. A court may award § 1927 sanctions only when the 3 attorney s actions are so completely without merit as to 4 require the conclusion that they must have been undertaken 5 for some improper purpose. 6 addition, the court must find bad faith and must provide the 7 attorney notice and an opportunity to be heard. Gollomp, 568 F.3d at 368. In Id. 8 Here, after a hearing on the University s sanctions 9 motion, the district court found that Johnson s attorney 10 pursued claims she knew had no basis in law or fact. The 11 court focused on counsel s repeated allegations that the 12 University made an unsolicited, libelous statement about 13 Johnson to the Delaware State Medical Board when, in fact, 14 Johnson s attorney requested and authorized the release of 15 the allegedly libelous statement. 16 court s decision was reasonable and not an abuse of 17 discretion. We hold that the district 18 III. Conclusion 19 For the above stated reasons, we DISMISS the appeal 20 from the judgment and order dismissing the complaint and 21 denying leave to amend. We AFFIRM the orders denying Rule Page 9 of 10 1 60(b)(1) relief and sanctioning Johnson s attorney pursuant 2 to § 1927. Page 10 of 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
