1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case No. 18-cv-1002-MMA-MSB ex rel. SARAH DUNTSCH, 12

ORDER DENYING MOTION FOR

Plaintiff, 13 RECONSIDERATION v. 14 [Doc. No. 65] SUPERIOR CARE PHARMACY, et al., 15 Defendants. 16 17 18 Pending before the Court is the government’s motion for reconsideration pursuant 19 to Federal Rule of Civil Procedure 60(b). Doc. No. 65. Defendants David Walrod and 20 Justus Benjamin filed oppositions, to which the government replied. Doc. Nos. 68–70. 21 The Court found the matter suitable for determination on the papers and without oral 22 argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 71. For the reasons set forth 23 below, the Court DENIES the government’s motion. 24 I. LEGAL STANDARD 25 The Federal Rules of Civil Procedure do not explicitly allow motions for 26 reconsideration. However, pursuant to Rule 60(b), a court “may relieve a party or its 27 legal representative from a final judgment, order, or proceeding” upon a showing of 28 (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence 1 that, with reasonable diligence, could not have been discovered in time to move for a new 2 trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), 3 misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the 4 judgment has been satisfied, released, or discharged; it is based on an earlier judgment 5 that has been reversed or vacated; or applying it prospectively is no longer equitable; or 6 (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). “Motions for relief from 7 judgment pursuant to Rule 60(b) are addressed to the sound discretion of the district court 8 and will not be reversed absent an abuse of discretion.” Casey v. Albertson’s Inc., 362 9 F.3d 1254, 1257 (9th Cir. 2004). 10 Additionally, Civil Local Rule 7.1.i governs motions for reconsideration in this 11 District. The rule provides that a party may apply for reconsideration “[w]henever any 12 motion or any application or petition for any order or other relief has been made to any 13 judge and has been refused in whole or in part.” CivLR 7.1.i.1. The party seeking 14 reconsideration under Civil Local Rule 7.1.i.1 must show “what new or different facts 15 and circumstances are claimed to exist which did not exist, or were not shown, upon such 16 prior application.” Id. 17 II. DISCUSSION 18 In this qui tam action initiated in May 2018, the government filed an Intervenor’s 19 Complaint on January 4, 2024. Doc. No. 34. On May 23, 2024, the Court issued an 20 Order ruling on Defendants David Walrod and Justus Benjamin’s motions to dismiss and 21 Defendant Derek Ishaque’s motion to stay. Doc. No. 64. The government now asks the 22 Court to reconsider its dismissal of Claims 6 and 7 under Rule 60(b)(1) and (b)(6).1 23

24 25 1 The government filed its motion for reconsideration twelve days after the Court issued the challenged Order. The Court assumes without deciding that the government can seek relief under Rule 60(b). See 26 Am. Ironworks & Erectors Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898–99 (9th Cir. 2001) (internal quotation marks and citation omitted) (“A motion for reconsideration is treated as a motion to alter or 27 amend judgment under Federal Rule of Civil Procedure Rule 59(e) if it is filed within [twenty-eight] days of entry of judgment. Otherwise, it is treated as a Rule 60(b) motion for relief from a judgment or 28 1 Namely, the government argues that the Court’s ruling on these claims “was based on a 2 misapprehension of applicable law” and seeks reconsideration to correct a mistake of 3 law. Doc. No. 65 at 2, 7. 4 In its May 23, 2024 Order, the Court dismissed Claims 6 and 7, stating in full: 5 6 The government’s sixth claim is for payment by mistake, and its seventh claim is for unjust enrichment. The government fails to identify any applicable law 7 providing for these causes of action. According to the government in 8 opposition, these are common law doctrines. See Doc. No. 59 at 22–24. The government then proceeds to cite cases from the Ninth Circuit, Fifth Circuit, 9 and the District Courts for the District of Columbia, Eastern District of 10 Michigan, and District of Arizona. Id. The Court cannot guess what law applies to these claims. Because the government fails to identify the 11 applicable state law providing for these common law claims, the Court 12 DISMISSES Claims 6 and 7 with leave to amend. See, e.g., Romero v. Flowers Bakeries, LLC, No. 14-cv-05189-BLF, 2016 U.S. Dist. LEXIS 13 15868, at *34 (N.D. Cal. Feb. 8, 2016) (“[D]ue to variances among state laws, 14 failure to allege which state law governs a common law claim is grounds for dismissal.”) (citing In re TFT-LCD (Flat Panel) Antitrust Litig., 781 F. Supp. 15 2d 955, 966 (N.D. Cal. 2011)). 16 17 Doc. No. 64 at 14. 18 It is true that the Court stated in one instance that the government’s claims were 19 subject to dismissal because the government failed to identify any applicable state law. 20 But the Court did not rule that the government could not pursue these claims pursuant to 21 federal common law. Rather, the Court dismissed these claims because “[t]he 22 government fail[ed] to identify any applicable law providing for these causes of action” 23 and the Court “cannot guess what law applies to its claims.” Doc. No. 64 at 2 (emphasis 24 added). 25

26 more appropriately analyzed under the Rule 59(e) standard, the Court notes that relief is not warranted 27 because the government identifies no newly discovered evidence, clear error, or intervening change in controlling law. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting Kona Enters. v. Estate 28 1 The government offers no persuasive reason to deviate from the principle 2 ||identified in Romero that a failure to identify the governing law supporting a common 3 ||law claim warrants dismissal of the claim without prejudice to repleading the claim and 4 || identifying the appropriate law. Romero v. Flowers Bakeries, LLC, No. 14-CV-05189- 5 || BLF, 2016 U.S. Dist. LEXIS 15868, 2016 WL 469370 at *12 (N.D. Cal. Feb. 8, 2016); 6 || see also In re Nexus 6P Prods. Liab. Litig., 293 F. Supp. 3d 888, 933 (N.D. Cal. 2018). 7 || Contrary to the government’s assertion, Doc. No. 65 at 4, the government did not plead 8 || that federal common law governed Claims 6 and 7, nor did it argue in opposition to the 9 motions to dismiss that the claims were pursuant to federal common law.” Due to the 10 || government’s failure to identify any applicable law governing these two claims, federal 11 |}common law or otherwise, the Court was unable to assess the viability of these claims. It 12 || was for this reason the claims were dismissed without prejudice and with leave to amend 13 || to identify the applicable law. The government identifies no mistake of law undermining 14 || this ruling. Accordingly, the Court DENIES the government’s motion for 15 || reconsideration. 16 IT IS SO ORDERED. 17 || Dated: September 3, 2024 18 Mikel ta (hiolts WA LL 19 HON. MICHAEL M. ANELLO 20 United States District Judge 21 22 23 24 25 26 27 28 > The phrase “federal common law” is absent from both the government’s Intervenor Complaint and its opposition to the motions to dismiss.