Thursday, January 02, 2020

Volkoff v. Jansenn Pharmacutica (9th Cir. - Jan. 2, 2020)

We begin the new decade with a single opinion from the Ninth Circuit.  One that demonstrates in spades how pedantic the Court of Appeals can be if it doesn't like you.

Alexander Volkoff files a qui tam complaint.  But, presumably in an attempt to shield Mr. Volkoff from liability in the event the complaint was unsuccessful, filed the lawsuit with "Alexander Volkoff LLC" as the plaintiff.

Defendants were not amused, and filed a motion to dismiss.  Mr. Volkoff did not oppose the motion; instead, he filed a first amended complaint that changed the name of the plaintiff to "Jane Doe."  He thought that way he could avoid the dismissal of the complaint; in particular, now the complaint was brought in the name of the person who was actually retaliated against (as opposed to an LLC that was not).

But the district court wasn't psyched.  It crafted its own form of pedantry by holding held that the amended lawsuit was now barred by the first-to-file rule because the initial complaint was filed by "Volkoff LLC" but the new lawsuit was filed by someone "different" (Jane Doe), so the "second" suit was improperly derivative of the first.  Even though we all pretty much know full well that Volkoff has really been the plaintiff the whole time.  Underlying all this is a sense that if plaintiff's counsel wants to play (what seems like) games, we don't like that, and will use those things against 'em.

Perturbed, plaintiff appeals.  The Notice of Appeal states that it's Volkoff -- the plaintiff -- who's the one appealing.

Now it's the Ninth Circuit's turn.  The Court of Appeals dismisses the appeal on the ground that the operative complaint was only filed by Jane Doe.  And "Jane Doe" isn't listed in the Notice of Appeal.  Even though, again, we know full well who's really the one who filed suit.  Plaintiff says that this is a hypertechnical detail, and cites a bevy of cases that hold that you shouldn't dismiss an appeal on the basis of a pleading defect, and that it's clear who's really filing the appeal.  But the Ninth Circuit says those cases don't matter.  There's "no evidence" that Jane Doe and Volkoff are the same.  So we are going to assume that only Volkoff wants to appeal, and he doesn't have standing.  Only Jane Doe does.

So, the Ninth Circuit holds since the fictitious name (represented, don't forget, by the exact same lawyers as the real person, in the exact same case) didn't appeal -- even though those lawyers, who presumably know,  strenuously argue that the fictitious name did intend to appeal -- the appeal is brought by someone irrelevant.  Hence dismissed.

All of which may perhaps be what the rules dictate.  That's the whole point of being pedantic, after all.  Obsessively follow the rules.  If only to achieve a result you want.  In this case, dismissing a suit brought by a team of creative lawyers who end up getting hoisted on their own petard.

So there you have it.  That's how we commence 2020 and beyond.

One final point.  I thought it fascinating that, in holding that Volkoff and Jane Doe were not one and the same (even though they obviously were), Judge Smith's opinion never once mentions the fact that we're talking about Alexander Volkoff and Jane Doe.  Presumably people of two different genders, and a fictitious name deliberately so chosen by counsel for the plaintiff (since "John Doe" would have worked equally well).  Traditionally, the fact that we're presumptively talking about a person of one gender in the original complaint, as opposed to the opposite gender in the amended complaint, would be used as at least some evidence that the two people are not one and the same.

But this fact receives nary a mention in today's opinion.  A fact that I'm reasonably certain would be mentioned in an opinion from, say, twenty years ago.

Another thing different between the new decade and previous ones.