United States District Court, D. Utah
UNITED STATES OF AMERICA, ex rel. GERALD POLUKOFF, Plaintiff/Relator,
ST. MARK'S HOSPITAL; INTERMOUNTAIN HEALTHCARE, INC.; IMTERMOUNTAIN MEDICAL CENTER; SHERMAN SORENSEN; and SORENSEN CARDIOVASCULAR GROUP; Defendants.
MEMORANDUM DECISION AND ORDER GRANTING
DEFENDANT'S MOTION FOR LEAVE TO TAKE ADDITIONAL
STEWART UNITED STATES DISTRICT JUDGE
Judge Ted Stewart This matter is before the Court on a Motion
for Leave to Take Additional Discovery filed by Defendants
Sherman Sorensen and Sorensen Cardiovascular Group
(collectively, “Defendants”). For the reasons set
forth below, the Court will grant the Motion.
originally filed a Motion for Partial Summary Judgment and,
in the alternative, Motion for Leave to Take Additional
Discovery. However, Defendants withdrew their Motion
for Partial Summary Judgment in their Reply to Relator's
Opposition to the Motion for Partial Summary Judgment,
leaving only the Motion for Leave to Take Additional
request time for additional discovery because of a change in
legal landscape that affects the nature of discovery
Defendants must complete. Prior to May 13, 2019, Tenth
Circuit precedent dictated that the statute of limitations
for False Claims Act (“FCA”) cases brought by
private qui tam relators without U.S. government intervention
was six years from the alleged violation. The FCA tolling
provision under 31 U.S.C. § 3731(b)(2), according to
Tenth Circuit interpretation, did not apply to such relators
and could not operate to extend the six-year
limitation. However, on May 13, 2019-two days before
the deadline for Defendants to file a motion on statute of
limitations grounds-the Supreme Court held that this tolling
provision does in fact apply to private qui tam relators
bringing FCA claims, even where the government does not join
the action. Application of this tolling provision
makes it critical to identify when “the official of the
Unites States charged with responsibility to act in the
circumstances” knew or should have known the relevant
facts underlying an FCA claim. This is because tolling under
§ 3731(b)(2) allows for claims to be brought within
three years from that date of actual or constructive
knowledge, or ten years from the violation, whichever occurs
last. Defendants argue this change in the legal
landscape necessitates discovery concerning when the relevant
federal government official had actual or constructive
knowledge of the FCA violation. This was not a relevant inquiry
under the previous Tenth Circuit interpretation of §
3731(b)(2).Plaintiff opposes Defendants' request,
but the Court finds that Defendants' argument is
Rule of Civil Procedure 16(b)(4) states that “[a]
schedule may be modified only for good cause and with the
judge's consent.” And the Tenth Circuit has
provided that a change in law is an example of what may
constitute good cause.
In practice, [the Rule 16(b)(4)] standard requires the movant
to show the scheduling deadlines cannot be met despite [the
movant's] diligent efforts. Rule 16's good cause
requirement may be satisfied, for example, if a plaintiff
learns new information through discovery or if the underlying
law has changed.
light of the change in law from Cochise, and this
Court's “strong preference for resolving cases on
the merits, rather than on procedural technicalities,
” the Court finds that Defendants have
shown good cause for an additional sixty days of discovery.
The Court, therefore, grants the Motion. The Court further
grants Defendants thirty days after the discovery period has
run to file, if appropriate, a motion for summary judgment on
the statute of limitations.
that Plaintiffs Motion for Leave to Take Additional Discovery
(Docket No. 267) is GRANTED as set forth above.
 Docket No. 267.
 Docket No. 276.
See U.S. ex rel Sikkenga v.
Regence Bluecross Blueshield of Utah, 472 F.3d 702, 725