Professional Documents
Culture Documents
Unpublished
Unpublished
No. 15-1459
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
Loretta C. Biggs,
District Judge. (1:12-cv-00773-LCB-JEP)
Submitted:
Decided:
PER CURIAM:
Juan N. Walterspiel, M.D., filed a five count complaint
under the False Claims Act (FCA), 31 U.S.C. 3729-33 (2009)
(current version at 31 U.S.C. 3729-33 (2012)), against Bayer
AG,
Quintiles
defendants.
Transnational
Corporation,
and
three
Doe
(Cipro).
Walterspiel
further
alleged
that
the
Cipro
at
higher
price
to
the
government
because
the
amended
complaint;
and
(3)
Walterspiel
failed
to
judges
memorandum
recommendation
2
in
full
and
the
magistrate
judges
report
and
recommendation
We affirm.
I
We turn first to the question whether Walterspiel properly
completed service of process on Bayer AG.
In reviewing an
novo
the
determination
that
service
of
process
was
1030
Service
(4th
Cir.
1998).
of
process
on
foreign
process
States
rules,
and
Constitution;
accordance
with
the
the
or
Due
(2)
Process
the
Hague
corporation
Service
3
Clause
of
the
United
overseas
Convention.
in
See
(1988);
see
also
Fed.
R.
Civ.
P.
4(e)(1),
(f),
(h).
We disagree.
on
foreign
organization
may
be
completed
upon
an
the
parent
purposes
of
service
of
process
when
the
the
parent
instrumentality
company
such
of
foreign
the
that
the
subsidiary
corporation.
is
Id.
mere
at
85-86
agent
as
evidence
matter
regarding
of
Indiana
Bayer
law.
AGs
In
actual
the
absence
control
of
over
any
Bayer
is
wholly
owned
by
Bayer
AG,
we
conclude
that
to
Germany
via
service
of
Walterspiels
FedEx,
the
foreign
Hague
attempt
to
Service
Convention
corporations
serve
abroad.
Bayer
AG
governs
in
the
Volkswagenwerk
10,
Nov.
objected
to
Authorities
15,
1965,
Article
to
execute
process.
See
Davies
F.Supp.2d
719,
722
20
U.S.T.
10(a),
and
for
v.
&
Jobs
(E.D.
361,
has
requests
n.6
Germany
established
international
Adverts
Va.
Central
service
of
GMBH,
94
Online,
2000).
has
Accordingly,
of
argues
process
that
properly,
even
the
5
if
he
failed
district
court
to
complete
abused
its
time
of
the
district
courts
We again disagree.
At
dismissal,
Walterspiels
Furthermore,
represented
that
he
intended
to
hire
German
process
Accordingly,
II
Having concluded that Walterspiel did not properly complete
service of process on Bayer AG, we turn to the district courts
dismissal
of
Quintiles
under
Fed.
R.
Civ.
P.
12(b)(6).
We
of
the
nonmoving
party.
Kensington
Volunteer
Fire
Dept,
Inc. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012).
To
that
results
in
claim
to
the
Government.
United
States v. Triple Canopy, Inc., 775 F.3d 628, 634 (4th Cir. 2015)
(brackets omitted), pet. for cert. filed, No. 14-1440 (June 8,
2015).
Claims brought under the FCA are subject to Fed. R. Civ. P.
9(b)s more stringent particularity requirement.
Id.
Rule
omitted).
Having reviewed Walterspiels complaint, we conclude that
it lacks particularized allegations regarding the claims Bayer
AG
made
complaint
to
the
fails
to
Government.
identify,
Specifically,
with
particularity,
Walterspiels
what
claims
the
defendants
are
in
exclusive
possession
of
the
requests
possession.
for
payment
to
the
Government
in
Quintiles
III
The district court denied Walterspiels request for leave
to amend his complaint because the request did not comply with
Fed.
R.
Civ.
P.
7(b)(1)
or
M.D.N.C.
Local
R.
15.1
when
abused
its
by
denying
him
leave
to
amend
Pursuant to
728 F.3d 327, 335 (4th Cir. 2013) (holding that issue not raised
in opening brief, as required by Fed. R. App. P. 28(a)([8])(A),
is waived).
IV
Finally, Walterspiel argues that the district court erred
by
adopting
the
magistrate
judges
recommendation
without
Walterspiel cites no
of
those
portions
of
the
report
or
specified
Accordingly,
we
affirm
the
district
courts
judgment
and
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED