Decision to Name Jane Doe as Plaintiff Backfires

• Pages: 21-21
• Date: 01 July 2021
• Author: Jared H. Lorenz
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

federal appellate court has dismissed a plaintiff’s

appeal for lack of appellate juri sdiction because

the plaintif f was not a party to the l awsuit and

did not meet the “exceptiona l circumstances”

requirement for allowi ng nonparty appeals.

The court di smissed the appea l despite the fact that the non-

party had prev iously been the plaint iff in the action.

In United St ates ex rel. Alexand er Volkhoff, LLC v.

Janssen Pharmaceutica N.V., a company led a qui ta m com-

plaint in federal d istrict court. A qui tam l awsuit is a suit

brought under the False C laims Act (FCA) that rewards wh is-

tleblowers in successf ul cases where the government recovers

funds lost to fraud. T he complaint named the company as the

relator and alleged violat ions of the FCA arising out of alleg-

edly fraudulent market ing of medications by the defendants.

The defendants  led a motion to dismiss the origina l

complaint, which t he company did not oppose. In stead, the

company led an ame nded complaint removing it self as the

relator and named Jane Do e, an anonymous natural person,

as the only relator. The amende d complaint failed to men-

tion the relationship be tween the company and Jane Doe.

Both Jane Doe and t he company, through l ings,

acknowledged that it was a tac tical decision to replace the

company with Jane Doe to avoid the d ismissal of the origi-

nal complaint’s FCA employment re taliation claim, which

could only be brought by an i ndividual.

Ultimately, the dist rict court dismissed the su it under the

“rst-to- le bar,” which prevents private third pa rties from

intervening i n or ling similar FCA qui t am lawsuits after

an initial relator h as led one. The company led a notice

of appeal.

The U.S. Cou rt of Appeals for the Ninth Circu it dis-

missed the compa ny’s appeal, holding that it violate s the

general rule that on ly parties to a lawsuit may appeal it.

Under Federal Rule of Appell ate Procedure 3(c)(1), “the

notice of appeal must spec ify the party or parti es taking t he

appeal by naming e ach one in the caption or body of the

notice.” The court noted t hat nonparties’ appea ls are heard

only in “exceptional ci rcumstanc es.” These circum stances

arise when the equ ities of the case weig h in favor of hearing

the appeal and the appel lant, though not a party, partici-

pated in the dist rict court proceedings.

The court expl ained that it has t raditionally allowed non -

parties to appea l only when they were signicantly involved

in the distr ict court proce edings—often bec ause they were

compelled to part icipate by one of the partie s or the court.

Conversely, when nonparties choos e not to meaningf ully

involve themselves in dis trict cour t proceedings , the court

has denied them t he right to appeal.

The court reas oned that the company’s par ticipation in

the distric t court proceedings could not ser ve as the basis

for a right to appeal bec ause its activity i n the case all but

ceased with th e ling of the am ended complaint and th at

the company failed to show th at the equities favored hear ing

its appeal. Furt hermore, the substitution of Jane Doe in t he

place of the company was merely a strat egic choice.

“Nonparty appea ls that are permitted are a very ra re

occurrence ,” says John M. Barkett , Miami, F L, cochair

of the ABA Litigat ion Section’s Ethics & Profe ssionalism

Committee . After the original qui ta m action was led,

“the plaintiff a llowed itself to be replaced as the relator, did

not participate in t he proceedings, and was not ‘haled’ i nto

court again st [its] will, signa ling the absence of any equi-

ties,” adds Barket t.

“Some cases, a lthough in different contexts, a llow a

party to appeal i f they have an interest that is affect ed by the

trial cour t’s judgment,” offers Sonia E . O’Donnell, Miami,

FL, vice -chair of the Litigation Sec tion’s Appellate Practice

Committee . “But others hold that neither an alleged inter-

est in the outcome of the l itigation nor participation in pro-

ceedings befor e the distric t court” give nonparties standi ng,

observes O’ Donnell.

“In a fairly classic Ju stice O’Connor opinion, the Supreme

Court in De vlin v. Scardelletti es chewed a formulaic approach

in the speci c context of when absent class members (who gen-

erally are nonparties) are considered pa rties,” remarks Brian

J. Murray, Wheaton, IL , cochair of the Section’s Appellate

Practice Com mittee. “Instead, the C ourt adopted a substantive

and function al analysis of their relationship to the i ssue at hand,

and while it doesn’t cite Devli n, the Ninth Circuit’s test seem s

similarly fact- specic,” explains Murray.

“Most all jurisd ictions recogn ize the presumption that

nonparties are not able to appe al from distri ct court orders

with which they d isagree, but nearly all have built into that

some kind of fail- safe mechani sm to allow nonparties to

appeal when there seem s to be a really good reason to allow

it,” Murray concludes.

RESOURCES

U.S . ex rel. Alexander Volkho , LLC v. Janssen Pharmaceutic a

N.V., No . 18-55643 (C.D . Cal. Nov. 14, 2019).

Fed. R. App . P. 3(c)(1).

Devlin v. Scardelletti, 536 U.S . 1 (Mar. 26, 2002).

Kris ten L. Burge, “Hal f-Truths and Hand Gre nades: Defense

Contractor Swe eps Noncompliance u nder the Rug,” Litigation

News (Mar. 11, 2020).

Kater ina E. Milenkovski, “ Seventh Circuit Reverses It self, Resolves

Circuit Split ,” Litigation News (Mar. 20, 2018).

Decision to Name Jane Doe as

Plaintiff Backres

By Jared H. Lorenz, Li tigation News Contributing Editor

AMERICA N BAR ASSOCIATION SUMMER 2 021 • VOL. 46 NO. 4 | 21