Is It Hot in Here, or Is It Just 9(b)?
One relator’s hopes sizzled in the summer heat last week when the Eleventh Circuit affirmed the Southern District of Florida’s decision to contemporaneously dismiss and grant summary judgment against the relator on two halves of the same complaint. United States ex rel. Bingham v. HCA, Inc., No. 16-17059, 2019 WL 3451045 (11th Cir. July 31, 2019). The somewhat unusual procedural posture of this case arose because the district court denied a motion to delay discovery pending adjudication of the defendant’s motion to dismiss. Dismissal was granted for part of the case for lack of particularity under Rule 9(b) and just a month and a half later, the relator amended his complaint based on facts learned through discovery attempting to revive his dismissed allegations.
