UNITED STATES
v.
ARRIVA MEDICAL, LLC
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The Court dismisses Count III without prejudice, as the plaintiff voluntarily dismissed it and it was subject to the False Claims Act's first-to-file rule.
Following a prior dismissal of Counts I and II, the parties briefed whether Count III should be dismissed. The plaintiff then voluntarily dismissed Co…
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United States ex rel. Troy Olhausen, Plaintiff, v. Arriva Medical, LLC, and others, Defendants. ) ) ) ) ) ) Civil Action No. 21-23916-Civ-Scola
Order on Order to Show Cause
On May 7, 2025, the Court dismissed Counts I and II with prejudice and ordered the parties to brief whether Count III should be dismissed with or without prejudice. (Order Granting Mot. to Dismiss, ECF No. 57.) Both parties responded. (See Pl.'s Resp., ECF No. 58; Defs.' Resp., ECF No. 60.) The Plaintiff, Troy Olhausen, simultaneously filed a notice of voluntary dismissal of Count III pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). The Court has considered the briefing, the record, the relevant legal authorities, and is otherwise fully advised. For the reasons that follow, the Court dismisses Count III without prejudice. The Court directs the clerk to close this case.
To start, the Court dismissed Count III due to the False Claims Act's first-to-file rule. Typically, dismissals due to the False Claims Act's first-to-file rule are without prejudice. See Cho on the behalf of the United States v. Surgery Partners, Inc., 30 F. 4th 1035, 1045 (11th Cir. 2022). Moreover, Olhausen was allowed under Fed. R. Civ. P. 41(a)(1)(A)(i) to voluntarily dismiss Count III without prejudice. Under such circumstances, the Court finds it appropriate to dismiss Count III without prejudice.
The Court understands that the procedural posture of this case, in conjunction with Olhausen I, is unique and complex. Its uniqueness and complexity, however, is of Olhausen's own doing. Furthermore, the Court cautions Olhausen to give serious thought before he refiles Count III. Count III is the same claim as Count II in United States ex rel. Troy Olhausen, Case No. 1:19-cv-20190-RNS (S.D. Fla.) (“Olhausen I”). (See Order at 9.) On June 11, 2015, the Court granted the motion to dismiss in Olhausen I. (See Olhausen I, ECF No. 120.) The Court specifically dismissed Count II in Olhausen I with prejudice. (See id. at 14-15.) Therefore, Count III here—should it be refiled—is likely barred by res judicata and frivolous.
However, the Court need not reach the issue of res judicata, as Count III has been voluntarily dismissed by Olhausen and is barred by the False Claims Act's first-to-file rule.
Done and ordered in Miami, Florida, on June 18, 2025.
Robert N. Scola, Jr. United States District Judge