United States District Court, D. New Jersey
BRIAN R. MARTINOTTI United States District Judge
this Court is a Motion for Reconsideration filed by Defendant
Zydus Pharmaceuticals (USA) Inc. (“Zydus”) (ECF
No. 156), seeking reconsideration of the Court's April
26, 2017 Opinion and Order (ECF Nos. 153 and 154), which
granted in part and denied in part a motion to dismiss
Plaintiffs Azam Rahimi (“Rahimi”) and Radif
Rashid's (“Rashid, ” collectively
“Relators”) First Amended Complaint (First Am.
Compl. (ECF No. 9)). Relators oppose the Motion. (ECF No.
180.) Pursuant to Federal Rule of Civil Procedure 78(b), no
oral argument was heard. For the reasons set forth herein,
Zydus's Motion is GRANTED in part and
DENIED in part.
underlying facts are set forth at length in the Court's
April 25, 2017 Opinion (ECF No. 153), from which Zydus seeks
reconsideration. In the interest of judicial economy, the
Court refers the parties to that Opinion for a full
recitation of the factual and procedural background of this
not expressly authorized by the Federal Rules of Civil
Procedure, motions for reconsideration are proper pursuant to
this District's Local Civil Rule 7.1(i). See Dunn v.
Reed Group, Inc., Civ. No. 08-1632, 2010 WL 174861, at
*1 (D.N.J. Jan 13, 2010). The comments to that Rule make
clear, however, that “reconsideration is an
extraordinary remedy that is granted ‘very
sparingly.'” L.Civ.R. 7.1(i) cmt. 6(d) (quoting
Brackett v. Ashcroft, Civ. No. 03-3988, 2003 WL
22303078, *2 (D.N.J. Oct. 7, 2003)); see also Langan
Eng'g & Envtl. Servs., Inc. v. Greenwich Ins.
Co., Civ. No. 07-2983, 2008 WL 4330048, at *1 (D.N.J.
Sept. 17, 2008) (explaining that a motion for reconsideration
under Rule 7.1(i) is “‘an extremely limited
procedural vehicle, ' and requests pursuant to th[is]
rule are to be granted ‘sparingly'”)
(citation omitted); Fellenz v. Lombard Investment
Corp., 400 F.Supp.2d 681, 683 (D.N.J. 2005).
motion for reconsideration “may not be used to
re-litigate old matters, nor to raise arguments or present
evidence that could have been raised prior to the entry of
judgment.” P. Schoenfeld Asset Mgmt., LLC v.
Cendant Corp., 161 F.Supp.2d 349, 352 (D.N.J. 2001).
Instead, Local Civil Rule 7.1(i) directs a party seeking
reconsideration to file a brief “setting forth
concisely the matter or controlling decisions which the party
believes the Judge or Magistrate Judge has overlooked.”
L. Civ. R. 7.1(i); see also Bowers v. Nat'l
Collegiate Athletic Ass'n, 130 F.Supp.2d 610, 612
(D.N.J. 2001) (“The word ‘overlooked' is the
operative term in the Rule.”).
prevail on a motion for reconsideration, the moving party
must show at least one of the following grounds: “(1)
an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the
court [made its initial decision]; or (3) the need to correct
a clear error of law or fact or to prevent manifest
injustice.” Max's Seafood Café v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999); see
also N. River Ins. Co. v. CIGNA Reinsurance, Co., 52
F.3d 1194, 1218 (3d Cir. 1995) (internal quotations omitted).
A court commits clear error of law “only if the record
cannot support the findings that led to the ruling.”
ABS Brokerage Servs. v. Penson Fin. Servs., Inc.,
No. 09-4590, 2010 WL 3257992, at *6 (D.N.J. Aug. 16, 2010)
(citing United States v. Grape, 549 F.3d 591, 603-04
(3d Cir. 2008) “Thus, a party must . . . demonstrate
that (1) the holdings on which it bases its request were
without support in the record, or (2) would result in
‘manifest injustice' if not addressed.”
Id. Moreover, when the assertion is that the Court
overlooked something, the Court must have overlooked some
dispositive factual or legal matter that was presented to it.
See L.Civ.R. 7.1(i).
short, “[m]ere ‘disagreement with the Court's
decision' does not suffice.” ABS Brokerage
Servs., 2010 WL 3257992, at *6. (quoting P.
Schoenfeld, 161 F.Supp.2d at 353); see also United
States v. Compaction Sys. Corp., 88 F.Supp.2d 339, 345
(D.N.J. 1999) (“Mere disagreement with a court's
decision normally should be raised through the appellate
process and is inappropriate on a motion for
[reconsideration].”); Florham Park Chevron, Inc. v.
Chevron U.S.A., Inc., 680 F.Supp. 159, 163 (D.N.J.
1988); Schiano v. MBNA Corp., Civ. No. 05-1771, 2006
WL 3831225, at *2 (D.N.J. Dec. 28, 2006) (“Mere
disagreement with the Court will not suffice to show that the
Court overlooked relevant facts or controlling law, . . . and
should be dealt with through the normal appellate process. .
. .”) (citations omitted).
their Motion for Reconsideration, Zydus asks the Court to
reconsider its decision partially denying its motion to
dismiss. Specifically, Zydus argues: (1) Relators have not
complied with Rule 9(b); (2) Relators' claims are time
barred; and (3) Relators lack standing to proceed with their
State False Claim Act (“FCA”) claims. (ECF No.
156-1 at 20.) The Court will address Zydus's challenges
prior Opinion, the Court denied Zydus's motion to dismiss
each of Relators' federal and State FCA claims for
failing to allege presentment. (ECF No. 152 at 20-24.) Counts
I-III of the First Amended Complaint assert causes of action
under 31 U.S.C. § 3729(a), alleging Zydus: (1) knowingly
caused a false or fraudulent claim to be presented to the
government for payment or approval, in violation of 31 U.S.C.
§§ 3729(a)(1) and (a)(1)(A); (2) knowingly made or
used or caused false records or statements, and omitted
material facts, to get such false or fraudulent claims paid
by the government, or that were material to false or
fraudulent claims presented to the government, in violation
of 31 U.S.C. §§ 3729(a) and (a)(1)(B); and (3)
conspired with its retail pharmacy customers by offering
these customers significantly lower prices for the Generic
Drugs as an inducement, while Zydus reported false and
fraudulent prices to the Publishers knowing Medicaid relied
on such prices to establish reimbursement rates, in violation
of the AKS. (See ECF No. 9.) By agreeing to the
financial incentive of this price spread scheme, Relators
allege Zydus and its retail pharmacy customers caused the
submission of false or fraudulent claims to Medicaid, in
violation of 31 U.S.C. §§ 3729(a)(3) and (a)(1)(C).
(Id.) In addition to their federal FCA claims,
Relators also bring causes of action under the false claims
acts of 28 States and the District of Columbia. (Id. at
in part, on Exhibits 3 through 12 to the First Amended
Complaint, the Court concluded:
Exhibits 3 through 12 to the [First Amended Complaint], which
are claims submitted by Rashid to New York Medicaid, all
clearly show the reported AWP. (See, e.g., ECF No. 9
at Ex. 3 (listing Blue Book's published AWP next to
“BBAWP, ” or “Blue Book Average Wholesale
Price”.)[)] Thus, the claims and invoices
attached to the [First ...