Second Circuit Settles Crucial Question: Does a Relator Need to Wait for a Court Order Before Serving a Qui Tam Complaint?

The relator filed suit but didn’t serve the complaint for years. The defendants argued the complaint was void for failure of service. But the Second Circuit held that a relator cannot serve an FCA complaint until authorized by the district court. The district court never issued an order authorizing service. The FCA claim was still viable.

United States ex rel. Weiner v. Siemens AG, 2d Cir., No. 22-2656

• Service of Complaint – A relator filed a qui tam complaint, alleging the defendants submitted false claims. The United States declined to intervene. The case, however, languished. After three years, the court unsealed the file, but the court did not docket the unsealing for another year. Even after the court undocketed the unsealing, nothing much happened. Finally, in 2020, almost nine years after the complaint was filed, the relator announced he was ready to serve the defendants.
• Motions to Dismiss – The defendants moved to dismiss for insufficient service. They also moved to dismiss for failure to prosecute. The court granted the motion to dismiss for insufficient service. The district court reasoned nine years had passed since the complaint was filed; there was no way to determine that service had been timely. The court denied the motion to dismiss for failure to prosecute.
• Parties’ Arguments – The relator appealed to the Second Circuit. The relator argued that it could not serve a qui tam complaint until the district court issued an order authorizing service. The defendants argued an order was unnecessary. The defendants maintained the service clock begins to run automatically once the district court unseals the qui tam complaint. Thus, the defendant reasoned, the district court had unsealed the complaints years ago. The relator had not served the complaint during that time. The claim was now barred.
• Court Order Is Required – The Second Circuit sided with the relator. The FCA states a complaint “shall not be served on the defendant until the court so orders.” Thus, under the plain language of the FCA, a relator cannot serve a complaint until authorized by the court. Here, nine years may have passed, but the district court never authorized the relator to serve the complaint. Thus, the relator’s suit was not barred.

—Case summary by Craig Lachance, Senior Editor