Can a relator’s complaint be amended to include relators not named in the original pleading? Increasingly, federal courts have answered “no”—and the Ninth Circuit’s decision last month in United States ex rel. Volkhoff v. Janssen Pharmaceuticals, 945 F.3d 1237, is consistent with this trend. The district court in Volkhoff dismissed an amended complaint under the False Claims Act’s “first-to-file” bar because the sole relator named in the amendment was not listed in the initial complaint. The Ninth Circuit then dismissed the appeal of that dismissal for lack of appellate jurisdiction. But in so doing, the Ninth Circuit favorably cited the lower court’s conclusion that the first-to-file bar prohibits new relators from jumping into existing FCA cases. Id. at 1240.
