US Ex Rel. Gregory Davidov v. Nhic Corp , 623 F. App'x 376 ( 2015 )

FILED
NOT FOR PUBLICATION
NOV 24 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES ex rel. GREGORY No. 13-56462
DAVIDOV,
D.C. No. 2:08-cv-03287-DSF-RZ
Plaintiff - Appellant,
v. MEMORANDUM*
NHIC CORPORATION, a corporation
other, FKA National Heritage Insurance
Company,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted October 23, 2015**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON and TROTT, Circuit Judges and STAFFORD,*** Senior
District Judge.
Gregory Davidov (“Davidov”) appeals the district court’s dismissal of his
qui tam action against NHIC for lack of subject matter jurisdiction. We have
jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing the district court’s dismissal
de novo and the district court’s findings of fact for clear error, we affirm. A-1
Ambulance Serv., Inc. v. California, 202 F.3d 1238, 1242 (9th Cir. 2000).
The allegations in Davidov’s qui tam complaint are nearly identical to the
allegations in his 2004 suit against NHIC. KGV’s 2004 complaint and Davidov’s
current qui tam complaint both allege that, starting in 2000, NHIC unlawfully paid
billions of dollars to different providers for the same procedures. Both complaints
maintain that, between April and August, 2003, NHIC stopped enforcing
overutilization safeguards. NHIC’s brief contains a chart of at least 15 instances
where the text of KGV’s 2004 complaint is identical or nearly identical to
Davidov’s current FAC. Since Davidov’s qui tam allegations are nearly identical
to his 2004 allegations, the district court properly found the prior public disclosure
bar applies. See 31 U.S.C. § 3730(e)(4)(A)(I); U.S. ex rel. Biddle v. Bd. of
Trustees of Leland Stanford, Jr. Univ., 161 F.3d 533, 541 (9th Cir. 1998).
***
The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
2
Davidov cannot show direct and independent knowledge, because his
allegations are based on statements made by NHIC employees. Therefore, he
cannot satisfy the “original source” exception. See 31 U.S.C. § 3730(e)(4)(B);
United States v. Northrop Corp., 5 F.3d 407, 411 (9th Cir. 1993); U.S. ex rel.
Devlin v. State of Cal., 84 F.3d 358, 360 (9th Cir. 1996).
The district court did not abuse its discretion when it denied Davidov
opportunity to amend his complaint. There is no evidence that an opportunity to
amend would cure the defects in Davidov’s complaint. See Salameh v. Tarsadia
Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) cert. denied, 134 S. Ct. 1322 (2014).
AFFIRMED.
3