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United States Ex rel. De Souza v. Astrazeneca PLC

United States District Court, D. Delaware

November 5, 2014

UNITED STATES OF AMERICA ex rel. ROSE MARIE DE SOUZA, et al., Plaintiffs,
v.
ASTRAZENECA PLC, ASTRAZENECA PHARMACEUTICALS LP, Defendants

For Plaintiff: Joel Friedlander, Esquire and Christopher M. Foulds, Esquire of Friedlander & Garris, P.A., Wilmington, Delaware. Of Joel M. Androphy, Esquire and Sarah M. Frazier, Esquire of Berg & Androphy.

For Defendant: Jody C. Barillare, Esquire of Morgan, Lewis & Bockius LLP, Wilmington, Delaware. Of John C. Dodds, Esquire, Rebecca J. Hillyer, Esquire and Evan K. Jacobs, Esquire of Morgan, Lewis & Bockius LLP.

Page 562

MEMORANDUM OPINION

Sue L. Robinson, District Judge.

I. INTRODUCTION

On February 15, 2010, relater RoseMarie De Souza (" De Souza" ) filed this qui tam action against defendants AstraZeneca PLC and AstraZeneca Pharmaceuticals LP's (" collectively AstraZeneca" ) alleging False Claims Act (" FCA" ) violations relating to the promotion of Crestor® (" the original De Souza complaint" ). (D.I. 1) On February 26, 2010, De Souza amended her complaint (" the De Souza complaint" ). (D.I. 4) De Souza's motion to file a second amended complaint was granted and such second amended complaint was filed on December 13, 2011. (D.I 48, 49, 50) On March 4, 2013, the government declined to intervene. (D.I. 63, 64) Presently before the court is AstraZeneca's motion for to dismiss for lack of subject matter jurisdiction. (D.I. 83) The court has jurisdiction pursuant to the FCA, 31 U.S.C. § 3732(a).

II. STANDARD OF REVIEW

Not only may the lack of subject matter jurisdiction be raised at any time, it cannot be waived and the court is obliged to address the issue on its own motion. See Moodie v. Fed. Reserve Bank of NY, 58 F.3d 879, 882 (2d Cir. 1995). Once jurisdiction

Page 563

is challenged, the party asserting subject matter jurisdiction has the burden of proving its existence. See Carpet Group Int'l v. Oriental Rug Importers Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000).

Under Rule 12(b)(1), the court's jurisdiction may be challenged either facially (based on the legal sufficiency of the claim) or factually (based on the sufficiency of jurisdictional fact). See 2 James W. Moore, Moore's Federal Practice § 12.30[4] (3d ed. 1997). Under a facial challenge to jurisdiction, the court must accept as true the allegations contained in the complaint. See id. Dismissal for a facial challenge to jurisdiction is " proper only when the claim 'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or . . . is wholly insubstantial and frivolous." ' Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946)).

Under a factual attack, however, the court is not " confine[d] to allegations in the . . . complaint, but [can] consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction." Gotha v. United States, 115 F.3d 176, 179, 36 V.I. 392 (3d Cir. 1997); see also Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891-92 (3d Cir. 1977). In such a situation, " no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Carpet Group, 227 F.3d at 69 (quoting Mortensen, 549 F.2d at 891 ).

III. BACKGROUND

A. Parties

De Souza is a citizen of the United States and resident of the State of Florida. De Souza worked for AstraZeneca as a sales representative from October 2000 until her termination in February 2010. (D.I. 4 at ¶ ¶ 3, 39, 55-55) Defendant AstraZeneca PLC is a public limited company organized in the United Kingdom, with a principal place of business in London, United Kingdom. Defendant AstraZeneca Pharmaceuticals, LP is a limited ...


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