Notice of Appeal: Johnson, et al. v. Univ. of Rochester Med. Ctr. et al.

U.S. Court of Appeals for the Second Circuit

Notice of Appeal

Tolling — Sanctions

Johnson, et al. v. Univ. of Rochester Med. Ctr. et al.
10-2258-cv(L); 10-2267-cv (con)
Circuit Judges Wesley, Chin and Lohier Jr.

Background: The appellant brought a qui tam action alleging that the University of Rochester Medical Center and Strong Memorial Hospital were fraudulently billing Medicare and Medicaid for medical procedures performed by unsupervised residents. The appellant appeals from a judgment and three orders of the U.S. District Court for the Western District or New York (Larimer, J.) that dismissed the complaint and denied his leave to amend; denied relief under the Fed. R. Civ. P. 60(b)(1) and sanctioned his attorney. The Second Circuit dismissed the appeal from the district court’s judgment and affirmed all orders.

Ruling: The court lacked appellate jurisdiction over appellant’s appeal because the plaintiff missed the 28 day tolling deadline for his Rule 60(b) motion to toll the appeal deadline. Therefore, appellant’s notice was untimely. The district court’s decision to not reconsider appellant’s motion to amend was not an abuse of discretion as the motion to amend did not assert appellant’s right to amend, thereby leaving it in the court’s discretion to grant or deny the relief sought. The district court did not abuse its discretion when it did not reconsider the defendant’s motion for sanctions as the attorney pursued claims she knew had no basis in law or fact.

Christina A. Agola for the plaintiff-appellant; Thomas S. D’Antonio of Ward Greenberg, Heller & Reidy LLP for defendants-appellees