False Marking Claims Not Barred by Earlier-Filed Case Involving the Same Claims

The court denied defendant's motion to dismiss plaintiff's false marking claim for lack of subject matter jurisdiction based on an earlier-filed case involving the same claims. "Defendant claims that a provision of the False Claims Act, 31 U.S.C. § 3730(b)(5), creates a first-to-file limitation that jurisdictionally bars Plaintiff’s action by preventing any person other than the Government from bringing a subsequent related action. . . . The plain language of the False Claims Act’s first-to-file provision states that the provision is applicable 'when a person brings an action under this subsection.' According to the plain language of the statute, the first-to-file limitation contained in § 3730(b)(5) is thus inapplicable to claims brought under a different statutory title and section. In other words, § 3730(b)(5) is inapplicable to the present action, which Plaintiff brought under 35 U.S.C. § 292."

Simonian v. Hunter Fan Co., 1-10-cv-01212 (ILND July 8, 2010, Written Opinion) (St. Eve, J.)