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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

United States of America

ex rel. Rayme M. Edler, M.D.

Plaintiffs, 

v. Case 3:20-cv-05503-RV-HTC

Escambia County

Defendant.

_____________________________/

DR. EDLER’S OPPOSITION TO ESCAMBIA’S MOTION FOR 

RECONSIDERATION

Plaintiff Relator Dr. Edler opposes Escambia’s Motion for Reconsideration of 

this Court’s Order [Granting Leave to File Second Amended Complaint ex Parte 

and Under Seal]. Docs. 78 (Motion) and 62 (Order).

I. Amendment deadline error was of no consequence.

Escambia makes much of Edler’s statement wherein she represented “This 

Court’s scheduling Orders set no deadlines for leave to amend, docs. 33 and 45 ....” 

Id at 5. Escambia is correct that the superseded September 17, 2021, Order, doc. 33, 

incorporates the amendment deadline proposed in the parties’ Sept 2021 Joint 

Scheduling Report, doc 30. Counsel’s error was in referencing the superseded doc 

33 Order, rather than only the then-in-effect April 4, 2022 Order, doc. 45. The April 

2022 updated scheduling Order does not incorporate prior deadlines or any material 
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from the Parties’ Joint Report. Doc. 45. Although Escambia argues the Joint 

Report’s deadline binds the parties, Escambia overlooks the Joint Report’s other 

deadlines that it (and Dr. Edler and the Court) have treated as no longer in effect. 

For example, mediation (October 30, 2022), Joint Pretrial Statement (January 27, 

2023), “all other motions including motions in limine” (February 3, 2023), and trial 

briefs (February 10, 2023). Doc. 30 at 2.

In any event, Dr. Edler and counsel apologize to the Court for the inadvertent 

representation with respect to the September 2021 Order and any confusion about 

the content of the April 2022 Order.

1 Rule 15(a)(2) directs courts to freely give 

leave to amend when justice so requires. “Of course, the grant or denial of an 

opportunity to amend is within the discretion of the district court.” Foman v. Davis, 

371 U.S. 178, 182 (1962). To the extend the deadline for amending the Complaint 

and adding parties survived the Court’s Order amending the schedule, good cause 

existed for the Court to grant leave to file the Second Amended Complaint after the 

deadline.

II. Lack of Meet and Confer.

Defendant did not engage in any meet and confer before filing the present 

motion. LR1.7(B). The Court may – and should – strike the motion for this reason 

1 In October 2022, the parties again jointly moved to amend the scheduling order, 

doc. 64, which the Court granted, Docs. 67 and 68.
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alone. As set out below, Escambia’s motion only delays the efficient resolution of 

Edler’s claims. After the motion was filed, undersigned counsel raised the futility of 

the motion with Escambia’s counsel to no avail. If Escambia believes it has grounds

to dismiss the new allegations raised in the Second Amended Complaint, it should 

file a motion to dismiss, not waste Court and litigant resources converting the 

motion to dismiss into a many-step multi-month process.2

III. There are no grounds for reconsideration.

Motions for reconsideration are granted only when: (1) there is an intervening 

change in controlling law; (2) new evidence is available; or (3) there is a need to 

correct clear error or prevent manifest injustice.3 Escambia does not point to a 

change in the law or new evidence. Escambia only argues the Court should 

reconsider its decision to allow filing the motion under seal in order “correct clear 

error or prevent manifest injustice.” Escambia failed to show that the Court erred or 

caused an injustice. 

2 At Escambia’s choosing, it now must win the present motion, then defeat the 

motion to amend, wait for Edler to re-file a new case under seal, and wait for the 

government to again decline all before filing a motion to dismiss it already could 

have filed. 

3 Mastaw v. West Florida Medical Center Clinic, No. 3:20cv5888/RV/EMT, 2021 

U.S. Dist. LEXIS 213986, at *3 (N.D. Fla. Oct. 8, 2021). See also Restore 

Robotics, LLC v. Intuitive Surgical, Inc., No. 5:19cv55-TKW-MJF, 2022 U.S. Dist. 

LEXIS 130800, at *3-4 (N.D. Fla. May 31, 2022) (reconsideration appropriate if 

intervening change in law, new evidence, or “the court made a clear error of law”).
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A. There was no “clear error,” or any error at all.

There was no legal error. As Dr. Edler noted in her Motion, and in this 

memorandum, the law is unclear whether an amendment to an unsealed False 

Claims Act case must be filed under seal or not. 

For lack of other guidance, both parties cited the analysis in United States ex 

rel. Saldivar v. Fresenius Medical Care Holdings, Inc., 972 F. Supp. 2d 1317 at 

1324-1325 (N.D. Ga. 2013). However, the issue there was whether a third amended 

complaint had to be dismissed because it was not filed under seal. 4 Id. The Court 

determined dismissal was not required. Here, Escambia is arguing the opposite, that 

because the Second Amended Complaint was filed under seal it must be dismissed. 

Not so.

Although there is no binding authority in this circuit, other courts have held 

that substantially new claims must be filed under seal. United States ex rel. Davis v. 

Prince, 766 F. Supp. 2d 679, 684 (E.D. Va. 2011) (holding “the term ‘complaint’ in 

[31 U.S.C.] § 3730(b)(2) encompasses amended complaints.”). The Prince court 

reasoned “[t]o argue that the omission of the word ‘amended’ in § 3730(b)(2) means 

that the provision excludes amended complaints is no more persuasive than an 

4 In 2016, the Supreme Court held a failure to follow the sealing rule did not 

require dismissal because the provision is procedural rather than jurisdictional. 

State Farm Fire & Casualty Co. v. United States ex rel. Rigsby, 580 U.S. 26, 33 

(2016).
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argument that omission of the word ‘original’ excludes original complaints.” Id. at 

684 n.11. The new allegations in the Second Amended Complaint relate to a 

massive and pervasive upcoding scheme. That scheme is substantially different 

from the prior existing claims which are related to EMS staff treating (and billing 

for treating) patients without appropriate training and certification, and retaliating 

against Dr. Edler for raising the alarm. 

Although the Supreme Court has not considered whether the FCA’s 

requirement to seal complaints includes amendments, it has emphasized the 

importance of the seal generally. State Farm Fire & Casualty Co. v. United States 

ex rel. Rigsby, 580 U.S. 26, 37 (2016) (setting out bevy of punishments that may be 

imposed short of dismissal).

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As Dr. Edler explained, the United States directed her to file under seal. Doc. 

58 at 7-8. Although this Court is not bound by directions from the United States 

Attorney’s office, where there is a lack of guidance, courts often look to Department 

of Justice interpretations. This was the Supreme Court’s approach in Rigsby when it 

gave weight to the United States’ interests.

Because the seal requirement was intended in main to protect the 

Government’s interests, it would make little sense to adopt a rigid 

5 In 2016, the Supreme Court held a failure to follow the sealing rule did not 

require dismissal because the provision is procedural rather than jurisdictional. ex 

rel. Rigsby, 580 U.S. at 33. There is no support for the inverse holding, that sealing 

an amended complaint does require dismissal. 
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interpretation of the seal provision that prejudices the Government by 

depriving it of needed assistance from private parties.

Rigsby, 580 U.S. at 34-35.

Interpreting 31 U.S.C. § 3730(b)(2)’s “complaint” to include both original 

and amended complaints is just such an interpretation.

6 This is also the result 

reached by the court in ex rel. Davis v. Prince, 766 F. Supp. 2d at 684. 

Escambia has presented no authority for the proposition that substantially 

new False Claims Act allegations must be raised on the public docket. It appears the 

closest Escambia comes to presenting authority supporting its radical position is a 

1994 decision out of Louisiana which specifically noted that the “new” allegations 

were a mere expansion of “other false and/or fraudulent claims” and not

substantially new and therefore were not required to be sealed. U.S. ex rel. Walle v. 

Martin Marietta Corp., No. CIV. A. 92-3677, 1994 WL 518307, at *1 (E.D. La. 

Sept. 21, 1994). In other words, the opposite factual scenario faced by this Court. If 

anything, Walle supports this Court’s decision permitting Dr. Edler to file her 

Second Amended Complaint under seal. 

6 This Court’s unsealing orders have acknowledged the United States’ involvement 

in and control over this case. Docs. 7 and 74. See Yates v. Pinellas Hematology & 

Oncology, P.A., 21 F.4th 1288, 1311 (11th Cir. 2021) (holding “The United States 

remains the real party in interest and retains significant control over the case”).
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Decisions refusing to dismiss complaints that were not filed under seal offer 

no support for Escambia’s contrary argument that filing under seal requires 

dismissal. And, absent any such authority, much less binding authority, there can be 

no clear error here.7 As discussed below, it is entirely within the Court’s discretion 

to seal pleadings.8 There was no error here.

B. There was no manifest injustice arising from the Court’s 

exercising its discretion to allow the motion (or the amendment).

Escambia identifies no manifest injustice because there is none. As this Court 

has noted, “it is not enough that the non-moving party will suffer prejudice from the 

amendment; rather, the prejudice must be ‘undue’.” McGriff v. Hall, No. 

3:07cv85/RV/MD, 2009 U.S. Dist. LEXIS 137555, at *4 (N.D. Fla. Apr. 20, 2009) 

(denying leave to amend filed five weeks after discovery closed). Although 

Escambia’s motion repeats the word “injustice” several times, not once does it 

7 Crediting Escambia’s argument would place Relators in a nasty catch 22: file 

amended complaints on the public docket and face motions for sanctions for failure 

to file under seal including potentially from the United States, or seek the Court’s 

permission to file under seal and then face motion practice for attempting to “do 

the right thing” and abide by the statutory obligation to present new claims under 

seal. See e.g., Prince, 766 F. Supp. 2d at 684 (holding FCA requires substantially 

different allegations of fraud to be filed under seal).

8 Other cases cited by Escambia similarly failed to address the issue of amending 

under seal for a case that has already been brought out from under seal. See doc. 78 

at 14 citing Klusmeier v. Bell Constructors, Inc., 469 F. App’x 718 (11th Cir. 

2012) (appealing dismissal, no discission of filing under seal); United States ex rel. 

Atkins v. McInteer, 470 F.3d 1350, 1355 (11th Cir. 2006) (appealing dismissal, no 

discussion of filing under seal).
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describe any harm that has or will befall it as a result of the Court’s challenged 

Order. Indeed, it cannot. 

IV. Reconsideration is Futile.

Granting reconsideration is futile because the Court reached the right decision 

with regard to the original motion to amend and to maintain the motion and Second 

Amended Complaint under seal until the government filed its notice of declination. 

In addition, and as explained below, granting reconsideration here is futile because 

the most Escambia can achieve is further delay of this, or a companion, action. 

A. Denying leave to amend would create delay and add costs.

Although Escambia asserts its motion deals only with the right to file the 

motion under seal, Dr. Edler anticipates it will move to object to the amendment –

indeed, there is no other purpose to the motion. Assuming arguendo that Escambia 

persuades the Court to deny leave to amend (although it should not) it will be a 

pyrrhic victory. Relator will file a new case (under seal), with a Form JS-44 civil 

cover identifying this case as a “related case.” 

Because the SAC’s new allegations involve common questions of law and 

fact, identical parties, and many of the same witnesses, the likely result is 

consolidation—and delay. Rule 42, Fed. R. Civ. P.

By exercising its authority to allow the amendment, rather than forcing the 

filing of a new case, the Court reduces the risk of inconsistent adjudications of 
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common factual and legal issues, conserves judicial resources, and permits the 

efficient resolution of this matter. Id.

B. The Court has discretion to seal the motion.

The statute is silent as to the manner in which the seal is to be maintained 

where, as here, the Government decides not to pursue the action. 31 U.S.C. § 

3730(b)(4). In interpreting this textual silence, courts have held that the FCA, by 

permitting in camera submissions, invests the court with the authority to maintain 

the seal on the complaint and other case filings, in their entirety. See United States 

ex rel. Health Outcome Technologies v. Hallmark Health Sys., Inc., 349 F. Supp. 2d 

170, 173 (D. Mass. 2004).

9

In considering motions to unseal or retain the seal on FCA case filings, courts 

have analogized to discovery documents considered under Rule 26(c) of the Federal 

Rules of Civil procedure, which provides for entry of a protective order to protect 

certain confidential information. See, e.g., Yannacopolous, 457 F. Supp. 2d at 858; 

9

 Accord, United States ex rel. Yannacopolous v. Gen. Dynamics, 457 F. Supp. 2d 

854, 858 (N.D. Ill. 2006); United States v. CACI Int’l Inc., 885 F. Supp. 80, 83 

(S.D.N.Y. 1995); United States ex rel. O’Keefe v. McDonnell Douglas Corp., 902 

F. Supp. 189, 191 (E.D. Mo. 1995).
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United States ex rel. Erickson v. University of Wash. Physicians, 339 F. Supp. 2d 

1124, 1126 (W.D. Wash. 2004); O’Keefe, 902 F. Supp. at 191.10

Here the Court properly exercised its discretion.

V. Motion for leave to amend was correctly filed under seal.

Although Escambia’s argument suggests it opposes the Court’s granting leave 

to amend, it seeks to limit the issue under this motion. 

The issue presented by Defendant through this Motion for 

Reconsideration is whether the separately docketed motion for 

leave to amend, as required by Northern District Local Rule 15.1, 

should itself also be filed under seal.

Doc. 78 at 13. All bold emphasis original.

Escambia even tacitly concedes the appropriateness of sealing the amended 

complaint when it distinguishes sealing the motion from sealing the complaint: 

“Plaintiff cites no legal authority of any kind to support the argument that the 

motion itself must, or can be filed under seal.” Id. at 9 (emphasis original). But there 

is nothing that could have been disclosed in the motion, more than what the docket 

sheet already showed--that something had been filed under seal. Anything more 

would have revealed the existence of a Second Amended Complaint and thereby 

destroyed the seal as to that document.

10 This Court’s discretion is well established. In Nixon v. Warner Communications, 

435 U.S. 589, 598-99 (1978), the Supreme Court concluded “decisions as to [court 

record] access is best left to the sound discretion of the trial court.” 
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CONCLUSION 

Escambia failed to articulate grounds for reconsideration because there was 

no clear error or manifest injustice. Even if the Court were to reconsider it should 

reach the same result because the Court correctly exercised its discretion to grant 

leave to file under seal and correctly granted leave to amend. Finally, while seeking 

to create an appearance that it is concerned with a deadline, the reality is that 

granting Escambia’s motion would only serve to delay this case.

Accordingly, Dr. Edler respectfully requests that the Court deny Escambia’s 

motion for reconsideration. 

/s/ Jonathan Kroner

FBN 328677

Jonathan Kroner Law Office

6001 N Ocean Dr. Ste 806

Hollywood, FL 33019-4617

305.310.6046

jk@FloridaFalseClaim.com

Law Offices of Darth M. Newman 

LLC

Darth M. Newman

1140 Thorn Run Rd., #601

Coraopolis, PA 15108

412.436.3443

darth@dnewmanlaw.com

(admitted pro hac vice)

Attorneys for Qui Tam Plaintiff Relator Rayme M. Edler, M.D

LR 7.1 (F) Certificate of Word Count

I certify the LR 7.1(F) word count is 2490 words. I relied on MS Word’s count for 

this certification. 

/s/ Jonathan Kroner

Certificate of Service

I certify I electronically filed the foregoing document with the Clerk of Court using 

CM/ECF on the date stamped above to be served on all counsel of record.

/s/ Jonathan Kroner