in the Constitution, statutes, or case precedent.” /d. (quoting Adolph Coors Co.
v. Wallace, 570 F. Supp. 202, 205 (N.D. Cal. 1983)). A magistrate judge’s
factual finding is “clearly erroneous” only when, after reviewing the evidence, the
court “is left with the definite and firm conviction that a mistake has been
committed.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S. Ct.
525, 92 L. Ed. 746 (1948).

I. ANALYSIS

The DOE argues that the clear intent of Plaintiffs motion to file a second
amended complaint was to dismiss with prejudice his declaratory judgment claim
against the DOE. Obj. 6, ECF No. 51. Plaintiff contends that the dismissal with
prejudice was expressly limited to Plaintiffs FCA claims, and the Magistrate
Judge agreed. Order 2, ECF No. 49.

The DOE primarily bases its argument on the language of the motion to
amend itself. In particular, the DOE believes the following portion of the motion
clearly refers to Plaintiffs declaratory judgment claim: “as to naming the [DOE] as
a Defendant in the initial Complaint, that cause of action is to be dismissed with
prejudice.” Obj. 6, ECF No. 51 (citing Mot. 2-3, ECF No. 6) (emphasis added).
The DOE’s argument has some logical appeal. Right before Plaintiff moved to
dismiss “that cause of action” against the DOE with prejudice, he discussed
dismissal of the False Claims Act claim. One plausible reading of this is “that
cause of action” refers to a separate claim—i.e. the declaratory judgment claim.
Another plausible reading, however, is that the dismissal with prejudice was

Case No. 2:18-cv-107 Page 5 of 8


claim was not dismissed with prejudice, the DOE must move or plead in
response to Plaintiff's Third Amended Complaint. Magistrate Judge Vascura
previously sua sponte extended the DOE’s time to do so until fourteen days after

the entry of this Opinion and Order. ECF No. 52.

Nhe betsy

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

IT IS SO ORDERED.

Case No. 2:18-cv-107 Page 8 of 8


dismissed with prejudice, which should have prevented Plaintiff from reviving his
declaratory judgment claim against the DOE in his Third Amended Complaint.
Resp. 2, ECF No. 46; Mot. 2, ECF No. 47.

Magistrate Judge Vascura denied the DOE’s motion to correct the record,
finding the following:

[T]he previous dismissal of the DOE with prejudice was expressly

limited to Plaintiffs FCA claims. Plaintiff's Third Amended Complaint

does not assert an FCA claim against any party. Therefore, the prior

dismissal of the FCA claims against the DOE with prejudice does not

bar Plaintiffs current common law and non-FCA statutory claims

against the DOE.
Order 2-3, ECF No. 49. The DOE objects to that order. ECF No. 51. For the
following reasons, the objection is OVERRULED.

I. | STANDARD OF REVIEW

Magistrate Judge Vascura’s Order denying the DOE’s motion to correct the
record was issued pursuant to Federal Rule of Civil Procedure 72(a), because it
was not dispositive of a party’s claim or defense. The DOE timely objected;
therefore, the Court must “modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “The ‘clearly erroneous’
standard applies only to factual findings made by the Magistrate Judge, while her
legal conclusions will be reviewed under the more lenient ‘contrary to law’
standard.” Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992), aff'd, 19
F.3d 1432 (6th Cir. 1994). The Court has the absolute authority to “overturn any

conclusions of law which contradict or ignore applicable precepts of law, as found

Case No. 2:18-cv-107 Page 4 of 8


directed at the only claim explicitly discussed in the motion—i.e. the False Claims
Act claim.

Bolstering the DOE’s interpretation of the motion is the original Complaint
itself. Counts | and II of the Complaint, which addressed the False Claims Act
claims, do not allege any misconduct by the DOE that would have made it a
Defendant under those claims. Compl. 8, ECF No. 1. Indeed, paragraph 46
under Count II alleges that false records and statements were used “to get the
false or fraudulent claims paid or approved by the United States Government . . .
.” Id. 46. This is consistent with the Government being a False Claims Act
plaintiff, not defendant. If the DOE was never a False Claims Act Defendant, it
stands to reason Plaintiff could not have intended to dismiss a False Claims Act
claim against the DOE.

But the language of the proposed order directly undercuts this reasoning.
The proposed order submitted by Plaintiff, and approved by the AUSA, stated
that the FCA claim was dismissed with prejudice as to the “United States
Department of Education . . . as a defendant.” Proposed Order 2, ECF No. 6-1.
Irrespective of whether the DOE was properly named as an FCA defendant in the
original Complaint, it is clear that Plaintiff was referring to such a claim in the
proposed order the only time dismissal with prejudice is mentioned. When the
proposed order discusses non-FCA claims—“all causes of action filed against the
United States and its agencies are hereby dismissed’—it does not mention the

dismissal being with prejudice. /d. As discussed above, this language

Case No. 2:18-cv-107 Page 6 of 8


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Richard Cline,
Plaintiff,
v. Case No.: 2:18-cv-107
Lisa Ann Brancato, et al. Judge Michael H. Watson
Defendants. Magistrate Judge Vascura

OPINION AND ORDER

The United States Department of Education (“DOE”) objects to Magistrate
Judge Vascura’s July 10, 2019 Order, ECF No. 49, denying the DOE’s motion to
correct the record and for relief from order, ECF No. 47. Obj., ECF No. 51. For
the following reasons, the Court OVERRULES the DOE’s objection.

L FACTS

Plaintiff Richard Cline (“Cline”) filed his initial Complaint on February 8,
2018, suing Lisa Ann Brancato (“Brancato”), Emily Cline (“Emily”), the DOE, and
Great Lakes Higher Education Corporation. ECF No. 1. The Complaint brought
claims for False Claims Act (“FCA”) violations, declaratory relief, fraud,
conversion, unjust enrichment, civil conspiracy, violations of certain Ohio
statutes, and violations of the Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. § 1962. Id.


dismissing without prejudice was added at the request of the Government and
was explicitly intended to address the declaratory judgment claim against the
DOE. May 8, 2018 email, ECF No. 54-2. The Government could have
requested dismissal of the declaratory judgment claim with prejudice but failed to
do so.

The language of Magistrate Judge Vascura’s order granting the motion to
amend was even clearer. That order dismissed only the FCA claim and stated
that “alll other parties and claims are unaffected by this Order.” Order 1-2, ECF
No. 7. Her order did not even include the requested language dismissing other
causes of action against the United States.

The DOE tries to demonstrate that Magistrate Judge Vascura’s reading of
the motion to amend and proposed order are “contrary to law” or “clearly
erroneous.” But pointing to ambiguity in the phrase “that cause of action” in the
motion to amend and suggesting that the proposed order contained “confusing
language” falls well short of the required showing. Even if this Court were
reviewing Magistrate Judge Vascura’s order de novo, it would likely reach the
same conclusion she did and find that Plaintiff dismissed his declaratory
judgment claim against the DOE without prejudice. But her order certainly was
not “contrary to law” or “clearly erroneous.”

CONCLUSION
For these reasons, the DOE’s objection to Magistrate Judge Vascura’s

Order, ECF No. 51, is OVERRULED. Because Plaintiffs declaratory judgment

Case No. 2:18-cv-107 Page 7 of &


On February 20, 2018, Plaintiff amended his Complaint as a matter of
course under Federal Rule of Civil Procedure 15(a)(1). ECF No. 4. The
Amended Complaint dropped the DOE as a defendant but brought the same
claims against the remaining parties. /d.

On May 9, 2018, Plaintiff moved for leave to file a second amended
complaint. ECF No. 6. The motion stated that “[t]he proposed Second Amended
Complaint dismisses the Federal False Claims Act claim and, accordingly, the
United States of America as Plaintiff.” /d. at 1. The memorandum in support of
the motion to amend stated that Plaintiff sought leave to amend “to dismiss the
United States of America as a party, and to dismiss the claim against Defendants
for violations of the False Claims Act.” /d. at 2. Plaintiff also stated the following:

The United States consents to this Motion, as required by 31 U.S.C.

§ 3730(b), to the extent it seeks dismissal of the case under the False

Claims Act. As to naming the United States Department of Education

as a Defendant in the initial Complaint, that cause of action is to be

dismissed with prejudice. All other parties and claims shall remain

unaffected.
Id. at 2-3.

Along with the motion to amend, Plaintiff submitted a proposed order that
had been reviewed and modified by an Assistant United States Attorney
(‘AUSA’). See Plaintiffs Resp. 3, ECF No. 54; see also Exs. 1 and 2, ECF Nos.
54-1 and 54-2. As part of that review process, the AUSA stated that he “realized

the U.S. was named as a defendant in the Declaratory Judgment cause of

action” and suggested the following language be added to the proposed order:

Case No. 2:18-cv-107 Page 2 of 8


“all causes of action filed against the United States and its agencies are hereby
dismissed.” Ex. 2, ECF No. 54-2. That language was included in the proposed
order, resulting in the following language as it relates to claims against the DOE:
[Ajll causes of action filed against the United States and its agencies
are hereby dismissed. The count asserting a Federal False Claims
Act claim is dismissed as follows: The United States Department of
Education is dismissed as a defendant with prejudice; the United
States of America as a co-plaintiff is dismissed without prejudice . . . .
All other parties and claims remain unaffected by this Order.
ECF No. 6-1.
Magistrate Judge Vascura did not enter the proposed order exactly as
written. Her order stated the following with respect to the dismissal of claims:
[T]he Federal False Claims Act claim is dismissed as follows: the
United States Department of Education is dismissed with prejudice;
the United States of America as a co-plaintiff is dismissed without
prejudice; and the Federal False Claims Act claim is dismissed
without prejudice as to all other parties. All other parties and claims
are unaffected by this Order.
ECF No. 7.
Plaintiff later moved to amend his Complaint a third time on September 18,
2018, to add back the DOE as a defendant. ECF No. 23. The Court granted
Plaintiffs motion, and the Clerk was directed to file Plaintiff's third amended
complaint. ECF No. 28. The DOE never responded to the Third Amended
Complaint, so Plaintiff moved for default judgment against the DOE. ECF No.
45. The DOE responded to Plaintiff's motion for default judgment, ECF No. 46,
and moved to amend/correct the record and for relief from the order, ECF No. 47.
In both filings, the DOE argues that all claims against it in this case were

Case No. 2:18-cv-107 Page 3 of 8