NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA ex rel. 

JEAN CHARTE, et al.,

 Plaintiffs,

 v.

AMERICAN TUTOR, INC., et al.,

 Defendants.

 CIVIL ACTION NO. 10-3318 (MLC)

 O P I N I O N

THE RELATOR in this qui tam action, Jean Charte, moves for, 

inter alia, an Order lifting the stay imposed in this action on 

November 17, 2010. (See dkt. entry no. 7-2, Charte Br. at 4; see 

also dkt. entry no. 6, 11-17-10 Order.) Charte alleges that a

defendant to this action, American Tutor, Inc., has brought an 

action against her and others in the New Jersey Superior Court, 

American Tutor, Inc. v. Charte, SOM-L-1575-08 (“State Court 

Action”). (Charte Br. at 1.) She alleges that the State Court 

Action relates to this action, because it involves the same facts 

and substantially the same issues. (See id.) She further alleges 

that the Office of the United States Attorney (“the Government”) 

has failed to both timely investigate her claims and decide whether 

to intervene on her behalf, and that such failures prejudice her 

ability to proceed with this action. (See id. at 1, 4.)

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THE GOVERNMENT asserts that it “has been diligently 

investigating [Charte’s] allegations but has not yet completed its 

investigation, and thus . . . does not have sufficient information 

at this time to make an informed decision concerning intervention.” 

(Dkt. entry no. 8, Opp’n Br. at 3.) The Government fails, however, 

to explain: (1) how it has “diligently investigat[ed]” Charte’s 

claims; (2) why, after more than two years, it has been unable to 

complete its investigation; and (3) what, if anything, currently 

prevents it from both completing its investigation and deciding 

whether to intervene in this action on Charte’s behalf.1

THE COURT will thus, for good cause appearing, order the 

parties to show cause, through supplemental briefing, why the stay 

should not be lifted. The Government, if responding to the Order 

 1 The Court notes that Charte commenced this action over two 

years ago, on June 30, 2010. The Government has thus already had 

more than twenty-five months to complete its investigation and 

decide whether to intervene in this action on Charte’s behalf.

The Government has a duty to timely and diligently investigate 

all qui tam complaints. See, e.g., United States v. Baker-Lockwood 

Mfg. Co., 138 F.2d 48, 53 (8th Cir. 1943). A judicially imposed 

stay relating to such Government investigation will not, however, 

continue in perpetuity. “If the government fails to intervene in a 

timely manner or fails to show good cause, then the court may 

unseal the file and allow the relator to prosecute the action.” 

United States ex rel. O’Keefe v. McDonnell Douglas Corp., 902 

F.Supp. 189, 192 (E.D. Mo. 1995). The Government may in such 

circumstances still complete its investigation and intervene in the 

action at a later date. See 31 U.S.C. § 3730(c)(3); United States

ex rel. Bauchwitz v. Holloman, 671 F.Supp.2d 674, 684 (E.D. Pa. 

2009); see also United States ex rel. Siller v. Becton, 21 F.3d 

1339, 1344, n.4 (4th Cir. 1994).

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to Show Cause, should address the points enumerated in the 

preceding paragraph in detail.

CHARTE, through the motion, also asks the Court to enter an 

Order: (1) consolidating this action and the State Court Action; 

and (2) barring application of res judicata, collateral estoppel,

and the entire controversy doctrine.

THE COURT will deny the Motion insofar as Charte asks the 

Court to consolidate this action and the State Court Action. The 

Court lacks the power to consolidate federal and state actions. It 

also appears that the State Court Action was settled on July 2, 

2012, insofar as it was raised against Charte. See ACMS Public 

Access, http://njcourts.judiciary.state.nj.us/web1/ACMSPA/entry 

(after accepting the disclaimer and entering the system, click on 

the tab entitled “Locate by Docket”, and search by Case County 

(“Somerset”), Docket Type (“Law”), Docket Number (“1575”), and 

Docket Year (“08”); then click on the hyperlink for “Case 

Disposition Detail”)) (last visited Aug. 3, 2012).

THE COURT will also deny the Motion insofar as Charte asks the 

Court to preclude application of res judicata, collateral estoppel, 

and the entire controversy doctrine. The Court will, however, deny 

that aspect of the Motion without prejudice. Charte may move anew 

for such relief after the stay has been lifted, upon a new notice 

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of motion, filed in accordance with the Federal Rules of Civil 

Procedure and the Local Civil Rules. 

THE COURT, for good cause appearing, will enter an appropriate 

Order.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: August 3, 2012

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