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Click here for the full text of this decision FACTS:The unnamed plaintiff filed a qui tam proceeding against an unnamed corporation in May 2000. The complaint and the identities of both parties have been sealed. In August 2002, the U.S. government notified the district court that it would not intervene. Also at this time, the district court ordered that the complaint and the government’s notice be unsealed and served on the corporation. For the next 21 months, however, the plaintiff did not serve the documents, did not file any motions or pleadings, and did not take any other action on the case. In May 2004, the government told the corporation of the qui tam suit’s existence. The corporation filed a motion to dismiss in July 2004. The corporation asked that the suit be dismissed for failure to plead the qui tam claims with particularity or, alternatively, for failure to prosecute from August 2002 to May 2004. In August 2004, the district court dismissed the claim for failure to prosecute. Initially the district court did not specify if it was dismissing with or without prejudice, but then the district court ruled that the case should be dismissed without prejudice. On appeal, the plaintiff argues that because some of his claims will now be time barred, the dismissal without prejudice should be reviewed more stringently, as if it were a dismissal with prejudice. HOLDING:Affirmed. The court first notes that some of the plaintiff’s claims are not time-barred and that the plaintiff will be able to re-file those claims. The court agrees to review the claims that will be time-barred as claims dismissed with prejudice. The court rejects the plaintiff’s argument, however, that to affirm a dismissal with prejudice, there must be some aggravating factor present. Though aggravating factors must usually be found, they don’t always need to be found, the court states. The presence of a set of requisite factors is all that is absolutely required. Even if aggravating factors were necessary, there are at least two in the case: 1. actual prejudice to the corporation, which was denied the opportunity over the 21-month delay to collect and preserve evidence; and 2. the intentional nature of the delay, because a nearly 600-day delay is not “simple inadvertence.” The court rebuffs the plaintiff’s attempts to blame his attorney for the delay. The court first notes that after the two-year delay in getting the U.S. government to intervene, the plaintiff retained new counsel and the burden lay with him to prosecute the case. “One does not have to be legally sophisticated to understand if he is the only plaintiff in the case and does not hear from his attorney for almost two years, his case is not being diligently prosecuted.” The court then goes over the set of “requisite factors that must be present before a dismissal with prejudice can be affirmed: (1) there is a clear record of delay (almost two years); and (2) the greater seriousness of delay between filing and service of process than in periods of delay after service. A less severe sanction for dismissal would not serve the interests of justice. “There is no need for the district court expressly to determine that lesser sanctions would not prompt diligent prosecution when this court has determined that it is precisely such prosecution that the statute of limitations is meant to stop. If the statute has run, a potential defendant that has not been served is entitled to expect that it will no longer have to defend the claim.” OPINION:Smith, J. DISSENT:Garza, J.. “I respectfully dissent from that part of the majority’s opinion affirming the dismissal of those claims that would be barred by the statute of limitations. It is well-established that a dismissal with prejudice is”an extreme sanction that deprives a litigant of the opportunity to pursue his claim.’ . . . In this case, the district court did not consider or employ lesser sanctions.”

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