United States Ex Rel. Charte v. Am. Tutor, Inc.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 18-1979
_______________

UNITED STATES OF AMERICA, ex rel.
JEAN CHARTE

v.

AMERICAN TUTOR, INC.; JAMES WEGELER, JR.;
JAMES WEGELER, SR.; SEAN WEGELER

Jean Charte,
Appellant
______________

Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-10-cv-03318)
District Judge: Hon. Anne E. Thompson
______________

Argued January 15, 2019
________
Before: AMBRO, HARDIMAN, and FUENTES, Circuit
Judges.

(Opinion Filed: August 12, 2019
Sean F. Byrnes, Esq. [Argued]
Byrnes O’Hern & Heugle
28 Leroy Place
Red Bank, NJ 07701

Counsel for Appellant

Michael F. Bevacqua, Jr., Esq. [Argued]
Brian M. Block, Esq.
Mandelbaum Salsburg
3 Becker Farm Road
Suite 105
Roseland, NJ 07068

Counsel for Appellees

______________

OPINION OF THE COURT
______________

FUENTES, Circuit Judge.

Jean Charte was sued by her former employers in New
Jersey state court for defamation, tortious interference with
advantageous economic relations, and product disparagement.
While that lawsuit was pending, Charte brought this qui tam1

1
“Qui tam is short for the Latin phrase qui tam pro domino
rege quam pro se ipso in hac parte sequitur, which means
‘who pursues this action on our Lord the King’s behalf as
well as his own.’” Vt. Agency of Natural Res. v. United States
ex rel. Stevens, 529 U.S. 765, 769 n.1 (2000). Under the False

2
action against her former employers on behalf of the United
States and the State of New Jersey. As required by the False
Claims Act, the qui tam action was filed under seal and
remained under seal while the United States Government
investigated the allegations and decided whether to intervene
in the action.2

The qui tam action remained under seal for over seven
years, as the Government considered whether to intervene.3
During this lengthy seal period, the state court action was
dismissed without prejudice after the parties entered into a
settlement agreement. Five years later, the Government chose
not to intervene in the qui tam action, and the District Court
unsealed the complaint.4 Accordingly, pursuant to the False
Claims Act, Charte proceeded with the qui tam action against
her former employers.5

Claims Act, “a private person, known as a relator, may bring
a qui tam civil action ‘for the person and for the United States
Government’ against the alleged false claimant, ‘in the name
of the Government.’” Cochise Consultancy, Inc. v. United
States ex rel. Hunt, 139 S. Ct. 1507, 1510 (2019) (quoting 31
U.S.C. § 3730(b)(1)).
2
See 31 U.S.C. § 3730(b)(2) (providing that complaints filed
by private persons must “be filed in camera” and “remain
under seal for at least 60 days”).
3
See id. § 3730(b)(3) (stating that the Government “may, for
good cause shown, move the court for extensions” of the
sixty-day seal period).
4
See id. § 3730(b)(4)(B).
5
See id. § 3730(c)(3).

3
 At the summary judgment stage, the District Court
found that the qui tam action was barred by New Jersey’s
equitable entire controversy doctrine and effectively
dismissed the complaint. We disagree and conclude that the
entire controversy doctrine is inapplicable. For the following
reasons, we will vacate the judgment of the District Court and
remand for further proceedings.

I.

From July 2005 until her termination in September
2007, Jean Charte was employed by American Tutor, Inc.
(“American Tutor”), a family-owned corporation that
provides tutoring services to school districts in New Jersey
and other states. Charte initially worked as a tutor in the
Asbury Park School District. The following year, in July
2006, she became a regional district manager. As District
Manager, Charte supervised the tutoring services provided by
American Tutor to several school districts in New Jersey.

During her time as District Manager, Charte became
aware of American Tutor’s questionable billing and recruiting
practices. In the summer of 2007, she began to express her
concerns to James M. Wegeler6 and Sean Wegeler, brothers
who served as officers of American Tutor. That fall, in
September 2007, Charte was terminated. Thereafter, Charte
contacted the New Jersey Department of Education and the
United States Department of Education, among others, and
informed them about the practices she had observed while
employed by American Tutor.

6
James M. Wegeler was improperly plead in the qui tam
action as “James Wegeler, Jr.” Wegeler Decl. ¶ 1, JA 98.

4
 A. The State Court Action

Nearly one year after Charte’s termination, Jim
Wegeler, the owner of American Tutor, his son James M.
Wegeler,7 and American Tutor filed a complaint in the
Superior Court of New Jersey against Charte and her new
employers. The complaint asserted three tort claims against
Charte: defamation, tortious interference with advantageous
economic relations, and product disparagement.8 It alleged,
inter alia, that, after her termination, Charte made “false and
defamatory statements to third parties” about Jim Wegeler,
his son James M. Wegeler, and American Tutor, “including
but not limited to allegations of illegal and unethical business
practices.”9 The third parties were identified as American
Tutor’s business competitors, American Tutor’s clients,
school district officials, New Jersey Department of Education
officials, and United States Department of Education
officials.

In January 2009, Charte answered the complaint and
asserted several counterclaims, including one for defamation.
Over three and a half years later, all parties in the state court
action signed an “Agreement Regarding Terms of

7
James M. Wegeler was also improperly plead in the state
court action as “James Wegeler, Jr.” Id. at ¶ 2, JA 98.
8
The complaint asserted the following claims against
Charte’s new employers: negligent hiring, negligent retention,
and negligent supervision. The complaint also sought to hold
the new employers liable for Charte’s tortious conduct on a
theory of respondeat superior.
9
JA 26.

5
Dismissal.”10 Under the agreement, Charte and her former
employers agreed to dismiss, without prejudice, all claims
and counterclaims asserted in the state court action. The next
month, in August 2012, the Superior Court of New Jersey
dismissed the case pursuant to the agreement.

B. The Federal Qui Tam Action

While the state court litigation was ongoing, in June
2010, Charte filed this qui tam action in the District Court
against Jim Wegeler, his sons James M. and Sean Wegeler,
and American Tutor. She alleged that her former employers
violated both the New Jersey and federal False Claims Acts11
by, inter alia, submitting false claims to local school districts
in New Jersey for reimbursement of tutoring services.12 In
particular, American Tutor allegedly submitted invoices for
payment of “tutoring services that were never received by

10
Id. at 67.
11
See 31 U.S.C. § 3729(a)(1); N.J. Stat. Ann. § 2A:32C-3.
12
Under Title I of the Elementary and Secondary Education
Act of 1965, the federal Government provides funding to
States for supplemental educational services such as tutoring.
See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 638
n.22 (2012) (Ginsburg, J., concurring in part and dissenting in
part) (“Title I of the Elementary and Secondary Education
Act of 1965 provided federal grants to finance supplemental
educational programs in school districts with high
concentrations of children from low-income families.”).
States then disburse the federal funding through local boards
of education. New Jersey and its local school districts
received Title I funding for the purpose of providing
supplemental educational services.

6
students” by billing “for students who were absent from
tutoring services,” and also billing “in numbers in excess of
actual students participating” in the tutoring services.13
Moreover, according to the complaint, the Wegelers
“authorized and ratified” the alleged violations of the False
Claims Acts.14

In accordance with the requirements of the Acts, the
qui tam action was filed under seal and remained sealed while
the Government investigated Charte’s claims.15 During this
seal period, Charte could not disclose the existence of the qui
tam action. As a result, Charte’s former employers were
unaware that they held two simultaneous roles in different
forums: they were plaintiffs in state court and defendants in
federal court. It was during this mandatory seal period that the
state court action was settled and dismissed.

The qui tam action stayed under seal for over seven
years—until October 2017,16 when the District Court

13
JA 54.
14
Id. at 55, 57.
15
See 31 U.S.C. § 3730(b)(2); N.J. Stat. Ann. § 2A:32C-5(c);
see also United States ex rel. Grupp v. DHL Express (USA),
Inc., 742 F.3d 51, 54 (2d Cir. 2014) (citing United States ex
rel. Pilon v. Martin Marietta Corp., 60 F.3d 995, 998–99 (2d
Cir. 1995)) (explaining that “[t]he purpose of the sealing
provisions is to allow the government time to investigate the
alleged false claim and to prevent qui tam plaintiffs from
alerting a putative defendant to possible investigations”).
16
The seal period was so long because Charte consented to
(and the Court approved) the Government’s repeated requests

7
to extend the initial sixty-day seal period. See 31 U.S.C.
§ 3730(b)(3).

Our dissenting colleague thus correctly notes that
American Tutor “spent seven years in the dark about Charte’s
qui tam claim.” Dissent Op. 3-4. We nevertheless emphasize
that the Government, not Charte, is largely responsible for the
length of this case. Notwithstanding Charte’s consent to some
extensions, most of the seven-year period is directly
attributable to the Government. After the District Court gave
the Government until February 1, 2013 to decide whether it
would intervene, the Government sought, and received,
extensions from the Court, this time without Charte’s consent.
It was not until four and a half years passed, and Charte’s
motion urging the Government to act, that the Government
finally decided not to intervene and the District Court could
therefore unseal the complaint.

We note that during the seal period, in June 2016, the
Government brought criminal charges against Jim Wegeler,
alleging tax evasion, in violation of 26 U.S.C. § 7201, and tax
fraud, in violation of 26 U.S.C. § 7206(2). After Wegeler pled
guilty to one count of tax evasion and one count of tax fraud,
Charte filed a “Motion to Intervene in the Criminal
Proceedings for a Limited Reason and for a Relator’s Share
Award” in the criminal matter and the qui tam action before
us. JA 20. The District Court denied the motion. Charte’s
consolidated appeal of that denial is currently pending before
our Court.

8
unsealed the complaint after being notified by the
Government of its decision not to intervene.17 As a result,
Charte proceeded as the qui tam relator and served the
complaint on American Tutor.18

In February 2018, American Tutor moved for
summary judgment. The next month, pursuant to its unsealing
order, the District Court requested the Government’s input
before ruling on the motion. The Government did not oppose
dismissal of the action “should the Court determine that such
dismissal is appropriate under the law, so long as such
dismissal is without prejudice” to the Government.19

The District Court granted summary judgment to
American Tutor in April 2018. Describing Charte as
“engag[ing] in just the kind of litigation gamesmanship the
entire controversy doctrine is designed to prevent,” the Court
found that, given the circumstances, it was “fundamentally

17
Notwithstanding Charte’s allegations under the New Jersey
False Claims Act, the record does not address whether the
Attorney General of the State of New Jersey also declined to
intervene. See N.J. Stat. Ann. § 2A:32C-5(d) (requiring the
Attorney General to be served with, inter alia, a copy of the
complaint); id. § 2A:32C-5(g) (requiring the Attorney
General to “file a pleading with the court” indicating whether
he wishes to intervene in the qui tam action).
18
See 31 U.S.C. §§ 3730(b)(2), (c)(3). For the sake of brevity,
in discussing the qui tam action, we will only refer to
defendant American Tutor.
19
JA 124.

9
fair” to apply the entire controversy doctrine and thus bar the
qui tam action.20 Charte now appeals that decision.21

II.

Before addressing the merits of this appeal, we will
discuss the statutory background of the False Claims Act and
the principles underlying the entire controversy doctrine.22

A.

The False Claims Act imposes civil liability on anyone
who “knowingly presents . . . a false or fraudulent claim for
payment or approval” to the United States Government.23
Under the Act, “a private person (the relator) may bring a qui
tam civil action ‘for the person and for the United States
Government’ against the alleged false claimant, ‘in the name
of the Government.’”24 Thus, “[t]he relator’s right to recovery

20
Id. at 16.
21
The District Court had jurisdiction under 28 U.S.C. § 1331
and 31 U.S.C. § 3732. We have jurisdiction over this appeal
under 28 U.S.C. § 1291. We exercise plenary review over a
district court’s application of the entire controversy doctrine.
Ricketti v. Barry, 775 F.3d 611, 613 (3d Cir. 2015).
22
As we previously acknowledged, Charte asserted claims
under both the federal False Claim Act and the New Jersey
False Claims Act. For the sake of brevity, we will focus our
discussion on the federal False Claims Act.
23
31 U.S.C. § 3729(a)(1)(A).
24
Vt. Agency of Natural Res., 529 U.S. at 769 (quoting 31
U.S.C. § 3730(b)(1)). Accordingly, “[t]he Government may
dismiss the action notwithstanding the objections of the

10
exists solely as a mechanism for deterring fraud and returning
funds to the federal treasury.”25

If the Government intervenes, the relator may
“continue as a party to the action,” but the Government has
“the primary responsibility for prosecuting the action.”26 On
the other hand, if the Government declines to intervene, as
occurred here, the relator has “the right to conduct the
action.”27 Notably, notwithstanding its initial decision to not
intervene, the Government may subsequently intervene “upon
a showing of good cause.”28

B.

The entire controversy doctrine is “essentially New
Jersey’s specific, and idiosyncratic, application of traditional

person initiating the action if the person has been notified by
the Government of the filing of the motion and the court has
provided the person with an opportunity for a hearing on the
motion.” 31 U.S.C. § 3730(c)(2)(A). The Government may
also “settle the action with the defendant notwithstanding the
objections of the person initiating the action if the court
determines, after a hearing, that the proposed settlement is
fair, adequate, and reasonable under all the circumstances.”
Id. § 3730(c)(2)(B).
25
James B. Helmer, Jr., False Claims Act: Whistleblower
Litigation 1192 (7th ed. 2017) (footnote omitted).
26
31 U.S.C. § 3730(c)(1).
27
Id. § 3730(c)(3).
28
Id.

11
res judicata principles.”29 The doctrine “embodies the
principle that the adjudication of a legal controversy should
occur in one litigation in only one court; accordingly, all
parties involved in a litigation should at the very least present
in that proceeding all of their claims and defenses that are
related to the underlying controversy.”30 The purposes of the
entire controversy doctrine “are threefold: (1) the need for
complete and final disposition through the avoidance of
piecemeal decisions; (2) fairness to parties to the action and
those with a material interest in the action; and (3) efficiency
and the avoidance of waste and the reduction of delay.”31

In determining whether a claim is barred by the
doctrine, a court’s “central consideration” is whether the
claim “arise[s] from related facts or the same transaction or
series of transactions.”32 “It is the core set of facts that
provides the link between distinct claims against the same or
different parties and triggers the requirement that they be

29
Rycoline Prod., Inc. v. C & W Unlimited, 109 F.3d 883,
886 (3d Cir. 1997).
30
Cogdell by Cogdell v. Hosp. Ctr. at Orange, 560 A.2d
1169, 1172 (N.J. 1989); see Dimitrakopoulos v. Borrus,
Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 203 A.3d
133, 137 (N.J. 2019) (“The entire controversy doctrine ‘seeks
to impel litigants to consolidate their claims arising from a
single controversy whenever possible.’” (quoting Thornton v.
Potamkin Chevrolet, 462 A.2d 133, 134 (N.J. 1983))).
31
DiTrolio v. Antiles, 662 A.2d 494, 502 (N.J. 1995); see
Dimitrakopoulos, 203 A.3d at 143; Wadeer v. N.J. Mfrs. Ins.
Co., 110 A.3d 19, 27 (N.J. 2015); Cogdell, 560 A.2d at 1173.
32
DiTrolio, 662 A.2d at 502.

12
determined in one proceeding.”33 Additionally, the entire
controversy doctrine applies “only when a prior action based
on the same transactional facts has been tried to judgment or
settled.”34

However, the doctrine is “constrained by principles of
equity.”35 It remains an equitable rule of preclusion “whose
application is left to judicial discretion based on the factual
circumstances of individual cases.”36 Accordingly, the entire
controversy doctrine’s equitable nature “bars its application
where to do so would be unfair in the totality of the
circumstances and would not promote any of its objectives,
namely, the promotion of conclusive determinations, party
fairness, and judicial economy and efficiency.”37

III.

With the foregoing statutory and equitable framework
in mind, we now turn our attention to this case. Here, the
factual-nexus requirement of the entire controversy doctrine

33
Id.
34
Arena v. Borough of Jamesburg, 706 A.2d 790, 792 (N.J.
Super. Ct. App. Div. 1998).
35
Dimitrakopoulos, 203 A.3d at 138.
36
Highland Lakes Country Club & Cmty. Ass’n v. Nicastro,
988 A.2d 90, 91 (N.J. 2009) (quoting Oliver v. Ambrose, 705
A.2d 742, 748 (N.J. 1998)).
37
Pressler & Verniero, Current N.J. Court Rules, cmt. 3.2 on
R. 4:30A (2019); see also Wadeer, 110 A.3d at 27 (“In
considering whether application of the doctrine is fair, courts
should consider fairness to the court system as a whole, as
well as to all parties.”).

13
is satisfied; the state court action and the qui tam action both
relate to American Tutor’s allegedly fraudulent billing
practices.38 Nonetheless, considering the totality of the
circumstances, we hold that the entire controversy doctrine
does not apply to the instant qui tam claims.

To reiterate, we must determine the preclusive effect
of the resolution of state tort litigation on a qui tam action that
was filed while the state action was pending. For three
reasons, we are persuaded that preclusion would be unfair to
both Charte as the named-party-relator and the Government
as the real party in interest.39

First, qui tam claims belong to the Government, not to
relators. Accordingly, the qui tam claims in this case do not

38
At oral argument, Charte’s counsel attempted to distinguish
the facts of the two actions. He asserted that the facts
underlying the state court action relate to post-termination
defamation, while the facts underlying the qui tam action
relate to pre-termination events. We are not persuaded by this
argument. Moreover, in briefing before the District Court in
support of a motion to lift the seal and consolidate the actions,
Charte asserted that the two actions “deal with the same set of
operative facts.” D.C. No. 3-10-cv-03318, ECF No. 7-2 at 1.
She explained that her claims “made . . . as a relator for the
United States are the same claims that American Tutor alleges
to be defamatory” in the state court action. Id.
39
See United States ex rel. Eisenstein v. City of New York,
556 U.S. 928, 930 (2009) (citing Fed. R. Civ. P. 17(a))
(recognizing that the United States Government “is a ‘real
party in interest’ in a case brought under the [False Claims
Act]”).

14
belong to Charte and did not belong to her when she entered
into the settlement agreement. To apply the entire controversy
doctrine and hold that the settlement agreement precludes this
qui tam action would essentially be to endorse the opposite:
that the qui tam action belonged to Charte and thus, that she
could unilaterally negotiate, settle, and dismiss the qui tam
claims during the Government’s investigatory period. Such a
decision would not only be unfair to the Government’s
interests, it would also conflict with the False Claims Act’s
rule that pending qui tam actions may be voluntarily
dismissed by relators “only if the court and the Attorney
General give written consent to the dismissal and their
reasons for consenting.”40

Second, Charte followed every statutory requirement
that applies to qui tam relators, including filing the qui tam
action under seal and not disclosing its existence until ordered
to do so by the District Court. It would therefore be a Catch-
22 for us to consider her failure to inform American Tutor of
the qui tam action as weighing in favor of application of the
entire controversy doctrine.

Charte tried to litigate this case out in the open. Over
the course of six months and before settling the state court
action, she made two attempts to lift the seal on the qui tam
action. In January 2012, at a point when the case had been
under seal for a year and a half, Charte filed a motion to lift
the seal and consolidate the state court action with the qui tam
action. Three months later, in April 2012, her counsel sent a
letter (1) reiterating the request, (2) emphasizing that time
was of the essence because American Tutor had moved for

40
31 U.S.C. § 3730(b)(1).

15
summary judgment in the state court action, and (3) stressing
that the seal meant Charte could “make no mention of the
pending qui tam case.”41 Charte’s hands were tied. It was not
until August 2012—over six months after the motion to lift
the seal was filed—that the District Court denied the motion.
Although Charte settled the state court action before the
District Court ruled on her motion to lift the seal and
consolidate, the procedural history of the qui tam action
shows that she took proactive steps to try and avoid that
situation. Charte was thus not trying to hide the ball.42

Third, and finally, application of the entire controversy
doctrine to this case, where the relator was the defendant in a
previously filed private suit, would incentivize potential False
Claims Act defendants to “smoke out” qui tam actions by
suing potential relators and then quickly settling those private
claims with the sole purpose of subsequently relying on that
settlement to bar a qui tam action.43 We decline to give

41
JA 65.
42
We thus respectfully disagree with our dissenting
colleague’s conclusion that the District Court’s finding that
Charte had engaged in litigation gamesmanship “is supported
by the record.” Dissent Op. 2.
43
Cf. United States ex rel. Longhi v. Lithium Power Techs.,
Inc., 575 F.3d 458, 474 (5th Cir. 2009) (recognizing the
public policy objectives of the False Claims Act and
disapproving of possible False Claims Act defendants who
“insulate themselves from the reach of the [False Claims Act]
by simply forcing potential relators to sign general
agreements invoking release and indemnification from future
suit”).

16
potential defendants a path toward immunizing themselves
against False Claims Act liability.

Fairness thus requires that Charte have the opportunity
to pursue this qui tam action on behalf of the Government.

IV.

According to American Tutor, fairness favors
preclusion here because Charte could have, and therefore
should have, brought the qui tam action as a counterclaim in
state court. We disagree.

As a preliminary matter, we agree with American
Tutor that state courts have concurrent jurisdiction over
claims brought under the federal False Claims Act. The
statutory language provides that a claim under the Act “may
be brought in any judicial district” where a defendant “resides
[or], transacts business, or in which any act proscribed by
section 3729 occurred.”44 We read the broad term “judicial
district” to include state courts.45 As a result, Charte could
have filed the qui tam action in state court.

44
31 U.S.C. § 3732(a).
45
Compare id. (broadly stating that “[a]ny action . . . may be
brought in any judicial district”) with id. § 3732(b) (stating
that “[t]he district courts shall have jurisdiction” over certain
cases) (emphases added). See United States ex rel. Paul v.
Parsons, Brinkerhoff, Quade & Douglas, Inc., 860 F. Supp.
370, 375 (S.D. Tex. 1994) (concluding that “pursuant to the
language of the statute, there is concurrent jurisdiction
between the federal and state courts”).

17
 However, we are not persuaded that she had to bring
the qui tam claims in state court. Charte’s decision to file
instead the claims in federal court is not the “deliberate
manipulation and forum shopping” of a party who (i) brought
a counterclaim in another state, only to (ii) voluntarily
dismiss the counterclaim, and (iii) bring the same claim anew
in New Jersey.46 Charte never brought the qui tam claims in
the state forum, never voluntarily dismissed the claims, and
never traveled to a different state to re-litigate the claims.

American Tutor’s argument to the contrary ignores a
crucial aspect of qui tam litigation: qui tam claims must
remain under seal until the Government decides whether it
will intervene.47 This rule applies in both state and federal
courts. Therefore, even if Charte had filed her qui tam claims
as counterclaims in the state action, American Tutor would
have still been unaware of them.48

46
J-M Mfg. Co. v. Phillips & Cohen, LLP, 129 A.3d 342, 350
(N.J. Super. Ct. App. Div. 2015) (discussing Archbrook
Laguna, LLC v. Marsh, 997 A.2d 1035 (N.J. Super. Ct. App.
Div. 2010)).
47
See 31 U.S.C. §§ 3730(b)(2), (b)(4); see also N.J. Stat.
Ann. §§ 2A:32C-5(c), (g).
48
Our dissenting colleague emphasizes that “Charte never
alerted the state court . . . to her qui tam claim.” Dissent Op.
2. This is true. Charte neither filed the qui tam action in state
court nor informed the state court that she had filed the action
in federal court. Nevertheless, had Charte filed the qui tam
action as a counterclaim in state court, American Tutor would
have remained unaware. Additionally, telling the state court
about the existence of the federal qui tam would have violated
the seal, possibly resulting in (1) dismissal, attorney

18
 V.

For the foregoing reasons, we vacate the District
Court’s grant of summary judgment in favor of American
Tutor, and remand for further proceedings.

discipline, or monetary penalties, see State Farm Fire & Cas.
Co. v. United States ex rel. Rigsby, 137 S. Ct. 436, 444
(2016), and (2) prejudice to the Government by alerting
American Tutor of the pending federal investigation.

19
HARDIMAN, Circuit Judge, dissenting.

The entire controversy doctrine is New Jersey’s
“extremely robust claim preclusion device that requires
adversaries to join all possible claims stemming from an event
or series of events in one suit.” Paramount Aviation Corp. v.
Agusta, 178 F.3d 132, 135 (3d Cir. 1999). As my colleagues
acknowledge, all of the doctrine’s requirements are met in this
case. They nevertheless give Appellant Jean Charte a second
bite at the apple because of “fairness.” I agree that fairness is
central to the doctrine, see Crispin v. Volkswagenwerk, A.G.,
476 A.2d 250, 253 (N.J. 1984), but that equitable notion is a
two-way street and I think the Defendants—who thought they
were settling their dispute with Charte—are entitled to repose
in this lawsuit. I would affirm the District Court’s order.

Central to my evaluation of this appeal is an important
finding by the District Court. After giving due consideration to
all the facts and procedural history of the case, the trial judge
found that by purporting to settle all disputes with Defendants
and then seeking to activate this qui tam action, Charte had
engaged in gamesmanship. United States ex rel. Charte v. Am.
Tutor, Inc., 2018 WL 1960448, at *7 (D.N.J. Apr. 26, 2018). I
would give that finding the respect it is due. Institutional
competence is especially important here, because application
of the entire controversy doctrine is “discretionary and
clarification of the limits of the doctrine is best left to case-by-
case determination.” Rycoline Prod., Inc. v. C & W Unlimited,
109 F.3d 883, 886 (3d Cir. 1997) (quoting Circle Chevrolet Co.
v. Giordano, Halleran & Ciesla, 662 A.2d 509, 513 (N.J.
1995)). And the District Court’s finding is supported by the
record. Charte waited until she had filed her federal qui tam

1
suit to make futile requests to “consolidate” the state and
federal actions. Charte, 2018 WL 1960448, at *1. Then she
settled in state court before the District Court had a chance to
rule.

Most significantly, Charte never alerted the state
court—the court that everyone but she believed was overseeing
the entire controversy—to her qui tam claim. Perhaps litigating
her qui tam claim in the state proceeding would’ve been
impractical. Perhaps she believed the state court lacked
jurisdiction (as the Majority holds today, it did not). But those
considerations were for the court, not Charte, to weigh. See
Petrocelli v. Daniel Woodhead Co., 993 F.2d 27, 31 (3d Cir.
1993). Charte’s “failure to allow the trial court the opportunity
to manage the full controversy at the outset,” DiTrolio v.
Antiles, 662 A.2d 494, 506 (N.J. 1995), saps her
impracticability argument of force and suggests strategic
behavior.1

1
The Majority contends that, by virtue of the seal, the
Defendants would have been unaware of Charte’s qui tam
claim regardless whether she filed in state court or federal
court. That is true as far as it goes. But alerting the state court
ex parte (before filing in either federal or state court) would
have given it the opportunity to ensure a fair adjudication of
the entire controversy. Cf. Gelber v. Zito P’ship, 688 A.2d
1044, 1046 (N.J. 1997) (“Quite aside from joinder of the
controversies in either the arbitral or judicial forum, a trial
court, once informed of related actions, can employ various
procedural tools to prevent excessively complicated or unfair
litigation.”). For example, the court might have required the
Government to make its intervention decision sooner.

2
 The Majority argues that Charte “followed every
statutory requirement that applies to qui tam relators,” so it
would be unfair to apply the entire controversy doctrine. Maj.
Op. 15. But state court judgments “may well deprive plaintiffs
of the ‘right’ to have their federal claims relitigated in federal
court.” San Remo Hotel, L.P. v. City & Cty. of San Francisco,
545 U.S. 323, 342 (2005). Charte’s right to litigate her qui tam
suit in federal court does not imply a right to settle the same
controversy in state court while evading normal preclusion
principles.

The Majority emphasizes that holding Charte precluded
would be “unfair to the Government’s interests.” Maj. Op. 15;
see id. at 17. Yet the Government consented to the District
Court’s disposition of this case and the Government is in the
best position to decide whether Charte’s suit would or would
not vindicate its interests. And, contrary to the Majority’s view,
Maj. Op. 14–15, there is little reason to think the Government
would be precluded by the entire controversy doctrine just
because Charte is. See Cogdell by Cogdell v. Hosp. Ctr. at
Orange, 560 A.2d 1169, 1174 (N.J. 1989) (the entire
controversy doctrine “tries foremost to protect an absent
person from an adjudication of his or her interests”); cf. United
States ex rel. Vaughn v. United Biologics, L.L.C., 907 F.3d 187,
194 (5th Cir. 2018) (“[T]he Government should not be bound
if the dismissal is for reasons not tied to the underlying legal
merit.”).

For all the procedural brainteasers qui tam preclusion
might offer in other cases, this case is straightforward. The
Defendants spent seven years in the dark about Charte’s qui

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tam claim.2 For five of those years, they thought this dispute
was behind them. Charte kept the state court in the dark too.
The Supreme Court has observed of statutes of limitations that
their “conclusive effects are designed to promote justice by
preventing surprises through the revival of claims that have
been allowed to slumber until evidence has been lost,
memories have faded, and witnesses have disappeared . . . .
[T]he right to be free of stale claims in time comes to prevail
over the right to prosecute them.” Order of R.R. Telegraphers
v. Ry. Express Agency, 321 U.S. 342, 348–49 (1944). Fairness
dictates the application of that same principle here.

* * *

“[A]t some point litigation over the particular
controversy [must] come to an end.” Mystic Isle Dev. Corp. v.
Perskie & Nehmad, 662 A.2d 523, 534 (N.J. 1995) (quoting
Restatement (Second) of Judgments § 19 cmt. a (1982)). For
these litigants, that point has long since passed. With respect, I
dissent.

2
My colleagues correctly note that much of this delay
was attributable to the Government’s requests for extensions,
only some of which Charte consented to. But Charte did not try
to force the Government’s hand until August 2017. I
acknowledge Charte was not in the driver’s seat before the
Government declined to intervene, but it was her decision to
settle with Defendants while holding another claim in reserve.

4