Hagerty Ex Rel. United States v. Cyberonics, Inc. ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 16-1304
    ANDREW HAGERTY, ex rel. UNITED STATES;
    Relator, Appellant,
    STATE OF CALIFORNIA; STATE OF COLORADO; STATE OF CONNECTICUT;
    STATE OF DELAWARE; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF
    HAWAII; STATE OF ILLINOIS; STATE OF INDIANA; STATE OF IOWA;
    STATE OF LOUISIANA; STATE OF MARYLAND; COMMONWEALTH OF
    MASSACHUSETTS; STATE OF MICHIGAN; STATE OF MINNESOTA; STATE OF
    MONTANA; STATE OF NEVADA; STATE OF NEW JERSEY; STATE OF NEW
    MEXICO; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF
    OKLAHOMA; STATE OF RHODE ISLAND; STATE OF TENNESSEE; STATE OF
    TEXAS; COMMONWEALTH OF VIRGINIA; STATE OF WASHINGTON; STATE OF
    WISCONSIN; DISTRICT OF COLUMBIA
    Plaintiffs,
    v.
    CYBERONICS, INC.,
    Defendant, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. F. Dennis Saylor, IV, U.S. District Judge]
    Before
    Barron, Selya, and Stahl,
    Circuit Judges.
    Joseph S. Hall, with whom Silvija A. Strikis, Katherine C.
    Cooper, Rachel Proctor May, Kellogg, Huber, Hanson, Todd, Evans &
    Figel, P.L.L.C., Suzanne E. Durrell, Durrell Law Office, Robert M.
    Thomas, Jr., and Thomas & Associates were on brief, for appellant.
    William M. Katz, Jr., with whom Melissa Michelle Davis, J.
    Patrict Bredehoft, Richard B. Phillips, Thompson & Knight LLP,
    Timothy H. Madden, and Donnelly, Conroy & Gelhaar LLP were on
    brief, for appellee.
    December 16, 2016
    STAHL, Circuit Judge.      Relator-Appellant Andrew Hagerty
    ("Hagerty") brought a qui tam action against Appellee Cyberonics,
    Inc. ("Cyberonics") alleging, among other things, that Cyberonics
    violated the False Claims Act ("FCA"), 
    31 U.S.C. § 3729
     et seq.,
    and related state statutes.        Specifically, Hagerty alleged that
    Cyberonics     promoted     medically    unnecessary   replacements     of
    batteries in nerve stimulator devices used to treat epilepsy
    patients, which in turn resulted in patients and medical providers
    filing false claims for reimbursement from government health care
    programs.
    The district court dismissed all but two of Hagerty's
    claims under Federal Rule of Civil Procedure 12(b)(6), including
    the   FCA    allegations,    holding    that   Hagerty's   First   Amended
    Complaint was not pled with the particularity required by Federal
    Rule of Civil Procedure 9(b).1           Following this dismissal, the
    district court also denied Hagerty's request for leave to file a
    Second Amended Complaint on the basis of undue delay.         Hagerty now
    challenges the district court's ruling on both fronts, maintaining
    that his First Amended Complaint satisfies Rule 9(b) and asserting
    1Hagerty's surviving claims against Cyberonics were his
    allegations regarding retaliatory discharge under 
    31 U.S.C. § 3730
    (h) (Count 31) and wrongful termination and retaliation in
    violation of public policy under Mass. Gen. Laws ch. 12, § 5J
    (Count 33). These claims were voluntarily dismissed without
    prejudice and are not on appeal. Hagerty also does not separately
    address the dismissal of his other state law claims in his briefing
    to this court. We similarly decline to do so in our opinion.
    - 3 -
    that the district court abused its discretion when denying his
    motion for leave to file a Second Amended Complaint. After careful
    consideration, we affirm.
    I. Facts & Background
    We recite the relevant facts as they appear in Hagerty's
    First Amended Complaint. See Hochendoner v. Genzyme Corp., 
    823 F.3d 724
    , 730 (1st Cir. 2016).      The Vagus Nerve Stimulator (VNS)
    is a medical device that is implanted in patients with refractory
    epilepsy, a severe form of the disease in which a patient's
    seizures seriously interfere with their quality of life and do not
    respond to other medications or treatment.            The VNS works by
    delivering short electrical pulses to the vagus nerve through a
    wire.   Each VNS system contains a battery, and the entire VNS
    system must be surgically replaced when the battery nears the end
    of its life.
    Patients with refractory epilepsy often qualify for
    coverage under government healthcare programs like Medicare and
    Medicaid.      Some treatments for refractory epilepsy, including
    placement of the VNS, are reimbursed by those programs.            These
    programs impose certain requirements on healthcare providers, such
    as signing a Provider Agreement with the Centers for Medicare and
    Medicaid    Services   ("CMS").    In     these   agreements,   providers
    certify, among other things, that their claims for reimbursement
    - 4 -
    relate to a reasonable and medically necessary treatment.                      42
    U.S.C. § 1395y(a)(1)(A).
    On February 4, 2013, Hagerty filed a qui tam complaint
    under seal against Cyberonics, alleging that it engaged in a
    fraudulent scheme to encourage doctors and patients to prematurely
    and unnecessarily replace batteries in VNS systems.                     Hagerty,
    having gained knowledge of the scheme firsthand as a former sales
    representative of Cyberonics, further alleged that this scheme
    caused    significant    monetary      damages   to   government      healthcare
    programs by inducing patients and medical providers to file false
    claims for reimbursement in violation of 
    31 U.S.C. § 3729
    (a).                  On
    October 29, 2013, the government filed a notice declining to
    intervene in the case, and on December 5, 2013 the complaint was
    unsealed and served on Cyberonics.               Cyberonics then moved to
    dismiss the complaint on April 28, 2014 on several grounds,
    including under Rule 12(b)(6) for failure to state a claim and
    Rule     9(b)   for   failure     to   allege    instances    of     fraud   with
    particularity.
    Hagerty     amended    his   pleadings    and    filed    his    First
    Amended Complaint on May 19, 2014.              The First Amended Complaint
    alleged that in 2005, the FDA approved the VNS as a treatment for
    depression, and, anticipating that much of its future growth would
    come from this market, Cyberonics hired 300 new salespersons.
    Cyberonics then allegedly began lobbying CMS to approve Medicare
    - 5 -
    reimbursement for VNS therapy in depressive patients, which CMS
    ultimately declined to grant.         Facing a dire financial situation2,
    Cyberonics reportedly decided to refocus its sales efforts on
    epilepsy patients, with a particular interest in re-sales to
    already existing VNS patients.
    The First Amended Complaint emphasized that this new
    sales plan was driven by a "carrot and stick" approach, where sales
    representatives      were   rewarded    for   meeting   "aggressive      sales
    quotas," were placed in a Performance Improvement Program if they
    did not achieve 75% of their revenue goals in a given quarter, and
    were terminated the following quarter if their performance did not
    improve.    Hagerty alleged that, under such conditions, Cyberonics'
    sales representatives resorted to fraudulent sales tactics, such
    as refusing to provide doctors and patients with accurate VNS
    battery life calculations and encouraging doctors and patients to
    replace these batteries prematurely.3
    The     First   Amended    Complaint   further     alleged    that
    approximately 50% of Cyberonics' revenue came from Medicare and
    Medicaid,    with    additional   revenues    coming    from   TRICARE,    the
    2 At the time CMS denied its request, Cyberonics was allegedly
    $132.5 million in debt.
    3 Cyberonics employees purportedly represented that these
    batteries should be replaced after four or five years despite their
    average lifespan being between eight and nine years. As a result
    of this new sales tactic, Hagerty alleges that Cyberonics erased
    its debt by 2010 and avoided bankruptcy.
    - 6 -
    Department of Defense, the Department of Veterans Affairs, and the
    Federal Employee Health Benefits Program.              Hagerty went on to list
    sixteen hospitals which he claimed had performed and billed for
    VNS therapy implants in epileptic patients, and specifically named
    the Southbury Training School, Monson Development Center, and
    Wrentham Development Center as "long-term care facilities . . . in
    which vulnerable patients were subjected to unnecessary surgeries
    to implant replacement devices."                The First Amended Complaint
    further identified a Dr. Pena, who had three patients undergo
    battery replacement procedures between September 30, 2010 and
    November    18,    2010.     It   also   identified     a    Dr.   Thompson,   who
    allegedly told Hagerty that a Cyberonics sales representative
    falsely told physicians to replace VNS batteries prematurely.
    Moreover,    the    First    Amended     Complaint     alleged     that    Hagerty
    reviewed an internal patient list and saw that several of Dr.
    Thompson's patients had received VNS device replacements in 2010.
    By    way   of   conclusion,       the   First   Amended      Complaint
    projected that at least 10,000 medically unnecessary VNS device
    replacements had occurred at these hospitals and centers since
    2007.   Coupled with an estimated cost of $20,000 per procedure and
    an   assumption      that    government        healthcare     programs     covered
    approximately 50-60% of these procedures, Hagerty reasoned that
    government healthcare programs lost at least $100 million as a
    result of Cyberonics' scheme.
    - 7 -
    Cyberonics again moved to dismiss the case.            On March
    31, 2015, the district court granted the motion, finding that
    Hagerty   had   not   pled   his    allegations     with   the   requisite
    particularity required by Rule 9(b).          On August 14, 2015, Hagerty
    moved for leave to file a Second Amended Complaint.          Three months
    later, the district court denied Hagerty's motion on the basis of
    undue delay.4   This appeal followed.
    II. Analysis
    Hagerty     insists    that   his    First   Amended   Complaint
    satisfied Rule 9(b)'s particularity requirement and, regardless of
    the district court's view on that matter, that he should have been
    given leave to file a Second Amended Complaint.            We review the
    granting of a motion to dismiss de novo, United States ex rel.
    Gagne v. City of Worcester, 
    565 F.3d 40
    , 45 (1st Cir. 2009), and
    the denial of a motion to amend for abuse of discretion, United
    States ex rel. Kelly v. Novartis Pharms. Corp., 
    827 F.3d 5
    , 10
    (1st Cir. 2016) (citing United States ex rel. Poteet v. Bahler
    Med., Inc., 
    619 F.3d 104
    , 116 (1st Cir. 2010)).
    4 Cyberonics alternatively argues that the district court also
    denied Hagerty's motion because any amendment would have been
    futile. Since, as we will explain, the district court's denial
    was justified under an undue delay analysis, we decline to consider
    the futility of Hagerty's proposed amendments.
    - 8 -
    A. The FCA and Rule 9(b)
    The FCA penalizes those who present, or cause to be
    presented, "false or fraudulent claim[s] for payment or approval"
    to the federal government.             
    31 U.S.C. § 3729
    (a)(1).         Thus, fraud
    under the FCA has two components: the defendant must submit or
    cause the submission of a claim for payment to the government, and
    the claim for payment must itself be false or fraudulent.                    United
    States ex rel. Ge v. Takeda Pharm. Co., 
    737 F.3d 116
    , 124 (1st
    Cir. 2013) ("Because FCA liability attaches only to false claims,
    merely alleging facts related to a defendant's alleged misconduct
    is not enough.         Rather, a complaint based on [the FCA] must
    sufficiently    establish         that    false    claims    were   submitted   for
    government    payment       as    a    result     of   the   defendant's   alleged
    misconduct.") (internal citations omitted).
    Federal       Rule   of     Civil    Procedure    9(b),    meanwhile,
    requires     that      a    complaint       state      these    components      with
    "particularity," meaning relators like Hagerty must allege the
    "who, what, when, where, and how of the alleged fraud."                      
    Id. at 123
     (internal citation and quotation marks omitted).                    Still, we
    have repeatedly emphasized that there is no "checklist of mandatory
    requirements" that each allegation in a complaint must meet to
    satisfy Rule 9(b), United States ex rel. Karvelas v. Melrose-
    Wakefield Hosp., 
    360 F.3d 220
    , 233 (1st Cir. 2004), abrogated on
    other grounds by Gagne, 
    565 F.3d at
    46 n.7, and that a "somewhat
    - 9 -
    'more flexible' standard" applies in qui tam actions where the
    defendant is alleged to have induced third parties to file false
    claims, Kelly, 827 F.3d at 13 (1st Cir. 2016) (quoting United
    States ex rel. Duxbury v. Ortho Biotech Prods., L.P., 
    579 F.3d 13
    ,
    29-30 (1st Cir. 2009)).
    A relator can meet this more accommodating standard by
    "providing 'factual or statistical evidence to strengthen the
    inference    of   fraud    beyond    possibility'      without     necessarily
    providing details as to each false claim."            Ge, 737 F.3d at 123-
    24 (quoting Duxbury, 
    579 F.3d at 29
    ) (emphasis added).                    Such
    evidence generally includes, inter alia, the "'specific medical
    providers who allegedly submitted false claims,' the 'rough time
    periods, locations, and amounts of the claims,' and 'the specific
    government programs to which the claims were made.'"                Kelly, 827
    F.3d at 13 (quoting Ge, 737 F.3d at 121, 124).
    As the district court noted, "the allegations concerning
    [Cyberonics' scheme] are unquestionably adequate to survive a
    motion to dismiss."       United States ex rel. Hagerty v. Cyberonics,
    Inc., 
    95 F. Supp. 3d 240
    , 264 (D. Mass. 2015).             Nonetheless, the
    First   Amended   Complaint's       factual    and    statistical     evidence
    struggles to connect these allegations with the submission of any
    false claims to government programs.
    Hagerty   compares      his   complaint   to   those    we   deemed
    adequate in Duxbury and United States ex rel. Escobar v. Universal
    - 10 -
    Health Servs., Inc., 
    780 F.3d 504
     (1st Cir. 2015), overruled on
    other grounds by 
    136 S. Ct. 1989
     (2016).         In Duxbury, the relator
    alleged that the defendant-company paid kickbacks to eight named
    medical providers, thereby inducing these providers to submit
    false claims for reimbursement to Medicare.           Duxbury, 
    579 F.3d at 30
    .   Despite being a "close call," we held that the complaint
    satisfied Rule 9(b) because "Duxbury ha[d] identified, as to each
    of the eight medical providers (the who), the illegal kickbacks
    (the what), the rough time periods and locations (the where and
    when), and the filing of the false claims themselves."           
    Id.,
     see
    also Ge, 737 F.3d at 124 (noting allegations in Duxbury were
    "barely adequate" under Rule 9(b)).
    Similarly, in Escobar, we concluded that the relator
    satisfied Rule 9(b) by alleging "twenty-seven separate dates on
    which claims were submitted in connection with [care provided by
    unlicensed and unsupervised personnel], each time including the
    relevant billing codes, amount invoiced, and the name of the
    [defendant's] staff member who provided the treatment for which
    reimbursement   was   sought."     780    F.3d   at    515.    Though   the
    allegations concerned claims made in connection with a single
    patient's care, we allowed the complaint's other, more general,
    allegations to proceed because they stemmed from a "systematic
    failure" to enforce licensure and supervision requirements that
    necessarily "infected" other claims with fraud.          Id.
    - 11 -
    The allegations in Hagerty's First Amended Complaint are
    neither as specific as those in Duxbury nor as systematic as those
    in   Escobar.      Despite    referencing    a   long   list     of   healthcare
    providers who performed and billed for VNS replacement surgeries,
    the complaint does not allege whether these providers submitted
    reimbursement      claims    to   the   government   for   unreasonable      and
    medically unnecessary procedures.            Likewise, the complaint does
    not allege how many false claims these providers purportedly
    submitted or how Cyberonics' actions caused their submission.               And
    though   Hagerty    identifies     several   doctors    and    hospitals   with
    patients who had VNS replacement surgeries, he does not allege
    that any government healthcare program covered these patients or
    that any medical provider submitted claims for reimbursement on
    their behalf.
    Similarly, the First Amended Complaint alleged that
    Cyberonics employees tried to contact patients about scheduling
    VNS replacement surgeries without first consulting their doctor.
    The complaint, however, contains no assertion that these efforts
    actually resulted in patients scheduling, doctors performing, or
    government      healthcare    programs     reimbursing     the    contemplated
    surgeries. See Kelly, 827 F.3d at 15 (holding that relators failed
    to tie their allegations of misconduct to "specific fraudulent
    claims for payment"); Ge, 737 F.3d at 124 (rejecting a "per se
    rule that if sufficient allegations of misconduct are made, it
    - 12 -
    necessarily   follows    that   false     claims    and/or   material   false
    information were filed").       Simply put, we cannot infer, based on
    the allegations before us, that Cyberonics' actions "infected"
    other VNS reimbursement claims with fraud.
    The complaint's most specific allegation comes where
    Hagerty states that three healthcare providers, Southbury Training
    School,    Monson   Development   Center,     and    Wrentham   Development
    Center, had patients who were "seriously disabled" and eligible
    for various government healthcare programs, and that the VNS
    replacement surgeries conducted on those patients necessarily
    resulted in the submission of at least some false reimbursement
    claims.    But again, without any allegation that the patients were
    actually    covered     by   government     programs    or    that   certain
    replacement procedures conducted on these patients were medically
    unnecessary, Hagerty has "[a]t most . . . [only] raise[d] facts .
    . . suggest[ing] fraud was possible."5        United States ex rel. Rost
    v. Pfizer, Inc., 
    507 F.3d 720
    , 733 (1st Cir. 2007), overruled on
    other grounds by Allison Engine v. United States ex rel. Sanders,
    
    553 U.S. 662
     (2008).
    5  Only one patient from these facilities is actually
    identified in the complaint: "F.P.," a Medicare-eligible epileptic
    whose VNS device was replaced on May 12, 2010. Paralleling the
    broader problems with Hagerty's allegations, there is no
    indication that F.P. was an actual Medicare recipient, that his
    replacement surgery was unnecessary, or that any false claim was
    submitted on his behalf.
    - 13 -
    Fighting   an     uphill   battle,     Hagerty    supplements    his
    factual allegations with certain statistical allegations which, he
    claims, compel the inference he wants us to recognize.                 First, the
    complaint    alleges    that    a   majority   of    the    patients   receiving
    replacement devices are covered by government healthcare programs
    and that approximately half of Cyberonics' revenues came from these
    programs.     Second, the complaint estimates that there have been
    "over 10,000 medically unnecessary and unreasonable VNS device
    replacements" since 2007 and that patients covered by government
    healthcare    programs       "account    for   at   least     50-60%   of   these
    unnecessary replacements."
    These statements are too broad to be given much weight.
    Hagerty does not allege that any particular patient was actually
    covered by a government program, provides no basis for his estimate
    of 10,000 unnecessary procedures, and does not link Cyberonics'
    revenues to these procedures.           Viewed individually or as a whole,
    Hagerty's "evidence and arguments proceed more by insinuation than
    any factual or statistical evidence that would strengthen the
    inference of fraud beyond possibility."             See Kelly, 827 F.3d at 15
    (internal marks omitted).           Accordingly, we affirm the district
    court's dismissal of Hagerty's First Amended Complaint.
    B. Motion to Amend
    Hagerty also claims that the district court abused its
    discretion when it denied his motion to amend the First Amended
    - 14 -
    Complaint on the basis of undue delay.                Federal Rule of Civil
    Procedure     15(a)    provides   that     a    party       may,   in   certain
    circumstances, amend a pleading without leave of a court.6               In all
    other cases, however, a party may only amend its pleadings with
    the opposing party's written consent or the court's leave.                   Fed.
    R. Civ. P. 15(a)(2).
    Though courts "should freely give leave when justice so
    requires," id., amendments may be denied for several reasons,
    including    "undue    delay,   bad   faith,        dilatory   motive   of    the
    requesting    party,   repeated   failure      to    cure   deficiencies,    and
    futility of amendment,"     Rost, 
    507 F.3d at
    733-34 (citing Foman v.
    Davis, 
    371 U.S. 178
    , 182 (1962)).        As relevant here, undue delay,
    on its own, may be enough to justify denying a motion for leave to
    amend.7   Calderón-Serra v. Wilmington Trust Co., 
    715 F.3d 14
    , 20
    6 A party may amend a pleading once as a matter of course
    within "21 days after serving it," or "if the pleading is one to
    which a responsive pleading is required, 21 days after service of
    a responsive pleading or 21 days after service of a motion under
    Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P.
    15(a)(1).
    7 Hagerty cites to a long list of our decisions, including
    Hayes v. New England Millwork Distribs., Inc., 
    602 F.2d 15
    , 19
    (1st Cir. 1979), and Klunder v. Brown Univ., 
    778 F.3d 24
    , 34 (1st
    Cir. 2015), which, he claims, requires us to also find that the
    delay was prejudicial to the opposing party. Hayes, however, noted
    that "[w]hile courts may not deny an amendment solely because of
    delay and without consideration of the prejudice to the opposing
    party, it is clear that 'undue delay' can be a basis for denial[.]"
    
    602 F.2d at 19
     (internal citations omitted). Similarly, although
    Klunder states that "[i]n reviewing a district court's decision on
    whether or not to grant an amendment, [appellate courts] routinely
    focus [their] analysis on the prejudice to the non-moving party,"
    - 15 -
    (1st Cir. 2013); see also United States ex rel. Wilson v. Bristol-
    Myers Squibb, Inc., 
    750 F.3d 111
    , 119-20 (1st Cir. 2014). In these
    cases, a movant has "[at the very least] the burden of showing
    some valid reason for his neglect and delay."          Perez v. Hosp.
    Damas, Inc., 
    769 F.3d 800
    , 802 (1st Cir. 2014) (quoting In re
    Lombardo, 
    755 F.3d 1
    , 3 (1st Cir. 2014)) (alteration in original).
    In assessing whether a movant has carried this burden, courts must
    take into account "[w]hat the plaintiff knew or should have known
    and what he did or should have done."       Leonard v. Parry, 
    219 F.3d 25
    , 30 (1st Cir. 2000).
    A significant amount of time clearly passed here.      See,
    e.g., In re Lombardo, 755 F.3d at 3-4 (discussing cases that
    imposed on the movant the burden to explain grounds for delay when
    the   delay   was    fourteen,   fifteen,    and   seventeen   months,
    respectively).      The district court aptly summarized Hagerty's
    listless approach toward amending his complaint as follows:
    Hagerty filed his initial complaint on August 8, 2012.
    He filed the present action on February 4, 2013. After
    Cyberonics filed a motion to dismiss, Hagerty amended
    the complaint on May 19, 2014.      Cyberonics moved to
    dismiss the first amended complaint . . . on June 18,
    2014. The Court ruled on that motion on March 31, 2015.
    Hagerty did not move for leave to file a second amended
    complaint until August 14, 2015. That motion was filed
    (1) more than three years after Hagerty filed the initial
    lawsuit; (2) more than two and a half years after he
    filed the initial complaint . . . ; (3) more than
    778 F.3d at 34, its immediate citation to the Hayes language
    identified above signifies that we were referring to delay, not
    undue delay. Id.
    - 16 -
    fourteen months after he filed the first amended
    complaint; (4) more than thirteen months after
    Cyberonics moved to dismiss the first amended complaint;
    and (5) more than four months after the Court's
    memorandum and order on the motion to dismiss.
    United States ex rel. Hagerty v. Cyberonics, Inc., 
    146 F. Supp. 3d 337
    , 343-44 (D. Mass. 2015).
    Hagerty's   proffered   explanations   for   his   delay   are
    twofold.    First, Hagerty argues that the only relevant period of
    delay was the four months after the granting of the motion to
    dismiss and places responsibility for any delay accruing before
    the dismissal squarely on the district court. We can easily reject
    this argument, however, because nothing prevented Hagerty from
    moving for leave to plead any new information once he became aware
    of it.     Where we have excused delay based on the actions of a
    district court, it has been because the district court did not
    promptly deal with a motion to amend, not because the district
    court took its time evaluating a motion to dismiss.       See Farkas v.
    Tex. Instruments, Inc., 
    429 F.2d 849
    , 851 (1st Cir. 1970).        In the
    motion to amend cases, the delay is attributable to the district
    court because the motion evidences the movant's proactive approach
    to addressing known weaknesses in the First Amended Complaint.
    Second, Hagerty maintains that he could not have known
    or anticipated the deficiencies that would form the basis of the
    district court's dismissal of his First Amended Complaint.             He
    specifically contends that unlike in other cases where the amended
    - 17 -
    complaints were dismissed due to the plaintiff's lack of diligence,
    see Acosta-Mestre v. Hilton Intern. of P.R., Inc., 
    156 F.3d 49
    , 53
    (1st Cir. 1998), he has shown "care and attentiveness" towards
    assuaging the district court's concerns about his complaint.             But
    Cyberonics' motion to dismiss, filed in June 2014, put Hagerty on
    notice of the deficiencies in the complaint, and he made no attempt
    to fix these deficiencies until August 2015.                  See Feliciano-
    Hernández v. Pereira-Castillo, 
    663 F.3d 527
    , 538 (1st Cir. 2011)
    (upholding district court's undue delay determination where motion
    to amend was filed "nearly a year after the motion to dismiss was
    filed"); ACA Fin. Guaranty Corp. v. Advest, Inc., 
    512 F.3d 46
    , 57
    (1st   Cir.    2008)    ("Plaintiffs    may   not,    having     the   needed
    information, deliberately wait in the wings . . . with another
    amendment to a complaint should the court hold the first amended
    complaint     was   insufficient.      Such   an   approach    would   impose
    unnecessary costs and inefficiencies on both the courts and party
    opponents.").
    Thus, we conclude both that Hagerty did not meet his
    burden of providing a valid reason for his delay and that the
    district court did not abuse its discretion in denying his motion
    for leave to amend.
    III. Conclusion
    The judgment of the district court is AFFIRMED.
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