Willette v. University of Massachusetts

United States Court of Appeals
For the First Circuit
No. 15-1239
UNITED STATES OF AMERICA AND COMMONWEALTH OF MASSACHUSETTS,
EX REL. MICHAEL A. WILLETTE,
Plaintiff, Appellant,
v.
UNIVERSITY OF MASSACHUSETTS, WORCESTER
a/k/a UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL,
Defendant, Appellee.
ESTATE OF LEO VILLANI AND JOHN DOES,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Barron, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Allyson H. Cohen for appellant.
Daniel Meron, Special Assistant Attorney General,
Commonwealth of Massachusetts, with whom Latham & Watkins LLP was
on brief, for appellee.
_________
*Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
January 27, 2016
SELYA, Circuit Judge. This appeal raises two distinct
but loosely connected issues. The first involves the question of
whether the University of Massachusetts Medical School (UMMS) is
a state agency, not a "person," and therefore exempt from suit by
private parties under the False Claims Act (FCA), 31 U.S.C. §§
3729-3733, and its Massachusetts counterpart, Mass. Gen. Laws ch.
12, §§ 5A-5O. The second involves the operation and effect of
Federal Rule of Civil Procedure 54(b).
With respect to the first question, we settle upon the
appropriate test (a matter of first impression in this circuit),
conclude that UMMS is an arm of the state, and hold that the
district court did not err in dismissing the relator's claims
against it. With respect to the second question, we conclude that
Rule 54(b) must be construed strictly. As a result, we dismiss
the relator's attempt to raise on appeal issues not fairly
presented in the district court's Rule 54(b) certificate. The
tale follows.
I. BACKGROUND
Plaintiff-appellant Michael A. Willette (the relator)
toiled at UMMS for roughly fourteen years beginning in 2000.
Specifically, he worked for the Center for Health Care Financing
(CHCF). One of CHCF's chief tasks is the recovery of funds from
third parties (such as private insurers or the estates of deceased
beneficiaries) in order to reimburse Medicaid expenditures
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previously made by the Commonwealth of Massachusetts and the
federal government.
CHCF is an office within a division of UMMS known as
"Commonwealth Medicine." Neither CHCF nor "Commonwealth Medicine"
is separately incorporated.
Leo Villani also worked at CHCF. Villani died in 2013,
and the relator was appointed as his personal representative. In
reviewing estate documents, the relator discovered that Villani
had contrived a scheme to divert funds collected by CHCF to his
own behoof, siphoning off nearly $4,000,000 before his death. In
a series of meetings, the relator shared the details of Villani's
fraud with his superiors. The relator claims that UMMS officials
thereafter retaliated against him by excluding him from a meeting,
denying him access to his work computer and departmental software
while the scheme was being investigated, and "verbally
demean[ing]" him.
In time, the relator repaired to the federal district
court. He sued UMMS and Villani's estate in a qui tam action
alleging (as pertinent here) violations of the FCA and its
Massachusetts counterpart. The relator's complaint was originally
filed under seal, and he amended it twice before the United States
and Massachusetts declined to intervene. See 31 U.S.C.
§ 3730(b)(4)(B); Mass. Gen. Laws ch. 12, § 5C(4)(ii).
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When the case was taken out from under seal, the second
amended complaint was served. UMMS moved to dismiss for lack of
subject matter jurisdiction and failure to state a claim. See
Fed. R. Civ. P. 12(b)(1), (6). As part of his opposition to UMMS's
motion, the relator cross-moved for leave to file a third amended
complaint, seeking to add as defendants "Commonwealth Medicine"
and a plethora of individuals (all employees or former employees
of UMMS, "Commonwealth Medicine," or CHCF, sued in their individual
capacities).
After a hearing, the district court (addressing the
second amended complaint) dismissed the relator's FCA claims
against UMMS. The court's dispositive consideration was the
bedrock proposition, established by the Supreme Court in Vermont
Agency of Natural Resources v. United States ex rel. Stevens, 529
U.S. 765, 787-88 (2000), that states cannot be sued in a private
action under the FCA. See United States ex rel. Willette v. Univ.
of Mass., 80 F. Supp. 3d 296, 299-302 (D. Mass. 2015). The court
embraced the corollary proposition that whether an entity is a
"state" should be determined by reference to the Eleventh Amendment
arm-of-the-state test. See id. at 299. It went on to hold that
this same reasoning dictated the outcome of the relator's claims
against UMMS under the Massachusetts counterpart to the FCA.1 See
1 On appeal, the relator does not challenge the district
court's conclusion that the FCA and its Massachusetts counterpart
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id. at 299 n.4 (citing Scannell v. Attorney Gen., 872 N.E.2d 1136,
1138 n.4 (Mass. App. Ct. 2007)). Finally, the court denied the
relator's motion for leave to file a third amended complaint,
concluding for a variety of reasons that the proffered complaint
would be futile. See id. at 302-04.
The relator filed a notice of appeal. The notice of
appeal was premature because the case was still pending against
the Villani estate in the district court. We nevertheless held
the appeal in abeyance while the relator sought and received
partial final judgment from the district court. See Fed. R. Civ.
P. 54(b). Based on the district court's Rule 54(b) certificate,
the relator's appeal proceeded.
II. ANALYSIS
In this venue, the relator seeks review of both the
determination that UMMS is not amenable to suit under the FCA and
the denial of leave to amend. We discuss these rulings separately.
A. The Claims Against UMMS.
The relator's principal asseveration is that the
district court erred in determining that UMMS is a state agency
and, thus, exempt from the FCA. This asseveration raises an
antecedent question of first impression in this circuit about the
are congruent in this respect. For that reason, we say nothing
further about Massachusetts's version of the FCA.
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appropriate test for determining whether an entity is a state
agency for FCA purposes.
Some background is helpful. The FCA subjects to
liability "any person" who submits a false claim to the government
"for payment or approval." 31 U.S.C. § 3729(a)(1)(A). The statute
itself does not define the term "person." In Stevens, the Supreme
Court filled this void: it applied the "longstanding interpretive
presumption that 'person' does not include the sovereign," 529
U.S. at 780, and concluded that states are not subject to liability
in actions brought by private parties under the FCA, id. at 787-
88. In its analysis, the Court emphasized the "virtual coincidence
of scope" between the question of "whether States can be sued"
under the FCA and the question of "whether unconsenting States can
be sued" in the Eleventh Amendment context. Id. at 779-80.
Though the Court did not explain how to determine whether
an entity is a state agency for FCA purposes, the correspondence
the Court identified has led every circuit that has confronted the
question to conclude that the FCA context requires the same test
as that used for determining whether an entity is an arm of the
state entitled to share in Eleventh Amendment immunity. See, e.g.,
Kreipke v. Wayne State Univ., 807 F.3d 768, 775 (6th Cir. 2015);
United States ex rel. Lesinski v. S. Fla. Water Mgmt. Dist., 739
F.3d 598, 601-02 (11th Cir.), cert. denied, 134 S. Ct. 2312 (2014);
United States ex rel. Oberg v. Ky. Higher Educ. Student Loan Corp.,
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681 F.3d 575, 579-80 (4th Cir. 2012); Stoner v. Santa Clara Cty.
Office of Educ., 502 F.3d 1116, 1121-22 (9th Cir. 2007); United
States ex rel. Sikkenga v. Regence BlueCross BlueShield of Utah,
472 F.3d 702, 718 (10th Cir. 2006); United States ex rel. Adrian
v. Regents of the Univ. of Cal., 363 F.3d 398, 401-02 (5th Cir.
2004). We join this unbroken precedential chain and today hold,
as did the court below, see Willette, 80 F. Supp. 3d at 299, that
the appropriate test under the FCA for actions brought by private
parties is identical to the one we have employed in determining
whether an entity is an arm of the state for Eleventh Amendment
purposes.
It remains, of course, for us to apply this holding.2
We previously have articulated a two-part test for arm-of-the-
state status. First, we determine if "the state has indicated an
intention — either explicitly by statute or implicitly through the
structure of the entity — that the entity share the state's
sovereign immunity." Redondo Constr. Corp. v. P.R. Highway &
Transp. Auth., 357 F.3d 124, 126 (1st Cir. 2004). In the absence
of an explicit statement, an analysis of the entity's structure
2 The relator concedes the applicability of the arm-of-the-
state test to all of his FCA claims, including the retaliation
claim. Consequently, we assume, without deciding, that 31 U.S.C.
§ 3730(h) does not encompass suits against arms of the state. But
see United States ex rel. King v. Univ. of Tex. Health Sci. Ctr.-
Hous., 544 F. App'x 490, 498-99 (5th Cir. 2013) (per curiam).
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requires a wide-ranging survey of the entity's relationship with
the state.
While this survey is not controlled by a mechanical
checklist of pertinent factors, the case law offers important
clues. See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513 U.S.
30, 44-46 (1994); Lake Country Estates, Inc. v. Tahoe Reg'l
Planning Agency, 440 U.S. 391, 401-02 (1979); Fresenius Med. Care
Cardiovascular Res., Inc. v. P.R. & the Caribbean Cardiovascular
Ctr. Corp., 322 F.3d 56, 68 (1st Cir. 2003); Metcalf & Eddy, Inc.
v. P.R. Aqueduct & Sewer Auth., 991 F.2d 935, 939-40 (1st Cir.
1993). Synthesizing these clues, we note that (as pertinent here)
the factors include such things as the degree of state control
over the entity, the way in which the entity is described and
treated by its enabling legislation and other state statutes, how
state courts have viewed the entity, the functions performed by
the entity, and whether the entity is separately incorporated.
See Fresenius, 322 F.3d at 62 nn.5-6, 65 n.7.
If this structural analysis is conclusive, our inquiry
ends. See id. at 68. If, however, this analysis is inconclusive,
"the court must proceed to the second stage and consider whether
the state's treasury would be at risk in the event of an adverse
judgment." Redondo Constr., 357 F.3d at 126.
We review a district court's application of the arm-of-
the-state test de novo. See Fresenius, 322 F.3d at 60. A party
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claiming sovereign status bears the burden of demonstrating that
it is an arm of the state. See id. at 61; Wojcik v. Mass. State
Lottery Comm'n, 300 F.3d 92, 99 (1st Cir. 2002). These same
principles attach in the FCA milieu. We review de novo a district
court's determination that an entity is a state agency and, thus,
not a "person" within the purview of the FCA; and an entity
claiming such status bears the burden of demonstrating that it is
exempt under the FCA.
As a general matter, public universities "usually are
considered arms of the state." 13 Charles Alan Wright et al.,
Federal Practice & Procedure § 3524.2, at 325-26 (3d ed. 2008);
see id. at 326 n.42 (collecting cases). This conclusion flows
naturally from "[t]he distinctive, public-oriented role that a
state university typically plays in its state's higher education
landscape." Irizarry-Mora v. Univ. of P.R., 647 F.3d 9, 14 (1st
Cir. 2011). While arm-of-the-state status is ultimately a question
of federal law, "that federal question can be answered only after
considering the provisions of state law that define the agency's
character." Regents of the Univ. of Cal. v. Doe, 519 U.S. 425,
429 n.5 (1997). As we explain below, the statutory framework
crafted by the Massachusetts legislature lends itself to the
conclusion that the University of Massachusetts (the University),
and thus UMMS, is an arm of the state.
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To begin, the University is not separately incorporated
but, rather, is simply "a public institution of higher learning
within the system of public higher education." Mass. Gen. Laws
ch. 75, § 1. This public institution has several campuses,
including "a medical school to be known as the University of
Massachusetts medical school." Id. § 34. The overarching purpose
of the University is "to provide, without discrimination, public
service, research, and education programs." Id. § 2. Every
feature of the statutory framework is conducive to a finding that
both the University and UMMS are arms of the state.
So, too, the elaborate system of state controls over
both the University and UMMS strongly indicates arm-of-the-state
status. The university system is governed by a board of trustees
with nineteen voting members, sixteen of whom are direct
gubernatorial appointees. See id. § 1A. The governor chooses the
board's chair from among these trustees, and the chair serves in
that capacity at the governor's pleasure. See id. One of the
remaining three members is the state's secretary of education (or
the secretary's designee), see id. — and the governor appoints the
secretary of education, who serves ex officio at the governor's
pleasure, see id. ch. 6A, §§ 2-3. The last two members are elected
student representatives. See id. ch. 75, § 1A. This substantial
level of control is probative of arm-of-the-state status. See
Fresenius, 322 F.3d at 68.
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Arm-of-the-state status is also heralded by the state's
close supervision over the University's budget. The board of
trustees prepares an annual budget estimate, which is submitted
for review by both the secretary of education and the state's board
of higher education.3 See Mass. Gen. Laws ch. 75, § 1A. After a
budget is approved through that state-centric process, the state
auditor is responsible for checking University accounts. See id.
§ 6. Although UMMS's annual budget is reported by the trustees
separately from other parts of the University "[i]n order to
provide for the maximum allowable degree of fiscal independence,"
id. § 36, that reporting must comply with all budgetary statutes
applicable to "state agenc[ies]," id. ch. 29, §§ 3-4.
The relator, alluding only to a newspaper article,
suggests that UMMS's faculty is not paid primarily with taxpayer
money and that state appropriations amount to only a small fraction
of UMMS's gross revenue. Nothing in the record supports this
assertion; and in any event, the assertion does little to aid the
relator. The University's enabling act provides that the state
3 The board of higher education is itself a creature of state
statute. See Mass. Gen. Laws ch. 15A, § 1. Ten of the board's
thirteen members are appointed by the governor (including, ex
officio, the secretary of education or her designee), see id. § 4,
and the board exercises a range of supervisory powers over the
University, see id. § 9. The board is also charged with making
proposals for approval by the secretary of education or the
legislature relating to public higher education. See id.
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"shall annually appropriate such sums as it deems necessary for
the maintenance, operation and support of the university,"
including UMMS. Id. ch. 75, § 8. Nor does anything in the
statutory scheme indicate that the Commonwealth is not responsible
for the debts and obligations of UMMS, see Fresenius, 322 F.3d at
69; to the contrary, the Commonwealth provides a mechanism for
providing funds to satisfy judgments or settlements for which UMMS
is responsible, see 815 Mass. Code Regs. 5.01-.11. Finally, UMMS
lacks the authority to issue bonds. See McNamara v. Honeyman, 546
N.E.2d 139, 142 (Mass. 1989); see also Irizarry-Mora, 647 F.3d at
15-16 (identifying authority to issue bonds as an important
indicator pointing away from immunity).
The University, and with it UMMS, is also subject to
substantial state supervision in carrying out its educational
mission. Mission statements for each campus in the university
system, admission standards, proposed instructional programs, and
the University's five-year master plan must be submitted for
approval by the secretary of education, the board of higher
education, or both. See Mass. Gen. Laws ch. 75, § 1A. All property
owned by the University is considered state property. See id.
§ 12. While the University's board of trustees is empowered to
lease or convey state land for limited purposes, see id. §§ 25-
26, any such transactions are subject to approval by the governor
and the board of higher education, see id. § 27. Last — but surely
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not least — University employees (including employees of UMMS) are
designated as "employees of the commonwealth." Id. § 14.
This overwhelming statutory evidence is matched by the
treatment that the University and its medical school have
consistently received from state courts. The Massachusetts
Supreme Judicial Court (SJC) has stated in no uncertain terms that
"the University of Massachusetts and the Commonwealth are 'one and
the same party, namely the Commonwealth of Massachusetts.'" Wong
v. Univ. of Mass., 777 N.E.2d 161, 163 n.3 (Mass. 2002) (quoting
Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Frat., Inc.,
327 N.E.2d 882, 883 (Mass. 1975)). Similarly, the SJC (in
addressing a suit against a UMMS employee) declared that "the
university is an agency of the Commonwealth and thus is a public
employer." McNamara, 546 N.E.2d at 142 (citing, inter alia, the
state's control over UMMS's finances and appropriations, UMMS's
inability to issue bonds, and its inability to sue or be sued in
its own name). Though perhaps less telling, it is also worth
noting that federal district courts in Massachusetts have
uniformly determined that UMMS and its affiliated programs are
arms of the state. See, e.g., McGee v. UMass Correctional Health,
No. 09-40120, 2010 WL 3464282, at *2-4 (D. Mass. Sept. 1, 2010);
Jaundoo v. Clarke, 690 F. Supp. 2d 20, 29 (D. Mass. 2010); Ali v.
Univ. of Mass. Med. Ctr., 140 F. Supp. 2d 107, 110 (D. Mass. 2001);
Neo Gen Screening, Inc. v. New Engl. Newborn Screening Program,
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No. 98-10394, 1998 WL 35278283, at *1-3 (D. Mass. Dec. 3, 1998),
aff'd, 187 F.3d 24 (1st Cir. 1999).
The functions assigned to UMMS reinforce the idea of
arm-of-the-state status. UMMS — like the University as a whole —
exists to further the critically important governmental objective
of providing higher education to the people of Massachusetts. See
Mass. Gen. Laws ch. 75, § 2; Irizarry-Mora, 647 F.3d at 14.
This compendium of considerations points unerringly to
the conclusion that UMMS is structured as an arm of the state and,
thus, is not a "person" subject to suit under the FCA. For FCA
purposes, UMMS and the state are indistinguishable.
The relator balks at this conclusion, advancing four
additional arguments. Without exception, these arguments lack
force.
First, the relator asserts that UMMS is not a state
agency because a Massachusetts law passed in 1997, 1997 Mass. Acts
854, "separated out [UMMS] as its own distinct legal entity." This
assertion elevates hope over reason: the 1997 law merely
"separate[s] the operations, assets, liabilities and obligations
of the existing clinical division" of UMMS "from the commonwealth"
and creates a nonprofit corporation to house this spinoff. Id.
at 855. As the law's definitional section makes clear, the
"clinical division" consists only of "the clinical components of
the University of Massachusetts Worcester, including the
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University of Massachusetts medical school teaching hospital, the
University of Massachusetts medical school group practice, and
ancillary support and operating services." Id. at 856. Given
this definition, CHCF is manifestly not part of the medical
school's clinical division; and nothing in the legislation
supports the notion that the entire medical school operation was
somehow detached from the state. Indeed, the law specifically
mentions the need "for the university to maintain its medical
school," id. at 855, and describes the newly created corporation
as "support[ing] the commonwealth's medical school," id.Second, the relator argues that "Commonwealth Medicine"
and CHCF should be carved out of UMMS and treated differently than
other parts of the University. This argument is premised, in the
relator's words, on the theory that "Commonwealth Medicine" and
CHCF are "for-profit" operations. But the mere fact that a
governmental agency generates revenue for the state does not
deprive the agency of arm-of-the-state status. See Wojcik, 300
F.3d at 99-100. The argument is especially unconvincing here
because these collection efforts are at least in part mandated by
statute. See 42 U.S.C. § 1396a(a)(25)(A).
Third, the relator contends that independence should be
inferred from the fact that some of CHCF's activities are carried
out pursuant to an interagency service agreement (ISA) between
UMMS and the state's Executive Office of Health and Human Services
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(EOHHS). This contention rests on a faulty understanding of the
import of the ISA. Under Massachusetts law, ISAs exist to enable
one governmental unit to provide funding in exchange for services
rendered by another governmental unit. See, e.g., 815 Mass. Code
Regs. 6.02 ("The ISA is a contract between two state departments
that documents the terms and conditions of their business
relationship."). The contract between UMMS and EOHHS is of this
genre: it merely delineates the relationship between two state
departments.4 So viewed, the existence of the ISA strengthens,
rather than weakens, the conclusion that UMMS is an arm of the
state.
Finally, the relator posits that this case is analogous
to Sikkenga, in which the Tenth Circuit concluded that a laboratory
affiliated with the University of Utah was not entitled to arm-
of-the-state status. See 472 F.3d at 722. But this case and
Sikkenga are not fair congeners. There, the laboratory was
separately incorporated under a general business corporation
statute, id. at 718-19; could sue and be sued in its own name, id.
at 719; and entered into contracts with state agencies that were
4
To be sure, statutory authorization exists for ISAs between
municipalities. See Mass. Gen. Laws ch. 40, § 4A. Though the
relator is correct in positing that municipalities may be subject
to FCA liability, see, e.g., Cook County v. United States ex rel.
Chandler, 538 U.S. 119, 122 (2003), that is of no consequence here:
the ISA on which the relator relies does not involve any
municipality.
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essentially "commercial contracts," id. at 720. Though the
University of Utah was involved in the laboratory's governance,
the ties that bound them together arose "as an incidence of
ownership" and were found to be "several degrees removed from the
direct relationship" present between the university and the state.
Id. When all was said and done, the laboratory possessed a level
of independence appropriate to an entity designed "to enter the
private sector and compete as a commercial entity." Id. at 721.
That is not remotely comparable to the situation here.
To say more about this aspect of the matter would be
pointless. In this case, a structural analysis of the pertinent
factors is altogether conclusive. That analysis shows that UMMS
is an arm of the state.5 We hold, therefore, that UMMS is not a
"person" subject to suit under the FCA. It follows inexorably
that the district court did not err in dismissing the relator's
second amended complaint against UMMS.6
5The district court went further: it proceeded to the second
step of the analysis. See Willette, 80 F. Supp. 3d at 301. But
where, as here, the arm-of-the-state inquiry is conclusively
answered at the first step of the analysis, it is not necessary to
proceed to the second step. See Fresenius, 322 F.3d at 68. We
see no reason to do so in this case.
6Although this conclusion makes a full assessment of the
relator's claims unnecessary, we note that the relator does not
appear to have identified a single instance in which a false claim
was submitted for approval or payment. Nor has the relator
provided any other details from which a court could permit
discovery on the putative FCA claims. Consequently, we doubt that
the relator could satisfy the particularity standard required by
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B. Leave to Amend.
This brings us to the relator's attempt to appeal the
district court's denial of his motion for leave to file a third
amended complaint. At the threshold an obstacle looms. Federal
courts are courts of limited jurisdiction. They cannot act in the
absence of subject matter jurisdiction, and they have a sua sponte
duty to confirm the existence of jurisdiction in the face of
apparent jurisdictional defects. See United States v. Horn, 29
F.3d 754, 767 (1st Cir. 1994).
The touchstone of federal appellate jurisdiction is 28
U.S.C. § 1291, which confers appellate jurisdiction over "all final
decisions of the district courts of the United States." A final
decision is one that "disposes of all claims against all parties,"
Bos. Prop. Exch. Transfer Co. v. Iantosca, 720 F.3d 1, 6 (1st Cir.
2013), and there has been no final decision in this case.7 After
all, the case was still pending in the district court with respect
to the relator's claims against Villani's estate both when the
Federal Rule of Civil Procedure 9(b) and our cases applying that
standard under the FCA. See, e.g., United States ex rel. Rost v.
Pfizer, Inc., 507 F.3d 720, 731-33 (1st Cir. 2007).
7 It is hornbook law that the denial of a motion to amend is
not a "final decision" within the meaning of section 1291. See,
e.g., Bridges v. Dep't of Md. State Police, 441 F.3d 197, 206 (4th
Cir. 2006); Soliday v. Miami County, 55 F.3d 1158, 1165 (6th Cir.
1995). Such orders are only reviewable after a final judgment in
the case has been entered. See Caldwell v. Moore, 968 F.2d 595,
598 (6th Cir. 1992).
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appeal was taken and when the Rule 54(b) certificate was issued.
For that matter, the litigation still continues in the district
court in connection with the relator's claimed entitlement to a
share of the money recovered in the course of the investigation
into Villani's embezzlement. Thus, we have no appellate
jurisdiction through the normal operation of section 1291.
The failure to satisfy the requirements of section 1291
is not necessarily fatal to the existence of appellate
jurisdiction. Federal Rule of Civil Procedure 54(b) provides a
mechanism for immediate appellate review even if some claims are
still pending in the district court.8
In the case at hand, the relator successfully applied
for a Rule 54(b) certificate. By means of that certificate, he
secured appellate jurisdiction over the dismissal of his claims
8 Rule 54(b) provides in relevant part:
When an action presents more than one claim for relief
— whether as a claim, counterclaim, crossclaim, or
third-party claim — or when multiple parties are
involved, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no
just reason for delay.
The sufficiency of a Rule 54(b) certificate "implicates the
existence vel non of appellate jurisdiction." Maldonado-Denis v.
Castillo-Rodriguez, 23 F.3d 576, 580 (1st Cir. 1994). As our
treatment of the arm-of-the-state question implies, we are fully
satisfied with the district court's application of the factors
outlined in Spiegel v. Trustees of Tufts College, 843 F.2d 38, 42-
43 (1st Cir. 1988), and with its "no just reason for delay"
determination.
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against UMMS. That certificate, however, did not encompass the
motion to amend. Nor was this an oversight on the part of the
district court; as the court wrote in issuing the certificate, the
relator sought only "separate and final judgment on the dismissal
of claims against UMMS, not the Court's denial of [his] cross-
motion to amend the complaint." The court gave the relator
precisely what he had requested, and what he requested did not
include the denial of the motion to amend.
Rule 54(b) creates an exception to the requirement of an
all-encompassing final judgment, and we have long emphasized that
a Rule 54(b) certificate must be granted sparingly in order to
avoid upsetting the "long-settled and prudential policy against
the scattershot disposition of litigation." Spiegel v. Trs. of
Tufts Coll., 843 F.2d 38, 42 (1st Cir. 1988). On appellate review,
such a certificate should not be expanded beyond its four corners;
by its terms, the certificate here limited the scope of the partial
final judgment to the dismissal of the relator's claims against
UMMS. It did not authorize an immediate appeal of the denial of
the relator's motion for leave to file a third amended complaint.
This is of decretory significance because the main purpose of that
motion was an attempt to add an array of individual defendants.
In these circumstances, we lack appellate jurisdiction over the
denial of leave to amend to add these new defendants. The Rule
54(b) certificate simply did not include that decision within the
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four corners of the partial final judgment allowed by the district
court.9
It makes no difference that the parties would like us to
decide, here and now, the supportability of the denial of the
motion for leave to amend. "Parties cannot confer subject matter
jurisdiction on either a trial or an appellate court by indolence,
oversight, acquiescence, or consent." Horn, 29 F.3d at 768.
We add a coda. The proposed third amended complaint
also purposed to add "Commonwealth Medicine" as a defendant. But
even if the Rule 54(b) certificate can be stretched to encompass
the district court's refusal to allow this particular amendment,
cf. Soliday v. Miami County, 55 F.3d 1158, 1165 (6th Cir. 1995)
(assessing denial of leave to amend with respect to a party against
whom final judgment had entered), that would not get the relator
very far.
The district court pointed out that "Commonwealth
Medicine" is an "unincorporated subdivision[] of UMMS" and, thus,
9 There is an open question about whether denial of a motion
to amend a complaint can ever be certified under Rule 54(b).
Compare Bridges, 441 F.3d at 207 (stating that "Rule 54(b) does
not provide the parties or the district court with the authority
to convert an order denying a motion to amend or denying
reconsideration of that motion into an order that 'adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties,' as required by Rule 54(b)"), with Encoder
Commc'ns, Inc. v. Telegen, Inc., 654 F.2d 198, 202 (2d Cir. 1981)
(noting that denial of leave to amend was certified as immediately
appealable, but that the affected party had not timely appealed).
We take no view on this issue.
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not separately subject to suit. Willette, 80 F. Supp. 3d at 302.
Seen in this light, an amendment adding "Commonwealth Medicine"
would be futile. See United States v. ITT Blackburn Co., 824 F.2d
628, 631 (8th Cir. 1987) (explaining that "an unincorporated
division cannot be sued or indicted, as it is not a legal entity").
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we affirm the district court's dismissal of the claims against
UMMS. We dismiss the relator's attempt to appeal the district
court's denial of leave to amend for want of appellate
jurisdiction. Costs shall be taxed in favor of UMMS.
So Ordered.
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