proceeds are to be divided one-half to him and the other half to the United States. Others are excluded. Even the sovereign has no right to interfere. The first plaintiff has sole control of the action, except that he cannot dismiss it without consent of the judge and the District Attorney. Under the circumstances, this action must be stayed. United States v. Griswold, 26 Fed.Cas. page 42, No. 15,266; Bush v. United States, C.C., 13 F. 625; United States v. Dwight Manufacturing Co., D.C., 213 F. 522; Beadleston v. Sprague, 6 Johns., N.Y., 101; Ferrett v. Atwill, 8 Fed.Cas. page 1161, No. 4,747.
"For the same reasons, plaintiff's motion to consolidate, which is opposed by these defendants and by Mandel, should be denied. This is not a derivative action in the same sense as one brought by a stockholder for the benefit of a corporation. There recovery is solely for the benefit of the corporation. Here the recovery is solely for the benefit of the United States and the informer. If there can be but one action and one division, the second or subsequent attempts by others can have no standing, and there is nothing to consolidate."
In the case of United States ex rel. Benjamin v. Hendrick et al., D.C.S.D.N.Y., 52 F.Supp. 60, decided October 12, 1943, a motion to dismiss a second action under this statute was granted because of the pendency of a prior action under the statute on the same cause.Said Judge Rifkind in his opinion:
"The action, commonly known as an informer's or 'qui tam' action, was instituted by the relator on May 24, 1943 under Sections 5438, 3490, 3491, 3492, 3493 and 3494 of the Revised Statutes, 18 U.S.C.A. §§ 80, 82-86, 31 U.S.C.A. §§ 231-235, to recover double damages and forfeitures for the United States of America and on his own behalf by reason of alleged frauds perpetrated against the Government by means of collusive bidding and rigging of prices. An indictment has been returned against these defendants by a grand jury for the Eastern District of New York on December 7, 1942. The criminal prosecution which related to the same frauds has been concluded by a plea of nolo contendere followed by sentence. A complaint in a civil action against these defendants was filed in the clerk's office of the United States District Court for the Eastern District of New York on January 20, 1943, by the United States Attorney for that district. The substantial ground of defendants' motion is that the relator's action will not lie because it is identical with the action instituted by the Government.
"Assuming the identity of the actions, it is not open to question, that the Government having first commenced an action to recover for the alleged wrongs, another action at the instance of an informer will not lie. See III Blackstone's Commentaries, page 162, cited with approval in United States v. Griswold, D.C.Or. 1877, Fed.Cas. No. 15,266, 5 Sawy. 25; Beadleston v. Sprague, N.Y.1810, 6 Johns. 101; United States ex rel. Marcus v. Hess, 1943, 317 U.S. 537, 547, 63 S. Ct. 379, 87 L. Ed. ; United States v. B.F. Goodrich Co., D.C.S.D.N.Y.1941, 41 F.Supp. 574. * * *
"For all that appears in the relator's complaint he is not an 'informer' but an 'informee' and that all the information which he has recited in his complaint he obtained from the Government's complaint.Were such a complaint sustained the relator would become endowed, by means of the liberal rules for pre-trial investigation, with an exclusive commission to inquire into the business relations between the entire asphalt industry and the United States Government and to prosecute all claims he might uncover.
"It is so manifest that such a power is open to grave abuse that only the most explicit legislative mandate would justify a court in finding such a purpose in the informers' statute. Indeed, no such mandate is discoverable in the statute."
While there is thus authority for granting either of the prayers of the defendant's motion in the present case, I am of the opinion that the action should be stayed rather than dismissed. The authorities referred to by the court in the Hendrick case, supra, do not support the conclusion that a subsequent action on the same cause must be dismissed prior to a final determination on the merits of the first action, and it cannot be said that, until such final determination, a complaint filed by another fails to state a claim upon which relief may be granted.
The cases cited by the plaintiff on the proposition that the action may be maintained in only that district in which the fraudulent claims were made, and that hence the district court in Rhode Island has no jurisdiction over the cause, do not offer the slightest support therefor. In United States ex rel. Kessler v. Mercur Corp., 2 Cir., 83 F.2d 178, certiorari denied 299 U.S. 576, 57 S. Ct. 40, 81 L. Ed. 424, and in United States ex rel. Salzman v. Salant & Salant, Inc., D.C., 41 F.Supp. 196, the question at issue was whether the fraudulent claim relied upon as the basis for the actions had been made against the United States, so as to be within the statute, and in each instance it was held that it had not. Neither case in any way dealt with the question of the district in which a claim under the statute might be made. The cases of Salinger v. Loisel, 265 U.S. 224, 44 S. Ct. 519, 68 L. Ed. 989, and Brown v. Elliott, 225 U.S. 392, 32 S. Ct. 812, 56 L. Ed. 1136, cited by the plaintiffs, dealt with questions of venue in criminal prosecutions and have no bearing on the district in which a civil action under the statute here involved may be brought.
Accordingly, defendant's motion for a stay of proceedings in this action is granted until such time as there is a final determination on the merits of the case of United States of America v. Anaconda Wire & Cable Co. et al., Civil Action No. 234 in the District Court of the United States for the District of Rhode Island.
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