Opinion
No. 06-21-00027-CV
04-20-2021
IN RE GILEAD SCIENCES, INC.
Original Mandamus Proceeding Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
In this original proceeding, Gilead Sciences, Inc. (Relator), seeks a writ of mandamus requiring the 71st Judicial District Court of Harrison County to effectuate a stay of the qui tam action filed by Health Choice Advocates, LLC (HCA). Relator alleges that HCA's suit, brought under the Texas Medicaid Fraud Prevention Act (TMFPA) is "a related action based on the facts underlying a pending action" filed in a Pennsylvania federal court. TEX. HUM. RES. CODE ANN. § 36.106. As a result, Relator argues that this qui tam action must be stayed pursuant to the TMFPA's first-to-file bar and the Texas practice of staying later-filed actions as a matter of comity between courts. Because Relator has failed to comply with Rule 52.7(a)(1) of the Texas Rules of Appellate Procedure, we deny the petition for a writ of mandamus.
A mandamus petitioner, or relator, must file with the petition "a certified or sworn copy of every document that is material to the relator's claim for relief and that was filed in any underlying proceeding[.]" In re Long, 607 S.W.3d 443, 445 (Tex. App.—Texarkana 2020, orig. proceeding) (quoting TEX. R. APP. P. 52.7(a)(1)); see TEX. R. APP. P. 52.3(k)(1)(A) ("The appendix must contain . . . a certified or sworn copy of any order complained of, or any other document showing the matter complained of."). While "'[d]ocuments that are attached to a properly prepared affidavit are sworn copies,' . . . documents attached to an improperly prepared affidavit are not." Id. (quoting In re Henderson, No. 06-15-00034-CR, 2015 WL 13522812, at *1 (Tex. App.—Texarkana Mar. 10, 2015, orig. proceeding) (mem. op., not designated for publication) (quoting In re Butler, 270 S.W.3d 757, 759 (Tex. App.—Dallas 2008, orig. proceeding))). "The affidavit 'must affirmatively show it is based on the personal knowledge of the affiant'"; and "the affidavit 'is insufficient unless the statements in it are direct and unequivocal and perjury can be assigned to them.'" Id. (quoting Henderson, 2015 WL 13522812, at *1 (quoting Butler, 270 S.W.3d at 759)).
See In re Garrett, No. 05-20-00462-CV, 2020 WL 2552892, at *1 n.1 (Tex. App.—Dallas May 20, 2020, orig. proceeding) (mem. op.) (an affidavit complies when it states, "under penalty of perjury, that the affiant has personal knowledge that the copies of the documents in the appendix are true and correct copies of the originals").
In this case, the affidavits filed by Relator did not contain any affirmative statements that they were based on the personal knowledge of the affiant. Instead, the affiant represented only that he was "one of the lawyers assisting in the representation of Relator." The affiant filed two affidavits, one purporting to support documents attached to an appendix and another purporting to support the mandamus record. The affidavit affixed to the appendix said,
I . . . certify that each of the orders and other documents included in the Appendix are true and correct copies of each order or document. Both parties filed some of those documents in redacted form but served unredacted versions on all counsel of record and placed them under seal because such documents quoted from documents filed under seal in the relevant federal court proceedings and as required by federal law. True and correct copies of the unredacted versions of such documents have been included in the Appendix along with the sealed documents those filings reference.As for the mandamus record, the affidavit stated,
The documents contained in [the mandamus record] are true and correct copies of original documents that were filed in the underlying action and are material to the relief sought in this proceeding. Both parties filed some of those documents in redacted form but served unredacted versions on all counsel of record and placed them under seal because such documents quoted from documents filed under seal in the relevant federal court proceedings and as required by federal law. True and correct copies of the unredacted versions of such documents have been included in the Appendix along with the sealed documents those filings reference.(Alteration in original).
Because the affidavits did not affirmatively show that they were based on the personal knowledge of the affiant, contained statements that were not direct and unequivocal such that perjury could be assigned to them, and created ambiguity as to which versions of certain documents were actually before the trial court or whether documents in the appendix were filed in the underlying action, they are insufficient. See In re Gentry, No. 05-20-00442-CV, 2020 WL 2519892, at *1 (Tex. App.—Dallas May 18, 2020, orig. proceeding) (mem. op.) (insufficient: certification that the petition was "TRUE and CORRECT, to the best of my knowledge under the threat of perjury"); see also Long, 607 S.W.3d at 445 (insufficient: "Attached to this [r]ecord are true and correct copies of every document that is material to Relator's claim for relief and was filed in the underlying proceeding"); In re Butler, 270 S.W.3d 757, 758 (Tex. App.—Dallas 2008, orig. proceeding) (insufficient: "The documents contained in the attached Record and attached Appendix to the Relators' Petition for Writ of Mandamus are to my knowledge true and correct copies of the original documents").
"'Because the record in a mandamus proceeding is assembled by the parties,' we must 'strictly enforce[] the authentication requirements of rule 52 to ensure the integrity of the mandamus record.'" Long, 607 S.W.3d at 445-46 (quoting In re Smith, No. 05-19-00268-CV, 2019 WL 1305970, at *1 (Tex. App.—Dallas Mar. 22, 2019, orig. proceeding) (mem. op.) (quoting In re McKinney, No. 05-14-01513-CV, 2014 WL 7399301, at *1 (Tex. App.—Dallas Dec. 15, 2014, orig. proceeding) (mem. op.)). "It is the relator's burden to provide this Court with a sufficient record to establish the right to mandamus relief." Id. at 446 (quoting Henderson, 2015 WL 13522812, at *2 (citing TEX. R. APP. P. 52.3(k)(1)(A), 52.7(a)(1)). Because the affidavits are insufficient, the documents attached to the affidavits are not sworn copies and do not comply with Rule 52.7(a)(1). Therefore, the record is inadequate to grant mandamus relief.
Accordingly, we deny the petition for a writ of mandamus.
Relator has also filed a motion for stay of proceedings pending our ruling on its petition for writ of mandamus. Because we deny the petition for writ of mandamus, we also deny Relator's motion for stay of the trial court's proceedings. --------
Ralph K. Burgess
Justice Date Submitted: April 19, 2021
Date Decided: April 20, 2021