Eleventh Circuit Clarifies: Discovery Materials Can Be Used to Meet Rule 9(b)

On July 25, 2025, the Eleventh Circuit issued an opinion in United States ex rel. Sedona Partners LLC v. Able Moving & Storage Inc. (No. 22-13340) addressing an important procedural question under the False Claims Act (FCA) and other fraud-based statutes: may a plaintiff rely on information learned during discovery to meet Rule 9(b)’s heightened pleading standard in an amended complaint?

The court concluded that the answer is yes.

Rule 9(b) requires that allegations of fraud be plead “with particularity.” Defendants frequently rely on this standard at the motion-to-dismiss stage, aiming to defeat weak FCA complaints before discovery begins. In 2019, an unpublished Eleventh Circuit decision, Bingham v. HCA, Inc., 783 F. App'x 868 (11th Cir. 2019), suggested that plaintiffs could not use discovery to cure a deficient complaint. The concern was that such an approach could incentivize speculative suits filed without adequate factual grounding.

In Sedona Partners, the Eleventh Circuit rejected that reasoning. The court emphasized that Bingham was unpublished and therefore not binding, and it noted that Rule 9(b) itself imposes no limitation on the source of facts. Citing Supreme Court precedent, the panel stressed that courts should not create extra-textual barriers to amend pleadings. While defendants raised the policy concern that such a rule would encourage frivolous lawsuits, the court concluded that policy considerations cannot override the plain text of the Federal Rules. The case was remanded for the district court to reevaluate the sufficiency of the amended complaint in light of discovery-based allegations.

Practical Implications

For companies, particularly in healthcare and life sciences where FCA suits are common, the decision highlights the continued importance of early case strategy. Defendants should continue to press for stays of discovery until motions to dismiss are resolved, given that discovery itself can provide the very details needed to sustain a claim. At the same time, the opinion underscores the need for deliberate, careful handling of document production in cases where discovery does proceed, because those materials may later reappear in an amended pleading.

Bottom Line

Sedona Partners narrows one argument defendants previously raised in the Eleventh Circuit but does not dramatically reshape FCA litigation. Plaintiffs still must plead fraud with specificity, and courts remain empowered to dismiss complaints that fail to meet that requirement. What has changed is that defendants in this circuit can no longer argue that discovery-based facts are categorically off-limits in amended pleadings.

EBG will continue to watch how this ruling shapes False Claims Act litigation moving forward.

*América Garza, a Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.