United States ex rel. Kirk v. Schindler Elevator Corp., 926 F. Supp. 2d 510

Daniel Kirk, as qui tam relator, alleges Schindler Elevator Corp. submitted FCA payments to federal agencies by filing false VETS-100 reports under VEVRAA.
VEVRAA requires annual VETS-100 reporting and conditions federal payments on compliance; alleged scheme: Schindler filed false reports to mask noncompliance and obtain government contracts.
Litigation history spans Kirk I, II, III, and IV, including dismissal at the district court level and Supreme Court remand; public disclosure bar and related issues were central on remand.
Kirk’s proposed SAC preserves core claims about false VETS-100 reports and adds specificity, documents, and newly discovered facts suggesting actual filing for certain years.
Two motions are before the court: Schindler’s 12(b)(6) renewal and Kirk’s motion for leave to file a second amended complaint; the court grants leave and denies mootness of the renewal.
Court finds the SAC potentially viable, addresses Rule 9(b) adequacy, materiality, timing/relations back, and the potential impact of related administrative proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Relation back of new claims	Amendments arise from same conduct; relate back under Rule 15(c)(1)(B).	New 1999, 2000, 2003 claims constitute an entirely distinct factual set; cannot relate back per Nettis.	Related back allowed; amended claims relate to same predicate conduct and notices.
Primary jurisdiction and collateral estoppel	OFCCP findings do not bar FCA claims; no primary jurisdiction or collateral estoppel effect.	OFCCP proceedings should affect this action through primary jurisdiction or collateral estoppel.	Primary jurisdiction and collateral estoppel do not apply.
Plausibility under Iqbal and Rule 9(b) sufficiency	Amendments supply detailed falsity and scienter; documents support plausibility.	Some documents render claims implausible or insufficiently pled under Rule 9(b).	Plausibility and Rule 9(b) requirements satisfied at this stage.
Falsity and scienter pleading	Kirk alleges false VETS-100 reports and knowledge of noncompliance; intent shown by reckless disregard.	Motive and knowledge not sufficiently pleaded; potential lack of falsity.	Falsity and scienter adequately pleaded for purposes of amendment.
Delay and prejudice	Delay is reasonable given stays and limited discovery; amendments add detail.	Delay prejudicial and prejudge pre-discovery issues.	Delay not undue; no undue prejudice identified.

United States ex rel. Kirk v. Schindler Elevator Corp. (Kirk II), 601 F.3d 94 (2d Cir. 2010) (reinstated FCA false-report claims; materiality discussed)
Schindler Elevator Corp. v. United States ex rel. Kirk (Kirk III), 131 S. Ct. 1885 (Supreme Court 2011) (reversed public disclose bar applicability)
Kirk I, 606 F. Supp. 2d 448 (S.D.N.Y. 2009) (initial dismissal and subject matter jurisdiction ruling)
Ruffolo v. Oppenheimer & Co., 987 F.2d 129 (2d Cir. 1993) (context for proof standards on pleadings under Rule 9(b))
Nettis v. Levitt, 241 F.3d 186 (2d Cir. 2001) (relation back and distinct causes of action analysis)
Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading plausibility standard)
Rombach v. Chang, 355 F.3d 164 (2d Cir. 2004) (Rule 9(b) heightened pleading guidance)
Delamater v. Schweiker, 721 F.2d 50 (2d Cir. 1983) (administrative res judicata not applicable)
United States ex rel. Westchester County v. ADS, 495 F. Supp. 2d 375 (S.D.N.Y. 2007) (motive for false certification in FCA context)
Feldman v. City of New York, 808 F. Supp. 2d 641 (S.D.N.Y. 2011) (motive and economizing on compliance considerations)