United States Ex. Rel. Bender v. North American Telecommunications, Inc.United States Ex. Rel. Bender v. North American Telecommunications, Inc.
MEMORANDUM OPINION
Plaintiff-Relator Robert Bender brings this
qui tam
suit under the False Claims Act (“FCA”),
Upon consideration of the Motions, Oppositions, Replies, and the entire record herein, and for the reasons set forth below, the Motion to Dismiss of Defendant North American Telecommunications, Inc. (“NATI”) is granted and the Motion to Dismiss of Defendant PAE Government Services, Inc. is granted. Plaintiffs Request for Leave to Amend the Complaint is granted.
Plaintiff is an electrician who was formerly employed by NATI. From October 1, 1997, to March 31, 2003, NATI had an Operations and Maintenance contract with the United States Department of Agriculture (“USDA”) to maintain four USDA buildings in Washington, D.C. As such, it was responsible for day-to-day maintenance of the buildings. Defendant Capitol Technology Services, Inc. (“CTSI”) took over the contract on April 1, 2003. Defendant PAE Government Services, Inc. (“PAE”) is a subcontractor of CTSI and performed electrical work on the buildings. Plaintiff was never employed by either CTSI or PAE. The other four defendants are officers or employees of NATI and CTSI: Chang D. Hwang, President of NATI; John G. Carothers, former Operations Coordinator for NATI and CTSI; Heys S. Hwang, President of CTSI; and James W. Ruest, project Manager at CTSI.
The Complaint alleges five violations of the FCA. Count I alleges that NATI and CTSI falsified response times to service calls in order to claim monthly bonuses. Count II alleges that NATI and CTSI misrepresented non-reimbursable repairs as reimbursable requests. Count III alleges that NATI, CTSI, and PAE charged the USDA for work performed by employees who did not possess the qualifications required by the governing contract. Count IV alleges that NATI and CTSI billed the USDA for overtime work that their contracts excluded from overtime status. Count V alleges that NATI and CTSI misrepresented the amount of work they performed.
On August 14, 2006, Plaintiff filed his Complaint [Dkt. No. 1]. The United States filed a Notice not to intervene on September 27, 2007 [Dkt. No. 22].
2
All of the Defendants except PAE filed a joint Motion to Dismiss (“NATI Mot.”) pursuant to
II. STANDARD OF REVIEW
To survive a motion to dismiss under
Under the
Tivombly
standard, a “court deciding a motion to dismiss must not make any judgment about the probability of the plaintiffs’ success ... must assume all the allegations in the complaint are true (even if doubtful in fact) ... [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged.”
Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,
To prove a violation of the FCA, a plaintiff must show either that the defendant “knowingly presents, or causes to be presented [to the Government] a false or fraudulent claim for payment or approval,”
“[B]ecause the False Claims Act is self-evidently an antifraud statute, complaints brought under it must comply with Rule 9(b) [of the Federal Rules of Civil Procedure]” in order to state a claim.
United States ex rel. Totten v. Bombardier Corp.,
A. PAE’s Motion to Dismiss Is Granted Because Plaintiff Failed to State Claims with Sufficient Particularity and Did Not Allege a Knowing Violation of the FCA.
The Complaint alleges that “each of the above-named Defendants” is liable for all five Counts. Compl. at ¶¶ 145, 152, 159, 164, 170. However, it specifically mentions PAE in only two paragraphs, both of which relate to Count III. Compl. at ¶¶ 92, 157. For that reason, PAE argues that the remaining Counts should be dismissed, as they do not meet the requirements of
While the Complaint does make allegations against NATI and CTSI in Counts I, II, IV, and V, it is silent regarding PAE’s liability for those Counts. Consequently, Plaintiff has not met
Count III alleges that PAE employed unlicensed electricians, thereby causing CTSI to falsely certify to the USDA that it was in compliance with its contractual obligation to use only licensed electricians. Compl. at ¶¶ 92, 156-59. While Plaintiff does make a specific allegation, this Count still does not meet the requirements of
There are a number of basic factual issues omitted from the Complaint in Count III. First, it does not identify which PAE employees were allegedly unlicensed or who at PAE hired them and submitted invoices to CTSI in violation of the licensing requirement.
6
See United States ex rel. Williams v. Martin-Baker Aircraft Co.,
In addition, the Complaint does not allege that PAE acted to
knowingly
cause CTSI to submit false claims to the USDA, as required by
Thus, because it fails to meet 9(b)’s particularity requirement, as well as the statute’s knowledge requirement, Count III must be dismissed against PAE for failure to state a claim.
B. Plaintiffs Claims Against NATI, CTSI, Chang D. Hwang, John G. Carothers, Heys S. Hwang, and James W. Ruest Must Be Dismissed
The remaining Defendants filed a joint Motion to Dismiss. The Court will address each Defendant in turn.
1. Defendant NATI
As an incentive for prompt performance, NATI’s contract provided a bonus if it met response time goals when replying to service calls. Compl. at ¶ 46. Count I alleges that NATI falsified its response times in order to ensure that it received a bonus every month. Compl. at ¶ 144. Count II alleges that NATI submitted false reimbursement requests for repairs that were not reimbursable under the contract. Compl. at ¶ 66. While
Counts I and II fail particularly in the areas of content and time. The Complaint does not indicate when NATI submitted the allegedly falsified time entries, or when those entries were actually made. Instead, the Plaintiff argues that alleging
In eases where the complaint alleges complex or extensive fraud schemes, courts often relax the
The Complaint also does not sufficiently state the “content of false representations.” Count I does not include the names and job titles of the employees who submitted the false bonus claims, how many times or when they were submitted, or which particular bonus claims are alleged to be falsified.
See United States ex rel. Davis v. Dist. of Columbia,
The
sine qua non
of an FCA complaint is that it allege a false or fraudulent claim.
Count III alleges that NATI billed the USDA for work performed by unlicenced employees in violation of a contractual clause. Compl. at ¶ 159. However, since there is no allegation that NATI actually submitted a claim to the USDA that the employees were unlicenced, there is no way to know if the USDA had consented to the alleged breach of the contract clause.
Count IV alleges that NATI billed the USDA for overtime that did not qualify for overtime status,
id.
at ¶ 96, and then gave employees “compensation time” off in lieu of monetary compensation.
Id.
at ¶ 116. Significantly, this Count fails to assert a false claim. The Complaint alleges that “NATI frequently billed for overtime.” Compl. at ¶ 105. Plaintiff argues that the contract between NATI and the Govern
Count V alleges that NATI misrepresented the amount of work it performed by billing for tasks that had not been completed. Id. at ¶ 167. While the Complaint lists a number of maintenance tasks that were allegedly not completed, it does not allege that Defendants made a false representation in connection with those particular tasks. While this Count might state a cause of action for a breach of contract claim, it does not allege fraud as required in an FCA complaint.
Therefore, Counts III, IV, and V against Defendant NATI must also be dismissed for failure to state a claim.
2. Defendant CTSI
CTSI began its maintenance contract on April 1, 2003. Compl. at ¶25. As noted earlier, Plaintiff was not an employee of CTSI or its subcontractor PAE. Id. at ¶ 21. Thus, as Plaintiff does not have first-hand knowledge about CTSI’s activities, he bases his allegations on information and belief. Id. at ¶¶ 36, 64, 81, 126, 138.
“As a general rule, pleadings upon information and belief do not satisfy
Plaintiff concedes that he did not allege lack of access in the Complaint, and attempts to rectify the situation by making the allegation in his Pleadings. Pl.’s Opp’n to NATI Mot. at 11. “While it is generally understood that the complaint may not be amended by legal memoranda that are submitted as opposition to motions for dismissal ... courts have allowed, for
However, even if the Court accepts the Plaintiffs allegation in his Opposition that necessary information is in Defendants’ control, the allegations against CTSI still would not satisfy
3. Individual Defendants
The Complaint seeks to hold the remaining four Defendants liable on all five Counts. However, as noted above, an FCA complaint must make specific allegations against individual defendants, rather than against them as a group. “FCA cases in this circuit reveal that specificity regarding the identities of individual actors is required.”
United States v. Sci. Applications Int’l Corp.,
Defendant Carothers is mentioned twice in the Complaint. In the background to Count I, the Complaint alleges that he instructed an employee to list maintenance as having been completed on the last day of the month in order to avoid pushing “the cycle to one month later.” Compl. at ¶ 60. However, this does not relate to the allegations in Count I, which claim the Defendants falsified response times for repair requests, not maintenance orders.
Id.
at ¶ 143-44. Additionally, there is no allegation that the maintenance was not in fact done by the end of the month or that backdating a request would have affected Government payments.
See United States ex rel. Totten v. Bombardier Corp.,
Defendant Ruest is alleged to have written a memo stating that NATI was trying to get more work orders so that they could “double dip the Government and make extra money.” Compl. at ¶80. However, even if NATI was misrepresenting its work orders, it does not mean that Ruest himself submitted any false claims to USDA, and the Complaint makes no such allegation. Ruest is also alleged to have requested overtime for needing “special access” to the facilities, id. at ¶ 106, but this also does not allege that he submitted a false claim.
Defendants Chang D. Hwang and Heys S. Hwang are not specifically mentioned in the Complaint, other than being listed in a group; the one exception is the allegation that Chang D. Hwang received the memo described above from Ruest. Id. at ¶ 79. This is certainly not enough to state a claim under the FCA.
Therefore, all Counts against Defendants Chang D. Hwang, John G. Carothers, Heys S. Hwang, and James W. Ruest must be dismissed for failure to state a claim under
C. Leave to Amend
Plaintiff requests leave to amend his Complaint in lieu of dismissal. PL’s Opp.’n at 1. Once a responsive pleading has been served, a party may only amend a pleading by leave of the court or with the consent of the adverse party.
For the reasons set forth above, the Motion to Dismiss of Defendant PAE is granted; the Motion to Dismiss of Defendants NATI, CTSI, Chang D. Hwang, John G. Carothers, Heys S. Hwang, and James W. Ruest is granted. Plaintiffs Request for Leave to Amend the Complaint as to allegations against all Defendants is granted and shall be filed no later than April 1, 2010.
An Order will issue with this opinion.
Notes
. For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff.
Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,
. The United States, pursuant to
. Plaintiff relies on the “no set of facts” standard set forth in
Conley v. Gibson,
. As part of the Fraud Enforcement and Recovery Act of 2009 ("FERA”), Pub.L. No. 111-21, 123 Stat. 1617 (2009), Congress made a number of changes to the FCA. FERA includes a retroactivity clause which states that a new subsection would apply to all FCA "claims” pending as of June 7, 2008.
As this Complaint was filed on August 14, 2006, there are no allegations here of any pending claims by the Defendants on June 7, 2008. Therefore, the retroactivity clause does not apply, and the prior version of the FCA (last amended in 1994) will be used throughout the remainder of this opinion.
. The applicable statute of limitations under the FCA is six years.
. The Complaint lists "Defendant Don Swenson” as a Vice-President of PAE, Compl. at ¶ 16, but makes no further reference to him and never alleges how he may have been involved in any fraud. Additionally, he is not listed in the caption, and according to PAE’s Motion, he was not served. PAE Mot. at 8 n. 1.
. "If a subcontractor ... makes a false statement to a private entity and does not intend the Government to rely on that false statement as a condition of payment, the statement is not made with the purpose of inducing payment of a false claim ‘by the Government.' In such a situation, the direct link between the false statement and the Government's decision to pay or approve a false claim is too attenuated to establish liability."
Allison Engine Co. v. United States ex rel. Sanders,