*1 Johnson, adjusting a fee award. ex UNITED STATES of America rel. discretion find no abuse of 717-19. We RAFIZADEH, Plaintiff- Schumann adjust the decision to
in the district court’s Appellant-Cross-Appellee, Consequent- these reasons. award for fee attorneys’ fees awarded affirm the ly, we in this case.27 INC.; COMMON, Ba- CONTINENTAL Management; Property Regis sic IV. CONCLUSION Mаnagement; Property Transconti- Realty, Inc., Defendants-Appel- nental to the district Giving due deference lees-Cross-Appellants. verdict, jury’s the we court’s decision and in case other no error this find reversible No. 06-30702. parties in naming the of non-liable than Appeals, States Court of Therefore, judgment. we REVERSE the Fifth Circuit. with REMAND instructions IN PART and from non-liable defendants to remove the Dec. However, we judgment. AFFIRM judgment. court’s remainder of district by Defendants. shall be borne
Costs PART, REVERSED
AFFIRMED IN PART,
IN and REMANDED. automatically argue his substituted as correctly the district successor 27. Defendants Dubelier, Connick, undisputed party). it is that Con- naming Because court erred Dubelier, nick, longer no and Williams are judgment and its dis in the abused Williams Office, 59(e) employed at DA’s their official denying by their Rule motion cretion non-existent, they capacities are should judgment to correct alter or amend the judgment. Con- it been named previously held that have error. We have sequently, we the district court’s deci- allegations against reverse proper dismiss munici 59(e) deny motion Defendants’ Rule pal capacities when sion to officers in their official instructions to remove Con- against and remand with allegations duplicate claims Dubelier, nick, judg- from the and Williams governmental entity itself. See Castro Romero briefing Becken, (5th Cir.2001) We note that after ment. further Jordan, complete, who (noting official-capacity of this case was claims were began, against govern Attorney case re- duplicative District when this the claims Thus, 25(d) pursuant entities); (pro signed position. to Rule his Fed. R. Civ. P. mental cf. 25(d), cоurt substitute the should viding public when a officer is sued his office, Attorney. the current District hold name of capacity and the ceases to official *3 Easley, & Toby Easley, Matthews C. (ar- Houston, TX, Herrero Ducloux Cecilia TX, Ducloux, Houston, for & gued), Bohn Rafizadeh. Vig- (argued), Madden Thomas
Mitchell Dallas, Murto, III, MaddenSewell, gers TX, Garner, Simon M. Joshua James Force, Cahill, Kelin Garner Richter Sher LA, Hilbert, Orleans, New for Defen- & dants-Appellees-Cross-Appellants. N. (argued), Douglas Frank Steve I. Div., Justice, Letter, Dept, of Civ. U.S. DC, for Amicus Curiae. Washington, JONES, Judge, Before Chief Continental moved to dismiss under SMITH, Judges. REAVLEY Circuit Federal Rule of Civil Procedure particularity failure to fraud with SMITH, Judge: JERRY E. Circuit and under Federal Rule of Civil Procedure Schumann Rafízadeh sued under 12(b)(6) failure to state a claim on (“FCA”), False Act Claims 31 U.S.C. inadequate pleading present- account of 3729(a), alleging that the defendant ment. The district court dismissed with (collective- property managers owners 12(b)(6), prejudice under Rule and Rafiza- “Continental”) ly ovеrcharged two Louisi- appeals.2 deh *4 ana departments agreements.1 on lease Continental then for attorneys’ moved appeal, Both sides and we affirm. fees, contending that the suit frivolous I. and vexatious. The district court denied motion, the cross-appeals. Continental The Departmеnts Louisiana of Social (“DSS”) Services and Health and Hospitals (“DHH”) (collectively “Departments”) the II. maintain office leases with Continental. review a We dismissal under Louisiana the United States jointly 12(b)(6) 9(b) Rule or Rule de novo. See Departments,
fund the
with the federal
United States ex rel. Doe v. Dow Chem.
government рroviding at least 64% of the
Co.,
(5th
325,
Cir.2003).
343 F.3d
328
On
funding.
funding,
To secure
Depart-
the
dismissal,
allegations
review of
in
“the
the
ments submit annual budgets to the Unit-
complaint must be liberally construed in
ed States.
favor of
plaintiff,
pleaded
the
and all facts
alleges
Rafízadeh
that Continental over-
in the complaint must be taken as true.”3
charged
Departments
the
under the lease
To
12(b)(6),
survive
Rule
dismissal under
by
agreements
overestimating the usable
non-moving
“the
party
plead ‘enough
must
space in the office buildings
agencies
the
facts to
a
state
claim to relief that
is
occupy. Continental was aware that
”4
plausible on its face.’
complaints
For
largely
Depart-
States
funded the
pleading
malice,
fraud and
Rule
cre
ments.
In his complaint, Rafízadeh insists
ates a heightened
requirement
pleading
that Continental
false
submitted
claims to
constituting
“the circumstances
Departments,
fraud
“causing
pres-
to
[them]
ent same
particulari
to
United States
mistake shall be
Government
stated with
payment
9(b).5
9(b)’s
thereof.”
ty.”
plead-
Fed.R.Civ.P.
Rule
Prods.,
1. The United States declined to intervene.
3. EPCO Carbon Dioxide
Inc. v. JP Mor-
Bank, NA,
466,
gan
(5th
Chase
467 F.3d
467
briefing
2.
In
before the district court and this
Cir.2006) (citing Lowrey v. Tex. A&M Univ.
court,
pay-
Rafizadeh
asserts that
lease
242,
(5th
1997)).
Sys., 117 F.3d
247
Cir.
"incorporated
ments were
in
budgets”
prеsented
payment.
to
United States for
Co.,
Scrap
4. S.
Material
v. ABC
LLC
Ins. Co.
Review
a
typically
of
dismissal
limited to
(In
Co., LLC),
Scrap
re S.
Material
541 F.3d
complaint.
the facts as stated in the
See
584,
(5th Cir.2008)
(quoting
587
Bell Atl.
Caire,
116,
(5th
Morin v.
77 F.3d
Cir.
544,
Corp.
Twombly,
550 U.S.
127 S.Ct.
1996) ("The review of such a motion is limit-
1955, (2007)).
Rafizadeh’s
Government,
to
claim the
knowingly submitted false
fraudulent
“[defendants
Doe,
id.
and
(quoting
6.
at 329
other sources. See
The
States
United States
Epic
Mgmt.
possess
perti-
ex rel.
Healthcare
Departments
Russell
the documents
(5th Cir.1999)).
Group,
claim,
193
308
F.3d
so the documents
nent to Rafizadeh’s
9(b)
can be relaxed where
The Rule
standard
obtainаble,
a
the Rule
are
and
relaxation of
alleged
relating to
“the facts
fraud are
9(b) requirement
inappropriate.
peculiarly
perpetrator's
knowl-
within
Russell,
(citing
edge.”
concept presentment of is not mentioned in v. Va. Harper Dep’t Taxa- of 3729(а)(2).” tion, § at 86, 97, Id. 2129. The Court 509 U.S. 113 S.Ct. with agreed general (1993)). Rafizadeh’s contention Generally, L.Ed.2d we would presentment required not under provide a remand to Rafizadeh with chance 3729(a)(2). § Id. 2129-30. the facts relevant to Allison En- 3729(a)(2) gine's § Remanding standard.8 did, however, clarify The Court fruitless, however, here would be because plaintiff prоve a required what under 9(b) Rafizadeh’s claim falters Rule under 3729(a)(2). § must “that He show the de regardless of it newly- whether meets the or fendant made a false record statement 3729(a)(2) § requirements. announced purpose getting for the of ‘a false or fraud 3729(a)(2) § Despite the fact that does not paid approved by claim or ulent the Gov ” require presentment, a alleging relator a ernment.’ If Id. at 2130. the defendant 3729(a)(2) § violation must still show the a private “makes false statement to a enti “who, what, when, where, and how of the ty and does intend the Government to 9(b).9 alleged fraud” under Rule Rafiza- rely on that a false statеment as condition deh has failed to several payment, the statement is not meet of made with the purpose inducing payment requirements: of a “what” statements ” claim ‘by it, false the Government.’ Id. budget, prepared were “who” 3729(a)(2) asserting plaintiff “[A] claim “how” it was to get government used prove must the defеndant intended Thus, funds. the claim fails under Rule that the false or record statement be mate 9(b) regardless of whether Rafizadeh satis- rial to the Government’s to pay decision Engine. fies Allison *6 approve the false claim.” Id. at 2126. IV. course,
“Of Supreme Court de Continental cross-appeals the apply cisions retroactively prospective and аttorneys’ denial of its for motion fees all ly to appeal cases on direct whenever 3730(d)(4)10 under 31 U.S.C. applied to and 28 litigants the the before Court.” Deffenbaugh-Williams § 1927.11 v. Under both of these sec Wal-Mart Stores, Inc., (5th 278, tions, F.3d 188 282 Cir. we review for abuse of discretion.12 See, e.g., 8. Deffenbaugh-Williams, neys' 188 F.3d expenses at feеs and if the defendant (“When changes unanticipated 282 law prevails in the and the action court finds ways during appeal an ... court will person bringing that the claim of the the generally give par- for a remand new trial to frivolous, clearly clearly action was vexa- the the oppor- ties benefit оf new law the tious, and brought primarily purposes or for of tunity present to evidence relevant to that harassment. standard.”). new 11. Section 1927 as reads follows: Doe, (internal quotation 343 at F.3d 328 Any attorney person or other admitted to See, omitted). e.g., and marks citation any conduct cases in court of the United Y-12, L.L.C., ex States rel. Marlar v. BWXT 525 any Territoiy or States thereof who so mul- (6th Cir.2008) (stating F.3d 439 although that tiplies proceedings any unrea- case " 'presentment' required not is for actions sonably vexatiously may required by be 3729(a)(2)] ... repeatedly [§ under we have satisfy personally the court to the excess proоf held that a required of false claim costs, expenses, attorneys' reason- fees ....”) (citations omitted). ably incurred of because such conduct. 3730(d)(4) 10. Section reads as follows: Energy 12. See CenterPoint Houston Elec. LLC Auth., government proceed County If the does not with Harris Toll Road 436 F.3d 541, (5th Cir.2006) person bringing the action and the the ac- 550 Sw. Bell Tel. action, Paso, (5th tion may City conducts the the court Co. v. El 346 F.3d 550 Cir.2003)). award to the defendant its reasonable attor- litigated that had raised issues been best plaint is in the judge trial “the Generally, elsewhere. circum- the factual review to position judgment an informed and render
stances fact the first amended Despite the that case, intimately with involved regarding he is Louisi- complaint as raised issues daily attorneys law, on a the second and the bid amended litigants, public ana qui the non-frivolous only raised complaint of fee decisions basis,” review so our action, an issue in had not been tam which deferential.13 especially court The district earlier state suits. Rafizadeh’s argues that Continental are we to determine suited than is better it claims which allegations, factual vague in- allegations so these additional whether requirement, presentment skirt seek to litigation as constitute the costs flated An frivolous. to be complaint show harassment. a existing if law or not frivolous action is fees, attorneys’ also seeks Continental extension, its suggestion for reasonable Rafizadeh’s coun- costs, expenses from ac- modification, supports reversal or preliminary motion for a filing for а sel Houston, Farguson MBank tion. Cf. Continental from injunction prohibit Cir.1986). N.A., denying at issue. In property selling motion, court found that allegations Although Rafidezeh’s any of the failed to establish had particulari with sufficient pleaded are not Nonetheless, factors. relevant four 9(b), good- a he tendered ty under request Continеntal’s considered court not presentment argument faith that motion and attorneys’ regarding fees 3729(a)(2) The dis §for actions. required clearly not vex- the motion was found discretion not abuse its trict court did atious. claim was qui
finding that tam CenterPoint, 550- In frivolous. (5th Cir.2006), request remanded we the district court attorneys’ fees where ‘clearly vexatious’ “An action is the fee motion. no on findings made had *7 of harass purposes for primarily ‘brought extensive, but Here, not findings are litiga plaintiff pursues ment’ when separate in a address fees court did such as improper purpose, an tion with “the Court cannot and found that order defendant.” annoy or embarrass clearly frivo litigation that this say Co., Eng’g v. Ronan Pfingston vexatious, brought primari lous, clearly omitted). Cir.2002) (citations (9th 999, 1006 under 31 of harassment ly purposes the false But, of fees under “the award 3730(d)(4).” findings, These al special for rare and act is reserved claims detailed, are far intricately though 1006-07. Conti Id. аt circumstances.” issued Center- summary order from suit explanation contends Rafizadeh’s are a sufficient nental Point clearly suit suit is not vexatious, it the fourth of fees. This denial because com- original and the vexatious.14 parties, between gave a KPMG, Rafizadeh points out that Continental Energy, Inc. v. 13. Skidmore Cir.2006) (5th Cap- to the New Orleans newspaper interview Thomas Servs., Inc., 836 F.2d he threatened “re- Times-Picayune in ital Sec. which 1988) (en banc)). Although Cir. these venge” against Continental. troubling, court did allegations are alleges also 14. Continental finding its wide not abuse discretion notice, the Louisiana via a letter from onwas brought clearly vexatious or the suit was not Administration, factual that the Division primarily for harassment. false; over-billing were allegations about summary, In because Rafizadeh failed to particularity required with the by 9(b), dismissal his 3729(a)(1)-(2)
§§ claim is AFFIRMED. cross-appeal,
On attorneys’ the denial of
fees is likewise AFFIRMED.
REAVLEY, Judge, specially Circuit
concurring:
I concur in judgment because the
district court properly ruled that the com
plaint legal failed to state a claim. The
judge years prior there ruled two to Alli Engine son Co. v. United States ex rel. —
Sanders, U.S.-, 2123, 170 128 S.Ct. (2008),
L.Ed.2d 1030 correctly. and did so
I see no Rule defect. The manner of
payment by the United States is stated: it grant federal percentage for a of the agency’s
state budget. But that fails to
allege a claim under the False Claims Act
as by decided the Supreme Court. DALE,
Michael Stuart Petitioner-
Appellant,
Nathaniel QUARTERMAN, Director, Department
Texas of Criminal Jus-
tice, Correctional Institutions Divi-
sion, Respondent-Appellee.
No. 05-41747.
United States Appeals, Court of
Fifth Circuit.
Dec.