Opinion
21-cv-1109-BAS-BLM
10-20-2021
UNITED STATES OF AMERICA ex rel., ERIK LECKNER Plaintiffs, v. GENERAL DYNAMICS INFORMATION TECHNOLOGY AND APEX SYSTEMS, LLC, Defendants.
ORDER
(1) REQUIRING PLAINTIFF TO SHOW CAUSE WHY COUNT 1 SHOULD NOT BE DISMISSED; AND
(2) UNSEALING ACTION
HON, CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
Plaintiff seeks to prosecute a False Claims Act (“FCA”) qui tam claim on behalf of the United States as a part of his action. (Am. Compl. ¶¶ 118-120, ECF No. 2.) The United States declined to intervene, pursuant to the FCA, 31 U.S.C. § 3730(b)(4)(B). (ECF No. 3.) Where, as here, the United States declines to intervene, the person who initiated the action has the right to conduct the action. Id. § 3730(c)(3). However, a person not represented by counsel cannot prosecute the qui tam claim on behalf of the United States. See Stoner v. Santa Clara Cnty. Off. of Educ, 502 F.3d 1116, 1126-27 (9th Cir. 2007) (declining to interpret the general pro se provision, 28 U.S.C. § 1654 as allowing qui tam relators to proceed without the representation of counsel because “qui tam relators are . . . also representing the United States” and holding that “[t]he FCA itself does not authorize a relator to prosecute a § 3729 violation pro se ”). Because Plaintiff is unrepresented by counsel, his FCA qui tam claim (“Count 1”) fails as a matter of law. An amendment of the pleading cannot cure this defect.
Plaintiff also raises a cause of action for retaliation in violation of the FCA, 31 U.S.C. § 3730(h). (Am. Compl. ¶¶ 121-22.) “There is no question that if Plaintiff has properly pleaded a claim for retaliation, []he is permitted to do so irrespective of the fate of h[is] FCA qui tam claim.” Hayes v. Dep't of Educ. of City of New York, 20 F.Supp.3d 438, 443 (S.D.N.Y. 2014)
Accordingly, the Court ORDERS Plaintiff to show cause, on or before November 3, 2021, why Count 1 should not be dismissed without leave to amend, but without prejudice to future refiling by a licensed attorney.
The Court also ORDERS that:
1. The Complaint, the Amended Complaint, the United States' Notice of Declination, and this Order be unsealed;
2. The seal be lifted as to all other matters occurring in this action after the date of this Order;
3. The parties shall serve all pleadings and motions filed in this action, including supporting memoranda, upon the United States, as provided for in 31 U.S.C. § 3730(c)(3); and
4. All orders of this Court shall be sent to the United States.
IT IS SO ORDERED.