Opinion
17 Civ. 6611
10-26-2017
EEON, Plaintiff, v. THE FEDERAL RESERVE BOARD, THE FEDERAL RESERVE, DOE #1-20,000, Defendants.
APPEARANCES: Pro Se Eeon 18429 East Veterans Memorial Drive #1874 Bonney Lake, Washington D.C., ZIP Code exempt
SEALED OPINION
APPEARANCES:
Pro Se
Eeon
18429 East Veterans Memorial Drive #1874
Bonney Lake, Washington D.C., ZIP Code exempt
Sweet, D.J.
Pro se plaintiff Eeon ("Eeon" or the "Plaintiff") has brought this qui tam action on behalf of Defrauded Homeowners of America ("DHOA"), Trust Interest Holders ("TIH"), and the United States (the "United States") against Defendants the Federal Reserve Board (the "Federal Reserve Board"), the Federal Reserve (the "Federal Reserve"), and Does 1-20,000 ("Does") (collectively, the "Defendants"), alleging, inter alia, violations of the False Claims Act (the "FCA"), 31 U.S.C. § 3729.
The Plaintiff filed this action under seal on August 30, 2017. Plaintiff at no point served the Government in accordance with the procedural requirements set out in 31 U.S.C. § 3730(b)(2). Based on the facts and conclusions set forth below, this action is sua sponte dismissed with prejudice.
Pursuant to 31 U.S.C. § 3730(b)(1), a private person may bring a civil [qui tam] action on behalf of the Government. Section 3730(b)(2) provides that, in bringing such an action,
A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Government pursuant to Rule 4[i] of the Federal Rules of Civil Procedure. The complaint shall be filed in camera, shall remain under seal for at least 60 days, and shall not be served on the defendant until the court
so orders. The Government may elect to intervene and proceed with the action within 60 days after it receives both the complaint and the material evidence and information.31 U.S.C. § 3730(b)(2). Further, Rule 4(i) provides, in relevant part,
(1) United States. To serve the United States, a party must:
(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney. designates in a writing filed with the court clerk—or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
Fed. R. Civ. P. Rule 4(i)(2).
(2) Agency; Corporation; Officer or Employee Sued in an Official Capacity. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee.
The Plaintiff has not served the Government with the complaint or any other information pertaining to the present claims.
Case law in this Circuit establishes that adherence to the statutory filing requirements is crucial. Indeed, the failure to follow these rules "incurably frustrate[s] the statutory purposes underlying these requirements," and warrants dismissal with prejudice. See U.S. ex rel. Pilon v. Martin Marietta Corp., 60 F.3d 995, 999 (2d Cir. 1995) (dismissing action with prejudice for failure to file under seal and to serve the Government); see also Erickson ex rel. U.S. v. American Institute of Biological Sciences, 716 F. Supp. 908, 911 (E.D.Va. 1989) ("[A] party pursuing a statutory remedy must comply with all the procedures the statute mandates").
Congress created the filing requirements "to allow the Government an adequate opportunity to fully evaluate the private enforcement suit and determine both if that suit involves matters the Government is already investigating and whether it is in the Government's interest to intervene and take over the civil action." Pilon, 60 F.3d at 998-99 (internal quotation marks omitted) (citing S.Rep. No. 345, 99th Cong., 2d Sess. 23-24, reprinted in 1986 U.S.C.C.A.N. 5266, 5288-89). Another congressional objective was "to prevent defendants from having to answer complaints without knowing whether the government or relators would pursue the litigation." Id. at 999.
Accordingly, qui tam actions must be dismissed with prejudice where the party bringing the claim has not adhered to the statutory filing requirements. See Pilon, 60 F.3d at 1000 (finding that it was an abuse of discretion for the lower court to dismiss the qui tam claims without prejudice); U.S. ex rel. Le Blanc v. ITT Industries, Inc., 492 F. Supp. 2d 303, 304 (S.D.N.Y. 2007) (failure to file qui tam complaint under seal required dismissal with prejudice as to the plaintiff). While much of the case law addresses the scenario in which the relator either fails to file under seal, or fails both to file under seal and to serve the Government, the crucial question is whether the party bringing the claim has betrayed the policy considerations underlying the requirements.
In this case, the Plaintiff's failure to serve the Government means that the Government has not been afforded "an adequate opportunity to fully evaluate the private enforcement suit" and to decide whether "to intervene and take over the civil action." See Pilon, 60 F.3d at 998-99. Accordingly, dismissal with prejudice is appropriate.
Furthermore, a pro se plaintiff may not bring a qui tam action under the FCA. United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 90 (2008). A qui tam action is brought "on behalf of and in the name of the government" while the "government remains the real party in interest." Papadopoulos v. U.S. Government, No. 15 Civ. 2836 (BMC), 2015 WL 3605405, at *3 (E.D.N.Y. June 8, 2015). Because pro se litigants "can only act on their own behalf and not for the benefit of any other party of interest . . . a qui tam relator cannot proceed pro se." Id. (citing Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998)).
A district court "has the inherent power to dismiss a case, sua sponte, if it determines that the action is frivolous or the court lacks jurisdiction over the matter." Papadopoulos, 2015 WL 3605405, at *4. Because a pro se plaintiff cannot proceed as a relator in a qui tam case, this Court sua sponte dismisses this action. See id.; see also U.S. ex rel. Rafael Manual Pantoja v. Citigroup, Inc., No. 12 Civ. 4964, 2013 WL 444030 (E.D.N.Y. Feb. 5, 2013) (dismissing qui tam action sua sponte where pro se plaintiff served as the relator).
For the foregoing reasons, Plaintiff's complaint is dismissed with prejudice.
It is so ordered. New York, NY
October 26, 2017
/s/ _________
ROBERT W. SWEET
U.S.D.J. DEFRAUDED HOMEOWNERS OF AMERICA, et al., Plaintiffs, - against - FEDERAL RESERVE, et al., Defendants. 17 Civ. 6611 (RWS)
SEALED ORDER
Sweat, D.J.
Plaintiffs' motion for reconsideration shall be taken on submission on January 24, 2018. All papers shall be served in accordance with Local Civil Rule 6.1.
It is so ordered. New York, NY
December 12, 2017
/s/ _________
ROBERT W. SWEET
U.S.D.J.
In the United States Federal District Court in and for the State of New York
| THE DEFRAUDED HOMEOWNERS OF AMERICA, etc. ALv.The, etc. al | 17 CIV. 6611Proof of service |
Proof of service:
1. A copy of the accompanying documents have been served upon each of the parties via United States postal mail the official process server for the United States.The aforementioned is true as well is accurate and done so under penalty of the Constitution for the United States of America without recourse on this January 1, 2018 so help me God.
2. The items were deposited in the logo dropbox as prescribed by statute.
Eeon, not a legal person/name
Image materials not available for display.