Opinion
1:22-CV-4612 (LTS)
07-26-2022
UNITED STATES EX REL JASON CALDERON; LARIDION KOINONIA LLC, Plaintiffs, v. TRUE CONNECT DIRECT AKA OR DBA SAGE TELECOM COMMUNICATIONS; TELESCAPE COMMUNICATIONS, Defendants.
ORDER OF DISMISSAL
Laura Taylor Swain, Chief United States District Judge
Plaintiff Jason Calderon, who is appearing pro se, filed this action on his own behalf and on behalf of Laridion Koinonia LLC. He invokes the court's federal question jurisdiction and asserts claims under the False Claims Act. Plaintiff sues True Connect Direct, also known as, or doing business as, Sage Telecom Communications; he further sues Telescape Communications. He seeks “15-30% of all money recovered by [the] federal government as [a result of] whistleblower provisions of the False Claims Act.” (ECF 2, at 6.) Plaintiff requests that his complaint be filed under seal.
In this order, the Court will refer to Plaintiff Jason Calderon as the sole plaintiff in this action.
By order dated June 29, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court denies Plaintiff's request that his complaint be filed under seal, and the Court dismisses this action.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed.R.Civ.P. 12(h)(3)
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original).
BACKGROUND
Plaintiff states that he brings this action under the False Claims Act's whistleblower provisions. He alleges “abuse and waste of federal funds against lifeline USAC FCC [u]njust enrichment by way of deception, and fraud in violation of law [sic].” (ECF 2, at 2.) He asserts that the events that are the basis for his claims occur “online” and “daily.” (Id. at 5.) Plaintiff alleges the following:
Violation of False Claims Act complaint manipulation of websites to deceive & defraud customers. Abuse, waste, misappropriation of funds, [h]ostile agent support, websites prepopulated and takes away customers['] ability to chose. Deprivation of agents, commissions, ect.
Manipulation of customer applicant data and maliciously & retaliatory mistreatment & withholding of data. Preventing access to applications pending, by blocking Agent NLAD and order entry, and national verif[i]er and claims services from USAC, false claims on devices, breeches of contract make impossible to comply with FCC guidelines.(Id.)
Plaintiff also states he has suffered the following injuries: “monetary, loss of income, inventory, reputation.” (Id. at 6.)
DISCUSSION
A. Claims on behalf of Laridion Koinonia LLC
The Court must dismiss those claims that Plaintiff asserts on behalf of Laridion Koinonia LLC, a limited liability company (LLC). The statute governing appearances in federal court, 28 U.S.C. § 1654, “allow[s] two types of representation: ‘that by an attorney admitted to the practice of law by a governmental regulatory body, and that by a person representing himself.'” Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (quoting Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991)). A nonlawyer cannot bring suit on behalf of another entity. See United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 92 (2d Cir. 2008); Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998). While “some courts allow sole proprietorships to proceed pro se [because] a sole proprietorship has no legal existence apart from its owner[,] [u]nlike a sole proprietorship, a sole member limited liability company is a distinct legal entity that is separate from its owner.” Lattanzio, 481 F.3d at 140. Thus, a limited liability company, including a sole-member or solely owned limited liability company, cannot appear in federal court without an attorney. See id. (“Because both a partnership and a corporation must appear through licensed counsel, and because a limited liability company is a hybrid of the partnership and corporate forms, a limited liability company also may appear in federal court only through a licensed attorney.”) (internal citation omitted); see also Rowland v. Cal. Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 202-03 (1993) (noting that courts do not allow corporations, partnerships, associations, and other “artificial entities” to appear in court without an attorney).
Plaintiff does not allege that he is an attorney. Accordingly, the Court dismisses without prejudice Plaintiff's claims that he asserts on behalf of Laridion Koinonia LLC.
B. False Claims Act
Plaintiff asserts claims on his own behalf under the False Claims Act (“FCA”), which imposes civil liability on any person who, among other things, knowingly presents, or causes to be presented, to an officer or employee of the federal government, a false or fraudulent claim for payment or approval. 31 U.S.C. § 3729(a). The federal government, or a private person (known as a “relator”), may bring suit for the United States in a qui tam action where there has been fraud on the federal government. 31 U.S.C. § 3730(a), (b)(1); see United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 932 (2009).
In qui tam actions under the FCA, “relators have standing to sue not as agents of the United States, but as partial-assignees of the United States' claim to recovery.” United States ex rel. Eisenstein v. City of New York, 540 F.3d 94, 101 (2d Cir. 2008) (citing Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 773-74 (2000)). The United States “remains the real party in interest.” Flaherty, 540 F.3d at 93 (internal quotation marks and citation omitted). Although a qui tam action is litigated by the relator, it “is not the relator's ‘own' case as required by 28 U.S.C. § 1654, nor one in which he has ‘an interest personal to him.'” Id. (quoting Iannaccone, 142 F.3d at 558).
In order to proceed pro se, “[a] person must be litigating an interest personal to him.” Iannaccone, 142 F.3d at 558; see § 1654. Because a litigant can proceed pro se only when bringing his own case, and because a qui tam action under the FCA is brought for and in the name of the United States, which remains the real party in interest, a litigant cannot pursue such an action pro se. See Flaherty, 540 F.3d at 93 (“Because relators lack a personal interest in False Claims Act qui tam actions, we conclude that they are not entitled to proceed pro se.” (citing § 1654 and Iannaccone, 142 F.3d at 558)). Accordingly, because Plaintiff cannot proceed pro se with his claims under the FCA, the Court dismisses those claims.
C. Request to seal
Plaintiff seeks to have his complaint filed under seal. A party requesting the sealing of court documents must overcome a strong presumption in favor of public access to judicial records, see Lugosch v. Pyramid Co., 435 F.3d 110, 119 (2d Cir. 2006), and “[t]he burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such an action,” DiRussa v. Dean Witter Reynolds, Inc., 121 F.3d 818, 826 (2d Cir. 1997).
Plaintiff's request to have his complaint sealed appears to be predicated on the FCA's requirement that complaints filed under that statute “shall be filed in camera [and] shall remain under seal for at least 60 days....” 31 U.S.C. § 3730(b)(2). The Court has dismissed Plaintiff's claims under the FCA, however, and thus, there is no longer a statutory basis to shield this action from public view. Moreover, Plaintiff's complaint is a “judicial document,” to which the public is presumed to have a right of access. See Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 139-40 (2d Cir. 2016) (all pleadings, including a complaint, “are judicial records subject to a presumption of public access”). The Court therefore denies Plaintiff's request to have the complaint sealed.
D. Leave to amend is denied
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Because the defects in Plaintiff's complaint cannot be cured with an amendment, the Court declines to grant Plaintiff leave to amend his complaint.
CONCLUSION
For the reasons set forth in this order, the Court denies Plaintiff's request for the complaint to be sealed, and the Court dismisses this action.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
Judgment shall issue.
SO ORDERED.