Opinion
NO. 4:02-CV-996-A
January 5, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, Bell Helicopter Textron, Inc. ("Bell"), to dismiss the complaint of plaintiff, Douglas W. Williams, bringing this action individually and on behalf of the United States government. The court, after having reviewed Bell's motion, the response of plaintiff, and Bell's reply; the statement of interest of the United States, Bell's response, and the reply of the United States; the record; and applicable authorities; concludes that Bell's motion should be granted in part and denied in part for the reasons set forth below.
I. Background
Plaintiff instituted this suit in December 2002. His complaint alleges that Bell violated the False Claims Act, 31 U.S.C. § 3729 et seq. ("FCA"), and retaliated against him for conduct protected by the FCA. The complaint was filed under seal, and the United States was given an opportunity to intervene in the action. See 31 U.S.C. § 3730 (b)(2). The court granted the United States two extensions to her original deadline to notify the court of her intent to intervene. See Id. She declined to intervene, and on July 2, 2003, the court ordered the action to proceed on the complaint of plaintiff alone as authorized by 31 U.S.C. § 3730(b)(4)(B) and (c)(3). Plaintiff failed to serve defendant promptly and the court issued an order signed August 7, 2003, requiring plaintiff to serve Bell and file proof of service promptly. Finally, in early October 2003, plaintiff served Bell, and Bell responded with the motion to dismiss at bar.
According to conclusory allegations in the complaint: Bell entered into various contracts with the United States to design, develop, and manufacture a variety of military aircraft. From April 21, 1997, to June 3, 2002, plaintiff was employed by Bell as an electrical engineer. Bell presented fraudulent claims for payment to the United States for work allegedly not performed or work poorly performed in designing and developing military aircraft. His employment with Bell was terminated due to his lawful acts in furtherance of his claims against Bell under the FCA.
Bell asserts in its motion to dismiss that the false claim feature of his complaint should be dismissed because plaintiff has failed to state a claim by reason of his failure to plead fraud with the particularity required by Federal Rule of Civil Procedure 9(b). It also argues that both features of the complaint should be dismissed because plaintiff failed to plead facts sufficient for him to state any claim under the FCA.
II. Applicable Standards
A dismissal under Federal Rule of Civil Procedure 9(b) is a dismissal for failure to state a claim, See United States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 328 (5th Cir. 2003), and the standards for deciding a motion to dismiss for failure to state a claim are well-settled. The court's task is to determine "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson. 355 U.S. 41, 45-46 (1957). The court construes the allegations of the complaint favorably to the pleader. Scheuer, 416 U.S. at 236. However, the court does not accept conclusory allegations or unwarranted deductions of fact as true. Tuchman v. DSC Communications Corp., 14 F.3d 1061, 1067 (5th Cir. 1994); Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
III. Analysis
A. Failure to Plead a False Claim
For a plaintiff to recover for a violation of section 3729(a)(1) of the FCA, he must show that: (1) the defendant made a claim for payment that was submitted to the federal government, (2) the claim was false or fraudulent, and (3) the defendant knew the claim was false or fraudulent. See United States v. Southland Mgmt. Corp., 288 F.3d 665, 675 (5th Cir. 2002). Under the FCA, a claim is defined as "any request or demand, whether under a contract or otherwise, for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded." 31 U.S.C. § 3729(c). In addition, plaintiff must comply with the heightened pleading requirements of Federal Rule of Civil Procedure 9(b) when alleging a violation of the FCA. See Doe, 343 F.3d at 328. To do this, plaintiff must "set forth the who, what, when, where, and how of the alleged fraud." United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th Cir. 1997).
Plaintiff seems to base his allegations that Bell violated the FCA on his assertion that at some unspecified point and time, Bell billed the government for developing military equipment.
Plaintiff then gives details of, including the names of individuals that allegedly engaged in, wrongdoing by Bell. While it is doubtful that Bell designed and developed any military equipment for free, the vague allegation that wrongdoing occurred during development, and Bell billed the United States government for such development, does not allege that any request for payment was false or fraudulent. Plaintiff's allegations that Bell presented false or fraudulent claims for payment to the United States are conclusory and will not be accepted by the court. See United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003); Tuchman, 14 F.3d at 1067.
Additionally, plaintiff's allegations do not meet Rule 9(b) standards of particularity. While many allegations specifically identify the individuals involved in alleged wrongdoing, such as overcharging Bell for contract work performed for Bell, they do not allege the "who, what, when, where, and how" of the false claim submitted to the government.See Thompson, 125 F.3d at 903. Knowingly submitting the false or fraudulent claim is the FCA violation, and must be pleaded with particularity, not the wrongdoing that may, or may not, have been improperly billed to the United States by Bell. See United States ex rel. Russell v. Epic Healthcare Mgmt. Group. 193 F.3d 304, 308 (5th Cir. 1999).
Although plaintiff's asserted false claim cause of action is subject to being dismissed, the court is allowing plaintiff an opportunity to amend for the purpose of making sufficient allegations in relation to that claim. The court notes that plaintiff's complaint is replete with inappropriate allegations that should be deleted in the filing of his amended complaint, such as the allegations contained in paragraph 8 relative to his history prior to becoming an employee of Bell and his current military status. If plaintiff elects to file an amended complaint, the court expects plaintiff to be very specific in his "who, what, when, where, and how" allegations related to his asserted false claim cause of action. And, the court reminds plaintiff and his counsel of their obligations under Federal Rule of Civil Procedure 11.
B. Failure to Plead Retaliation
In addition to his allegations that Bell presented false claims to the government, plaintiff alleges that he was fired in retaliation for his legal conduct in pursuing his claims against Bell under the FCA. The FCA provides relief for "any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done . . . in furtherance of an action under [the FCA]." 31 U.S.C. § 373O(h). To properly plead this violation, plaintiff must allege that Bell had knowledge that plaintiff was engaging in protected activity and took some action to plaintiff's detriment as a result.See Robertson v. Bell Helicopter Textron, Inc., 32 F.3d 948, 951 (5th Cir. 1994); Hammack v. Automated Info. Mgmt., Inc., 981 F. Supp. 993, 995 (N.D. Tex. 1997).
Plaintiff has failed to plead that Bell had any knowledge of protected activity engaged in by plaintiff. Moreover, plaintiff has failed to allege that he engaged in any protected activity in furtherance of his FCA claims before he was fired. Even if true, his allegation that he told his supervisor that "he would not let [Bell] continue to put craft in the field that would kill his comrades in arms [sic]," See Pl.'s Compl. at ¶ 32, is not protected activity under the FCA. Such a remark by plaintiff could be just as well prompted by a belief on his part that the "craft" in question was dangerous even though it was being built strictly in accordance with the government's contractual specifications. A person hearing such a remark would not know what plaintiff was complaining of.See Robertson, 32 F.3d at 951. Therefore, plaintiff has failed to state a claim of retaliation.
III. ORDER
For the reasons discussed,
The court ORDERS that, if plaintiff wishes to continue with the false claim feature of this action, he file by January 15, 2004, an amended complaint in which he properly alleges such a claim, consistent with the requirements of the foregoing memorandum opinion.
The court further ORDERS that plaintiff's claim for retaliatory discharge, as set forth in paragraphs 29 through 33 of his complaint, be, and is hereby, dismissed.
The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of said claim.