MEMORANDUM OPINION AND ORDER In the fourth claim for relief in their amended complaint, the relators — Pamela Brumfield, Guy Flanders, Quiana Ware, Jovanna Delvalle, and Rise Grady — allege that one of the defendants, Alan Brand, terminated their employment in violation of the False Claims Act (“FCA”) provision barring retaliation against employees who act lawfully in furtherance of an FCA claim brought against an employer. See 31 U.S.C. §3730(h). Brand moved to dismiss this claim under Federal Rule of Civil Procedure 4(m) for improper service, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and as time barred under 31 U.S.C. §3730(h)(3). For the reasons explained below, Brand’s motion to dismiss is granted.I.In deciding a motion to dismiss pursuant to Rule 12(b) (6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff’s possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Mercator Corp. v. Windhorst, 159 F. Supp. 3d 463, 466-67 (S.D.N.Y. 2016).A court may grant a motion to dismiss on statute of limitations grounds “if a complaint clearly shows the claim is out of time.” Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999); see Troni v. Holzer, No. 09cv10239, 2010 WL 3154852, at *2 (S.D.N.Y. July 29, 2010).II.In a complaint dated May 8, 2012, the relators brought a qui tam action on behalf, of the United States under the FCA, 31 U.S.C. §§3729 et seq., against Brand and defendant Narco Freedom, Inc., a not-for-profit corporation of which Brand was the chief executive officer. Dkt. No. 23. The relators alleged that the defendants engaged in a kickback scheme in violation of the FCA. The relators also alleged twice that the defendants retaliated against them for refusing to engage in fraud, stating:17. Defendants… retaliated by terminating the Relators, within less than 45 days, objecting to their unemployment benefits and have expressed an intention to file a complaint with the New York State Office of Professional Misconduct against the Relators in order to obfuscate responsibility.…165. Defendants… continued to retaliate against Relators by contesting their unemployment and Defendants are now seeking to file a claim against Relators with the office of Professional Misconduct. Id.
17, 165. However, the complaint did not allege that the defendants retaliated against them for taking any action in furtherance of an FCA claim and did not contain a 31 U.S.C. §3730(h) retaliation claim for relief. Further, the six claims for relief in the complaint alleged only that the United States, not the relators, suffered damages. See id.
