X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Civil Litigation Click here for the full text of this decision FACTS:The appellant, John Doe, contends that he stated a valid reverse false claim under the False Claims Act, 31 U.S.C. sec. 3729(a)(7). The district court dismissed appellant’s claim for failure to plead with particularity under Federal Rule of Civil Procedure 9(b) and failure to state a claim on which relief can be granted under Federal Rule of Civil Procedure 12(b)(6), and denied his motion to dismiss without prejudice and his motion to amend. HOLDINGAffirmed. The “time, place and contents of the false representations, as well as the identity of the person making the misrepresentation and what [that person] obtained thereby” must be stated in a complaint alleging violation of the FCA in order to satisfy Rule 9(b). United States, ex rel. Russell v. Epic Healthcare Mgmt. Group, 193 F.3d 304 (5th Cir. 1999). At most, Doe’s complaint listed the approximate time and place of the alleged discharges that violated Dow Chemical’s permits, but nothing else. The complaint averred that at the Plaquemine, La., facility “[o]ver a period of several months in late 1998 to early 1999 a series of discharges took place which were illegal. � The complaint did not, however, explicitly state that any alleged false representations were made during that time. Further, it is unclear from the face of the complaint exactly what representations Dow Chemical was allegedly making. The complaint stated only that “[t]he information was logged into a database.” Doe did not specify whether the information logged in the database was false, or whether the information logged in the database was true but Dow Chemical subsequently reported false information to the government. Doe’s complaint also failed to state who was making the allegedly false representations. While several people were listed in the complaint as having “knowledge” of the discharge, Doe never alleged that any of these individuals made false representations to the government in contravention of the FCA. Finally, while allegations may be based upon information and belief, “the complaint must set forth a factual basis for such belief.” United States, ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899 (5th Cir. 1998). Here, in addition to his other shortcomings, Doe failed to provide any factual basis for his belief that there were “illegal” discharges at the Plaquemine facility, that certain parties knew of these discharges and their illegality, and that those parties falsified reports to the government to prevent detection. Rule 9(b) dictates that Doe’s complaint must be dismissed. It is possible that the pleading requirements of Rule 9(b) may be relaxed in certain circumstances � when, for instance, the facts relating to the fraud are peculiarly within the perpetrator’s knowledge. Doe has at no time alleged that he did not have access to facts relating to the fraud. In fact, the complaint explained that Doe “[would] make additional information available to the Criminal Investigation Division of the Environmental Protection Agency.” Absent such a showing on the part of Doe, this Court will not further relax the requirements of Rule 9(b) in the context of qui tam suits. It was therefore proper for the district court to dismiss Doe’s complaint for failure to plead with particularity. Doe filed his motion to dismiss nine months after filing suit. Both sides had filed responsive pleadings in addition to motions to compel, motions for expedited hearing, motions to dismiss, motions for oral arguments, and a motion for rehearing. The parties had attended several conferences for purposes of scheduling discovery. And although no magistrate had ruled against Doe, the United States had declined to intervene in the suit, a move which could be interpreted by Doe as substantially weakening his case. Further, Doe’s counsel had been sanctioned by the district court for failure to participate in the discovery process. It was therefore not an abuse of discretion for the district court to deny Doe’s motion to dismiss without prejudice under Rule 41(a)(2). Doe did file a separate motion to amend, unsupported by affidavits, a brief, or a proposed amended complaint. The court must therefore look to see whether his request sets forth with particularity the grounds for the amendment and the relief sought. Doe, in his one-page, three-sentence motion states only that “[i]n the event that the dismissal is denied, plaintiff requests leave of court to file amended pleadings adding additional plaintiffs and facts as allowed by law.” While this statement, in its loosest sense, is a request to amend, it offers no grounds on which an amendment should be permitted. The absence of any proposed amendments, compounded by the lack of grounds for such an amendment, justifies the district court’s implicit denial of Doe’s motion to amend his complaint. OPINION: Clement, J.; Wiener, Clement and Prado, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.