judgment for defendants with respect to Count III.
3. Jurisdictional Bar of Qui Tam Action Pursuant to 31 U.S.C. § 3730(e)(3)
The False Claims Act contains a jurisdictional bar which provides as follows: "In no event may a person bring an action under subsection (b) which is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the Government is already a party." 31 U.S.C. § 3730(e)(3). Defendants contend that Counts I and II of this action are jurisdictionally barred because the allegations contained herein were previously set forth in Alexander v. United States Dep't of Justice, Civil Action No. 94-0152 (D.D.C.) ("Ebon I "), filed with this Court on January 28, 1994.
The court in United States ex rel. S. Prawer & Co. v. Fleet Bank of Maine interpreted the language "based upon transactions or allegations which are the subject of' another lawsuit to require a determination as to whether the two lawsuits in question can be viewed as having a "host/parasite relationship." 24 F.3d 320, 327 (1st Cir. 1994). A parasitic relationship is one in which the qui tam case is receiving "support, advantage or the like" from the host case in which the government is a party, without giving "any proper or useful return to the government." Id.
The court in Fleet Bank allowed a subsequent qui tam action based on allegations duplicated from an earlier suit for the following reasons: (1) the earlier suit did not involve an attempt by the government to remedy fraud committed against it, and (2) the government could not have put forth the fraud allegation in the prior suit because it would have required the government to assert as plaintiff both the validity and the invalidity of a bank note. Id. at 328. The court further noted that the action provided a "useful return" to the government because it allowed the government to seek recovery against alleged defrauders of the government for actions which had not yet been subject to suit by the government, and the suit could potentially restore funds to the public coffer. Id. at 329. The court explicitly rejected the contention that qui tam actions "were to be avoided once the government had notice of the transactions or allegations giving rise to the actions." Id.
Review of the Ebon I complaint in conjunction with the current action indicates that the four allegations of Count I are duplicative of allegations set forth in Ebon I. Count I of the current complaint alleges failure on the part of Dyncorp officials to disclose prior bid rigging convictions, which is also contained in the Ebon I complaint at P 370. Plaintiff also alleges failure to report Army findings with respect to fraud in the Fort Huzchuca contract, an allegation duplicative of Ebon I complaint P 370. Plaintiff asserts that Dyncorp falsely represented that "key personnel" were willing and able to perform at bid price, which repeats an allegation contained in the Ebon I complaint at P 247. Finally, plaintiff contends that Dyncorp failed to disclose assistance received from plaintiff's former employees, an allegation implicitly duplicative of Ebon I complaint PP 329-361.
Count II of plaintiff's current complaint contains allegations that defendants submitted false claims to obtain unauthorized monies under the 1993 Contract. Plaintiff alleges two different actions in support of this contention, the first of which is duplicative of an allegation set forth in Ebon I. The allegation that defendants fraudulently obtained a revised Wage Determination from the DoJ is repetitive of the allegation set forth in the Ebon I complaint at P 277. Plaintiff's allegation that defendants submitted billing invoices for Legal Technician and Supervisor positions, which were not filled by employees performing such duties, is not duplicative of an allegation in the Ebon I complaint.
Because all but one of plaintiff's allegations were previously asserted in Ebon I, the possibility existed that plaintiff could use information obtained during discovery in Ebon I to provide "support [or] advantage" to this qui tam action. The Fleet Bank case is distinguishable from the case at hand in two important ways. First, plaintiff's FCA claim could have been filed as part of Ebon I without hurting the government's position in that case. The DoJ could have intervened as a plaintiff and filed a cross-claim against Dyncorp with respect to FCA claims without controverting its defense of plaintiff's other claims in Ebon I.
Second, there will be no useful return to the government as a result of this suit, financial or otherwise, because the United States government has declined to intervene in this matter.
Accordingly, the Court grants dismissal of all allegations previously set forth in Ebon I pursuant to 31 U.S.C. § 3730(e)(3). The only allegation remaining after the Court's analysis of the requirements for subject matter jurisdiction under the FCA is plaintiff's allegation with respect to the Legal Technician and Supervisor billing invoices contained in Count II of the current complaint.
Failure To State a Claim Upon Which Relief Can Be Granted
Defendants alternatively request dismissal of this suit for failure to plead with particularity as required for all fraud claims under Fed. R. Civ. P. 9(b). The Court treats failure to plead fraud with particularity as a ground for dismissal for failure to state a claim upon which relief can be granted. Shushany v. Allwaste, Inc., 992 F.2d 517, 520 (5th Cir. 1993).
The Supreme Court has set forth the following elements as necessary to plead a claim for fraud: (1) false representation, (2) in reference to a material fact, (3) made with the knowledge of falsity, (4) with the intent to deceive, and (5) action taken and reliance upon the representation. Pence v. United States, 316 U.S. 332, 338, 86 L. Ed. 1510, 62 S. Ct. 1080 (1942). Rule 9(b) requires that "in all averments of fraud or mistake, the circumstances constituting fraud . . . shall be stated with particularity." The rule has been interpreted to require a plaintiff to "state the time, place and content of the false misrepresentations, the fact misrepresented and what was retained or given up as a consequence of the fraud." United States ex rel. Joseph v. Cannon, 206 U.S. App. D.C. 405, 642 F.2d 1373, 1385 (D.C. Cir.), cert. denied, 455 U.S. 999, 71 L. Ed. 2d 865, 102 S. Ct. 1630 (1981).
Due to the length of plaintiff's complaint, the Court will not assess the sufficiency of pleading with respect to each and every allegation. Rather, the Court will assess the only allegation of the complaint remaining after the subject matter jurisdiction dismissal, which claims that defendants submitted false invoices to the DoJ requesting payment for Legal Technician and Supervisor positions which were not filled by employees performing such duties. Plaintiff falls to state the date or dates on which the allegedly false invoices were submitted, to give the invoice(s) number, to identify the employees responsible for the submission, and to state facts from which the Court can infer a knowing violation on the part of the defendants. See Cannon, 642 F.2d at 1385-6 (dismissing suit against a United States Senator as vague and failing to satisfy Rule 9(b) because the plaintiff did not state with specificity the members of the senator's staff involved in rendering personal services while receiving a government salary or the nature of the personal services rendered); In re Haven, Inc., 462 F. Supp. 172 (S.D.N.Y. 1978) (dismissing complaint under Rule 9(b) for failure to delineate among defendants' responsibility for allegedly fraudulent activities).
The purpose of Rule 9(b) is to provide defendants with notice of the violation with which they are charged, in order that they may prepare an adequate defense. Cannon, 642 F.2d at 1385. Further, the rule discourages "the initiation of suits brought solely for their nuisance value" and protects defendants from "frivolous accusations of moral turpitude." Id. Given that plaintiff has filed a lengthy complaint with seemingly overlapping and duplicative allegations, the Court looks to the purpose behind Rule 9(b) and dismisses the remaining allegation of plaintiffs complaint with respect to the filing of false invoices in connection with Legal Technician and Supervisor positions.
For the reasons stated above, the Court grants defendants' motion to dismiss with respect to Counts I, II, and IV and grants summary judgment for defendants with respect to Count III. An appropriate Order accompanies this Opinion.
Stanley S. Harris
United States District Judge
Date: APR 30 1996
For the reasons stated in the accompanying Opinion, it hereby is
ORDERED, that defendants' motion to dismiss is granted with respect to Counts I, II, and IV. It hereby further is
ORDERED, that summary judgment is granted for defendants with respect to Count III.
Stanley S. Harris
United States District Judge
Date: APR 30 1996