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U.S. EX REL. ROCKEFELLER v. WESTINGHOUSE ELECTRIC CO.

June 23, 2003

UNITED STATES EX REL. TOD N. ROCKEFELLER, PLAINTIFF,
v.
WESTINGHOUSE ELECTRIC CO., WASTE ISOLATION DIVISION, A DIVISION OF CBS CORP., AND GEORGE DIALS, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton, District Judge.

MEMORANDUM OPINION

This matter comes before the Court upon defendant Westinghouse Electric Company's ("Westinghouse") Motion to Dismiss the plaintiff's complaint that alleges: (1) the defendants knowingly submitted or caused to submit false or fraudulent claims for payment or approval to the United States Government in violation of the False Claims Act ("FCA"), 31 U.S.C. § 3729(a)(1) (2000); (2) the defendants knowingly made, used, or caused to make or use false records or statements to get a false or fraudulent claim paid or approved by the United States Government in violation of the FCA, 31 U.S.C. § 3729(a)(2); and District of Columbia common law claims of (3) fraud; (4) payment by mistake; and (5) unjust enrichment.*fn1 Complaint ("Compl.") at 3. Specifically, Westinghouse seeks dismissal of the plaintiff's claims under the FCA asserting that a relator*fn2 in a qui tam FCA action cannot proceed pro se,*fn3 Motion to Dismiss by the Westinghouse Defendant, Statement of Points and Authorities in Support of Motion by the Westinghouse Defendant to Dismiss ("Def.'s Stat. of P. & A.") at 10-13, which the plaintiff concedes is correct, Plaintiff's Memorandum in Opposition to Motion by the Westinghouse Defendant to Dismiss ("Pl.'s Opp'n") at 3; Plaintiff's Motion for Enlargement of Time and Statement of Points and Authorities ("Pl.'s Mot. for Enl.") at 2. In addition, the defendant asserts that the plaintiff has failed to state a claim upon which relief can be granted because the plaintiff fails to allege that the defendant submitted any claims to the United States Government or that such claims, if submitted, were false. Def.'s Stat. of P. & A. at 14-16. The defendant further contends that the plaintiff's allegations fail to satisfy Rule 9(b) of the Federal Rules of Civil Procedure, which requires that fraud claims, such as those under the FCA, to be pled with particularity, id. at 17-18. Finally, with respect to the plaintiff's common law claims, the defendant asserts that the plaintiff lacks standing to pursue these claims on behalf of the United States.*fn4 Id. at 21. Upon consideration of the parties' submissions and for the reasons set forth below, the Court must grant defendant Westinghouse's motion to dismiss plaintiff Rockefeller's FCA and common law claims, because a relator in a qui tam FCA action cannot proceed pro se and the plaintiff lacks standing to pursue common law claims for injuries allegedly sustained by the United States.

I. Background

From 1992 until 1997, defendant Westinghouse contracted to operate the United States Department of Energy's ("DOE") Waste Isolation Pilot Plant nuclear repository ("WIPP") in New Mexico. Compl. at 2. The DOE employed the plaintiff from 1993 to 1997 as an environmental scientist at the WIPP. Id. at 3. The plaintiff alleges that the defendant made several false claims during the course of Westinghouse's contractual relationship with the DOE. Id. at 4-7. The plaintiff alleges that the defendant routinely made false claims of operational costs, including overcharges for both waste disposal and recycling in fiscal year 1995. Id. at 4. The plaintiff also contends that the defendant violated the FCA by continuing to use an "antiquated manual gas canister based V[olatile] O[rganic] C[ompound] monitoring" system instead of the more cost effective Fourier Transform Infrared monitoring system, which would have saved the taxpayers approximately two million dollars per year. Id. at 5. The plaintiff bases his common law claims on the above false claims that were allegedly made by the defendant to the United States. Id. at 9-10.

Following the filing of the plaintiff's complaint, this Court gave the United States an opportunity to intervene in this case pursuant to section 3730(b)(2) of the FCA, 31 U.S.C. § 3730(b)(2) (2000), which the United States subsequently declined, The United States' Notice of Election to Decline Intervention at 1. As the Court mentioned above, the defendant subsequently moved to dismiss the case, asserting that a relator in a qui tam FCA action cannot proceed pro se. Def.'s Stat. of P. & A. at 10-13. The plaintiff, in his response to the defendant's motion, conceded that he cannot proceed pro se in this case and requested sixty days to obtain the representation of an attorney. Pl's Opp'n at 3; Pl.'s Mot. for Enl. at 2. On January 24, 2003, after failing to obtain counsel at the end of the sixty-day period, the plaintiff requested another ninety days to obtain counsel, Plaintiff's Motion for Partial Judgment as a Matter of Law at 11, which this Court granted nunc pro tune to January 24, 2003, see May 27, 2003 Order. The plaintiff has still not retained the services of an attorney.

Against this background, the Court will address whether the plaintiff has standing to bring the common law claims and, because the plaintiff has been unable to obtain counsel to represent him in this matter, the Court will also review whether the plaintiff can proceed pro se with the qui tam FCA claims he has filed.

II. Analysis

(A) Plaintiff's Common Law Claims

At the outset, this Court must address the fact that the plaintiff has failed to respond to the defendant's assertion that the plaintiff lacks standing to bring the common law claims.*fn5 This Court's Local Rule 7.1(b) states:

Within 11 days of the date of service or at such other time as the court may direct, an opposing party shall serve and file a memorandum of points and authorities in opposition to the motion. If such a memorandum is not filed within the prescribed time, the court may treat the motion as conceded.

"It is well understood in this Circuit that when a plaintiff files an opposition to a motion to dismiss addressing only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded." Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 238 F. Supp.2d 174, 178 (D.D.C. 2002) (Walton, J.) (citations omitted). "The District of Columbia Circuit has stated that `the discretion to enforce . . . [R]ule [7.1(b)] lies wholly with the district court', and noted that the Circuit `ha[s] yet to find that a district court's enforcement of this rule constituted an abuse of discretion' . . ." Id. at 178 (internal citations omitted) (alteration in original). This Court has an obligation, however, to independently ensure proper subject matter jurisdiction in a case. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (holding that standing is an indispensable part of the plaintiff's case for establishing "federal jurisdiction"); Floyd v. District of Columbia, 129 F.3d 152, 155 (D.C. Cir. 1997) ("[The court has] an independent obligation to assure [itself] of jurisdiction. . . .").

Defendant Westinghouse seeks dismissal of the plaintiff's common law claims under Federal Rule of Civil Procedure 12(b)(1), which requires that the plaintiff bear the burden of establishing by a preponderance of the evidence that the court has jurisdiction to entertain his claims. Fed.R.Civ.P. 12(b)(1); Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp.2d 9, 13 (D.D.C. 2001) (holding that the court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp.2d 15, 18 (D.D.C. 1998); Darden v. United States, 18 Cl.Ct. 855, 859 (Cl.Ct. 1989). While the Court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993), because the plaintiff has the burden of proof to establish jurisdiction, the "`plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge of Fraternal Order of Police, 185 F. Supp.2d at 13-14 (citation omitted). However, in deciding a 12(b)(1) motion, the Court is not limited to the allegations in the complaint but may consider "`such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case.'" Id. at 14 (citations omitted).

A relator in a qui tam FCA action does not have standing to assert common law claims based upon injury sustained by the United States. See United States ex rel. Phipps v. Comprehensive Cmty. Dev. Corp., 152 F. Supp.2d 443, 451-52 (S.D.N.Y. 2001) (holding that a relator lacks standing to bring common law claims of fraud, mistake of fact, and unjust enrichment); United States ex rel. Walsh v. Eastman Kodak Co., 98 F. Supp.2d 141, 149 (D.Mass. 2000) (holding that a relator lacks standing to bring common law claims of fraud, payment under mistake of fact, and unjust enrichment); United States ex rel. Long v. SCS Bus. & Tech. Inst., 999 F. Supp. 78, 92 (D.D.C. 1998) (holding that relator lacks standing to bring common law unjust enrichment claim), rev'd on other grounds, 173 F.3d 870 (D.C. Cir. 1999). See generally Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (holding that a plaintiff must suffer an injury in fact in order to satisfy one of the ...


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