United States District Court, D. Columbia.
UNITED STATES OF AMERICA ex rel. EMIL IVANOV, Plaintiff,
EXELIS, INC., Defendant
For EMIL IVANOV, United States of America ex rel., Plaintiff: A. Mary Schiavo, LEAD ATTORNEY, MOTLEY RICE, LLC, Mt. Pleasant, SC; Mark Labaton, LEAD ATTORNEY, Isaacs Friedberg & Labaton, Los Angeles, CA.
For EXELIS, INC., Defendant: Kevin Paul Connelly, LEAD ATTORNEY, Harold D. Lester, Jr., Kirsten W. Konar, Vedder Price, PC, Washington, DC.
For UNITED STATES OF AMERICA, Interested Party: Brian P. Hudak, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
Royce C. Lamberth, U.S. District Judge.
Before the Court is defendant Exelis, Inc.'s motion  to dismiss relator Ivanov's first amended complaint. After having considered the motion, the opposition and reply thereto, and the record herein, the Court has granted Exelis's motion to dismiss.
Relator Ivanov worked as a test engineer for defendant Exelis, Inc. from 2007 until Exelis terminated his employment in 2010. He was assigned to work on the SBS Contract, a best-efforts contract Exelis had with the Federal Aviation Administration " for the development, testing, installation, and deployment of the ground-based system for the United States' new air traffic control system." Def.'s Mot. 1. Alleging fraudulent testing in his 127-page Complaint, Ivanov brought this action under the False Claims Act (FCA). Exelis sought dismissal of his first amended complaint.
II. Legal Standard
a. Rule 12(b)(6)
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A plaintiff must furnish " more than labels and conclusions" or " a formulaic recitation of the elements of a cause of action." Bell A. Corp. v. Twombly, 550 U.S. at 555. Instead, the complaint's " [f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. (internal citations omitted).
b. Rule 9(b)
Federal Rule of Civil Procedure 9(b) applies to FCA actions. United States v. Toyobo Co., Ltd., 811 F.Supp.2d 37, 44 (D.D.C. 2011) (citing United States ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551-52, 351 U.S. App.D.C. 30 (D.C. Cir. 2002)). An FCA plaintiff " must state with particularity the circumstances surrounding the defendants' allegedly false claims, as required by Rule 9(b) of the Federal Rules of Civil Procedure. He must also aver that the defendants actually submitted false demands for payment, rather than merely non-conforming goods." Totten, 286 F.3d at 544. The " time, place, and contents of the false representations" must be pleaded ...