United States District Court, District of Columbia
UNITED STATES OF AMERICA, ex rel. PATRICIA SCOTT and JOHN L. TUDBURY, Plaintiffs,
PACIFIC ARCHITECTS AND ENGINEERS (PAE), INC. dba PAE Government Services, Inc, aka PAE Group, Defendant.
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Patricia Scott and John L. Tudbury, proceeding qui
tam on behalf of the United States, seek leave to amend
their Third Amended Complaint. Defendant Pacific Architects
and Engineers, LLC (“PAE”) opposes. Upon
consideration of the pleadings, the relevant legal
authorities, and the record as a whole,  the Court shall,
in an exercise of its discretion, GRANT
Relators'  Motion for Leave to Amend Complaint to
File Correction or in the Alternative for Extension of Time
to Respond to the Motion to Dismiss (“Motion to
Amend”). In light of the filing of Relators' Fourth
Amended Complaint as of this date, the Court also shall
DENY WITHOUT PREJUDICE Defendant's 
Motion to Dismiss the Third Amended Complaint.
the Court permits the Fourth Amended Complaint on the basis
of Relators'  Motion, the Court generally need not
reach Relators'  Motion to Docket Their Fourth
Amended Complaint and to Amend the Schedule (“Motion to
Docket”), except insofar as that motion seeks a
briefing schedule for any renewed motion to dismiss. The
Court shall GRANT-IN-PART and DENY-IN-PART as
MOOT Relators'  Motion. Relators' 
Motion is granted only insofar as the Court adopts the
briefing schedule proposed therein for any dispositive motion
that Defendant may choose to file.
Court expects that Relators reviewed the Third Amended
Complaint for any deficiencies and made the necessary edits
in their Fourth Amended Complaint. The Court likewise expects
that the Fourth Amended Complaint, the fifth iteration of
Relators' pleading, will be the operative complaint for
purposes of moving forward with Defendant's Motion to
Dismiss and that no further need to amend will arise prior to
Court previously articulated many of Relators'
then-allegations in ruling on Defendant's motion to
dismiss the Second Amended Complaint. See Mem. Op.
and Order at 2-6, United States ex rel. Scott v. Pacific
Architects & Engineers (PAE), Inc., 270 F.Supp.3d
146, 150-52 (D.D.C. 2017), ECF No. 36. The Court shall
summarize here only those allegations in the Third Amended
Complaint that are pertinent to the disposition of the
are former employees of the Defendant, a contractor enlisted
to provide “logistics, construction, services including
peace keeping, justice programs, capacity building, and
international policing programs” to the United States
Government. 3d Am. Compl., ECF No. 49, ¶¶ 7-8.
Among Defendant's contracts were agreements with the U.S.
Department of State's Bureau of International Narcotics
and Law Enforcement Affairs to furnish “civilian police
training and administrative services” in Lebanon and
other countries. Id. ¶¶ 9-10. Relators
allege that Defendant committed certain violations of the
federal False Claims Act (“FCA”), as amended, 31
U.S.C. § 3729, et seq., including falsification
of time records for work billed to the United States
Government. See, e.g., id. ¶¶
1-2, 27-41. Of interest here, according to the Third Amended
Complaint, one of Defendant's program managers allegedly
instructed employees to engage in billing strategies that
were tailored “to avoid problems with [State
Department] audits that had questioned time sheet billing
practices.” Id. ¶ 41. But Relators now
allege in their proposed Fourth Amended Complaint that the
program manager's instructions were designed “to
avoid problems with an internal audit from a company that was
thinking about buying PAE, which apparently questioned time
sheet billing practices.” Relators' Mot. to Amend
at 5 (referring to proposed Fourth Amended Complaint, ¶
on behalf of the United States for Defendant's alleged
violations of the FCA, Relators filed their  Complaint
under seal in 2013. On March 12, 2014, the Court permitted
withdrawal of that Complaint and the filing of a First
Amended Complaint. Sealed Order, ECF No. 6; 1st Am. Compl.,
ECF No. 9. That First Amended Complaint was unsealed by the
Court's  Order of March 18, 2016, issued upon receipt
of the United States'  Notice Regarding Intervention.
After filing a motion to dismiss the First Amended Complaint,
Defendant consented to Relators' request to file a Second
Amended Complaint, which the Court ordered by Minute Order of
August 15, 2016. See 2d Am. Compl., ECF No. 30.
September 13, 2017, the Court granted-in-part and
denied-in-part Defendant's motion to dismiss the Second
Amended Complaint, dismissing certain of Relators' claims
without prejudice. Scott, 270 F.Supp.3d 146. The
Court held an Initial Scheduling Conference and ultimately
permitted Relators to file a Third Amended Complaint, with
Defendant's consent, to address deficiencies in the
Second Amended Complaint that were identified by the Court in
its September 13, 2017, decision. See Am. Scheduling
& Procedures Order, ECF No. 45, at 5; Min. Order of Jan.
3, 2018; 2d Am. Scheduling and Procedures Order, ECF No. 48,
at 5. As the Court expressly contemplated, Defendant then
filed its  Motion to Dismiss the Third Amended Complaint.
Shortly thereafter, and before the deadline for their
opposition to that pending motion, Relators filed their 
Motion to Amend, which in the alternative sought an extension
in the deadline for their opposition. A flurry of subsequent
briefing revolved around the core question of whether the
Third Amended Complaint should be amended still further.
Pending the Court's decision as to their Motion to Amend
or to extend the opposition deadline, Relators did not
respond to Defendant's Motion to Dismiss. Defendant
argues that its Motion to Dismiss accordingly “may . .
. be treated as conceded.” Def.'s Notice at 3.
Federal Rule of Civil Procedure 15, a party is permitted to
amend its complaint or other pleading “once as a matter
of course within” certain alternative time periods.
Fed.R.Civ.P. 15(a)(1). “In all other cases, a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Id.
15(a)(2). Rule 15 makes clear that when the court's leave
is sought, that leave should be “freely give[n] . . .
when justice so requires.” Id.; see
Willoughby v. Potomac Elec. Power Co., 100 F.3d 999,
1003 (D.C. Cir. 1996) (finding that leave to amend a
complaint is within the court's discretion and
“should be freely given unless there is a good reason .
. . to the contrary”), cert den., 520 U.S.
1197 (1997); Firestone v. Firestone, 76 F.3d 1205,
1208 (D.C. Cir. 1996) (noting that “it is an abuse of
discretion to deny leave to amend unless there is sufficient
evaluating whether to grant leave to amend, the Court must
consider (1) undue delay; (2) prejudice to the opposing
party; (3) futility of the amendment; (4) bad faith; and (5)
whether the plaintiff has previously amended the
complaint.” Howell v. Gray, 843 F.Supp.2d 49,
54 (D.D.C. 2012) (citing Atchinson v. District of
Columbia, 73 F.3d 418 (D.C. Cir. 1996) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
“Courts that have found an undue delay in filing [a
proposed amended complaint] have generally confronted cases
in which the movants failed to promptly allege a claim for
which they already possessed evidence.” United
States ex rel. Westrick v. Second Chance Body Armor,
Inc., 301 F.R.D. 5, 9 (D.D.C. 2013). An amendment would
be unduly prejudicial if it “substantially changes the
theory on which the case has been proceeding and is proposed
late enough so that the opponent would be required to engage
in significant new preparation”; it would “put
[the opponent] to added expense and the burden of a more
complicated and lengthy trial”; or it raises
“issues . . . [that] are remote from the other issues
in the case.” Djourabchi v. Self, 240 F.R.D.
5, 13 (D.D.C. 2006) (quoting 6 Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and
Procedure § 1487 (2d ed. 1990)) (internal quotation
marks omitted). With respect to the futility of an amendment,
a district court may properly deny a motion to amend if
“the amended pleading would not survive a motion to
dismiss.” In re Interbank Funding Corp. Sec.
Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (citing,
e.g., Foman, 371 U.S. at 182). “With respect
to bad faith, courts generally consider the length of the
delay between the latest pleading and the amendment sought.
However, delay alone is an insufficient ground to deny the
motion unless it prejudices the opposing party.”
Djourabchi, 240 F.R.D. at 13 (citing Wright, Miller
& Kane, supra, § 1488).
amendments are to be liberally granted, the non-movant bears
the burden of showing why an amendment should not be
allowed.” Abdullah v. Washington, 530
F.Supp.2d 112, 115 (D.D.C. 2008).