United States District Court, E.D. Louisiana
NANNETTE JOLIVETTE BROWN, District Judge.
Presently pending before the Court are Defendant Greystar Corporation Inc.'s ("Greystar") "Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)" and Defendant Champion Technologies, Inc.'s ("Champion") "Motion to Dismiss." Plaintiff Randy J. Comeaux has expressly declined to oppose these motions, on the basis that "the opinion of the Circuit is clear" regarding the law that governs his claims. Having considered the motions, the memoranda in support, the complaint, and applicable law, the Court finds that the motions have merit, and will grant them.
In his complaint, Comeaux asserts causes of action against ATP Oil & Gas Corporation, ATP Infrastructure Partners LP, Greystar, and Champion pursuant to: (1) Section 3729(a)(2) of the False Claims Act ("FCA"); (2) Section 3729(a)(7) of the FCA; (3) Sections 1906(a) and 1908(b) of the Act to Prevent Pollution from Ships ("APPS"); (4) Section 311(b) of the Clean Water Act ("CWA"); (5) Section 1350(a) of Outer Continental Shelf Lands Act; and (6) Section 309(b) of the CWA.
Champion, in its motion, contends that Comeaux's claims against it should be dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), because: (1) Comeaux's theory of FCA liability has been rejected by the Fifth Circuit; (2) Comeaux has unsuccessfully asserted similar FCA claims in a previous case; (3) Comeaux has not alleged that Champion made a false claim, a "reverse" false claim, or a material false statement; and (4) Comeaux has failed to plead facts connecting Champion to his CWA, APPS, and OCSLA claims. Champion further contends that Comeaux's environmental claims should be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), because Comeaux lacks statutory standing or Article III standing to assert them.
Greystar's motion makes similar arguments. First, Greystar asserts that Comeaux's CWA, APPS, and OCSLA claims against it should be dismissed for lack of subject matter jurisdiction because Comeaux has not pled that he has statutory standing or Article III standing. Next, Greystar argues that Comeaux's claims against it should be dismissed for failure to state a claim upon which relief can be granted, because Comeaux: (1) did not allege that Greystar made a legally cognizable "direct" or "reverse" false claim, and has unsuccessfully alleged similar claims before; (2) failed to comply with the pleading requirements of Federal Rule of Civil Procedure 9(b); (3) did not allege that Greystar violated Sections 301(a) or 311 of the CWA or that he is entitled to injunctive relief pursuant to Section 311 of that statute; and (4) did not plead that he is entitled to injunctive relief pursuant to OCSLA.
As noted above, Comeaux has affirmatively waived opposition to either motion. "Although failure to respond to a motion will be considered a statement of no opposition, this Court is not required to grant every unopposed motion." Rather, after considering the record and the applicable law, this Court will grant unopposed motions that have merit. It appears that the motions here have merit. As to Comeaux's FCA claims, Champion and Greystar note that the Fifth Circuit has rejected theories of FCA liability predicated upon (1) the mere possibility that the Government might impose penalties for violation of mineral leases, or (2) a defendant's avoidance of potential fines or penalties by failing to report violations of environmental laws. These theories appear to be the basis of Comeaux's FCA claims against Champion and Greystar,  and Comeaux, having waived opposition to the instant motion, has not provided the Court with any basis to conclude otherwise.
The pending motions also have merit to the extent that they seek dismissal of Comeaux's APPS, OCSLA, and CWA claims against Champion and Greystar. Even assuming that Comeaux has Article III standing to assert APPS, OCSLA, and CWA claims against these entities, it appears that all three statutes contain citizen-suit provisions that require potential litigants to satisfy certain notice requirements before filing claims,  unless the Government has already commenced an "action" in connection with the alleged violation. Comeaux, having waived opposition to the instant motion, has not pointed to any allegations in his complaint that address the applicable citizensuit provisions, or support the reasonable inference that Comeaux has complied with them, insofar as those provisions relate to his claims against Champion and Greystar. Accordingly,
IT IS ORDERED that Greystar Corporation, Inc.'s "Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)" and Champion Technologies, Inc.'s "Motion to Dismiss." are GRANTED.
IT IS FURTHER ORDERED that Comeaux's claims against Greystar Corporation, Inc. and Champion Technologies, Inc. are DISMISSED WITH PREJUDICE to the extent that Comeaux asserted claims against these Defendants on his own behalf.
IT IS FURTHER ORDERED that Comeaux's claims against Greystar Corporation, Inc. and Champion Technologies, Inc. are DISMISSED WITHOUT PREJUDICE to the extent that Comeaux asserted claims ...