Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States ex rel. Kress v. Masonry Solutions International, Inc.

United States District Court, E.D. Louisiana

June 8, 2015



STANWOOD R. DUVAL, Jr., District Judge.

Before the Court is a Motion for Summary Judgment filed by Defendant, Masonry Solutions, Inc. ("Masonry Solutions"). (R. Doc. 59). Having reviewed the pleadings, memoranda, exhibits, record, and relevant law, the Court GRANTS the motion for the following reasons.


On September 26, 2012, Michael Kress ("Relator"), on behalf of the United States of America, filed a Complaint against Masonry Solutions, Inc. ("Masonry Solutions") alleging violations of the False Claims Act, 31 U.S.C. ยงยง 3729 et seq ("FCA"). Relator is a former employee of Masonry Solutions. The United States Army Corps of Engineers (USACE) contracted with private contractors to reinforce masonry walls of pumping stations in New Orleans. Masonry Solutions was hired as a subcontractor in relation to four USACE projects. Def. Mem. Supp. Mot. Summ. J. 2, R. Doc. 59. Masonry Solutions provided injectable steel spiral wall tie kits and enhancement anchors as well as installed these products into the masonry walls at the project sites. As to two projects (on pumping stations), Masonry solutions subcontracted with Benetech, LLC, ("Benetech") the contractor in charge of reinforcing the two pumping stations for the USACE. As to one project, Masonry Solutions sued Benetech for non-payment; though Benetech applied for and received payment from the USACE for the materials and labor provided by Masonry Solutions, Benetech failed to pay Masonry Solutions, citing various reasons including Benetech's belief that Masonry Solutions' products failed to comply with the Buy American Act. Relator, Michael Kress, provided information in that action relative to his knowledge as an employee of Masonry Solutions and Masonry Solutions' compliance with the Buy American Act. Relator admits that this information led to the instant action, wherein Relator alleges that Masonry Solutions failed to comply with the Buy American Act and, by virtue of its non-compliance, submitted false claims and made false statements for payment to the USACE in violation of the False Claims Act. The United States declined to intervene in the instant action on May 7, 2013, and Masonry Solutions was served on February 25, 2014.

Masonry Solutions has filed the instant Motion for Summary Judgment dismissing all of Relator's claims under the False Claims Act arguing that Masonry Solutions is entitled to judgment as a matter of law. Relator, in his Opposition, asserts that Masonry Solutions offers the Court "almost no analysis" as to why it is entitled to summary judgment and has produced little evidence to corroborate its assertions as Relator maintains that Masonry Solution has been resistant to full disclosures of discovery. In the alternative, Relator seeks a continuance of the Motion for Summary Judgment under Federal Rule of Civil Procedure 56(d).


Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is material if it could affect the outcome of the lawsuit under the governing law. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir.2009). Summary judgment evidence must be "viewed in the light most favorable to the nonmovant, with all factual inferences made in the nonmovant's favor." Bazan ex rel Bazan v. Hildago County, 246 F.3d 481, 489 (5th Cir.2001) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513). When drawing all reasonable inferences in favor of the nonmoving party, however, the court "may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000).

The party moving for summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record "which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir.1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992)). If the nonmoving party would bear the burden of proof on a claim at trial, the moving party need not negate the elements of that claim, but must only "point out the absence of evidence supporting the nonmoving party's case." Brown v. Trinity Catering, Inc. 2007 WL 4365384 (E.D.La. Dec. 11, 2007) (citing Stults, 76 F.3d at 656).

When the moving party has carried its burden under Rule 56, the non-moving party then bears the burden of establishing the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The opponent must do more than simply show that there is some metaphysical doubt as to the material facts: the nonmoving party must go beyond the pleadings and come forward with "specific facts showing that there is a genuine issue for trial." Id. at 588; see also Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553; Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995). As the Fifth Circuit has explained:

[c]onclusory statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary judgment. The Court has no duty to search the record for material fact issues. Rather, the party opposing the summary judgment is required to identify specific evidence in the record and to articulate precisely how this evidence supports his claim.

RSR Corporation v. International Insurance Company, 612 F. 3rd 851, 857 (5th Cir. 2010). "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Adams v. Travelers Indem. Co. of Connecticut, 465 F.3d 156, 164 (5th Cir. 2006)(citation and internal quotation marks omitted). "A failure on the part of the nonmoving party to offer proof concerning an essential element of its case necessarily renders all other facts immaterial and mandates a finding that no genuine issue of fact exists." Id.

Rule 56(d) authorizes a district court to "order a continuance to permit affidavits to be taken or depositions to be taken or discovery to be had, if the non-movant files affidavits showing that he or she cannot for reasons stated present by affidavit facts necessary to justify the party's opposition." Adams v. Travelers Indem. Co. of Connecticut, 465 F.3d 156, 162 (5th Cir. 2006)(citation and internal quotation marks omitted). Under Rule 56(d), if a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed.R.Civ.P. 56(d); see McKay v. Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014).

Rule 56(d) motions for additional discovery are "broadly favored and should be liberally granted' because the rule is designed to safeguard non-moving parties from summary judgment motions that they cannot adequately oppose." Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894 (5th Cir. 2013)(quoting Raby v. Livingston, 600 F.3d 552, 561 (5th Cir.2010))(internal quotation marks omitted). However, the Fifth Circuit has long recognized that "a plaintiff's entitlement to discovery prior to a ruling on a motion for summary judgment is not unlimited, and may be cut off." Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir.1990) (citations omitted). The parties seeking Rule 56(d) relief "may not simply rely on vague assertions that additional discovery will produce needed, but unspecified, facts." Biles, 714 F.3d at 894. Instead, the Rule 56(d) movant "must set forth a plausible basis for believing that specified facts, susceptible of collection within a reasonable time frame, probably exist and indicate how the emergent facts, if adduced, will influence the outcome of the pending summary judgment motion." Id.; see also Culwell v. City of Fort Worth, 468 F.3d 868, 873 (5th Cir. 2006) ("To qualify for relief... a party must show both why it is currently unable to present evidence creating a genuine issue of fact and how a continuance would enable the party to present such evidence."); Adams, 465 F.3d at 162. "If it appears that further discovery will not provide evidence creating a genuine issue of material fact, the district court may grant summary judgment." Raby, 600 F.3d t 561 (quoting Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 720 (5th Cir.1999))(internal quotation marks omitted).

B. False Claims Act

The False Claims Act ("FCA") makes it a civil violation ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.