United States District Court, W.D. Louisiana, Shreveport Division
UNITED STATES OF AMERICA EX. REL. DANA CURTIN
BARTON MALOW CO.
HORNSBY, MAGISTRATE JUDGE
MAURICE HICKS, JR. UNITED STATES DISTRICT JUDGE
the Court is Defendant Barton Malow Co.'s
(“BMC”) Motion to Dismiss under Federal Rule of
Civil Procedure 12(b)(6). See Record Document 23.
BMC's Motion seeks dismissal of all of Plaintiff Dana
Curtin's (“Curtin”) claims on behalf of the
United States under the Federal False Claims Act
(“FCA”), 31 U.S.C. § 3729, et seq,
and Louisiana whistleblower protection laws, La. R.S. §
23:967, et seq. See id. For the reasons
stated in the instant Memorandum Ruling, Defendant BMC's
Motion to Dismiss is hereby GRANTED IN PART and DENIED AS
MOOT IN PART.
AND PROCEDURAL BACKGROUND
December 4, 2006, to August 23, 2013, Curtin was an employee
of LC Gaskins, a subsidiary of BMC. See Record Document
1-3 at 1 (sworn statement of Curtin attached as an exhibit to
the Original Complaint). Curtin served as the Quality Control
Manager at BMC's construction site on Barksdale Air Force
Base in Bossier City, Louisiana, during this time period.
See id. The Original Complaint, its attachments, and
the Amended Complaint do not clearly state what was being
constructed at this site, but it appears that BMC had been
hired to construct a building of some sort. See
Record Documents 1, 1-1, 1-2, 1-3 and 30. Curtin wrote the
Quality Control Plan for BMC's construction project at
this site. See Record Document 1-3 at 1. As the
Quality Control Manager, he possessed “the authority to
suspend work, to report, and to correct discrepancies”
between the work performed and the requirements of the
Quality Control Plan and contract between the federal
government and BMC. See id.
exact date at which Curtin began to notice problems with the
work BMC was performing at Barksdale is unclear from either
of the Complaints. However, by June 2013 at the latest,
Curtin began experiencing problems with BMC's project
manager, David Garrett (“Garrett”), and two
different subcontractors working on the project. See
id. at ¶ 11. The main issue of disagreement between
Curtin and Garrett involved the installation of a product
called BLUE SKIN, a material manufactured by Henry Company
that is used as a barrier between the substructure of a
building and its roof. See id. at ¶ 8. Curtin
alleges that the BLUE SKIN to be used on the project had been
exposed to UV light for over 90 days. See Record
Document 1-3 at 1. As such, Henry Company's on-site
representative, Leo Vasquez (“Vasquez”), issued a
report stating that the BLUE SKIN was no longer covered under
Henry Company's warranty, which stated that the warranty
was no longer valid after 90 days of UV light exposure.
See id. Evidently, BMC still installed the BLUE SKIN
in question, and Curtin refused to approve installation of
roofing panels to cover up the problem with this BLUE SKIN.
See id. at 2. However, Garrett overrode Curtin's
decision, and BMC installed these roofing panels. See
receiving this report from Vasquez and being overridden by
Garrett, Curtin sent an email to the Vice President of BMC,
Carrie Schaeffer (“Schaeffer”). See id.
at 1. In this email, Curtin requested an immediate
investigation into Garrett's interference with
Curtin's denial of approval for the installation of
roofing panels over the BLUE SKIN and suspension of
Garrett's assignment to quality control activities.
See id. Additionally, Curtin prepared a
“‘for record' quality control report”
to BMC and to unnamed “U.S. government
representatives.” Id. at 2. This report
“contained information pertaining to the unsolicited
and obstructional activities of David Garrett's
involvement in quality control affairs.” Id.
This report also “documented events related to roofing
panels and roofing substrata discrepancies” between the
contract and Quality Control Plan's requirements and the
work performed by an unnamed subcontractor. Id. This
subcontractor allegedly refused to comply with the
requirements of the Quality Control Plan and the contract.
See id. BMC terminated Curtin “shortly
after” Curtin sent the email to Schaeffer and seven
days after he filed this “‘for record'
quality control report.” Id. Thus, most of the
allegations in the Amended Complaint relate to the
installation of the BLUE SKIN in the project and the conflict
between Garret and Curtin over the installation of this
Curtin also informed Schaeffer and others of additional
problems with the Barksdale project that were allegedly never
remedied. Curtin alleges that BMC exerted influence on an
unnamed subcontractor to provide resistance to Curtin's
activities as Quality Control Manager and to allege
“quality control harassment” by Curtin. Record
Document 30 at ¶ 11. On one occasion, this subcontractor
refused “to calibrate the ‘seaming machine'
for metal panel installation” and made threatening
remarks to Curtin. Id. Additionally, Curtin
questioned Schaeffer about the potential quality control
impact of the decision to replace the former Project
Superintendent, Shawn O'Brien, in the middle of the
project. See id. at ¶ 12. Curtin also expressed
concerns to Schaeffer about “off-site percentages of
window framing construction progress in light of an unsigned
contract with” Capital Glass, another subcontractor on
the project. Id. at ¶ 13. Finally, Curtin
informed Schaeffer that there were potential
“discrepancies concerning a monthly invoice for the dry
wall contractor's percentage payment which appeared to be
altered by David Garrett.” Id.
August 25, 2014, Curtin filed the Original Complaint in the
instant action. See Record Document 1. The Original
Complaint contains two “counts”: (1) that BMC
violated 31 U.S.C. § 3729(a)(1)(A) and (B) by presenting
a false claim for payment to the Government; and (2) that BMC
violated the FCA's anti-retaliation provisions in 31
U.S.C. § 3730(h) by firing Curtin after he brought
issues with the Barksdale project to BMC's attention.
See id. at ¶¶ 17-26. Though not labelled
as a separate “count, ” the Original Complaint
also alleges that BMC's firing of Curtin violated the
anti-retaliation provisions in La. R.S. § 23:967, et
seq. See id. at ¶ 27.
Original Complaint was sealed under the requirements of 31
U.S.C. § 3730(b)(2). See Record Documents 2-4.
The Government sought several extensions of time to decide to
intervene in the instant action. See Record
Documents 8-11. On March 12, 2015, the Government filed a
notice with the Court stating that it declined to intervene
in the action. See Record Document 12. On November
20, 2015, BMC filed the instant Motion to Dismiss on the
basis that Curtin's allegations failed to state any
claims upon which relief could be granted. See
Record Document 23. On December 11, 2015, after BMC filed the
instant Motion to Dismiss, Curtin filed an Amended Complaint
in which he dropped the allegations under Louisiana law, but
otherwise did not alter the allegations in his Original
Complaint. See Record Document 30. On
December 7, 2015, Curtin filed a Memorandum in Opposition to
the Motion to Dismiss, and BMC filed a Reply on December 14,
2015. See Record Documents 27 and 31.
The Rule 12(b)(6) Standard in FCA Actions
8(a)(2) of the Federal Rules of Civil Procedure governs the
requirements for pleadings that state a claim for relief,
requiring that a pleading contain "a short and plain
statement of the claim showing that the pleader is entitled
to relief." The standard for the adequacy of complaints
under Rule 8(a)(2) is now a "plausibility" standard
found in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), and its progeny. Under this standard,
"factual 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)." Twombly, 550 U.S. at
555-556. If a pleading only contains "labels and
conclusions" and "a formulaic recitation of the
elements of a cause of action, " the pleading does not
meet the standards of Rule 8(a)(2). Iqbal, 556 U.S.
at 678 (citation omitted).
9(b) governs the requirements for pleadings that allege
fraud. According to this rule, "a party must state with
particularity the circumstances constituting fraud."
Fed/ R. Civ. P. 9(b). A plaintiff bringing a fraud claim must
"specify the statements contended to be fraudulent,
identify the speaker, state when and where the statements
were made, and explain why the statements were
fraudulent." ABC Arbitrage v. Tchuruk, 291 F.3d
336, 350 (5th Cir. 2002); see also United States ex rel.
Steury v. Cardinal Health, Inc., 625 F.3d 262, 266 (5th
Cir. 2010) (hereafter referred to as “Steury
I”) (plaintiffs alleging fraud must allege the
“who, what, when, where, and how” of the alleged
fraud). The standard for pleading fraud is, therefore, a
higher standard than the standard for pleading other types of
claims that must solely comply with the Rule 8(a)(2)
Rule of Civil Procedure 12(b)(6) allows parties to seek
dismissal of a party's pleading for failure to state a
claim upon which relief may be granted. In deciding a Rule
12(b)(6) motion to dismiss, a court generally "may not
go outside the pleadings." Colle v. Brazos Cty.,
Tex., 981 F.2d 237, 243 (5th Cir. 1993). However, a
court may also rely upon "documents incorporated into
the complaint by reference and matters of which a court may
take judicial notice" in deciding a motion to dismiss.
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333,
338 (5th Cir. 2008). Additionally, courts must accept all
allegations in a complaint as true. See Iqbal, 556
U.S. at 678. However, courts do not have to accept legal
conclusions as facts. See id. Courts considering a
motion to dismiss under Rule 12(b)(6) are only obligated to
allow those complaints that are facially plausible under the
Iqbal and Twombly standard to survive such
a motion. See id. at 678-679. If the complaint does
not meet this standard, it can be dismissed for failure to
state a claim upon which relief can be granted. See
id. The same is true for fraud claims that fail to meet
the requirements of Rule 9(b). See, e.g., United
States ex rel. Gage v. Davis S.R. Aviation, L.L.C., 623
Fed.Appx. 622, 625-26 (5th Cir. 2015) (unpublished). Such a
dismissal ends the case "at the point of minimum
expenditure of time and money by the parties and the
court." Twombly, 550 U.S. at 558.
FCA Actions Under 31 U.S.C. § ...