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United States ex. rel. Curtin v. Barton Malow Co.

United States District Court, W.D. Louisiana, Shreveport Division

June 6, 2017





         Before 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.


         From December 4, 2006, to August 23, 2013, Curtin was an employee of LC Gaskins, a subsidiary of BMC.[1] See Record Document 1-3 at 1 (sworn statement of Curtin attached as an exhibit to the Original Complaint).[2] 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.

         The 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 id.

         After 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 product.

         However, 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.

         On 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[3]; 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.

         The 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.[4] 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.[5] 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.


         I. Legal Standards

         A. The Rule 12(b)(6) Standard in FCA Actions

         Rule 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).

         Rule 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) standard.

         Federal 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.

         B. FCA Actions Under 31 U.S.C. ยง ...

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