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United States ex rel. Grant v. United Airlines Inc.

United States District Court, D. South Carolina, Charleston Division

November 18, 2016

UNITED STATES OF AMERICA, ex rel. DAVID GRANT, Plaintiff,
v.
UNITED AIRLINES, INC., Defendant.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant United Airlines Inc.'s (“United”) motion to dismiss, ECF No. 30. For the reasons set forth below, the court grants United's motion to dismiss without prejudice and gives plaintiff-relator David Grant (“Grant) leave to amend the complaint.

         I. BACKGROUND

         Grant was an Aviation Maintenance Technician for United at the Charleston Air Force Base and was promoted to Lead Aviation Maintenance Technician in 2012. Pl.'s Resp. 6. During the course of his employment at United, Grant maintained engines on aircrafts including the Boeing C-17 Globemaster III aircraft, which is currently in the service of the United States Air Force. Am. Compl. ¶ 17 -18. Grant alleges that he is “familiar with [United's] obligations under the Contract and has first-hand knowledge of [United's] failure to adhere to its contractual obligations.” Id. ¶ 25. According to Grant, the contract between United and the government required United to properly maintain the C-17 engines in accordance with the specifications in the contract and maintenance manuals. Id. ¶ 20.

         Grant's first amended complaint contains a number of factual allegations, which can be grouped into four categories: (1) failure to maintain positive tool control by failing to properly certify and calibrate tools that were used in the repair and maintenance of the C-17 engine and the PW 2000 engine, Am. Compl. ¶¶ 77-133; (2) failure to train and certify, Am. Compl. ¶¶ 135-150; (3) material part failures, including that United employees returned scrapped parts from a dumpster into the production line, Am. Compl. ¶¶ 152-165; (4) that Grant repeatedly expressed concerns to supervisors that United was not properly maintaining the C-17 engines, and that the termination of his employment on May 6, 2014 was in retaliation for expressing those concerns, Am. Compl. ¶¶ 152-165. Grant alleges that he reported United's allegedly fraudulent and improper practices to his superiors, but that they “never responded appropriately” to his concerns. Pl.'s Resp. 6. Grant includes an email to his supervisor dated October 3, 2013 as an exhibit to his first amended complaint that “there are several employees that are expired in their annual eye exam requirement” and “[t]hey cannot perform any [non-destructive testing] until they have their eye exam completed.” Am. Compl., Ex. 3 at 2. Grant also includes as an exhibit to his first amended complaint an email dated March 18, 2014 that details concerns with “manpower staffing, overtime, inspection positions, technicians training and certification, tooling certifications, parts, ” and states that “[the supervisor] is not covering our staffing shortages, not recertifying our techs and is directing us to use unserviceable tools to save time.” Am. Compl., Ex. 5 at 2. Grant ends the March 18, 2014 email by stating that “[b]reaking these rules and not following the maintenance procedures could result in catastrophic failure to an engine . . . [t]his would bring harm to the program and the contract.” Id.

         Grant's First Amended Complaint contains four counts: (1) presentment of a false claim under § 3729(a)(1)(A); (2) making or using false records or statements material for payment under § 3729(a)(1)(B); (3) common law fraud, suppression, and deceit; and (4) retaliatory discharge pursuant to § 3730(h). The instant suit was filed on February 24, 2015. ECF No. 1. On September 16, 2016, United moved to dismiss all claims. ECF No. 30. On October 3, 2016, Grant responded, ECF No. 31, and United replied on October 24, 2016, ECF No. 32. The motion has been fully briefed and is ripe for the court's review.

         II. STANDARD

         A. Rule 12(b)(6)

         A Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . . does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). To be legally sufficient, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

         A Rule 12(b)(6) motion should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support his claim and would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations as true and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs., 7 F.3d at 1134. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         B. Rule 9(b)

         Although “[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally, ” when a party alleges “fraud or mistake, ” he or she “must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). Particularity requires that the claimant state “the time, place and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.” Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (quoting 5 Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure: Civil § 1297 at 590 (2d 1990)). A primary purpose of Rule 9(b) is to ensure “that the defendant has sufficient information to formulate a defense by putting it on notice of the conduct complained of.” Harrison, 176 F.3d at 784 (internal citations omitted). Lack of compliance with Rule 9(b)'s pleading requirements is treated as a failure to state a claim under Rule 12(b)(6). See United States ex rel. Thompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 901 (5th Cir. 1997).

         III. DISCUSSION

         A. FRCP 9(b) and False Claims Act Pleading Requirements

         United argues that Grant's first amended complaint fails to meet the pleading requirements of FRCP 8(a) and 9(b) because it does not “tether” broad allegations of fraudulent practices to any actual claims that United Airlines submitted to the government. Defs.' Mot. 1. United goes on to argue that the first amended complaint does not satisfy the “rigorous” and “demanding” standard for pleading ...


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