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State ex rel. Grant v. United Airlines Inc.

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

September 7, 2017




         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.

         I. BACKGROUND

         David Grant (“Grant”) was an Aviation Maintenance Technician for United at the Charleston Air Force Base in North Charleston, South Carolina. Grant was promoted to Lead Aviation Maintenance Technician in 2012. During the course of his employment at United, Grant maintained engines on aircrafts including the Boeing C-17 Globemaster III aircraft (“C-17”), which is currently being used by the United States Air Force. United performed contractual services for the United States Air Force by servicing engines on the C-17. According to Grant, the contract between United and the government required United to properly maintain C-17 engines in accordance with the specifications in the contract and maintenance manuals, but United failed to do so. Grant alleges that United improperly falsified engine repairs and inspections, leading to C-17 engines that were not in a serviceable condition.

         On February 24, 2015, Grant filed suit against United, alleging violations of the False Claims Act (the “FCA”), 31 U.S.C. § 3729, et seq. Specifically, Grant alleges that United violated the FCA by: (1) using parts obtained from the trash to service the C-17 engines yet billed the government for new parts; (2) failing to certify the tools used to repair the C-17 engines; (3) failing to perform required maintenance and safety checks on component tools and equipment; (4) falsifying inspection records; (5) falsifying the certification for the serviceability of parts; (6) failing to train and certify inspectors and mechanics; (7) failing to perform liquid fluorescent penetrant inspections according to maintenance procedures; (8) fraudulently certifying components that required fluorescent penetrant inspections; (9) failing to use the proper tools and properly calibrated tools; (10) failing to provide mechanics with necessary equipment and tools; (11) failing to provide proper equipment and tools for rivets; (12) failing to properly test engines; (13) failing to tear down and build C-17 engines according to job instructions. Grant further alleges that he was terminated from his position because he brought his concerns about United's allegedly fraudulent and improper practices to his superiors.

         The court dismissed Grant's first amended complaint on November 18, 2016. On December 19, 2016, Grant filed a second amended complaint (“SAC”). The SAC contains a number of factual allegations, which can be grouped into four categories: (1) United signed off on maintenance work that had not yet been completed as having been performed, or “pencil whipped” the repairs, SAC ¶¶ 86-108; (2) United failed to properly certify and calibrate tools that were used in the repair and maintenance of the C-17 aircraft and its engine, SAC ¶¶ 109-170; (3) United failed to provide inspectors with the recurrent training and eye examinations necessary for them to sign off on inspection work, SAC ¶¶ 171-174; (4) Grant was discharged in retaliation for expressing concerns about United's practices. SAC ¶¶ 175-188.

         The SAC contains three counts under the FCA: (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); and (3) retaliatory discharge pursuant to § 3730(h). On January 24, 2017, United moved to dismiss the SAC. ECF No. 43. Grant responded on February 28, 2016. United replied on March 14, 2017. The court held a hearing on April 5, 2017. The motion has been fully briefed and is now 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 the light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs., Inc., 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 ed. 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).


         United argues that the SAC fails for two independent reasons-(1) Grant once again fails to sufficiently allege “presentment” of a false claim, as required under the FCA, and (2) the SAC fails under the public disclosure bar of the FCA because it raises allegations that are substantially similar to a previous false claims case that was filed, United States ex rel. Niven v. United Airlines, No. 2-03-cv-0386 (D.S.C. 2004). The court finds that the SAC fails to allege presentment of a false claim under the pleading requirements of Rule 9(b) and the FCA, an independent and adequate ground for dismissing a FCA claim, and so will not analyze the public disclosure issue. The court then proceeds to analyzing Grant's ยง 3729(a)(1)(B) ...

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