CSILO v. JC Remodeling, Inc. ( 2020 )


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  •             United States Court of Appeals
    For the First Circuit
    No. 18-1199
    UNITED STATES OF AMERICA, EX REL.
    CONCILIO DE SALUD INTEGRAL DE LOÍZA, INC. ("CSILO"),
    Plaintiffs, Appellants,
    v.
    J.C. REMODELING, INC. AND JOSÉ GARCÍA-SUÁREZ,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Pedro A. Delgado-Hernández, U.S. District Judge]
    Before
    Torruella, Dyk,* and Thompson,
    Circuit Judges.
    Víctor M. Rivera-Ríos for appellant CSILO.
    Carlos J. Sagardía-Abreu and María Celeste Colberg-Guerra,
    were on brief, for appellees.
    June 15, 2020
    *    Of the Federal Circuit, sitting by designation.
    THOMPSON, Circuit Judge.      A jury verdict and civil
    penalty in its favor notwithstanding, Appellant Concilio De Salud
    Integral De Loíza, Inc. ("CSILO") appeals the district court's
    decision to deny its request voiced three years into litigation,
    after the close of discovery, and on the eve of trial, to amend
    the Pretrial Order to include a discussion of damages it believes
    it was due under the False Claims Act.       Spotting no abuse of
    discretion, we affirm.
    BACKGROUND
    CSILO is a non-profit organization in Loíza, Puerto Rico
    established in 1972 to provide a wide range of primary healthcare
    services for the uninsured through the use of federal funds. Among
    the funds it has received over the years are those, as relevant
    here, from the American Recovery and Reinvestment Act ("ARRA"),
    which were given to CSILO "to adequately upgrade and successfully
    maintain the building structure for the benefit of the patients
    and staff."   "After grants pursuant to ARRA were extended to CSILO
    [in 2009], it was agreed by the Board and the Executive Director
    that necessary repairs were needed along the roof of the Health
    Center's main structure, which was suffering damages due to water
    infiltration."   CSILO then initiated a bidding process, at the end
    of which J.C. Remodeling ("JCR") was awarded the roof waterproofing
    project.   On May 21, 2010, CSILO and JCR entered into a formal
    - 2 -
    contract titled "CONTRATO DE OBRA ENTRE EL DUEÑO Y EL CONTRATISTA"
    ("the Construction Contract").
    At the time, JCR was the exclusive distributor in Puerto
    Rico for the roof waterproofing product called Wetsuit®, and what
    was most appealing to CSILO about JCR's offering was its 15-year
    warranty on that product.       Under the Construction Contract, CSILO
    agreed to pay JCR $135,000 for "JCR['s] waterproofing the roof of
    CSILO's facilities."       Important to the case that went to the jury
    (but not so much for our purposes, so we'll be brief), is that
    "Article 9.2 of the Construction Contract established that JCR
    would guaranty the installation and sealing of the roof for the
    next 15 years."      To CSILO, that meant that "[i]f any deficiencies
    would occur after performance was finished by JCR, the roofing
    company was bound for the following 15 years to correct it, which
    would include additional installation of the [Wetsuit®] system, if
    necessary."       And bear in mind that Article 9.1 of the contract
    required JCR to "ensure[] that all equipment that [would] be
    installed [would] be new unless otherwise specified and so approved
    also in writing."
    JCR completed its waterproofing work during the summer
    of 2010.    But "by June 2011, the CSILO facilities began to suffer
    damages    from    newly   discovered   water   [in]filtration."   CSILO
    complained, verbally and in writing, of these leaks to JCR numerous
    times, but was met with no response.       Over the course of "the next
    - 3 -
    2 to 3 years, CSILO kept communicating to JCR" about the leaks,
    and JCR's warranty to "provide the required services in order to
    fix said problem."         These attempts unavailing, CSILO resorted to
    "fil[ing] a civil suit against JCR on April 2013 at the First
    Instance Court of Puerto Rico."1                That suit prompted JCR into
    action, whereupon in July 2013 it returned to attempt to fix the
    roof.    To assess the leaks, JCR used a product called Chovatek,
    different from Wetsuit®, relying, it claims, on verbal approval
    from CSILO's engineer, Celso Gonzalez, to proceed with use of that
    product.
    CSILO ultimately realized that it had received a sieve
    of a 15-year warranty on Wetsuit® when JCR attempted to fix the
    leaky roof with the non-Wetsuit® product.              CSILO was "convinced
    that    JCR       intentionally   misrepresented     their   services   to   be
    rendered to CSILO," and that these misrepresentations "induced
    CSILO into entering into said Contract.               CSILO was deceived by
    this fraudulent statement.           When JCR installed the waterproof
    product in 2013, it not only installed it negligently, but it
    intentionally substituted the product with another product of
    inferior      quality.       CSILO   had   no    knowledge   of   the   product
    substitution, until after 2013."           It followed that, according to
    1
    This case, Concilio de Salud Integral de Loíza, Inc.
    v. J.C. Remodeling, Inc., et al., Civ. No. FCCI2013-00222, was
    pending as of the federal court trial.
    - 4 -
    CSILO, "[b]ecause of said misrepresentation, JCR defrauded CSILO
    and illegally appropriated federal funding originating from the
    ARRA," thereby violating the False Claims Act ("FCA"), 31 U.S.C.
    § 3729, et seq.          And that's how this case ended up in federal
    court.
    CSILO filed a qui tam action2 under the FCA on November
    13, 2014 against JCR.3          The United States Government, as it is
    entitled under 31 U.S.C. § 3730(b)(2)-(c), declined to intervene
    on November 30, 2015.4         Thereafter summons were issued to JCR.        On
    January 26, 2017, CSILO filed its First Amended Complaint, alleging
    the   facts       described   above,   and,    important   for   our   purposes,
    requested damages "in an amount equal to three times the amount of
    damages that the United States ha[d] sustained because of [JCR's]
    actions, plus a civil penalty of not less than $5,500 and not more
    2
    "In a qui tam action, a private plaintiff, known as a
    relator, brings suit on behalf of the Government to recover a
    remedy for a harm done to the Government." U.S. ex rel. Feldman
    v. van Gorp, 
    697 F.3d 78
    , 84 n.3 (2d Cir. 2012) (citing Black's
    Law Dictionary 1282 (8th ed. 2004) (defining "qui tam action" as
    "[a]n action brought under a statute that allows a private person
    to sue for a penalty, part of which the government or some
    specified public institution will receive")).           "Qui tam
    plaintiffs, even if not personally injured by a defendant's
    conduct, possess constitutional standing to assert claims on
    behalf of the Government as its effective assignees."
    Id. 3 We
    refer to appellees JCR and Mr. José García-Suárez,
    owner of JCR, collectively as JCR.
    4 When the government declines to intervene, the relator
    -- here, CSILO -- can recover between 25% and 30% of the final
    award, with the remainder going to the government. See 31 U.S.C.
    § 3730(d)(2).
    - 5 -
    than $11,000 for each violation of 31 U.S.C. [§] 3729."5                 JCR
    denied all allegations.
    As parties do over the course of a lawsuit, CSILO and
    JCR exchanged various documents.           In response to JCR's document
    request for "[s]ubmitted invoices, authorizations, and/or payment
    approvals by CSILO and copies of payment checks," CSILO provided
    just those.      They also exchanged Initial Disclosures on June 26,
    2016   and   formulated   the   Joint   Pretrial   Conference   Report    on
    November 27, 2017.      In its Initial Disclosures CSILO stated that
    "computation of damages was not available as of [that] date," and
    the Joint Pretrial Conference Report contained no mention of
    anything specific to requested damages, such as a description,
    computation, or relevant evidence.
    Over three years down the line and exactly one month
    before trial, on December 22, 2017, the district court held its
    Pretrial Conference, during which the district judge asked CSILO
    whether it would present any evidence on damages at trial, given
    that such relief was not included in the proposed Joint Pretrial
    Conference Report.6       It was then that CSILO moved the court for
    5
    Under the FCA, liability can result in "a civil penalty
    of not less than $5,000 and not more than $10,000 . . . plus 3
    times the amount of damages which the Government sustains because
    of the act of that person." 31 U.S.C. § 3729(a)(1).
    6 At the conference, the district court adopted the
    parties' Joint Pretrial Conference Report as the court's order
    under Fed. R. Civ. P. 16(e) to govern subsequent proceedings. It
    is this order that we will refer to as the Pretrial Order.
    - 6 -
    leave to amend the Pretrial Order to include a discussion of
    damages.   JCR objected, claiming delay and prejudice, especially
    in light of the impending trial.       The court requested further
    briefing on the matter, and upon receipt, it denied CSILO's
    request, stating:
    [JCR] points out that [CSILO] did not include
    a computation of damages in its Initial
    Disclosures; and did not produce any evidence
    and/or   computation     of  damages    during
    discovery.    Moreover, it omitted from the
    Pretrial Report any specific request for
    discrete fraud damages as well as a discussion
    on the subject.      [CSILO] has provided no
    compelling reason to justify the omissions.
    Discovery is no longer available here, to
    [JCR]'s detriment. Accordingly, the motion is
    DENIED.
    U.S. ex rel. Concilio De Salud Integral De Loíza, Inc. v. J.C.
    Remodeling, Inc., et al., No. 14-1821 (PAD), Dkt. 92, Order at 2
    (citations omitted).   CSILO sought reconsideration of the denial;
    that too was denied.
    After a seven-day trial in late January 2018, at which
    CSILO was barred from submitting evidence on damages, the jury
    found that JCR had in fact violated the False Claims Act, and the
    court therefore entered judgment against JCR and imposed on it a
    $5,500 civil penalty, as required by statute.7   Dissatisfied with
    7"[A] defendant who submits a false claim . . . is
    liable for civil penalties regardless of whether the government
    shows that the submission of that claim caused the government
    damages." U.S. ex rel. Davis v. District of Columbia, 
    679 F.3d 832
    , 839 (D.C. Cir. 2012) (second alteration in original) (quoting
    - 7 -
    that result and believing it is still entitled to damages,8 CSILO
    now appeals.
    DISCUSSION
    CSILO argues on appeal that the district court abused
    its discretion when it rejected its request to amend the Pretrial
    Order to include a discussion of damages and avoid the resultant
    "manifest injustice."   CSILO also appeals the district court's
    denial of its motion to reconsider that denial.   CSILO argues that
    JCR would not have been prejudiced or surprised by the damages
    amendment because JCR was always aware of the full contract price,
    which formed the nucleus of its damages claim:     CSILO's federal
    complaint requested damages equal to $405,000 (three times the
    contract price of $135,000), and the contract itself as well as
    United States v. Sci. Applications Int'l Corp., 
    626 F.3d 1257
    ,
    1277-78 (D.C. Cir. 2010)).
    8 In its Motion to Amend the Pretrial Order, CSILO
    explained that it was seeking only "Fraud Damages," "damages based
    on the original Written Agreement" and the contract price of
    $135,000, as opposed to "Consequential Damages," as CSILO called
    it, that would have covered the amount CSILO expended on a new
    2017 bid to fix the roof. CSILO explained, without citation or
    further detail, the decision to forego "Consequential Damages," as
    follows:   "[The United States Government's] attorneys clarified
    that because this Complaint is a Qui Tam cause of action, the only
    real party is [the government] and not CSILO. The only damages
    that could be brought to the Court's attention are the direct
    damages that [the government] suffered based on the fraudulent
    acts of the person who violated the FCA.       Therefore, CSILO's
    damages should not be considered under the FCA because CSILO is a
    third party relator who received the ARRA funds."       Given our
    affirmance of the district court's decision, we need not opine
    upon the correctness of the government's advice.
    - 8 -
    the contract price was necessarily discussed multiple times during
    trial.   Therefore according to CSILO, JCR's claim of prejudice and
    surprise is disingenuous because JCR never -- either pretrial or
    during trial -- objected to the admission of the contract and its
    price tag at any point.   And so CSILO now requests that this court
    either find JCR liable for $405,000 or "remand the case back to
    the Jury for a bifurcated trial focused solely on" damages.
    JCR responds that CSILO misses the point:   CSILO assumes
    that the contract price automatically constitutes the baseline
    damages due under the FCA, even though the FCA does no such thing.
    Ultimately, JCR argues that because the parties could not rely on
    the contract price for damages, without the benefit of discovery
    on damages, CSILO's requested amendment to the Pretrial Order on
    the eve of trial and three years after the filing of the Complaint
    would have severely prejudiced and burdened JCR, and therefore the
    district court was right to deny CSILO's request.
    We review the district court's denial of CSILO's request
    to amend the Pretrial Order for abuse of discretion.   See Alberty-
    Vélez v. Corporación De Puerto Rico Para La Difusión Pública, 
    242 F.3d 418
    , 423 (1st Cir. 2001); Koch v. Koch Indus., Inc., 
    203 F.3d 1202
    , 1222 (10th Cir. 2000).   "A final pretrial order is intended
    to control the subsequent course of the action, and can be modified
    only to prevent manifest injustice."   Rodríguez-García v. Miranda-
    Marín, 
    610 F.3d 756
    , 774 (1st Cir. 2010) (internal quotation marks
    - 9 -
    omitted) (quoting Correa v. Hosp. S.F., 
    69 F.3d 1184
    , 1195 (1st
    Cir. 1995) (quoting Fed. R. Civ. P. 16(e))).            "Therefore, '[a]n
    appellate court should not lightly relieve a litigant from the
    condign consequences of its failure to list a theory . . . at that
    critical stage of the proceedings,' and 'issues not included in
    the final pretrial order are generally waived.'"
    Id. (quoting Correa,
      69   F.3d   at   1195)   (citing   Ramirez   Pomales   v.   Becton
    Dickinson & Co., 
    839 F.2d 1
    , 3 (1st Cir. 1988)); see also Bradford
    Trust Co. of Bos. v. Merrill Lynch, Pierce, Fenner, and Smith,
    Inc., 
    805 F.2d 49
    , 52 (2d Cir. 1986) ("Motions to reopen or to
    modify a pre-trial order are addressed to the sound discretion of
    the trial judge."); Wallin v. Fuller, 
    476 F.2d 1204
    , 1208-09 (5th
    Cir. 1973) ("Under the Rule 16 'manifest injustice' standard, the
    question whether to permit amendment of the pretrial order in the
    course of the trial is generally a matter within the discretion of
    the trial judge, and an appellate court will intervene only if the
    trial judge has acted arbitrarily."); Sherman v. United States,
    
    462 F.2d 577
    , 579 (5th Cir. 1972).
    "[T]he standard for modifying a final pretrial order is
    as high as it is to ensure everyone involved has sufficient
    incentive to fulfill the order's dual purposes of encouraging self-
    editing and providing reasonably fair disclosure to the court and
    opposing parties alike of their real trial intentions."               Monfore
    v. Phillips, 
    778 F.3d 849
    , 851 (10th Cir. 2015); see also Brook
    - 10 -
    Vill. N. Assocs. v. Gen. Elec. Co., 
    686 F.2d 66
    , 71 (1st Cir.
    1982).   That said, a court may greenlight the modification of a
    pretrial order when there will be little to no "surprise" or
    prejudice to the opposing party and when it is "warranted to
    prevent substantial injustice" to the moving party.   Meaux Surface
    Prot., Inc. v. Fogleman, 
    607 F.3d 161
    , 167 (5th Cir. 2010); see
    Davey v. Lockheed Martin Corp., 
    301 F.3d 1204
    (10th Cir. 2002);
    Carroll v. Pfeffer, 
    262 F.3d 847
    , 850 (8th Cir. 2001), cert.
    denied, 
    536 U.S. 907
    (2002). On the flipside, if the party seeking
    to modify had knowledge of the reason for modification prior to
    the pretrial conference, or if the modification would prejudice
    the opposing party, then it may not be allowed.   See, e.g., Harper
    v. Albert, 
    400 F.3d 1052
    , 1063 (7th Cir. 2005); Canal Ins. Co. v.
    First Gen. Ins. Co., 
    889 F.2d 604
    (5th Cir. 1989); Burnette v.
    Dresser Indus., Inc., 
    849 F.2d 1277
    (10th Cir. 1988).    "The party
    moving to amend the order [here, CSILO] bears the burden to prove
    the manifest injustice that would otherwise occur."      Wright v.
    City of St. Francis, KS, 
    95 F. App'x 915
    , 926 (10th Cir. 2004)
    (quoting 
    Davey, 301 F.3d at 1208
    ).     And that burden is "a higher
    standard than is otherwise imposed." Farr Man & Co. v. M/V Rozita,
    
    903 F.2d 871
    , 876 n.4 (1st Cir. 1990).
    In the damages context, courts have permitted changes to
    pretrial orders where such an amendment would result in no surprise
    and it was supported by the evidence already in the record.    See,
    - 11 -
    e.g., McAlister-Jones v. Foote, 
    720 F. App'x 971
    , 974-75 (11th
    Cir. 2017) (affirming district court's allowance of plaintiff's
    amendment to the pretrial order to include a claim for future lost
    wages,    finding   that   the    defendant     would   not   have   suffered
    substantial harm because he should have been aware of plaintiff's
    claim for future lost wages); Bennett v. Emerson Elec. Co., 64 F.
    App'x 708, 718-19 (10th Cir. 2003) (affirming the district court's
    allowance of plaintiff's amendment to the original pretrial order
    the day before trial to seek additional damages, finding that the
    additional damages amount had been part of the discovery exchanged
    between the parties, had been alleged in plaintiff's expert report,
    and addressed in the expert's deposition).
    In contrast, where an amendment to a pretrial order
    related to damages raised issues too close to trial and without
    support in the already-existing record, courts have declined to
    allow such amendments.        See, e.g., Genesis Health Clubs, Inc. v.
    LED Solar & Light Co., 
    639 F. App'x 550
    , 557 (10th Cir. 2016)
    (finding no abuse of discretion where the district court denied
    plaintiff's request to pursue a damages theory after the close of
    discovery where such theory was not included in the pretrial order
    and such a late inclusion would have prejudiced the defendant);
    Quick Techs., Inc., v. Sage Grp. PLC, 
    313 F.3d 338
    , 345-46 (5th
    Cir.     2002)   (affirming      the     district   court's   rejection    of
    plaintiff's new proposed pretrial order submitted "shortly before
    - 12 -
    trial" that added a damages claim for corrective advertising);
    Knapp v. Whitaker, 
    757 F.2d 827
    , 849 (7th Cir. 1985) (affirming
    the district court's refusal to permit an amendment to the pretrial
    order to include punitive damages where "[t]he pretrial order made
    no   mention   of    punitive    damages   and   [plaintiff]   offer[ed]   no
    reasonable explanation for his undue delay in filing such a
    claim[, and] . . . the untimely filed punitive damage claim would
    have   clearly      prejudiced   the   defendants   who   invested   a   year
    preparing their defense to the allegations pleaded, without any
    notice of a punitive damage claim"); Rock Island Imp. Co. v.
    Helmerich & Payne, Inc., 
    698 F.2d 1075
    , 1081-82 (10th Cir. 1983);
    Jacobson v. Rose, 
    592 F.2d 515
    , 519 n.5 (9th Cir. 1978); Scopia
    Mortg. Corp. v. Greentree Mortg. Co., L.P., 
    184 F.R.D. 526
    (D.N.J.
    1998) (denying leave to amend joint final pretrial order to include
    new expert opinion testimony on damages where discovery had been
    closed for one and one-half years, the parties had raised damages
    previously, the movant's expert had no knowledge of the case, and
    the nonmovant's expert had never opined on damages); Wright, 95 F.
    App'x at 927 (affirming the district court's refusal to allow
    family members to amend pretrial order to assert claims for damages
    against police officers in their individual capacities, relying on
    the family's representations "both at the pretrial conference and
    in the pretrial order itself," that it was pursuing only "official
    capacity claims").
    - 13 -
    So, we ask, is CSILO's request to amend the Pretrial
    Order a minor request, supported by the record and one that would
    not prejudice JCR, 
    McAlister-Jones, 720 F. App'x at 974-75
    , and
    absent which CSILO would suffer "manifest injustice," Rodríguez-
    
    García, 610 F.3d at 774
    , such that the district court abused its
    discretion in denying the request? Or was the district court right
    to deny the request, finding that modifying the Pretrial Order,
    three years in and on the eve of trial and after the close of
    discovery, would have prejudiced JCR?      Genesis Health 
    Clubs, 639 F. App'x at 557
    .    CSILO argues the former, contending that because
    it is due (three times) the full contract price, and the contract
    price appeared in the record multiple times and was uncontroverted
    by JCR, an amendment to the Pretrial Order would not have surprised
    or prejudiced JCR.       JCR, of course, disagrees that CSILO is
    entitled to the full contract price and contends that the request
    was based entirely on a false premise, and such a late-stage
    amendment would have severely prejudiced JCR, and therefore the
    district court did not abuse its discretion.      To settle this, we
    turn to the substantive law undergirding this case, and the damages
    it allows.
    CSILO brought its case under the False Claims Act, which
    "prohibits a person from 'knowingly present[ing], or caus[ing] to
    be presented, [to an officer or employee of the United States
    Government,] a false or fraudulent claim for payment or approval.'"
    - 14 -
    U.S. ex rel. Feldman v. van Gorp, 
    697 F.3d 78
    , 86–87 (2d Cir. 2012)
    (alteration in original) (quoting 31 U.S.C. § 3729(a)(1)(A)). "The
    Act does not specify how damages are to be calculated."
    Id. at 87.
    The government needs to have only suffered the damage "because
    of" the violation of the Act.       31 U.S.C. § 3729(a)(1); see also
    The False Claims Act: Fraud Against the Government § 6:3.            The
    legislative history to the FCA explains why it offers no specific
    formula for damages:
    No single rule can be, or should be, stated
    for the determination of damages under the Act
    . . . [T]he courts should remain free to
    fashion measures of damages on a case-by-case
    basis. The Committee intends that the courts
    should be guided only by the principles that
    the United States' damages should be liberally
    measured to effectuate the remedial purposes
    of the Act, and that the United States should
    be afforded a full and complete recovery of
    all its damages.
    S. Rep. No. 96-615, at 4 (1980) (reporting on S.1981, predecessor
    to S.1562). "In most FCA cases, damages are measured as they would
    be   in   a   run-of-the-mine   breach-of-contract   case   --   using   a
    'benefit-of-the-bargain' calculation in which a determination is
    made of the difference between the value that the government
    received and the amount that it paid."        
    Feldman, 697 F.3d at 87
    (quoting United States v. Foster Wheeler Corp., 
    447 F.2d 100
    , 102
    (2d Cir. 1971)).       Generally, "[t]he Government's actual damages
    are equal to the difference between the market value of the [goods]
    it received and retained and the market value that the [goods]
    - 15 -
    would have had if they had been of the specified quality."           United
    States v. Bornstein, 
    423 U.S. 303
    , 316 n.13 (1976) (collecting
    cases   from   the   Second,   Fourth,   Fifth,    and   Eighth   Circuits);
    Commercial Contractors, Inc. v. United States, 
    154 F.3d 1357
    , 1372
    (Fed. Cir. 1998) (following Bornstein); United States v. Killough,
    
    848 F.2d 1523
    , 1532 (11th Cir. 1988) ("[T]he measure of damages
    [in FCA cases] is generally determined to be the difference between
    what the government actually paid on the fraudulent claim and what
    it would have paid had there been fair, open and competitive
    bidding." (citing Brown v. United States, 
    524 F.2d 693
    , 706 (Ct.
    Cl. 1975); United States v. Woodbury, 
    359 F.2d 370
    , 379 (9th Cir.
    1966)); see also United States v. Sci. Applications Int'l Corp.,
    
    626 F.3d 1257
    , 1278 (D.C. Cir. 2010) ("In a case where the
    defendant agreed to provide goods or services to the government,
    the proper measure of damages is the difference between the value
    of the goods or services actually provided by the contractor and
    the value the goods or services would have had to the government
    had they been delivered as promised.").
    As far as CSILO has been able to show us and from what
    we have been able to find, FCA cases where the entire contract
    price is awarded as damages relate to contracts that provided "no
    tangible benefit to the government and [where] the intangible
    benefit is impossible to calculate."              U.S. ex rel. Longhi v.
    Lithium Power Techs., Inc., 
    575 F.3d 458
    , 473 (5th Cir. 2009); see
    - 16 -
    also 
    Feldman, 697 F.3d at 88
    .               To elaborate:       in Longhi, the
    Department of Defense ("DoD"), under the Small Business Innovation
    Research ("SBIR") program, was to "provide research assistance to
    small    businesses      in   order   to    maintain    and     strengthen    the
    competitive free enterprise system and the national 
    economy." 575 F.3d at 462
    .      To that end, "the DoD identifie[d] specific research
    projects that it [wa]s interested in funding and allow[ed] small
    businesses to seek SBIR grants for these projects."
    Id. The defendants
    in that case "submitted . . . proposals . . . to the
    Ballistic Missile Defense Office ("BMDO") . . . and . . . the Air
    Force" to receive funding "that could lead to the development of
    very thin rechargeable batteries."
    Id. The DoD
    reviewed the grant
    applications,
    id. at 463,
       and    entered   into     contracts    with
    defendants, which
    did not produce a tangible benefit to the BMDO
    or the Air Force. These were not, for example,
    standard procurement contracts where the
    government ordered a specific product or good.
    The end product did not belong to the BMDO or
    the Air Force. Instead, the purpose of the
    SBIR grant program was to enable small
    businesses to reach [a phase] where they could
    commercially market their products.
    Id. at 473.
          The court ultimately found that "[t]he BMDO and the
    Air     Force's    intangible    benefit       of   providing    an   'eligible
    deserving' business with the grants was lost as a result of the
    Defendants' fraud," and accordingly, "where there is no tangible
    benefit to the government and the intangible benefit is impossible
    - 17 -
    to calculate, it is appropriate to value damages in the amount the
    government actually paid to the Defendants," -- that is, the full
    contract price.
    Id. In Feldman,
    the government entity also reviewed the
    applications for government funding and awarded funds 
    accordingly. 697 F.3d at 84
    .    There, the court affirmed the damages award of
    the full contract price where the National Institutes of Health
    ("NIH") had awarded a grant and was paying for a program "that was
    not at all as specified . . . the government did not receive less
    than it bargained for; it did not get the [research] program it
    bargained for at all."
    Id. at 88-91.
      Through the grant, the NIH
    had attempted to "promote 'child and adult clinical and research
    neuropsychology with a strong emphasis upon research training with
    HIV/AIDS,'"
    id. at 88,
    but the recipients-defendants' program's
    deficiencies demonstrated that none of that had happened.
    Id. at 91.
      The court reaffirmed that "nothing in the record indicate[d]
    that [NIH] could now secure such a program at any lesser cost,"
    "conclud[ing] that the appropriate measure of damages in [the]
    case [wa]s the full amount the government paid based on materially
    false statements."
    Id. In both
    Longhi and Feldman, the government had doled out
    grant monies directly to third-parties for specified, "intangible"
    research projects, but the awardees had failed to effectuate that
    research.    
    Longhi, 575 F.3d at 473
    ; 
    Feldman, 697 F.3d at 88
    .     As
    - 18 -
    such, the government was out of a fixed sum of money with nothing
    at all in return and therefore the courts found that recompense of
    the full contract price was all that could make the government
    whole.    As the court in Feldman explained:
    This approach rests on the notion that the
    government receives nothing of measurable
    value when the third-party to whom the
    benefits of a governmental grant flow uses the
    grant for activities other than those for
    which funding was approved. In other words,
    when a third-party successfully uses a false
    claim regarding how a grant will be used in
    order to obtain the grant, the government has
    entirely lost its opportunity to award the
    grant money to a recipient who would have used
    the money as the government 
    intended. 697 F.3d at 88
    .    The facts that CSILO presents are a far cry from
    those in Longhi and Feldman.     Here, CSILO received ARRA funds from
    the government before it entered into a relationship with JCR.
    Once it decided to use those funds to fix its facility's roof, it
    sought bid proposals from third-parties.         It ultimately awarded
    the bid to JCR, relying on JCR's false representations (the 15-
    year warranty), and paid JCR with its ARRA funds.            JCR then fixed
    the roof -- the "activit[y] . . . for which funding was approved,"
    
    Feldman, 697 F.3d at 88
    , albeit in a shoddy manner requiring
    subsequent repairs (the CSILO roof was still leaking as of the
    federal trial).     This does not follow the pattern in Longhi and
    Feldman   where   government   entities   DoD   and   NIH,    respectively,
    directly meted out funds for research to recipients that never
    - 19 -
    made   good   on   their   grant   application    promises    in   any   way
    whatsoever.    
    Longhi, 575 F.3d at 473
    ; 
    Feldman, 697 F.3d at 88
    .
    Nor is it clear that the government received something "valueless,"
    U.S. ex rel. Compton v. Midwest Specialties, Inc., 
    142 F.3d 296
    ,
    304 (6th Cir. 1998), in this case:           research that was never
    consummated is different from a defectively patched roof on a
    government-funded     facility,     especially    where      the   latter's
    condition may, nonetheless, have been improved over its initial
    state and further remediated by a method not yet explored.               But
    without the benefit of evidence of damages in the record, we do
    not know what value, if any, to ascribe to the work already done
    on CSILO's roof, and it is far from clear that CSILO should be
    entitled to recover the full price it paid out particularly where
    some work was in fact done.        Compare
    id. (awarding full
    contract
    price damages where the goods delivered by defendant to the U.S.
    Army "were completely valueless, not only because most of them
    could not withstand 5,000 pounds of force, but also because none
    of them came with the quality assurance of a product that had been
    subjected to periodic production testing") with U.S. ex rel. Wall
    v. Circle C Constr., LLC, 
    868 F.3d 466
    , 470-71 (6th Cir. 2017)
    (rejecting    "the    government's     argument     that     [defendant's]
    electrical work was worthless," and therefore declining to award
    the full contract price).      We therefore find that CSILO has not
    persuaded us that it would have been entitled to the full contract
    - 20 -
    price paid to JCR, and so CSILO's request to amend the Pretrial
    Order was not necessarily as simple as it made it out to be.9
    BRINGING IT ALL TOGETHER
    Considering the high bar set to amend a pretrial order,
    
    Monfore, 778 F.3d at 851
    ; Brook Vill. N. 
    Assocs., 686 F.2d at 71
    ,
    and the lack of record evidence as to the damages CSILO would have
    been entitled to under the FCA, 
    Feldman, 697 F.3d at 88
    , we find
    that the district court did not abuse its discretion when it
    decided, over three years into litigation, with discovery closed
    and trial less than a month away, that CSILO's request to amend
    the Pretrial Order would not have caused it "manifest injustice,"
    Rodríguez-
    García, 610 F.3d at 774
    , and would have instead caused
    prejudice and hardship to JCR, Genesis Health 
    Clubs, 639 F. App'x at 557
    , and therefore denied it.   And so we affirm.10   Each side
    shall bear its own costs.
    9 Even had CSILO established that it was entitled to the
    full contract price, it is still possible that the district court
    would have been within its discretion to deny CSILO's request to
    amend the Pretrial Order. But we need not opine on that issue
    here.
    10 CSILO also appeals the district court's denial of its
    Motion to Reconsider the district court's denial of CSILO's Motion
    to Amend the Pretrial Order. We reject this as well, as "a motion
    for reconsideration may only be granted if the original judgment
    evidenced a manifest error of law, if there is newly discovered
    evidence, or in certain other narrow situations." Global Naps,
    Inc. v. Verizon New Eng., Inc., 
    489 F.3d 13
    , 25 (1st Cir. 2007).
    We "will not overturn the court's determination 'unless a
    miscarriage of justice is in prospect or the record otherwise
    reveals a manifest abuse of discretion.'" Meléndez v. Autogermana,
    Inc., 
    622 F.3d 46
    , 55 (1st Cir. 2010) (quoting Rivera v. Riley,
    - 21 -
    
    209 F.3d 24
    , 27 (1st Cir. 2000)); see also Rodríguez v.
    Municipality of San Juan, 
    659 F.3d 168
    , 175 (1st Cir. 2011); Ruiz
    Rivera v. Pfizer Pharm., LLC, 
    521 F.3d 76
    , 81 (1st Cir. 2008).
    Here, we do not find that the district court's original decision
    to deny CSILO's Motion to Amend the Pretrial Order "evidenced a
    manifest error of law," or that CSILO has been able to point us to
    any "newly discovered evidence" that should disrupt the district
    court's original judgment. If anything, the facts of this case
    show that nothing changed from the beginning of this drama in 2014
    to the time when CSILO filed its first motion and subsequent motion
    for reconsideration. We therefore spy no abuse of discretion in
    the district court's denial of CSILO's Motion for Reconsideration.
    - 22 -
    

Document Info

Docket Number: 18-1199P

Filed Date: 6/15/2020

Precedential Status: Precedential

Modified Date: 6/15/2020

Authorities (30)

united-states-of-america-cross-appellant-v-limmie-lee-killough-william , 848 F.2d 1523 ( 1988 )

terry-c-knapp-cross-appellant-v-harry-whitaker-russell-mcdavid-john , 757 F.2d 827 ( 1985 )

United States Ex Rel. Longhi v. United States , 575 F.3d 458 ( 2009 )

Rodriguez v. Municipality of San Juan , 659 F.3d 168 ( 2011 )

Rodriguez-Garcia v. Miranda-Marin , 610 F.3d 756 ( 2010 )

Commercial Contractors, Inc. v. United States , 154 F.3d 1357 ( 1998 )

Meaux Surface Protection, Inc. v. Fogleman , 607 F.3d 161 ( 2010 )

Koch v. Koch Industries, Inc. , 203 F.3d 1202 ( 2000 )

United States v. Foster Wheeler Corporation , 447 F.2d 100 ( 1971 )

Ruiz Rivera v. PEIZER PHARMACEUTICALS, LLC , 521 F.3d 76 ( 2008 )

Victoria L. Alberty-Velez v. Corporacion De Puerto Rico ... , 242 F.3d 418 ( 2001 )

Marsha Lee Wallin, as Administratrix of the Estate of Carl ... , 476 F.2d 1204 ( 1973 )

Louis G. Sherman, Jr., and Randolph W. Commins, Executors ... , 462 F.2d 577 ( 1972 )

Brook Village North Associates v. General Electric Company, ... , 686 F.2d 66 ( 1982 )

Ruiz Rivera v. Dept. of Education , 209 F.3d 24 ( 2000 )

Melendez v. Autogermana, Inc. , 622 F.3d 46 ( 2010 )

Rita Carroll v. Fredrick W. Pfeffer , 262 F.3d 847 ( 2001 )

Awilda Ramirez Pomales v. Becton Dickinson & Co., S.A. , 839 F.2d 1 ( 1988 )

United States v. Science Applications International Corp. , 626 F.3d 1257 ( 2010 )

Davey v. Lockheed Martin Corp. , 301 F.3d 1204 ( 2002 )

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