United States Ex Rel. Folliard v. Government Acquisitions, Inc. , 880 F. Supp. 2d 36 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, ex
rel. BRADY FOLLIARD,
Plaintiff,
v.
GOVERNMENT ACQUISITIONS,
INC.
Defendant.
Civil Action No. 07-719 (RCL)
UNITED STATES OF AMERICA, ex
rel. BRADY FOLLIARD,
Plaintiff,
v.
GOVPLACE,
Defendant.
MEMORANDUM OPINION
This action, which is brought under the False Claims Act (“FCA”), 31 U.S.C. § 3729–
3733, is before this Court on defendant Government Acquisitions, Inc.’s (“GAI”) Motion [126]
for Summary Judgment and defendant Govplace’s (“GP”) Motion [129] for Summary Judgment.
For the reasons set forth below, defendant GAI’s Motion for Summary Judgment will be granted
and defendant GP’s Motion for Summary Judgment will be granted in part and denied in part.
I. Introduction
Relator Brady Folliard initiated this qui tam suit pursuant to the Federal False Claims
Act, 31, U.S.C. §§ 3729–3733 (“FCA”). Folliard’s complaint alleged that eight named
1
defendants listed for sale and sold products under government contracts from non-designated
countries, in violation of the Trade Agreements Act (“TAA”), 19 U.S.C. §§ 2501–2581. All
eight defendants filed motions to dismiss, which the Court granted as to six of the defendants.
See generally July 19, 2011 Mem. Op. [114]; July 19, 2011 Order [115]. Two defendants
remain: GAI and GP. The Court granted their motion to sever, but retained joint case
management. See Sept. 27, 2011 Order [123]. In its most recent ruling, the Court granted in part
defendants’ Motions [126; 129] for Summary Judgment. See Mem. Op. [156]. After dismissing
Counts III and IV against both defendants, 1 the Court instructed plaintiff to submit an amended
opposition to defendants’ Motions for Summary Judgment. May 3, 2012 Order [155]. Plaintiff
was specifically instructed to address only very limited issues regarding each defendant. 2 Id. at
2. Defendants then submitted amended replies [159; 161]. With a complete record, the Court
can make a final determination on the remaining summary judgment issues.
II. Background
a. Basis for the Complaint
Defendants are information technology providers who each supply products to United
States government agencies under separate General Services Administration (“GSA”) Multiple
Awards Schedule Contracts (“GSA Schedule”). See GAI’s Mem. P&A Supp. Mot. Summ. J.
[126] (“GAI P&A”) at 1; GP’s Mot. Summ. J. [129] at 1, 5–6. These contracts are covered by
the TAA, which bars the federal government, inter alia, from purchasing end-products that
originate in non-designated countries. Corrected Second Am. Compl. [37] (“Compl.”) ¶ 40.
1
These counts alleged a TAA violation based on defendants’ listings of products for sale. However, the Court
found that a TAA violation cannot occur without a sale. See United States ex rel. Totten v. Bombardier Corp., 286
F.3d 542, 551 (D.C. Cir. 2002); United States ex rel. Folliard v. CDW Tech. Servs., Inc., 722 F. Supp. 2d 20, 30
(D.D.C. 2010).
2
Plaintiff’s amended opposition was explicitly limited to paragraphs 100, 101, 117 and 118 of his Second Amended
Complaint [37], and Rule 56(d) requests. May 3, 2012 Order [155] at 2.
2
Federal Acquisition Regulation (“FAR”) 52.225-5(a) lists designated countries for purposes of
the TAA; the federal government is prohibited from purchasing products from any country not
listed.
Plaintiff alleges that GAI knowingly sold six products that originated in non-designated
countries. Compl. ¶¶ 101–01. He alleges that GP knowingly sold ten products that originated in
non-designated countries. Id. ¶¶ 117–18. With the dismissal Counts III and IV, these sales now
form the basis of what remains of Folliard’s complaint. Id. ¶¶ 134–41.
The FCA, 31 U.S.C. § 3279 et seq., was amended by the Fraud Enforcement Recovery
Act (“FERA”) in 2009. See generally Pub. L. No. 111–12, 123 Stat. 1617 (2009). The FCA
provisions relevant to this case involve (1) presenting fraudulent claims for payment and (2)
knowingly making false statements or records to obtain payment. The presentment clause was
renumbered from 31 U.S.C. § 3279(a)(1) to 31 U.S.C. § 3279(a)(1)(A) in FERA, which also
removed language requiring that the claim be presented to an officer or employee of the
government or armed forces. See Pub. L. 111–12 § 4(a). The false statement clause was
renumbered from 31 U.S.C. § 3279(a)(2) to 31 U.S.C. § 3279(a)(1)(B) in FERA, which changed
the language from “false record or statement to get a false or fraudulent claim paid or approved
by the government” to “statement material to a false or fraudulent claim.” See id. The false
statement clause was also made retroactive to June 28, 2008, while the presentment clause was
effective the date of enactment. See id. §4(f).
Because of the dates of the alleged infractions and the enactment of FERA, Folliard
makes two claims against GAI and GP: (1) allegations under the pre-FERA presentment clause
for acts prior to May 20, 2009 (Count I, Compl. ¶¶ 134–37), and (2) allegations under the post-
FERA presentment clause for acts after May 20, 2009 (Count II, Compl. ¶¶ 138–41).
3
b. Procedural History
Folliard filed this qui tam action under seal in April 2007, alleging violations of the FCA.
See generally Apr. 20, 2007 Compl. [1]. Pursuant to 31 U.S.C. § 3730, the government was
required to decide whether to intervene in this case, and in May 2010, finally determined that it
would not. See Notice of Election to Decline Intervention [13]. The case was unsealed in June
2010. See June 17, 2010 Order [32]. Folliard filed his Corrected Second Amended Complaint in
October 2010.
GAI and Govplace (“GP”) filed Motions to Dismiss in December 2010. See generally
GAI’s Mot. Dismiss Relator’s Corrected Second Am. Compl. [81]; GP’s Mot. Dismiss Relator’s
Corrected Second Am. Compl. [75]. In July 2011, the Court denied both defendants’ motions.
See July 19, 2011 Mem. Op. [114]; July 19, 2011 Order [115]. The defendants jointly filed a
motion to sever, which the Court granted, except that case management was to remained joined.
See Sept. 27, 2011 Order [123].
GAI filed for summary judgment in November 2011, and GP filed for summary judgment
in December 2011. See GAI’s Mot. Summ J. [126]; GP’s Mot. Summ. J. [129]. These motions
were granted in part, with the Court dismissing Counts III and IV. See May 3, 2012 Mem. Op.;
May 3, 2012 Order. Plaintiff filed his Supplemental Memorandum in Opposition [157] to GAI’s
Motion for Summary Judgment and Supplemental Memorandum in Opposition [158] to GP’s
Motion for Summary Judgment on May 17, 2012. Both defendants submitted replies [159; 161].
The issue of summary judgment is now ripe for the Court’s determination.
III. Legal Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
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R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The standard
requires more than the existence of some factual dispute; “the requirement is that there be no
genuine issue of material fact.” Anderson, 477 U.S. at 247–48 (emphasis in original). A fact is
material if, under the applicable law, it could affect the outcome of the case. Id. A dispute is
genuine for summary judgment purposes if the “evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. Also, because “[c]redibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge,” the “evidence of the non-movant is to be believed, and all
justifiable are to be drawn in his favor.” Id. at 255. A nonmoving party, however, must establish
more than “the existence of a scintilla of evidence” in support of its position. Id. at 252. In
addition, he may not rely solely on allegations or conclusory statements. See Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999). The nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. Id. If the evidence presented is “merely colorable,
or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at249–50.
A proper FCA claim is composed of three elements: (1) the defendant presented a claim
for payment or approval to the government, (2) the claim was “false or fraudulent,” and (3) the
defendant acted knowing that the claim was false. United States ex rel. Schwedt v. Planning
Research Corp., 59 F.3d 196, 198 (D.C. Cir. 1995). The defendant must provide at least some
evidence about each element to survive summary judgment. See United States ex rel. Hockett v.
Columbia/HCA Healthcare Corp., 498 F. Supp. 2d 25, 71 (D.D.C. 2007) (holding when a relator
cannot “point to a single, specific false claim” or sufficiently describe one, he has “failed to
create a triable issue of fact.”).
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Federal Rule of Civil Procedure 56(d) 3 allows a court to deny a motion for summary
judgment or defer deciding the motion if the nonmoving party shows that it cannot present facts
essential to justify its opposition. McWay v. LaHood, 269 F.R.D. 35, 38 (D.D.C. 2010). Rule
56(d) is provided to ensure that the non-moving party isn’t “railroaded” by a premature motion
for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). However, the
burden is on the party making a Rule 56(d) request to “state concretely” why additional
discovery is needed. Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006) (citations and
internal edits omitted). The party seeking relief under Rule 56(d) must do more than offer
“‘conclusory allegation[s] without any supporting facts’ to justify the proposition that the
discovery sought will produce the evidence required.” Id. (citations omitted). The decision to
grant relief under Rule 56(d) is within the discretion of the district court. McWay, 269 F.R.D. at
38.
IV. Analysis
a. Defendant GAI’s Motion for Summary Judgment
Plaintiff was ordered to amend his opposition to GAI’s Motion for Summary Judgment
and instructed that his opposition must be “addressed solely to the transactions alleged in
¶¶ 100–01 of the Corrected Second Amended Complaint, and any request made pursuant to Rule
56(d) in that opposition must describe the necessary discovery with specificity[.]” May 3, 2012
Order (“Order”) [155] at 2. The subject matter of those paragraphs is product number
GH715AW, which plaintiff alleges was sold in violation of TAA. Compl. ¶¶ 100–01. No other
products were to be discussed, since they all fell outside paragraphs 100–01. See May 3, 2012
Mem. Op. [156]; Order at 1–2.
3
Former Rule 56(f) was renumbered to 56(d) in 2010, without making any substantive changes to the provisions
thereof. See Fed. R. Civ. P. Comm. Notes on Rules – 2010 Amendments.
6
Despite the Court’s clear directive limiting the focus of this litigation, plaintiff filed an
inordinate amount of irrelevant, unresponsive paperwork. For instance, his Supplemental
Opposition [157] comprises 18 pages, which includes an additional fifteen attachments. 4 Among
them was a Supplemental Statement of Genuine Issues [157-15], which totals 40 pages. The
subject matter of paragraphs 100 and 101, which is to be the sole subject matter of plaintiff’s
supplemental opposition, does not arise until page 36 of this document. The Court will not
tolerate litigants completely disregarding its orders. They are not suggestions. Yet, plaintiff
explicitly claims otherwise: “[E]ven though the Court stated that Plaintiff’s opposition should
focus only on the allegations set forth in the Complaint, Plaintiff submits that he is entitled to
rely upon transactions beyond those alleged in the Complaint to defeat summary judgment.”
Supplemental Opp’n to GAI’s Mot. Summ. J. (“Opp’n to GAI”) at 13. Plaintiff is entitled
neither to rely on transactions outside his complaint nor to treat this Court’s orders as anything
less than controlling. In fact, a Ninth Circuit case plaintiff himself cites held, “[T]he district
court may tailor limited discovery before again entertaining a motion for summary judgment.
Discovery should proceed in accordance with the district court’s guidance and oversight, with
violations sanctionable under Fed. R. Civ. P. 37.” Burlington N. Santa Fe R.R. Co. v.
Assiniboine & Sioux Tribes of the Fort Peck Reservation, 323 F.3d 767, 775 (9th Cir. 2003)
(internal citations omitted). The Court strongly cautions plaintiff to think twice before flippantly
violating the Court’s instructions.
That said, the Court turns to the issue at hand: summary judgment as to paragraphs 100
and 101 of plaintiff’s Complaint. Count II of the Complaint states, “Defendants knowingly
submitted, and caused to be submitted, false or fraudulent claims for payment and
reimbursement by the United States Government after May 20, 2009 . . . .” Compl. ¶ 140
4
Incredibly, product number GH715AW appears for the first time on page 15. See Opp’n to GAI.
7
(emphasis in original). All six alleged transactions occurred prior to May 20, 2009. See Compl.
¶ 101 (alleging sales only in September 2007). Because these are the only transactions that
remain at issue with GAI and Count II is limited to transactions after May 20, 2009, it can be
dismissed as to GAI. This leaves only Count I, making the same allegation for transactions prior
to May 20, 2009. See Compl. ¶¶ 134–37.
The parties’ arguments are relatively simple. Plaintiff alleges that GAI sold computers
with product number GH715AW to the government, knowing that their Country of Origin
(COO) violated TAA. 5 See Compl. ¶¶ 100–01. GAI counters that while computers were sold to
the government, their product number was not GH715AW, and their serial numbers show that
their COO was Mexico—a TAA-approved country. See GAI’s Mot. Summ. J. at 13; GAI’s
Reply at 3. Essentially, GAI argues that while it did sell computers, it didn’t sell the computers
plaintiff alleges it did.
Plaintiff presents two arguments in his Supplemental Opposition: (1) summary judgment
is inappropriate because GAI has refused to provide discovery, and (2) material disputed issues
exist within the record. The Court will address each of these in turn.
1. Discovery
Plaintiff argues, ad nauseam, that he is unable to properly respond to GAI’s Motion for
Summary Judgment because he has had an insufficient opportunity to conduct discovery and that
summary judgment is inappropriate under Federal Rule 56(d). 6 The Court has not intended for
summary judgment to proceed with no discovery by Folliard, who “deserves his bite at the
5
Though plaintiff insists that further discovery will uncover more illegal transactions by GAI, the Court has made it
clear that at this time, the only transactions at issue are the six listed in paragraph 101 of the Complaint. As the
Court has already written, “[I]f Folliard cannot respond to the sales he lists as ‘representative,’ he should not be
entitled to discovery for other sales, not alleged in the complaint, on which he might prevail.” May 3, 2012 Mem.
Op. at 10.
6
Plaintiff cites the lack of discovery as the basis for not refuting no fewer than 18 of GAI’s material facts. See [157-
15]. Furthermore, 14 of the 17 pages of plaintiff’s Supplemental Opposition deal with discovery arguments wholly
unrelated to product number GH715AW.
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apple.” May 3, 2012 Mem. Op. at 8–9. “Pre-discovery summary judgment motions are usually
premature and hence disfavored.” Thompson v. Fathom Creative, Inc., 62 F. Supp. 2d 48, 53
(D.D.C. 2009) (quoting Bourbeau v. Jonathan Woodner Co., 600 F. Supp. 2d 1, 3 (D.D.C.
2009)). However, the Court “did not invite open-ended discovery by Folliard.” May 3, 2012
Mem. Op. at 8. The Court has chosen to tailor discovery and expects the scope of this litigation
to remain within the bounds it has set. The current discovery-related arguments must relate to
paragraphs 100 and 101 of the Complaint, which relate solely to product number GH715AW.
Order at 2. Only “if Folliard prevails . . . on the specific sales alleged in the complaint” will the
question of further discovery be ripe. May 3, 2012 Mem. Op. at 11.
Since the Court did not intend for summary judgment with no discovery by plaintiff, the
threshold question is whether there has been at least some discovery. Plaintiff argues that GAI
did not adequately respond to his interrogatories, thereby making summary judgment premature.
Opp’n to GAI at 6. He cites two Third Circuit cases, both of which held that summary judgment
was inappropriate while a party’s interrogatories remained unanswered. See id. at 7–8 (citing
Costlow v. United States, 552 F.2d 560 (3d Cir. 1977); Sames v. Gable, 732 F.2d 49 (3d Cir.
1984)). However, these cases are distinguishable from the facts at hand. While Costlow and
Sames had outstanding interrogatories that remained unanswered, plaintiff received responses to
his interrogatories three days after defendants’ filing for summary judgment. Plaintiff does not
contend that, like Costlow and Sames, discovery continues to remain outstanding. Instead, he
states, “GAI has not amended its responses to the first round of discovery by providing
substantive answers to Plaintiff’s interrogatories.” Opp’n to GAI at 5. Just because plaintiff’s
interrogatories were not answered in the manner he would prefer, it does not logically follow that
they were not answered at all. Plaintiff accuses GAI of “improperly assert[ing] boilerplate
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objections to all of Plaintiff’s interrogatories three days after it filed the instant motion and
fail[ing] to provide any of the requested information necessary for Plaintiff to adequately
respond to GAI’s motion for summary judgment.” Id. at 6. The Court is unable to find caselaw
supporting plaintiff’s apparent contention that “boilerplate” objections are equivalent to not
answering the interrogatories at all, and thereby preclusive of summary judgment. Based on the
facts in the record, the Court finds the interrogatories to have been answered, and at least some
discovery to be conducted.
The next question is whether enough discovery has been conducted to allow for a proper
summary judgment determination. Summary judgment is proper only “after adequate time for
discovery . . . .” Celotex, 477 U.S. at 322. The district court has the discretion to decide whether
circumstances of the case warrant additional discovery. McWay, 269 F.R.D. at 38 (citing Stella
v. Mineta, 284 F.3d 135, 147 (D.C. Cir. 2002)). In this case, the only remaining issue between
the parties is the sale of product number GH715AW. See Order at 2. GAI has presented much
evidence to prove that it never sold product number GH715AW is undisputed: emails, multiple
declarations, purchase orders, and serial numbers. See GAI’s Statement of Undisputed Material
Facts (“SUMF”) [126] ¶ 32(b) and (c); Exs. 10, 29–34. Plaintiff simply responds that he
disputes this material fact—that HP worksheets always show product number GH715AW as
originating in China (a non-TAA approved country). See Pl.’s Supplemental Statement of
Genuine Issues [157-15] at 37. Plaintiff argues, “[B]efore the extreme determination of
summary judgment is rendered, Plaintiff is entitled to conduct discovery, pursuant to Federal
Rules of Civil Procedure 56(d), regarding GAI’s knowledge of the fact that the products they
sold to the Government originated from non-approved countries.” Opp’n to GAI at 1 (emphasis
added). Plaintiff asks for additional discovery regarding products he presumes have been sold to
10
the government, but that is precisely the issue. Conclusory statements that GH715AW was
actually sold will not suffice. See Anderson, 477 U.S. at 249–50.
In this Circuit, a 56(d) movant must satisfy three requirements through submission of an
affidavit. First, he must explain the particular facts he intends to discover and why they are
necessary to the litigation. Convertino v. DOJ, 2012 WL 2362591 at *5 (D.C. Cir. 2012) (citing
Byrd v. EPA, 174 F.3d 239, 248 (D.C. Cir. 1999)). Second, he must explain why he could not
produce the facts in his opposition to summary judgment. Id. (citing Carpenter v. Fed. Nat’l
Mortg. Ass’n, 174 F.3d 231, 237 (D.C. Cir. 1999)). Finally, he must demonstrate that the facts
are actually discoverable. Id. (citing Messina, 439 F.3d at 762). The Court will analyze these
elements in turn.
First, plaintiff is required to explain, in detail, what facts discovery will yield and how
they contribute to his case. Here, plaintiff provided an affidavit by his counsel, Vince McKnight.
See McKnight Decl. [157-2]. In stunning defiance of Court-ordered discovery limitations,
neither paragraphs 100 and 101 of the Complaint nor product GH715AW are ever mentioned.
Mr. McKnight states that GAI “has all but acknowledged that it sold products to the Government
that are not TAA compliant[,]” but offers no evidence to back his assertion. Id. ¶ 24. Instead of
specifying facts to be discovered, Mr. McKnight writes,
Plaintiff requests the opportunity to conduct discovery regarding GP’s
scienter . . . . With respect to all of GAI’s defenses, especially its claim of
ignorance and its assertion that it somehow had no obligation to sell products
made in TAA-compliant countries, Plaintiff is entitled to conduct discovery on
this issue. Again, given the shear magnitude of its sale of products from non-
TAA compliant countries, there is a very strong likelihood that discovery will
determine that questions of fact exist regarding its feigned ignorance defense.
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Id. ¶¶ 24–25. First, defendant Govplace (“GP”) is not the subject of this opposition and
discovery related to its scienter has no relevance to GAI’s sales. 7 Next, even though all
reasonable inferences must be drawn in plaintiff’s favor, Anderson, 477 U.S. at 255, the Court
can only interpret the phrase “there is a very strong likelihood that discovery will determine that
questions of fact exist” to mean that plaintiff admits that there currently are no questions of fact
in existence. He seems to hope additional discovery will create them, which is an improper use
of Rule 56(d). See Graham v. Mukasey, 608 F. Supp. 2d 50, 54 (D.D.C. 2009) (holding that
Rule 56(d) is not “designed to allow ‘fishing expeditions,’ and that plaintiffs must specifically
explain what their proposed discovery would likely reveal and why that revelation would
advance the plaintiffs’ case.”). Plaintiff fails to offer specific facts that would advance his case;
instead, he assumes that the “shear magnitude” of sales will present some sort of factual
question. However, in context of this Court’s order and GAI’s Motion for Summary Judgment,
the pertinent factual issue is whether GAI sold product GH715AW to the United States
government. Plaintiff fails to acknowledge this or demonstrate why the discovery he seeks is
necessary to the litigation of this issue.
Next, plaintiff must demonstrate good cause for his inability to present the facts in his
current opposition. “[T]he rule is not properly invoked to relieve counsel’s lack of diligence.”
Carpenter, 174 F.3d at 237. In the instant case, the Court finds no evidence of sloth by plaintiff.
In fact, the original motions for summary judgment were filed only days after discovery was
opened to the parties. Opp’n to GAI at 5. Therefore, plaintiff satisfies this element.
Lastly, plaintiff must prove that the facts are actually discoverable. This third element in
intertwined with the first—how can the Court ascertain which facts are discoverable if they are
not specifically described? In this case, plaintiff fails to specify exactly what facts he intends to
7
For arguments related to GP, see Pl.’s Opp’n to GP’s Mot. Summ. J. [158].
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uncover through discovery. Because of the vagueness of plaintiff’s request, he is unable to prove
that what he seeks is actually discoverable. Since the first and third elements of this D.C. Circuit
test have not been satisfied, the Court denies plaintiff’s 56(d) request for additional discovery
related to GAI.
2. Material Issues within the Record
Since plaintiff’s 56(d) request has been denied, summary judgment can be defeated only
from existing evidence. The nonmoving party must establish more than a “scintilla of evidence”
in support of his position. Anderson, 477 U.S. at 252. Based on the record before it, the Court
finds that plaintiff has provided no evidence of a genuine dispute about the sale of product
number GH715AW. Plaintiff offers the following rebuttal to GAI’s evidence that it never sold
product number GH715AW:
In support of its motion for summary judgment, GAI argues that it has never
made a sale of part/product GH715AW. As such, GAI argues that it did not
submit false claims as to these six products. However, contrary to GAI’s
assertions, based on the concurrently filed Declaration of Jeremy Albright, Ph.D.,
beginning in May 2007, the 6910p laptop computer and HP part number
GH715AW has always been listed as being made in China on Country of Origin
worksheets. Moreover before May 2007, HP part number GH715AW did not
appear on any Country of Origin worksheet, which creates a material disputed
fact as to the country of origin of the part prior to May 2007 . . . . Thus, without
question, there are material issues of disputed facts as to whether the 6910p
notebook computers were manufactured in a designated country at the time that
GAI sold them to the United States Government.
Opp’n to GAI at 15–16 (citations omitted). The glaring deficiency in plaintiff’s opposition is
any evidence that GAI actually sold product number GH715AW. The country of origin only
matters insofar as a company sold that product to the government. As the Court recently stated,
no sale means no violation of FCA. See May 3, 2012 Mem. Op. at 6–7. Though plaintiff
submitted many exhibits and many arguments, none of them dealt with the actual sale of this
product. His opposition concludes that “GAI sold them to the United States Government,” yet it
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offers no evidence of the sale or an explanation about how focused discovery could lead to
evidence about the sale. See Opp’n to GAI at 15–16.
The Court finds no genuine issue of material fact regarding defendant GAI. The only
product at issue is GH715AW, which GAI contends it never sold. Plaintiff has failed to provide
any evidence contradicting this assertion or to demonstrate that further discovery would assist his
endeavor. Therefore, summary judgment shall be granted as to GAI.
b. Defendant Govplace’s Motion for Summary Judgment
Plaintiff was ordered to amend his opposition to Govplace’s summary judgment and
instructed that his opposition must be “addressed solely to the transactions alleged in ¶¶ 117–18
of the Corrected Second Amended Complaint, and any request made pursuant to Rule 56(d) in
that opposition must describe the necessary discovery with specificity[.]” Order at 2. The
subject matter of those paragraphs is product numbers EV266AA, EY685AW, Q5403A, 41657-
B21, AG052A, Q4503A, RM266UA, CB367A, and Q5983A, which plaintiff alleges were sold
in violation of TAA. Compl. ¶¶ 117–18. No other products were to be discussed, since they fell
outside paragraphs 117 and 118. See May 3, 2012 Mem. Op.; Order at 1–2.
Count II of the Complaint states, “Defendants knowingly submitted, and caused to be
submitted, false or fraudulent claims for payment and reimbursement by the United States
Government after May 20, 2009 . . . .” Compl. ¶ 140 (emphasis in original). All of the alleged
transactions occurred prior to May 20, 2009. See Compl. ¶ 117 (alleging sales only in 2007 and
2008). Because these are the only transactions that remain at issue with GP and Count II is
limited to transactions after May 20, 2009, it can be dismissed as to GP. This leaves only Count
I, making the same allegation for transactions prior to May 20, 2009. See Compl. ¶¶ 134–37.
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Again, the majority of plaintiff’s Supplemental Opposition to GP’s Motion for Summary
Judgment (“Opp’n to GP”) is filled with arguments for claims that have already been dismissed.
However, plaintiff does provide discovery concerns over GP’s four major defenses: (1) sales
under a FirstSource Contract, (2) sales of products the COO of which was represented to GP by
its distributor, Ingram Micro, (3) “open market” sales of products not listed on GP’s GSA
Schedule Contract, and (4) sales made by a third party. The Court will address each of these
issues in turn regarding plaintiff’s 56(d) request and, if denied, whether a genuine issue of
material fact already exists in the record.
1. FirstSource Contract
GP contends that it is entitled to judgment as a matter of law regarding product numbers
RM266UA and CB367A, which were sales made under a FirstSource Contract. GP’s Mot.
Summ. J. at 8. It argues that as a 100% Small Business Set-Aside, the contract is exempt from
TAA requirements. Id. FAR subsection 25.4, which deals with trade agreements, “does not
apply to acquisitions set aside for small businesses.” FAR 25.401(a)(1). Plaintiff offers no
evidence to dispute this analysis, stating only that he requests discovery regarding “GP’s
FirstSource Contract and how transactions under that agreement are allegedly exempt from the
TAA.” Opp’n to GP at 10.
GP’s argument is based on two types of documents: statutes and its contract. The statutes
are publicly available, and the relevant portions were also in GP’s Motion for Summary
Judgment. See GP’s Mot. Summ. J. at 20–21. GP provided the contract as Exhibit E to its
Motion for Summary Judgment. Plaintiff fails to specify what particular discovery he desires
regarding the FirstSource contract, and the Court is unable to conjure up anything else plaintiff
might need in this regard. GP is correct that with the contract disclosed, this is a purely legal
15
issue. See GP’s Reply at 7–8. Either the contract is exempt under the statute or it is not.
Because plaintiff has failed to specify what facts he intends to discover and why they are
necessary to the litigation, this Rule 56(d) request is denied. See Convertino, 2012 WL 2362591at *5.
When deciding summary judgment, the Court accepts as true facts the moving party files
in its statement of material facts unless the non-moving party controverts them. LCvR 7(h); see
also Potter v. District of Columbia, 558 F.3d 542, 549 (D.C. Cir. 2009) (“On summary
judgment, the district court is to give credence to uncontroverted and unimpeached evidence
supporting the moving party . . . .”). Since plaintiff offers absolutely no evidence refuting GP’s
motion for summary judgment, there is no genuine issue of material fact, and summary judgment
will be granted regarding products RM266UA and CB367A.
2. Representations by Ingram Micro
GP contends that it is entitled to judgment as a matter of law regarding product numbers
Q4503A, 416577-B21, AG052A, Q5403A, and Q5983A because its distributor, Ingram Micro,
confirmed that the products were TAA-compliant. GP’s Mot. Summ. J. at 21–22. It argues that
it justifiably relied on its distributors certification that the “Products offered by the manufacturer
are compliant with the Trade Agreement Act.” Id. A proper FCA claim is composed of three
elements: (1) the defendant presented a claim for payment or approval to the government, (2) the
claim was “false or fraudulent,” and (3) the defendant acted knowing that the claim was false.
United States ex rel. Schwedt v. Planning Research Corp., 59 F.3d 196, 198 (D.C. Cir. 1995).
Reliance on its distributor for TAA compliance falls under the third element: knowing that the
claim was false. GP does not argue that these five products were produced in TAA-compliant
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countries; rather, it argues that its reliance upon Ingram Micro negates any knowledge that its
claim was false. GP’s Mot. Summ. J. at 21–22.
In response, plaintiff points to 31 U.S.C. § 3279(b)(1), which states that the “knowing”
element is satisfied by “reckless disregard of the truth or falsity of the information” contained in
or supporting GP’s claim. Opp’n to GP at 11. He requests additional discovery relating to: “(a)
if GP actually relied upon Ingram Micro; (b) whether GP had information in its possession which
indicated that the products sold to the Government were not TAA-compliant; and (c) whether its
conduct was in reckless disregard of the truth.” Id. at 9.
Considering the three elements of a successful 56(d) discovery request, plaintiff has
satisfied the first by specifying what information he seeks and its relevance to the litigation. See
id.; Convertino, 2012 WL 2362591 at *5. Next, plaintiff must explain why he could not produce
the facts in his opposition to summary judgment. Id. (citing Carpenter v. Fed. Nat’l Mortg.
Ass’n, 174 F.3d 231, 237 (D.C. Cir. 1999). He did so by explaining that summary judgment was
filed within days of the opening of discovery, which cut short his opportunity for discovery. See
Opp’n to GP at 4. There also seems to be a dispute about whether GP gave any initial
disclosures to plaintiff. See id. at 5; GP’s Reply at 9 n.5.
Finally, plaintiff must demonstrate that the facts are actually discoverable. Convertino,
2012 WL 2362591 at *5 (citing Messina, 439 F.3d at 762). To discover the evidence he seeks,
plaintiff requests to depose GP’s affiant, Adrianne Angle and a 30(b)(6) representative. Opp’n to
GP at 9. The Convertino court wrote, “At the very least, a deposition or document disclosure . . .
may produce information . . . . Considering the ‘generous approach’ the district court should
take in deciding a Rule 56(f) motion . . . we believe the district court committed an abuse of
discretion in denying Convertino’s Rule 56(f) motion.” Convertino, 2012 WL 2362591 at *7. In
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light of Convertino’s generous approach, the Court finds focused discovery to be appropriate
regarding GP’s reliance upon Ingram Micro. GP provides no case law in support of its position
on this issue, and plaintiff deserves the chance to rebut its arguments. GP does not refute that it
sold the products, and it does not refute that they were from non-TAA compliant countries.
Therefore, the focus moves to scienter. The Court finds summary judgment to be premature
regarding these five products until plaintiff has an adequate opportunity to conduct focused
discovery on GP’s reliance on Ingram Micro. For these five products, plaintiff’s 56(d) request
for these products is granted and GP’s Motion for Summary Judgment is denied.
3. “Open Market” Sales
GP claims that summary judgment is appropriate regarding product number EY685AW
because it was not listed on its GSA Schedule Contract and was sold on the “open market”
without any representation of its COO. GP’s Mot. Summ. J. at 10. It adds that the sale totaled
less than the TAA threshold of $193,000 at the time of sale. Id. Plaintiff responds by simply
requesting to depose Angle and a 30(b)(6) representative about “GP’s Open Market Sales.”
Opp’n to GP at 9–10. This is not adequately specific, per this Court’s May 3, 2012 Order. GP
has disclosed its contracts for this product as Exhibits O and P of its Motion for Summary
Judgment. Again, plaintiff is free to compare the contracts with applicable statutes. He fails to
explain what precisely he wishes to garner from a deposition and why it would be necessary for
the litigation. See Convertino, 2012 WL 2362591 at *5. Therefore, plaintiff’s 56(d) request is
denied and summary judgment is proper as to regarding product number EY685AW.
4. Third Party Sales
GP claims that summary judgment is proper regarding product number EV266AA
because it was sold by a third party, not GP. GP’s Mot. Summ. J. at 10–11. The product was not
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listed on its GSA Schedule Contract. Id. GP was in an “Authorized Government Teaming
Agreement” with New Tech, who sold EV266AA and made all relevant representations about
the product. Id. at 11; SUMF ¶¶ 35–40.
First, the Court must decide if plaintiff’s 56(d) request should be granted as to EV266AA.
Plaintiff asserts his 56(d) defense for each of paragraphs 35 through 40 of GP’s SUMF. See Pl.’s
SUMF [158-15] ¶¶ 35–40. The boilerplate discovery request asks for information regarding,
inter alia, Ingram Micro, FirstSource contracts, Open Market transactions, and all other claims
for exemptions from TAA requirements. Id. However, nowhere are product number EV266AA,
New Tech, third party contract, or “Teaming Agreement” ever mentioned. Nothing in plaintiff’s
response gives the Court confidence that further discovery will further this litigation, especially
when GP’s contract with New Tech is included as Exhibit Q to GP’s Motion for Summary
Judgment. Plaintiff’s request is inappropriately vague; therefore, his 56(d) request is denied and
summary judgment is denied.
Next, the Court must determine if summary judgment is appropriate based on facts in the
record. When deciding summary judgment, the Court accepts as true facts the moving party files
in its statement of material facts unless the non-moving party controverts them. LCvR 7(h); see
also Potter, 558 F.3d at 549. Plaintiff has failed to controvert or impeach any of GP’s statements
regarding EV266AA. Instead, he inappropriately requests additional discovery when he already
has GP’s contract with New Tech. See GP’s Mot. Summ. J. at 11, Ex. Q. The Court, bound by
Local Rule 7(h), must give credence to GP’s assertions regarding EV266AA because they are
completely uncontroverted. Plaintiff has not “set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 248. Therefore, summary judgment is granted as
to product number EV266AA.
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V. Conclusion
Before the Court is defendant GAI’s Motion for Summary Judgment as to product
number GH715AW. This Court concludes that there is no genuine issue of material fact
remaining and that summary judgment is proper.
Also before the Court is defendant GP’s Motion for Summary Judgment as to product
numbers EV266AA, EY685AW, Q5403A, 41657-B21, AG052A, Q4503A, RM266UA,
CB367A, and Q5983A. The Motion is granted in part and denied in part. Count II is dismissed
because all relevant transactions took place prior to May 20, 2009. The Court finds that for
product numbers RM266UA, CB367A, EY685AW, and EV266AA, no genuine issue of material
fact remains and summary judgment is proper. However, plaintiff’s 56(d) discovery request is
granted as to product numbers Q5403A, 41657-B21, AG052A, Q4503A, and Q5983A. Plaintiff
is entitled to the focused discovery specified in the accompanying Order regarding these
transactions.
A separate order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on July 27, 2012.
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