Bender v. North American Telecomunications Inc. ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
ex. rel. :
:
ROBERT KEITH BENDER, :
:
Plaintiff, :
:
v. : Civil Action No. 06-1432 (GK)
:
NORTH AMERICAN TELECOMMUNI- :
CATIONS, INC., et al. :
:
Defendants. :
MEMORANDUM OPINION
Plaintiff-Relator Robert Bender brings this qui tam suit under
the False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq., on behalf
of the United States against seven Defendants. This matter is
before the Court on Defendants’ Motions to Dismiss the Complaint
pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt. Nos. 31-32], and
Plaintiff’s Request for Leave to Amend the Complaint.
Upon consideration of the Motions, Oppositions, Replies, and
the entire record herein, and for the reasons set forth below, the
Motion to Dismiss of Defendant North American Telecommunications,
Inc. (“NATI”) is granted and the Motion to Dismiss of Defendant PAE
Government Services, Inc. is granted. Plaintiff’s Request for
Leave to Amend the Complaint is granted.
I. BACKGROUND1
Plaintiff is an electrician who was formerly employed by NATI.
From October 1, 1997, to March 31, 2003, NATI had an Operations and
Maintenance contract with the United States Department of
Agriculture (“USDA”) to maintain four USDA buildings in Washington,
D.C. As such, it was responsible for day-to-day maintenance of the
buildings. Defendant Capitol Technology Services, Inc. (“CTSI”)
took over the contract on April 1, 2003. Defendant PAE Government
Services, Inc. (“PAE”) is a subcontractor of CTSI and performed
electrical work on the buildings. Plaintiff was never employed by
either CTSI or PAE. The other four defendants are officers or
employees of NATI and CTSI: Chang D. Hwang, President of NATI; John
G. Carothers, former Operations Coordinator for NATI and CTSI; Heys
S. Hwang, President of CTSI; and James W. Ruest, project Manager at
CTSI.
The Complaint alleges five violations of the FCA. Count I
alleges that NATI and CTSI falsified response times to service
calls in order to claim monthly bonuses. Count II alleges that NATI
and CTSI misrepresented non-reimbursable repairs as reimbursable
requests. Count III alleges that NATI, CTSI, and PAE charged the
1
For purposes of ruling on a motion to dismiss, the
factual allegations of the complaint must be presumed to be true
and liberally construed in favor of the plaintiff. Aktieselskabet
AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
the Complaint.
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USDA for work performed by employees who did not possess the
qualifications required by the governing contract. Count IV alleges
that NATI and CTSI billed the USDA for overtime work that their
contracts excluded from overtime status. Count V alleges that NATI
and CTSI misrepresented the amount of work they performed.
On August 14, 2006, Plaintiff filed his Complaint [Dkt. No.
1]. The United States filed a Notice not to intervene on September
27, 2007 [Dkt. No. 22].2 All of the Defendants except PAE filed a
joint Motion to Dismiss (“NATI Mot.”) pursuant to Rule 12(b)(6) on
May 14, 2008 [Dkt. No. 31]. PAE filed a separate Motion to Dismiss
(“PAE Mot.”) on the same date [Dkt. No. 32]. Plaintiff filed his
Opposition (“Pl.’s Opp’n”) to both Motions on June 12, 2008 [Dkt.
Nos. 34-35]. Defendants filed their Replies (“NATI Reply” or “PAE
Reply”) on June 26, 2008 [Dkt. Nos. 36-37].
II. STANDARD OF REVIEW
To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff need only plead “enough facts to state a claim to relief
that is plausible on its face” and to “nudge[ ] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v.
2
The United States, pursuant to 31 U.S.C. § 3730(b)(1),
requests that if either Plaintiff or Defendants move to dismiss,
the Court solicit the Government’s written consent before granting
approval. Notice of Election to Decline Intervention, at 1 [Dkt.
No. 22]. However, that provision pertains to voluntary dismissals
only, and does not prevent the Court from dismissing an action for
failure to state a claim. United States ex rel. Fletcher v. Fahey,
121 F.2d 28, 29 (D.C. Cir. 1941).
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Twombly, 550 U.S. 544, 570 (2007). “[O]nce a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Id. at 563. A
complaint will not suffice, however, if it “tenders ‘naked
assertions’ devoid of ‘further factual enhancement.’” Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1948 (2009) (citing Twombly, 550 U.S. at
557).3
Under the Twombly standard, a “court deciding a motion to
dismiss must not make any judgment about the probability of the
plaintiffs’ success . . . must assume all the allegations in the
complaint are true (even if doubtful in fact) . . . [and] must give
the plaintiff the benefit of all reasonable inferences derived from
the facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame
Jeans Inc., 525 F.3d 8, 17 (D.C. Cir. 2008) (internal quotation
marks and citations omitted).
To prove a violation of the FCA, a plaintiff must show either
that the defendant “knowingly presents, or causes to be presented
[to the Government] a false or fraudulent claim for payment or
approval,” 31 U.S.C. § 3729(a)(1), or “knowingly makes, uses, or
causes to be made or used, a false record or statement to get a
3
Plaintiff relies on the “no set of facts” standard set
forth in Conley v. Gibson, 355 U.S. 41, 47 (1957). That standard
has been modified by the Supreme Court in Twombly, 550 U.S. at 570.
Pl.’s Opp’n at 4 [Dkt. No. 35].
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false or fraudulent claim paid or approved.” 31 U.S.C. 3729(a)(2).4
A “claim” includes “any request or demand . . . for money or
property” made to a recipient if the Government provides or
reimburses the recipient any portion of the money requested. 31
U.S.C. § 3729(c). The knowledge requirement is satisfied if a
person “has actual knowledge of the information, acts in deliberate
ignorance of the truth or falsity of the information, or acts in
reckless disregard of the truth or falsity of the information.” 31
U.S.C. § 3729(b). Finally, the Complaint must allege materiality.
See United States ex rel. Ervin and Assocs., Inc. v. Hamilton Sec.
Group, 370 F. Supp. 2d 18, 36 (D.D.C. 2005) (“The great weight of
case law holds that the materiality of a false record or statement
is an element of False Claims Act liability.”).
4
As part of the Fraud Enforcement and Recovery Act of 2009
(“FERA”), Pub. L. No. 111-21, 123 Stat. 1617 (2009), Congress made
a number of changes to the FCA. FERA includes a retroactivity
clause which states that a new subsection would apply to all FCA
“claims” pending as of June 7, 2008. 123 Stat. at 1625 (codified
as a note following 31 U.S.C. § 3729). However, as courts that
have considered this clause have noted, “claims” refers only to a
defendant’s request for payment, and not to pending cases. See
United States v. Sci. Applications Int’l Corp., -- F. Supp. 2d --
No. CV-04-1543, 2009 WL 2929250 at * 14 (D.D.C. Sept. 14, 2009)
(“Congress did not intend ‘claims’ . . . to mean ‘cases.’”); United
States ex rel. Sanders v. Allison Engine Co., -- F. Supp. 2d -- No.
95-CV-970, 2009 WL 3626773 at *4 (S.D. Ohio, Oct. 27, 2009) (“[A]
plain reading of the retroactivity language reveals that the
relevant change is applicable to ‘claims’ and not to ‘cases.’”).
As this Complaint was filed on August 14, 2006, there are no
allegations here of any pending claims by the Defendants on June 7,
2008. Therefore, the retroactivity clause does not apply, and the
prior version of the FCA (last amended in 1994) will be used
throughout the remainder of this opinion.
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“[B]ecause the False Claims Act is self-evidently an anti-
fraud statute, complaints brought under it must comply with Rule
9(b) [of the Federal Rules of Civil Procedure]” in order to state
a claim. United States ex rel. Totten v. Bombardier Corp., 286 F.3d
542, 551-52 (D.C. Cir. 2002). Rule 9(b) requires that “[i]n
alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake.” Fed. R. Civ. P.
9(b). Thus, to satisfy Rule 9(b), a FCA relator must state the
time, place, and contents of the false representations, the facts
misrepresented, and what was obtained or given up as a consequence
of the fraud. United States ex rel. Joseph v. Cannon, 642 F.2d
1373, 1385 (D.C. Cir. 1981).
III. ANALYSIS5
A. PAE’s Motion to Dismiss Is Granted Because Plaintiff
Failed to State Claims with Sufficient Particularity and
Did Not Allege a Knowing Violation of the FCA.
The Complaint alleges that “each of the above-named
Defendants” is liable for all five Counts. Compl. at ¶¶ 145, 152,
5
The applicable statute of limitations under the FCA is
six years. 31 U.S.C. § 3731(b) (“A civil action under Section 3730
may not be brought more than six years after the date on which the
violation of Section 3729 is committed.”). See United States ex
rel. Pogue v. Diabetes Treatment Ctrs. of Am., 474 F. Supp. 2d 75,
89 (D.D.C. 2007) (holding that the statute of limitations applies
to relators when the Government does not intervene). This
Complaint was filed on August 14, 2006. The Plaintiff concedes
that potential FCA violations that occurred prior to August 14,
2000, are time-barred. Pl.’s Opp’n. to NATI Mot. at 11. The Court
therefore dismisses any allegations that accrued prior to August
14, 2000.
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159, 164, 170. However, it specifically mentions PAE in only two
paragraphs, both of which relate to Count III. Compl. at ¶¶ 92,
157. For that reason, PAE argues that the remaining Counts should
be dismissed, as they do not meet the requirements of Rule 9(b).
While the Complaint does make allegations against NATI and
CTSI in Counts I, II, IV, and V, it is silent regarding PAE’s
liability for those Counts. Consequently, Plaintiff has not met
Rule 9(b)’s particularity requirement. See United States ex rel.
Grynberg v. Alaska Pipeline Co., Civ. No. 95-725, 1997 WL 33763820,
at *4 (D.D.C. Mar. 27, 1997) (dismissing FCA claim where complaint
alleged “each Defendant engaged in at least one of the [alleged]
practices” but not specifying which allegations were tied to
individual defendants). A complaint must make specific allegations
against each individual defendant rather than collective
allegations against “each of the above-named Defendants,” since one
of the main rationales behind Rule 9(b)’s particularity requirement
is to “guarantee all defendants sufficient information to allow for
preparation of a response.” Cannon, 642 F.2d at 1385. Therefore,
Counts I, II, IV, and V must be dismissed against PAE as Plaintiff
has not pled his allegations with sufficient particularity to state
a claim.
Count III alleges that PAE employed unlicensed electricians,
thereby causing CTSI to falsely certify to the USDA that it was in
compliance with its contractual obligation to use only licensed
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electricians. Compl. at ¶¶ 92, 156-59. While Plaintiff does make
a specific allegation, this Count still does not meet the
requirements of Rule 9(b).
There are a number of basic factual issues omitted from the
Complaint in Count III. First, it does not identify which PAE
employees were allegedly unlicensed or who at PAE hired them and
submitted invoices to CTSI in violation of the licensing
requirement.6 See United States ex rel. Williams v. Martin-Baker
Aircraft Co., 389 F.3d 1251, 1257 (D.C. Cir. 2004) (finding an FCA
claim lacked particularity when the complaint failed to identify
the employees involved in the fraud). Second, the Complaint fails
to identify what particular false claims were allegedly submitted
by PAE, the content of any such false claims, and “who precisely
was involved in the fraudulent activity.” Williams, id. See
United States ex rel. Brown v. Aramark Corp., 591 F. Supp. 2d 68,
74 (D.D.C. 2008) (“[A] relator must provide details that identify
particular false claims for payment that were submitted to the
government.”). Third, the Complaint does not adequately state the
time period during which the alleged activities took place. It only
states that CTSI took over the USDA contract on April 1, 2003, but
contains no further details as to when the fraud began or for how
6
The Complaint lists “Defendant Don Swenson” as a Vice-
President of PAE, Compl. at ¶ 16, but makes no further reference to
him and never alleges how he may have been involved in any fraud.
Additionally, he is not listed in the caption, and according to
PAE’s Motion, he was not served. PAE Mot. at 8 n.1.
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long it existed. See Williams, 389 F.3d at 1257 (“[a]llegations
regarding the time of the false misrepresentations are entirely
inadequate . . . [when] the open-ended time span . . . failed to
give [Defendants] sufficient information to allow for preparation
of a response.”).
In addition, the Complaint does not allege that PAE acted to
knowingly cause CTSI to submit false claims to the USDA, as
required by 31 U.S.C. § 3729(b).7 For example, there is no
allegation that PAE was aware of CTSI’s contract requiring it to
employ only licensed electricians, or that CTSI’s contract even
applied to PAE as a subcontractor. See United States ex rel.
Alexander v. Dyncorp., Inc., 924 F. Supp. 292, 303 (D.D.C. 1996)
(noting that FCA plaintiffs need to state facts from which the
court can infer a knowing violation on the part of the defendants).
Thus, because it fails to meet 9(b)’s particularity
requirement, as well as the statute’s knowledge requirement, Count
III must be dismissed against PAE for failure to state a claim.
7
“If a subcontractor . . . makes a false statement to a
private entity and does not intend the Government to rely on that
false statement as a condition of payment, the statement is not
made with the purpose of inducing payment of a false claim ‘by the
Government.’ In such a situation, the direct link between the false
statement and the Government's decision to pay or approve a false
claim is too attenuated to establish liability.” Allison Engine
Co. v. United States ex rel. Sanders, -- U.S. –- 128 S. Ct. 2123,
2130 (2008), superseded by statute, Pub. L. No. 111-21, 123 Stat
1617 (2009).
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B. Plaintiff’s Claims Against NATI, CTSI, Chang D. Hwang,
John G. Carothers, Heys S. Hwang, and James W. Ruest Must
Be Dismissed
The remaining Defendants filed a joint Motion to Dismiss. The
Court will address each Defendant in turn.
1. Defendant NATI
As an incentive for prompt performance, NATI’s contract
provided a bonus if it met response time goals when replying to
service calls. Compl. at ¶ 46. Count I alleges that NATI falsified
its response times in order to ensure that it received a bonus
every month. Compl. at ¶ 144. Count II alleges that NATI submitted
false reimbursement requests for repairs that were not reimbursable
under the contract. Compl. at ¶ 66. While Rule 9(b) is “not
intended to be a formalistic bar to sub-standard pleadings,” United
States ex rel. Brown v. Aramark Corp., 591 F. Supp. 2d 68, 75
(D.D.C. 2008), Counts I and II still do not meet the requirements
of Rule 9(b). An FCA Plaintiff must set out the details of the
specific scheme, supply the time, place, and content of false
representations, and link that scheme to claims for payment made to
the United States. United States ex rel. Barrett v. Columbia/HCA
Healthcare Corp., 251 F. Supp. 2d 28, 35 (D.D.C. 2003).
Counts I and II fail particularly in the areas of content and
time. The Complaint does not indicate when NATI submitted the
allegedly falsified time entries, or when those entries were
actually made. Instead, the Plaintiff argues that alleging
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wrongdoing over the entire period of the contract--October 1, 1997,
to March 31, 2003-- is sufficient. Pl’s. Opp’n to NATI Mot. at 10.
In cases where the complaint alleges complex or extensive
fraud schemes, courts often relax the Rule 9(b) standard. See
United States ex rel. Harris v. Bernad, 275 F. Supp. 2d 1, 8
(D.D.C. 2003) (denying a motion to dismiss when the FCA complaint
alleged a complex fraud over a span of years). This case, however,
does not allege a complex scheme, but rather a fairly simple scheme
to misrepresent completed work and falsify claims for payment.
Therefore, the bare six-year time frame given in the Complaint is
insufficient. See Dyncorp, 924 F. Supp. at 303 (dismissing FCA
claim partly for failure to state the dates on which allegedly
false invoices were submitted).
The Complaint also does not sufficiently state the “content of
false representations.” Count I does not include the names and job
titles of the employees who submitted the false bonus claims, how
many times or when they were submitted, or which particular bonus
claims are alleged to be falsified. See United States ex rel.
Davis v. Dist. of Columbia, 591 F. Supp. 2d 30, 37 (D.D.C. 2008)
(“The plaintiff must also state which individual made the
misrepresentation.”). Likewise, Count II alleges that seven out of
17 repair projects completed in July 2002 were not eligible for
reimbursement, Compl. at ¶¶ 77, 78, but does not identify the
projects or give a factual basis for why they were not eligible.
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See Aramark, 591 F. Supp. 2d at 75 (dismissing complaint for not
alleging “names and/or job titles of employees involved in
preparing or submitting the invoices, the content of the invoices,
. . . or the actual presentation of a false claim to the Government
for payment.”). Therefore, Counts I and II against Defendant NATI
must be dismissed for failure to state a claim.
The sine qua non of an FCA complaint is that it allege a false
or fraudulent claim. 31 U.S.C. § 3729(a)(1). The remaining Counts
III, IV, and V do not allege that NATI submitted false claims. See
United States ex rel. Ervin and Assocs., Inc. v. Hamilton Sec.
Group, 370 F. Supp. 2d 18, 36 (D.D.C. 2005) (“[A] relator must
produce evidence that the defendant actually submitted false
demands for payment or submitted false records or statements in
order to get a false claim paid.”). Whether the information in
those Counts allege breach of contract or common law fraud is
irrelevant since a qui tam plaintiff has no standing to bring such
causes of action under the statute. See e.g., United States ex
rel. Long v. SCS Bus. & Tech. Inst., 999 F. Supp. 78, 92 (D.D.C.
1998) (common law cause of action distinct from claims under FCA)
rev’d on other grounds, 173 F.3d 870 (D.C. Cir. 1999); see also
Claire M. Sylvia, The False Claims Act: Fraud Against The
Government § 10:25 (2009) (collecting cases).
Count III alleges that NATI billed the USDA for work performed
by unlicenced employees in violation of a contractual clause.
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Compl. at ¶ 159. However, since there is no allegation that NATI
actually submitted a claim to the USDA that the employees were
unlicenced, there is no way to know if the USDA had consented to
the alleged breach of the contract clause.
Count IV alleges that NATI billed the USDA for overtime that
did not qualify for overtime status, id. at ¶ 96, and then gave
employees “compensation time” off in lieu of monetary compensation.
Id. at ¶ 116. Significantly, this Count fails to assert a false
claim. The Complaint alleges that “NATI frequently billed for
overtime.” Compl. at ¶ 105. Plaintiff argues that the contract
between NATI and the Government barred such overtime billing. The
allegation is similar to an unjust enrichment claim, and does not
hinge on whether a false claim was made. For this reason, Count IV
must be dismissed. See Long, 999 F. Supp at 92 (describing unjust
enrichment as a “common-law cause of action separate and distinct
from the FCA claim”).
Count V alleges that NATI misrepresented the amount of work it
performed by billing for tasks that had not been completed. Id. at
¶ 167. While the Complaint lists a number of maintenance tasks
that were allegedly not completed, it does not allege that
Defendants made a false representation in connection with those
particular tasks. While this Count might state a cause of action
for a breach of contract claim, it does not allege fraud as
required in an FCA complaint.
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Therefore, Counts III, IV, and V against Defendant NATI must
also be dismissed for failure to state a claim.
2. Defendant CTSI
CTSI began its maintenance contract on April 1, 2003. Compl.
at ¶ 25. As noted earlier, Plaintiff was not an employee of CTSI or
its subcontractor PAE. Id. at ¶ 21. Thus, as Plaintiff does not
have first-hand knowledge about CTSI’s activities, he bases his
allegations on information and belief. Id. at ¶¶ 36, 64, 81, 126,
138.
“As a general rule, pleadings upon information and belief do
not satisfy Rule 9(b)’s particularity requirement.” United States
ex rel. Davis v. Dist. of Columbia, 591 F. Supp. 2d 30, 37 (D.D.C.
2008). However, courts make an exception in qui tam suits, as
defendants often control the information necessary to satisfy Rule
9(b). Id. Thus, “pleadings on information and belief require an
allegation that the necessary information lies within the
defendant’s control.” Kowal v. MCI Commc’n Corp., 16 F.3d 1271,
1279 n.3 (D.C. Cir. 1994); see also Davis, 591 F. Supp. 2d at 37
(“A relator invoking this exception must plead a lack of access to
necessary information in the complaint.”).
Plaintiff concedes that he did not allege lack of access in
the Complaint, and attempts to rectify the situation by making the
allegation in his Pleadings. Pl.’s Opp’n to NATI Mot. at 11.
“While it is generally understood that the complaint may not be
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amended by legal memoranda that are submitted as opposition to
motions for dismissal . . . courts have allowed, for Rule 9(b)
purposes, a party to supplement its complaint through such legal
memoranda for the sake of judicial economy.” Shekoyan v. Sibley
Int’l Corp., 217 F. Supp. 2d 59, 73 (D.D.C. 2002).
However, even if the Court accepts the Plaintiff’s allegation
in his Opposition that necessary information is in Defendants’
control, the allegations against CTSI still would not satisfy Rule
9(b). The Complaint merely alleges that the previously described
wrongdoings by NATI continued under CTSI, with no further
elaboration. Compl. at ¶¶ 36, 64, 81, 126, 138. As the Court has
already ruled, supra, that Counts I through V against NATI must be
dismissed for failure to meet Rule 9(b)’s particularity
requirements, it follows that they must be also dismissed against
Defendant CTSI for the same reasons.
3. Individual Defendants
The Complaint seeks to hold the remaining four Defendants
liable on all five Counts. However, as noted above, an FCA
complaint must make specific allegations against individual
defendants, rather than against them as a group. “FCA cases in
this circuit reveal that specificity regarding the identities of
individual actors is required.” United States v. Sci. Applications
Int’l Corp., 555 F. Supp. 2d 40, 48 (D.D.C. 2008). For example, it
is not enough for a complaint to refer generally to “management”
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while providing a list of names without explaining the role
individual defendants played in the alleged fraud. United States
ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1257
(D.C. Cir. 2004). The references to the remaining Defendants
scattered throughout the Complaint are insufficient to state a
claim under the FCA.
Defendant Carothers is mentioned twice in the Complaint. In
the background to Count I, the Complaint alleges that he instructed
an employee to list maintenance as having been completed on the
last day of the month in order to avoid pushing “the cycle to one
month later.” Compl. at ¶ 60. However, this does not relate to the
allegations in Count I, which claim the Defendants falsified
response times for repair requests, not maintenance orders. Id. at
¶ 143-44. Additionally, there is no allegation that the maintenance
was not in fact done by the end of the month or that back-dating a
request would have affected Government payments. See United States
ex rel. Totten v. Bombardier Corp., 286 F.3d 542, 551 (D.C. Cir.
2002) (“The FCA attaches liability, not to underlying fraudulent
activity, but to the claim for payment.”). Carothers is also
mentioned in the background to Count IV, which alleges he wrote a
note instructing an employee of NATI to take compensation time.
Compl. at ¶ 122. This allegation similarly does not allege any
fraudulent activity by Carothers.
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Defendant Ruest is alleged to have written a memo stating that
NATI was trying to get more work orders so that they could “double
dip the Government and make extra money.” Compl. at ¶ 80. However,
even if NATI was misrepresenting its work orders, it does not mean
that Ruest himself submitted any false claims to USDA, and the
Complaint makes no such allegation. Ruest is also alleged to have
requested overtime for needing “special access” to the facilities,
id. at ¶ 106, but this also does not allege that he submitted a
false claim.
Defendants Chang D. Hwang and Heys S. Hwang are not
specifically mentioned in the Complaint, other than being listed in
a group; the one exception is the allegation that Chang D. Hwang
received the memo described above from Ruest. Id. at ¶ 79. This is
certainly not enough to state a claim under the FCA.
Therefore, all Counts against Defendants Chang D. Hwang, John
G. Carothers, Heys S. Hwang, and James W. Ruest must be dismissed
for failure to state a claim under Rule 12(b)(6).
C. Leave to Amend
Plaintiff requests leave to amend his Complaint in lieu of
dismissal. Pl.’s Opp.’n at 1. Once a responsive pleading has been
served, a party may only amend a pleading by leave of the court or
with the consent of the adverse party. Fed. R. Civ. P. 15(a)(2).
Leave to amend shall be freely given when justice so requires. Id.
The decision to grant or deny leave to amend is vested in the sound
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discretion of the trial court. Hammerman v. Peacock, 607 F. Supp.
911, 917 (D.D.C. 1985). In exercising its discretion, the trial
court may consider, among other factors, undue delay, dilatory
motive on the part of the movant, and undue prejudice to the
opposing party by virtue of allowing the amendment. Id. As none
of these factors appear to be present, Plaintiff is granted leave
to amend Counts I through V, in order to meet the particularity
requirements of Rule 9(b), with regard to all Defendants.
IV. CONCLUSION
For the reasons set forth above, the Motion to Dismiss of
Defendant PAE is granted; the Motion to Dismiss of Defendants NATI,
CTSI, Chang D. Hwang, John G. Carothers, Heys S. Hwang, and James
W. Ruest is granted. Plaintiff’s Request for Leave to Amend the
Complaint as to allegations against all Defendants is granted and
shall be filed no later than April 1, 2010.
An Order will issue with this opinion.
February 25, 2010 /s/
Gladys Kessler
United States District Judge
Copies to: counsel of record via ECF
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