United States Ex Rel. Reiber v. Basic Contracting Services Inc.

FILED
NOT FOR PUBLICATION JUN 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA ex rel. No. 13-35231
SHEILA REIBER,
D.C. No. 3:09-cv-05558-RBL
Plaintiff - Appellant,
v. MEMORANDUM*
BASIC CONTRACTING SERVICES
INC, a New Mexico Corporation; LOU
ALLEN, an individual,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted June 5, 2014
Seattle, Washington
Before: GOODWIN, McKEOWN, and WATFORD, Circuit Judges.
Reiber appeals the district court’s dismissal of her False Claims Act
(“FCA”) suit under Federal Rules of Civil Procedure 9 and 12(b)(6). Reiber
alleged that her employer, Basic Contracting Services, Inc. (“Basic”), engaged in a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pattern and practice of defrauding the government by filing false certifications in
connection with its contract to provide security services at Naval Magazine Indian
Island in Port Hadlock, Washington. Reiber amended her complaint twice before
the district court dismissed it with prejudice and denied leave to amend.
“It is not the case that any breach of contract . . . automatically gives rise to a
claim under the FCA. . . . [S]ome request for payment containing falsities made
with scienter (i.e., with knowledge of the falsity and with intent to deceive) must
exist.” U.S. ex rel. Hopper v. Anton, 91 F.3d 1261, 1265 (9th Cir. 1996). Reiber
alleged that Basic did not fulfill its contractual obligations by failing to staff certain
guard posts as required, improperly training guards, and not paying for guard
mount time. Reiber’s general allegations, including her documentation, do not
establish a false claim under the FCA. At best, the allegations permit an inference
that a breach of contract occurred. See U.S. ex rel. Hendow v. Univ. of Phoenix,
461 F.3d 1166, 1174 (9th Cir. 2006).
The district court did not abuse its discretion in denying leave to amend.
“The district court’s discretion to deny leave to amend is particularly broad where
plaintiff has previously amended the complaint.” See Cafasso, U.S. ex rel. v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (alteration and
internal quotation marks omitted). The Second Amended Complaint did not cure
2
the defects that the district court identified in the two prior complaints, and the
materials that Reiber claimed she would provide in discovery would not have cured
the pleading deficiencies. See id.AFFIRMED.
3