Wellington v. Chugach Federal Solutions Inc

Filing 32

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 20 MOTION to Dismiss Counts 1 and 4 of the Amended Complaint. The Court SUSTAINS IN PART and otherwise OVERRULES Ms. Wellington's 29 Objections and ACCEPTS the 28 R&R as modified herein. Accordingly, Chugach's 20 Partial Motion is GRANTED as to Count 1 and is otherwise DENIED. Further, Count 1 is HEREBY DISMISSED WITHOUT PREJUDICE. Finally, with all the objections to the R&R addressed by the undersigned, the case is HEREBY REFERRED BACK to Magistrate Judge England for further proceedings consistent with this Memorandum Opinion and Order. Signed by Judge Virginia Emerson Hopkins on 7/22/2014. (JLC, )

FILED
2014 Jul-22 PM 03:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KATRINA L. WELLINGTON,
Plaintiff,
v.
CHUGACH FEDERAL
SOLUTIONS, INC.,
Defendant.

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) Case No.: 5:13-CV-0765-JHE
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MEMORANDUM OPINION AND ORDER
I.

Introduction
Plaintiff Katrina L. Wellington (“Ms. Wellington”) initiated this job-related

lawsuit against Defendant Chugach Federal Solutions, Inc. (“Chugach”) on April 24,
2013. (Doc. 1). Ms. Wellington amended her complaint on October 23, 2013 (Doc.
19), and in that pleading she asserts four separate causes of action. (Id. at 15-19 ¶¶
130-33).
This matter is before the court on Ms. Wellington’s objections (Doc. 29) to
Magistrate Judge John H. England, III’s report and recommendation (the “R&R”)

(Doc. 28),1 which proposes that Chugach’s Motion To Dismiss Counts 1 and 4 of
Amended Complaint (Doc. 20) (the “Partial Motion”) be granted as to Count 1 and
otherwise denied. (Doc. 28 at 15). Count 1 of Ms. Wellington’s amended complaint
asserts a claim arising under the False Claims Act (the “FCA”). (Doc. 19 at 15-16 ¶
130).
Chugach filed a brief (Doc. 21) in support of its Partial Motion on November
6, 2013. On November 20, 2013, Ms. Wellington opposed the Partial Motion. (Doc.
23).
The R&R was entered on June 13, 2014. (Doc. 28). Ms. Wellington’s
objections (Doc. 29) were filed on June 27, 2014. The undersigned was randomly
drawn to review the R&R on June 30, 2014. (Doc. 30). On July 7, 2014, Chugach
filed a response (Doc. 31) to Ms. Wellington’s objections.
The matter, therefore, is now under submission, and for the reasons explained
below, the court SUSTAINS IN PART and otherwise OVERRULES Ms.
Wellington’s objections, and ACCEPTS Magistrate Judge England’s R&R, as
modified below.

The parties have not consented to the jurisdiction of the magistrate judge.
Therefore, in accordance with 28 U.S.C. § 636(b), the magistrate judge entered a
report and recommendation.
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II.

Standards
A.

Rule 12(b)(6) Dismissal Standard

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed.
R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6)
failure to state a claim upon which relief can be granted[.]”). The Federal Rules of
Civil Procedure require only that the complaint provide “‘a short and plain statement
of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is
and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99,
103, 2 L. Ed. 2d 80 (1957) (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2)),
abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955,
1965, 167 L. Ed. 2d 929 (2007); see also Fed. R. Civ. P. 8(a)(2) (setting forth general
pleading requirements for a complaint to include providing “a short and plain
statement of the claim showing that the pleader is entitled to relief”).
While a plaintiff must provide the grounds of his entitlement to relief, Rule 8
does not mandate the inclusion of “detailed factual allegations” within a complaint.
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.
Ct. at 103). However, at the same time, “it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). “[O]nce a claim has been
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stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S. Ct. at 1969.
“[A] court considering a motion to dismiss can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950. “While legal
conclusions can provide the framework of a complaint, they must be supported by
factual allegations.” Id. “When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. (emphasis added). “Under Twombly’s construction of
Rule 8 . . . [a plaintiff’s] complaint [must] ‘nudge[] [any] claims’ . . . ‘across the line
from conceivable to plausible.’ Ibid.” Iqbal, 556 U.S. at 680, 129 S. Ct. at 1950-51.
A claim is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at
556, 127 S. Ct. at 1965).
B.

Rule 9(b) Pleading Standard

Rule 9(b) of the Federal Rules of Civil Procedure provides in part:
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In alleging fraud or mistake, a party must state with particularity the
circumstances constituting fraud or mistake.
Fed. R. Civ. P. 9(b). Within the Eleventh Circuit, this particularity in pleading
standard is met by “alleg[ing] the details of the defendants[’] allegedly fraudulent
acts, when they occurred, and who engaged in them.” United States ex rel. Cooper
v. Blue Cross & Blue Shield of Fla., 19 F.3d 562, 568 (11th Cir. 1994) (per curiam)
(citing Durham v. Business Management Assocs., 847 F.2d 1505 (11th Cir. 1988)).
Further, the Eleventh Circuit requires that actions arising under the FCA
comply with the requirements of Rule 9(b). See Cooper, 19 F.3d at 568 (“BCBSF
argued successfully below that Cooper’s [FCA] complaint did not satisfy Rule 9(b).
We agree.”).
C.

District Court Review of Report and Recommendation

After conducting a “careful and complete” review of the findings and
recommendations, a district judge may accept, reject, or modify the magistrate judge’s
report and recommendation. See 28 U.S.C. § 636(b)(1) (“A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982)
(quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), overruled on other
grounds by Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996),

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superceded by statute on other grounds as recognized by ACS Recovery Servs. Inc.
v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012)).2 The district judge may also receive
further evidence or recommit the matter to the magistrate judge with instructions. 28
U.S.C. § 636(b)(1).
A district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1). This requires that the district judge “give fresh
consideration to those issues to which specific objection has been made by a party.”
Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep.
No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S.C.C.A.N. 6162, 6163). In
contrast, those portions of the R&R to which no objection is made need only be
reviewed for clear error. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir.
2006).3

The Eleventh Circuit has adopted as binding precedent all Fifth Circuit
decisions issued before October 1, 1981, as well as all decisions issued after that date
by a Unit B panel of the former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d
33, 34 (11th Cir. 1982); see also United States v. Schultz, 565 F.3d 1353, 1361 n.4
(11th Cir. 2009) (discussing the continuing validity of Nettles).
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Macort dealt only with the standard of review to be applied to a magistrate’s
factual findings, but the Supreme Court has held that there is no reason for the district
court to apply a different standard to a magistrate’s legal conclusions. Thomas v. Arn,
474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). Thus, district courts in
this circuit have routinely applied a clear-error standard to both. See Tauber v.
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“Neither the Constitution nor the statute requires a district judge to review, de
novo, findings and recommendations that the parties themselves accept as correct.”
United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation
marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003)). It is incumbent upon the parties to timely raise any objections that they may
have regarding a magistrate judge’s findings contained in a report and
recommendation, as the failure to do so subsequently waives or abandons the issue,
even if such matter was presented at the magistrate judge level. See, e.g., United
States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) (“While Pilati raised the issue
of not being convicted of a qualifying offense before the magistrate judge, he did not
raise this issue in his appeal to the district court. Thus, this argument has been waived
or abandoned by his failure to raise it on appeal to the district court.”). However, the
district judge has discretion to consider or to decline to consider arguments that were
not raised before the magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th
Cir. 2006); see also Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)

Barnhart, 438 F. Supp. 2d 1366, 1373-74 (N.D. Ga. 2006) (collecting cases). This is
to be contrasted with the standard of review on appeal, which distinguishes between
the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when a
magistrate’s findings of fact are adopted by the district court without objection, they
are reviewed on appeal under a plain-error standard, but questions of law remain
subject to de novo review).
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(“Thus, we answer the question left open in Stephens and hold that a district court has
discretion to decline to consider a party’s argument when that argument was not first
presented to the magistrate judge.”).
“Parties filing objections must specifically identify those findings objected to.
Frivolous, conclusive or general objections need not be considered by the district
court.” Nettles, 677 F.2d at 410 n.8. “This rule facilitates the opportunity for district
judges to spend more time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.” Id. at 410. Indeed, a contrary
rule “would effectively nullify the magistrate judge’s consideration of the matter and
would not help to relieve the workload of the district court.” Williams, 557 F.3d at
1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d
615, 622 (9th Cir. 2000)).
III.

Analysis
In her objections, Ms. Wellington initially attempts to dispute the proposed

dismissal of her FCA claim by referencing a split in the circuits and citing to a nonbinding case arising out of the Fifth Circuit as her legal support. (Doc. 29 at 1-2).
That portion of her objections is underdeveloped, unpersuasive, and OVERRULED.
Alternatively, Ms. Wellington does not challenge the dismissal of her FCA
count, but rather she contests the recommended “with prejudice” nature of that
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dismissal. More specifically, Ms. Wellington states:
Plaintiff objects to the Magistrate’s Recommendation to dismiss the
False Claims cause of action with prejudice, stating that Plaintiff should
not be allowed to amend the complaint because she has made no request
to amend her complaint during pendency of the motion to dismiss the
amended complaint. Plaintiff had no reason to request such leave before
the Magistrate recommended whether her Amended Complaint
sufficiently stated a False Claims cause, and still has none as the claim’s
dismissal has only been recommended, not ordered. In the event that the
Magistrate’s recommendation to dismiss the False Claims cause is
adopted, Plaintiff requests dismissal without prejudice and leave to
amend as ongoing discovery is likely to provide significant information
pertaining to the alleged fraudulent claims.
(Doc. 29 at 2-3).
Citing to an unpublished Eleventh Circuit panel opinion, Chugach counters that
a “without prejudice” dismissal would unfairly give Ms. Wellington “a third bite at
the apple to correctly plead a FCA claim.” (Doc. 31 at 5). Chugach also argues that
“any amendment to Ms. Wellington’s Complaint would be futile” and that “leave to
amend should be denied.” (Doc. 31 at 5). In this court’s view, Chugach’s futility
position is probably premature and/or beyond the scope of the undersigned’s review
as no motion for leave to amend has been filed and no additional amended pleading
from which to test futility has been proposed.
However, the court ultimately does not need to reach the specific contentions
of either side because it finds that a “without prejudice” dismissal is appropriate for

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an independent procedural reason. Rule 54(b) addresses judgment on multiple claims
or involving multiple parties and provides:
When an action presents more than one claim for relief--whether as a
claim, counterclaim, crossclaim, or third-party claim--or when multiple
parties are involved, the court may direct entry of a final judgment as to
one or more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay. Otherwise,
any order or other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may
be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b) (emphasis added). “The purpose of Rule 54(b) is to codify the
historic practice of ‘prohibit[ing] piecemeal disposition of litigation and permitting
appeals only from final judgments,’ except in the ‘infrequent harsh case’ in which the
district court properly makes the determinations contemplated by the rule.” In re Se.
Banking Corp., 69 F.3d 1539, 1547 (11th Cir. 1995) (quoting Fed. R. Civ. P. 54(b)
advisory committee’s note to 1946 amendment).
Here, because other claims against Chugach remain pending in this lawsuit, the
dismissal of Count 1 cannot become a final adjudication on the merits, i.e., a “with
prejudice” dismissal subject to an immediate appeal, unless the ruling is expressly
certified by the district court as warranting and the record confirms that it is deserving
of such special treatment. See In re Se. Banking Corp., 69 F.3d at 1546 (“When a

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district court is persuaded that Rule 54(b) certification is appropriate, the district
court should support its conclusion by clearly and cogently expressing its reasoning
and the factual and legal determinations supporting that reasoning.” (citing
Explosives Supply Co. v. Columbia Nitrogen Corp., 691 F.2d 486, 486 (11th Cir.
1982))); see also Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166 (11th
Cir. 1997) (“A district court’s Rule 54(b) certification is not conclusive on [the
Eleventh Circuit].”) (emphasis added).
The R&R does not recommend a Rule 54(b) certification on the proposed
dismissal of Count 1 and Chugach has not requested that one be entered either.
Therefore, the second sentence of Rule 54(b) comes into play and, even if the court
were to dismiss Count I “with prejudice,” as Chugach insists, such a label would not
create any appealable “finality” and, consequently, the dismissal would, despite its
designation, instead constitute a “without prejudice” one. See Huckeby v. Frozen
Food Exp., 555 F.2d 542, 545 (5th Cir. 1977) (recognizing that “partial disposition
of a multi-claim . . . action . . . is ordinarily an unappealable interlocutory order” and
consequently “is subject to revision at any time prior to entry of a final decision”)
(emphasis added).
Put differently, the procedural posture of this case means that a “with
prejudice” final dismissal of the FCA count, in the absence of the requisite Rule 54(b)
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certifying language, is simply not an option. Accordingly, Ms. Wellington’s
objections to the R&R are SUSTAINED only in the limited respect that she seeks to
have Count I dismissed “without prejudice” and are otherwise OVERRULED.
IV.

Conclusion
For the reasons set out above, the court SUSTAINS IN PART and otherwise

OVERRULES Ms. Wellington’s objections and ACCEPTS the R&R as modified
herein. Accordingly, Chugach’s Partial Motion is GRANTED as to Count 1 and is
otherwise DENIED. Further, Count 1 is HEREBY DISMISSED WITHOUT
PREJUDICE. Finally, with all the objections to the R&R addressed by the
undersigned, the case is HEREBY REFERRED BACK to Magistrate Judge
England for further proceedings consistent with this memorandum opinion and order.
DONE and ORDERED this the 22nd day of July, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

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