United States of America v. American Fuel Cell and Coated Fabrics Company et al
ORDER denying 58 Motion to Dismiss. Signed by Honorable Susan O. Hickey on May 12, 2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
UNITED STATES OF AMERICA ex rel.
DANNY MICHAEL RAY and WILLIAM BERRY
CASE NO. 1:09-CV-01016
AMERICAN FUEL CELL AND COATED
FABRICS COMPANY; and THE ZODIAC GROUP
Before the Court is Defendant American Fuel Cell and Coated Fabrics Company’s
(“Amfuel”) Motion to Dismiss (ECF No. 58). Plaintiffs have filed a response to the motion.
(ECF No. 59). The matter is ripe for the Court’s consideration.
In March 2009, Plaintiffs brought this action against Defendants alleging that (1)
Defendants violated the False Claims Act (“FCA”) by knowingly selling substandard goods to
the government; (2) Defendants violated the “whistleblower” provision of the FCA by retaliating
against Relator Ray for engaging in a protected activity under Act; and (3) Defendants breached
Relator Ray’s employment contract by firing him without cause. 1
In August 2012, Defendants filed a Motion to Dismiss Plaintiffs’ Amended Complaint.
(ECF No. 38). Subsequent to the Motion to Dismiss being filed, Plaintiffs requested leave to
amend their Amended Complaint to address concerns raised in Defendants’ motion. On March
4, 2013, the Court granted the motion to dismiss as to Plaintiffs’ qui tam claim under the False
Claims Act. The Court denied Plaintiffs’ request to amend the claim. The Court denied the
These three claims are hereinafter referred to as (1) the FCA claim, (2) the Retaliation claim, and (3) the Breach of
motion to dismiss and granted the motion to amend as to Plaintiffs’ retaliation and breach of
contract claims. More specifically, the Court held that Plaintiffs’ proposed amendments cured
any deficiencies in the two remaining claims and that the claims were therefore sufficient to
As directed, Plaintiffs filed their Second Amended Complaint on November 15, 2013.
(ECF No. 56). Amfuel filed an Answer to the Second Amended Complaint on November 20,
2013 and subsequently filed the present Motion to Dismiss. The motion makes essentially the
same arguments that were addressed in the Court’s previous Order. The Court has already
considered the claims and factual allegations made in the Second Amended Complaint and has
found them sufficient to survive a motion to dismiss. 2 (ECF No. 52). Accordingly, the motion
should be and hereby is DENIED. Plaintiffs’ breach of contract and retaliation claims may
IT IS SO ORDERED, this12th day of May, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
The Court notes that Plaintiffs have included their qui tam claim in the Second Amended Complaint despite the
fact that is has previously been dismissed. Plaintiffs state that its inclusion in the Second Amended Complaint is
solely for purposes of preservation. The claim was dismissed on March 4, 2013 and it remains dismissed. (ECF No.
52 & 55).
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