Markus v. Aerojet RocketDyne Holdings, Inc. et al

Filing 57

MEMORANDUM & ORDER Re: Defendants' Motion To Dismiss Relator's Second Amended Complaint, Stay Proceedings, And Compel Arbitration 50 , signed by Senior Judge William B. Shubb on 5/8/2019: IT IS ORDERED that 50 Defendants' Motion to Dismiss Relator's Second Amended Complaint be, and the same hereby is, GRANTED IN PART. Count Three of relator's Second Amended Complaint is DISMISSED WITH PREJUDICE. The motion is DENIED in all other respects. IT IS FURTHER ORDERED t hat 50 Defendants' Motion to Compel Arbitration and Stay Proceedings be, and the same hereby is, GRANTED with respect to Counts Four, Five, and Six of relator's Second Amended Complaint. Proceedings as to Counts One and Two are not stayed. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA ex rel.
BRIAN MARKUS,

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No. 2:15-cv-2245 WBS AC

Plaintiff,
MEMORANDUM & ORDER RE:
DEFENDANTS’ MOTION TO DISMISS
RELATOR’S SECOND AMENDED
COMPLAINT, STAY PROCEEDINGS,
and COMPEL ARBITRATION

v.
AEROJET ROCKETDYNE HOLDINGS,
INC., a corporation and AEROJET
ROCKETDYNE, INC., a corporation,
Defendants.

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Plaintiff-relator Brian Markus brings this action

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against defendants Aerojet Rocketdyne Holdings, Inc. (“ARH”) and

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Aerojet Rocketdyne, Inc. (“AR”), arising from defendants’

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allegedly wrongful conduct in violation of the False Claims Act

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(“FCA”), 31 U.S.C. §§ 3729 et seq., and relating to defendants’

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termination of relator’s employment.

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dismiss the Second Amended Complaint (“SAC”) in part for the

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failure to state upon which can be granted under Federal Rule of
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Defendants now move to (1)

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Civil Procedure 12(b)(6), (2) stay proceedings, and (3) compel

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arbitration.

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I.

Background

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Relator Brian Markus is resident of the State of

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California.

(SAC ¶ 6 (Docket No. 42).)

He worked for defendants

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as the senior director of Cyber Security, Compliance, and

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Controls from June 2014 to September 2015.

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and AR develop and manufacture products for the aerospace and

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defense industry.

(Id.)

Defendants ARH

(Id. ¶ 7.) Defendants’ primary aerospace and

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defense customers include the Department of Defense (“DoD”) and

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the National Aeronautics & Space Administration (“NASA”), who

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purchase defendants’ products pursuant to government contracts.

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(See id.)

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ARH uses AR to perform its contractual obligations.

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Defendant AR is a wholly-owned subsidiary of ARH, and
(Id. ¶ 8.)

Government contracts are subject to Federal Acquisition

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Regulations and are supplemented by agency specific regulations.

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On November 18, 2013, the DoD issued a final rule, which imposed

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requirements on defense contractors to safeguard unclassified

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controlled technical information from cybersecurity threats.

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C.F.R. § 252.204-7012 (2013).

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contractors to implement specific controls covering many

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different areas of cybersecurity, though it did allow contractors

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to submit an explanation to federal officers explaining how the

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company had alternative methods for achieving adequate

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cybersecurity protection, or why standards were inapplicable.

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See id.

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modifying the government’s cybersecurity requirements for

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contractor and subcontractor information systems.

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The rule required defense

In August 2015, the DoD issued an interim rule,

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48 C.F.R. §

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252.204-7012 (Aug. 2015).

The interim rule incorporated more

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cybersecurity controls and required that any alternative measures

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be “approved in writing prior by an authorized representative of

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the DoD [Chief Information Officer] prior to contract award.”

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Id. at 252.204-7012(b)(1)(ii)(B).

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rule in December 2015 to allow contractors until December 31,

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2017 to have compliant or equally effective alternative controls

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in place.

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Each version of this regulation defines adequate security as

The DoD amended the interim

See 48 C.F.R. § 252.204-7012(b)(1)(ii)(A) (Dec. 2015).

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“protective measures that are commensurate with the consequences

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and probability of loss, misuse, or unauthorized access to, or

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modification of information.”

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48 C.F.R. § 252.204–7012(a).

Contractors awarded contracts from NASA must comply

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with relevant NASA acquisition regulations.

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1852.204-76 lists the relevant security requirements where a

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contractor stores sensitive but unclassified information

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belonging to the federal government.

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regulation, this NASA regulation makes no allowance for the

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contractor to use alternative controls or protective measures.

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NASA contractor is required to “protect the confidentiality,

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integrity, and availability of NASA Electronic Information and IT

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resources and protect NASA Electronic Information from

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unauthorized disclosure.”

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48 C.F.R. §

Unlike the relevant DoD

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48 C.F.R. § 1852.204-76(a).

Relator alleges that defendants fraudulently entered

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into contracts with the federal government despite knowing that

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they did not meet the minimum standards required to be awarded a

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government contract.

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started working for defendants in 2014, he found that defendants’

(SAC ¶ 30.)

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He alleges that when he

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computer systems failed to meet the minimum cybersecurity

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requirements to be awarded contracts funded by the DoD or NASA.

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(Id. ¶ 36.)

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with the relevant standards as early as 2014, when defendants

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engaged Emagined Security, Inc. to audit the company’s

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compliance.

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defendants repeatedly misrepresented its compliance with these

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technical standards in communications with government officials.

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(Id. ¶ 59-64.)

He claims that defendants knew AR was not compliant

(See id. at ¶¶ 43, 51-53.)

Relator avers that

Relator alleges that the government awarded AR a

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contract based on these allegedly false and misleading

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statements.1

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documents that defendants were now compliant with the

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cybersecurity requirements, contacted the company’s ethics

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hotline, and filed an internal report.

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Defendants terminated relator’s employment on September 14, 2015.

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(Id. ¶ 83.)

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(Id. ¶ 65.)

In July 2015, relator refused to sign

(Id. ¶¶ 81-82.)

Relator filed his initial complaint in this action on

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October 29, 2015.

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still deciding whether to intervene in this action, relator filed

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his First Amended Complaint (“FAC”) on September 13, 2017.

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(Docket No. 22.)

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notice of election to decline intervention.

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few months later defendants filed a motion to dismiss, stay

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proceedings, and compel arbitration as to the FAC.

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39.)

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(Docket No. 1.)

While the government was

On June 5, 2018, the United States filed a
(Docket No. 25.)

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(Docket No.

In response to this motion, relator filed the SAC, alleging

In total, relator alleges that AR entered into at least
six contracts with the DoD between February 2014 and April 2015
(id. ¶¶ 84-93) and at least nine contracts with NASA between
March 2014 and April 2016 (id. ¶¶ 105-114).
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the following causes of action against defendants: (1) promissory

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fraud in violation of 31 U.S.C. § 3729(a)(1)(A); (2) false or

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fraudulent statement or record in violation of 31 U.S.C. §

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3729(a)(1)(B); (3) conspiracy to submit false claims in violation

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of 31 U.S.C. § 3729(a)(1)(C); (4) retaliation in violation of 31

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U.S.C. § 3730(h); (5) misrepresentation in violation of

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California Labor Code § 970; and (6) wrongful termination.

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Defendants now move to dismiss the SAC, stay proceedings, and

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compel arbitration.

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II.

(Docket No. 50.)

Motion to Dismiss
A.

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Legal Standard
On a Rule 12(b)(6) motion, the inquiry before the court

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is whether, accepting the allegations in the complaint as true

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and drawing all reasonable inferences in the plaintiff’s favor,

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the plaintiff has stated a claim to relief that is plausible on

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its face.

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plausibility standard is not akin to a ‘probability requirement,’

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but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.”

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when the plaintiff pleads factual content that allows the court

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to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.”

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“labels and conclusions” will not survive a motion to dismiss.

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Id. (internal quotation marks and citations omitted).

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B.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Id.

“The

“A claim has facial plausibility

Id.

A complaint that offers mere

Fraud Claims under the FCA
Relator brings two claims for fraud under the FCA.

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These two claims impose liability on anyone who “knowingly

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presents, or causes to be presented, a false or fraudulent claim
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for payment or approval,” 31 U.S.C. § 3729(a)(1)(A), or

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“knowingly makes, uses, or causes to be made or used, a false

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record or statement material to a false or fraudulent claim,” id.

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§ 3729(a)(1)(B).

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Outside of the context where “the claim for payment is

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itself literally false or fraudulent,” the Ninth Circuit

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recognizes two different doctrines that attach FCA liability to

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allegedly false or fraudulent claims: (1) false certification and

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(2) promissory fraud, also known as fraud in the inducement.

See

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United States ex rel. Hendow v. Univ. of Phoenix, 461 F.3d 1166,

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1170-71 (9th Cir. 2006) (citation omitted).

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certification theory, the relator can allege either express false

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certification or implied false certification.

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certification theory requires that the claimant plainly and

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directly certify its compliance with certain requirements that it

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has breached.

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“can be a basis for liability, at least where two conditions are

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satisfied: first, the claim does not merely request payment, but

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also makes specific representations about the goods or services

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provided; and second, the defendant’s failure to disclose

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noncompliance with material statutory, regulatory, or contractual

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requirements makes those representations misleading half-truths.”

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Universal Health Servs., Inc. v. United States ex rel. Escobar,

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136 S. Ct. 1989, 2001 (2016).

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broader and “holds that liability will attach to each claim

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submitted to the government under a contract, when the contract

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or extension of government benefit was originally obtained

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through false statements or fraudulent conduct.”

See id.

Under a false

The express false

An implied false certification theory

The promissory fraud approach is

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Hendow, 461

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F.3d at 1173.

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Under either false certification or promissory fraud,

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“the essential elements of [FCA] liability remain the same: (1) a

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false statement or fraudulent course of conduct, (2) made with

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scienter, (3) that was material, causing (4) the government to

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pay out money or forfeit moneys due.”

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of the complaint as to the materiality requirement is at issue on

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this motion.2

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Id.

Only the sufficiency

Under the FCA, a falsehood is material if it has “a

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natural tendency to influence, or be capable of influencing, the

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payment or receipt of money or property.”

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3729(b)(4).

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clarified that “[t]he materiality standard is demanding.”

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Ct. at 2003.

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the recipient of the alleged misrepresentation.

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misrepresentation is not material simply because the government

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requires compliance with certain requirements as a condition of

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payment.

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“the Government would have the option to decline to pay if it

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knew of the defendant’s noncompliance.”

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“minor or insubstantial” noncompliance is not material.

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Evidence relevant to the materiality inquiry includes the

31 U.S.C. §

Most recently in Escobar, the Supreme Court
136 S.

Materiality looks to the effect on the behavior of

Id. at 2003.

Id. at 2002.

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Nor can a court find materiality where

Id.

Relatedly, mere
Id.

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Defendants correctly observe that relator’s FCA claims
must not only be plausible but pled with particularity under
Federal Rule of Civil Procedure 9(b). See Cafasso ex rel. United
States v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054–55
(9th Cir. 2011). However, defendants reference Rule 9(b) only to
the extent they argue that relator has failed to plead particular
facts in support of materiality. (See Mot. to Dismiss at 2-3, 15
& 18.) Therefore, the court assumes, without deciding, that
relator has otherwise satisfied the requirements of Rule 9(b).
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government’s conduct in similar circumstances and whether the

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government has knowledge of the alleged noncompliance.

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Defendants puts forth four different arguments in support of

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their contention that relator has insufficiently pled facts as to

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the materiality requirement.

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See id.

First, defendants argue that AR disclosed to its

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government customers that it was not compliant with relevant DoD

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and NASA regulations and therefore it is impossible for relator

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to satisfy the materiality prong.

The Supreme Court did observe

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in Escobar that “if the Government pays a particular claim in

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full despite its actual knowledge that certain requirements were

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violated, that is very strong evidence that those requirements

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are not material.”

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with sufficient particularity that defendants did not fully

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disclose the extent of AR’s noncompliance with relevant

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regulations.

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that state the truth only so far as it goes, while omitting

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critical qualifying information--can be actionable

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misrepresentations.”).

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misrepresented in its September 18, 2014 letter to the government

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the extent to which it had equipment required by the regulations

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(SAC ¶ 63), instituted required security controls (id. ¶¶ 60-61,

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63), and possessed necessary firewalls (id. ¶ 62).

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alleges that these misrepresentations persisted over time,

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whereby AR knowingly and falsely certified compliance with

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security requirements when submitting invoices for its services.

Id.

Here, however, relator properly alleges

See id. at 2000 (“[H]alf-truths--representations

For instance, relator alleges that AR

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Relator also

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(Id. ¶¶ 135-36.)3

While it may be true that AR disclosed some of

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its noncompliance (see id. ¶¶ 59-64), a partial disclosure would

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not relieve defendants of liability where defendants failed to

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“disclose noncompliance with material statutory, regulatory, or

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contractual requirements.”

See Escobar, 136 S. Ct. at 2001.

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In fact, some of the evidence defendants put forth in

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favor of their motion to dismiss provides support for relator’s

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allegations relevant to materiality.4

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federal contracting officer that it could not waive compliance

The DoD informed the

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with DoD regulations, even for an urgent contract.

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68; Req. for Judicial Notice Ex. Z at 1-4.)

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contracting officer was not prohibited from awarding the contract

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because of AR’s noncompliance, AR could not process, store, or

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transmit controlled technical information until it was fully

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compliant.

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DoD representative believed it to “be a relatively simple matter

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for the contractor to become compliant” based on the disclosure

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letter AR sent to the contracting negotiator.

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Yet, relator’s complaint alleges possible material nondisclosures

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The court recognizes that “allegations of fraud based
on information and belief usually do not satisfy the
particularity requirements under rule 9(b).” Moore v. Kayport
Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989) (citation
omitted). However, as explained elsewhere in this motion, there
are other parts of the complaint that allege fraud with
sufficient particularity for the purposes of Rule 9(b).

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(SAC ¶¶ 67-

While the

(Req. for Judicial Notice Ex. Z at 1.)

Still, the

(Id. at 1-2.)

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Because relator’s complaint references the documents
contained in defendants’ Exhibits Y & Z (Docket Nos. 52-25 & 5226) in his complaint, the court considers these materials,
without converting the motion to dismiss into a motion for
summary judgment, under the doctrine of incorporation by
reference. See United States v. Ritchie, 342 F.3d 903, 908 (9th
Cir. 2003).
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in this letter, such as AR’s failure to report its status on all

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required controls, its alleged misstatements as to partial

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compliance with protection measures, and the fact that the

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company cherrypicked what data it chose to report.

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59-64.)5

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not have awarded these contracts if it knew the full extent of

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the company’s noncompliance, because how close AR was to full

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compliance was a factor in the government’s decision to enter

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into some contracts.6

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(See SAC ¶¶

Accepting these allegations as true, the government may

Second, defendants contend that the government’s

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response to the investigation into AR’s representations

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Defendants argue for the first time in their reply that
these alleged misstatements were not associated with a claim for
payment and thus cannot support liability under the FCA. (See
Reply in Supp. of Mot. to Dismiss (“Reply”) at 4 (Docket No.
54).) Contrary to defendants’ understanding, the FCA merely
requires that the false statement(s) or fraudulent course of
conduct cause the government to pay out money due. See Hendow,
461 F.3d at 1173. Under a promissory fraud theory, the relator
only needs to allege that a claim was submitted “under a
contract” that “was originally obtained through false statements
or fraudulent conduct.” See id.; see also United States ex rel.
Campie v. Gilead Scis., Inc., 862 F.3d 890, 902 (9th Cir. 2017)
(reaffirming Hendow’s test for promissory fraud after Escobar).
Here, relator alleges that AR secured its contracts with the
government through misrepresentations made to government
contracting agents and that the government ultimately paid out on
these contracts. (See SAC ¶¶ 59-66, 129-131.)

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This promissory fraud theory, supported by these
allegations of specific misrepresentations, distinguishes this
case from United States ex rel. Mateski v. Raytheon Co., No.
2:06-CV-03614 ODW KSX, 2017 WL 3326452 (C.D. Cal. Aug. 3, 2017),
aff’d, 745 F. App’x 49 (9th Cir. 2018). In Mateski, the relator
merely alleged general violations of contract provisions that the
government designated compliance with as mandatory to support a
false certification theory. See id. at *7. Applying Escobar,
the district court concluded that “such designations do not
automatically make misrepresentations concerning those provisions
material.” Id. (citing 136 S. Ct. at 2003).
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surrounding its cybersecurity compliance undermines relator’s

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allegations as to materiality.

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continued to contract with AR since the government’s

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investigation into the allegations of this complaint.

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for Judicial Notice Exs. S-V (Docket Nos. 52-19, 52-20, 52-21 &

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52-22).)7

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to dismiss.

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to read too much into “continued approval” by the government,

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albeit in a different context).

Both the DoD and NASA have

(See Req.

Such evidence is not entirely dispositive on a motion
Cf. Campie, 862 F.3d at 906 (cautioning courts not

Instead, the appropriate inquiry

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is whether AR’s alleged misrepresentations were material at the

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time the government entered into or made payments on the relevant

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contracts.

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government agencies entered with AR after relator commenced this

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litigation are not at issue and possibly relate to a different

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set of factual circumstances.

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has sufficiently alleged that AR’s misrepresentations as to the

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extent of its noncompliance with government regulations could

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have affected the government’s decision to enter into and pay on

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the contracts at issue in this case.

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See Escobar, 136 S. Ct. at 2002.

The contracts

As discussed previously, relator

Defendants also argue that the government’s decision

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The court GRANTS defendants’ request that it take
judicial notice of these exhibits. Exhibits T through V are
publications on government websites and thus properly subject to
judicial notice. See, e.g., Daniels-Hall v. Nat’l Educ. Ass’n,
629 F.3d 992, 998-99 (9th Cir. 2010) (finding that it is
“appropriate to take judicial notice of [information on
government website], as it was made publicly available by
government entities [], and neither party disputes the
authenticity of web sites or the accuracy of the information
displayed therein.”). Exhibit S is an official Authorization to
Operate signed by NASA officials, so its “accuracy cannot
reasonably be questioned.” See Fed. R. Evid. 201(b)(2).
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not to intervene in this case indicates that the alleged

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misrepresentations were not material.

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Reply at 9.)

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itself, the government chose not to intervene and the Supreme

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Court did not mention it as a factor relevant to materiality.

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See United States ex rel. Prather v. Brookdale Senior Living

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Communities, Inc., 892 F.3d 822, 836 (6th Cir. 2018) (citing 136

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S. Ct. at 1998).

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sufficiently the element of materiality were stymied by the

(See Mot. to Dismiss at 3;

As the Sixth Circuit has observed, in Escobar

Separately, “[i]f relators’ ability to plead

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government’s choice not to intervene, this would undermine the

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purposes of the Act,” as the FCA allows relators to proceed even

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without government intervention.

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finally, there is no reason believe that the decision not to

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intervene is a comment on the merits of this case.

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United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1360

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n.17 (11th Cir. 2006) (“In any given case, the government may

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have a host of reasons for not pursuing a claim.”); United States

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ex rel. Chandler v. Cook Cty., Ill., 277 F.3d 969, 974 n.5 (7th

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Cir. 2002) (“The Justice Department may have myriad reasons for

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permitting the private suit to go forward including limited

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prosecutorial resources and confidence in the relator’s

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attorney.”).

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Id. (citation omitted).

And

See, e.g.,

Third, defendants argue that AR’s noncompliance does

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not go to the central purpose of any of the contracts, as the

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contracts pertain to missile defense and rocket engine

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technology, not cybersecurity.

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n.5 (noting that a misrepresentation is material where it goes to

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the “essence of the bargain”).

See Escobar, 136 S. Ct. at 2004

This argument is unavailing at
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this stage of the proceedings.

Relator alleges that all of AR’s

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relevant contracts with the DoD and NASA incorporated each

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entity’s acquisition regulations.

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acquisition regulations require that the defense contractor

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undertake cybersecurity specific measures before the contractor

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can handle certain technical information.

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these cybersecurity requirements could have affected AR’s ability

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to handle technical information pertaining to missile defense and

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rocket engine technology.

(See SAC ¶¶ 84, 105.)

These

Here, compliance with

(See Req. for Judicial Notice Ex. Z at

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1.)

Accordingly, misrepresentations as to compliance with these

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cybersecurity requirements could have influenced the extent to

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which AR could have performed the work specified by the contract.

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Fourth and finally, defendants argue that the

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government’s response to the defense industry’s non-compliance

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with these regulations as a whole weighs against a finding of

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materiality.

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“consider how the [government] has treated similar violations.”

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See United States ex rel. Rose v. Stephens Inst., 909 F.3d 1012,

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1020 (9th Cir. 2018).

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expected full technical compliance because it constantly amended

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its acquisition regulations and promogulated guidances that

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attempted to ease the burdens on the industry.

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is not dispositive.

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technical compliance, relator properly pleads that the extent to

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which a company was technically complaint still mattered to the

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government’s decision to enter into a contract.

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72.)

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evidence that the government paid a company it knew was

When evaluating materiality, courts should

Defendants contend that the DoD never

This observation

Even if the government never expected full

(See SAC ¶¶ 66-

Defendants have not put forth any judicially noticeable

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noncompliant to the same extent as AR was.

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consideration does not weigh in favor of dismissal.

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Therefore, this

Accordingly, given the above considerations, relator

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has plausibly pled that defendants’ alleged failure to fully

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disclose its noncompliance was material to the government’s

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decision to enter into and pay on the relevant contracts.8

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C.

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Conspiracy under the FCA
Relator’s third count alleges that defendants

participated in a conspiracy to submit false claims in violation

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of 31 U.S.C. § 3729(a)(1)(C).

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and their officers conspired together to defraud the United

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States by knowingly submitting false claims.

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Section 3729(a)(1)(C) imposes liability on a person who conspires

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to commit a violation of Section 3729(a)(1)(A) or Section

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3729(a)(1)(B).

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Relator maintains that defendants

(See SAC ¶ 144.)

Defendants argue that this count fails as a matter of

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law because relator has failed to identify two distinct entities

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that conspired.

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conspiracy doctrine “holds that a conspiracy requires an

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agreement among two or more persons or distinct business

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entities.”

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979 (9th Cir. 1994) (internal quotation marks omitted).

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doctrine stems from the definition of a conspiracy and the

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requirement that there be a meeting of the minds.

25

Fluor Daniel, Inc., 92 F. Supp. 2d 1055, 1057 (C.D. Cal. 2000)

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(citing Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983)).

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Derived from antitrust law, the intracorporate

United States v. Hughes Aircraft Co., 20 F.3d 974,
The

See Hoefer v.

While

The court expresses no opinion as to what relator will
be able to establish at summary judgment or trial.
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the Ninth Circuit has not addressed this issue, several district

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courts have applied the intracorporate conspiracy doctrine to FCA

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claims.

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Servs., Inc., 242 F. Supp. 3d 1020, 1027 (S.D. Cal. 2017)

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(collecting cases).

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conspiracy claims where the alleged conspirators are a parent

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corporation and its wholly-owned subsidiary.

8

States ex. rel. Campie v. Gilead Scis., Inc., No. C-11-0941 EMC,

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2015 WL 106255, at *15 (N.D. Cal. Jan. 7, 2015).

10

See United States ex rel. Lupo v. Quality Assurance

Courts have used this principle to bar

See, e.g., United

Here, relator identifies only a parent company, ARH,

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and its wholly-owned subsidiary, AR, as defendants.

(SAC ¶¶ 7-

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8.)

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its officers, a corporation, as a matter of law, “cannot conspire

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with its own employees or agents.”

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1057.

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independent individual or entity, relator’s conspiracy claim

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fails as a matter of law.

While relator alleges that defendants also conspired with

Hoefer, 92 F. Supp. 2d at

By failing to allege that defendants conspired with any

18

Accordingly, the court will dismiss relator’s third

19

claim, that defendants participated in a conspiracy to submit

20

false claims in violation of 31 U.S.C. § 3729(a)(1)(C).

21

III.

22

Motion to Compel Arbitration and Stay Proceedings
“Relator does not oppose defendants’ motion to refer

23

his employment related claims to arbitration” based on his

24

arbitration agreement with defendants.

25

at 16 (Docket No. 53); see also Decl. of Ashley Neglia Ex. 1

26

(arbitration agreement) (Docket No. 51-1).)

27

however, defendants’ request that the entire proceedings be

28

stayed pending the resolution of these employment related claims
15

(Opp’n to Mot. to Dismiss

Relator does oppose,

1

in arbitration.

Relator contends that a stay is inappropriate as

2

to his FCA claims because they are brought on behalf of the

3

government, are not referable to arbitration, and are separate

4

from the issues involved in his employment-related claims.

5

Opp’n to Mot. to Dismiss at 16-17.)

(See

6

Section 3 of the FAA provides that a court “shall on

7

application of one of the parties stay the trial” of “any suit

8

proceeding” brought “upon any issue referable to arbitration

9

under [an arbitration] agreement . . . until such arbitration has

10

been had in accordance with the terms of the agreement.”

11

U.S.C. § 3.

12

section 3” as to arbitrable claims.

13

of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979).

14

nonarbitrable claims, which defendants concede the FCA claims

15

are, this court has discretion whether to stay the litigation

16

pending arbitration.

17

whether “it is efficient for its own docket and the fairest

18

course for the parties to enter a stay of an action before it,

19

pending resolution of independent proceedings which bear upon the

20

case.”

21

may work damage to another party, a stay may be inappropriate.

22

See Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498

23

F.3d 1059, 1066 (9th Cir. 2007) (citation omitted).

24

9

A party is only “entitled to a stay pursuant to

Id. at 863.

Id. at 863-64.

Leyva v. Certified Grocers
As to

This court may decide

If there is a fair possibility that the stay

The court will not expand the stay to encompass the

25

nonarbitrable FCA claims.

The issues involved in the FCA claims

26

differ from those involved in relator’s employment-based claims.

27

Relator’s FCA claims concern fraud that defendants allegedly

28

perpetrated on the government, while relator’s employment-based
16

1

claims concern the alleged violation of his own rights during his

2

employment.

3

not narrow the factual and legal issues underlying the FCA

4

claims.

5

the FCA, “[t]he elements differ for a FCA violation claim and a

6

FCA retaliation claim.”

7

521 F.3d 1097, 1103 (9th Cir. 2008).

8

unnecessarily work to delay resolution of relator’s FCA claims,

9

which have been pending for more than three years.

Resolution of relator’s employment-based claims will

While relator brings one of his employment claims under

Mendiondo v. Centinela Hosp. Med. Ctr.,
Moreover, a stay would

10

Accordingly, the court will refer relator’s employment-

11

based claims, Counts Four, Five, and Six, to arbitration and stay

12

proceedings as to these claims only.9

13

IT IS THEREFORE ORDERED that defendants’ Motion to

14

Dismiss Relator’s Second Amended Complaint (Docket No. 50) be,

15

and the same hereby is, GRANTED IN PART.

16

relator’s Second Amended Complaint is DISMISSED WITH PREJUDICE.

17

The motion is DENIED in all other respects.

Count Three of

18

IT IS FURTHER ORDERED that defendants’ Motion to Compel

19

Arbitration and Stay Proceedings (Docket No. 50) be, and the same

20

hereby is, GRANTED with respect to Counts Four, Five, and Six of

21

relator’s Second Amended Complaint.

22

and Two are not stayed.

23

Dated:

Proceedings as to Counts One

May 8, 2019

24
25
26
27

All remaining Requests for Judicial Notice (Docket No.
52) are DENIED as MOOT.
9

28
17