Ameti v. Sikorsky Aircraft Corporation, et al
ORDER granting 53 Motion to Dismiss Amended False Claims Act Complaint for the reasons set forth in the attached decision. A scheduling order governing the employment claims is forthcoming. Signed by Judge Vanessa L. Bryant on 06/19/2017. (Lee, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PELLUMB AMETI, ex rel.
SIKORSKY AIRCRAFT CORP.,
UNITED TECHNOLOGIES CORP.,
CIVIL CASE NUMBER:
June 19, 2017
MEMORANDUM OF DECISION ON MOTION TO DISMISS AMENDED FALSE
CLAIMS ACT COMPLAINT [DKT. 53]
Before the Court is Defendant Sikorsky Aircraft Corporation’s (“Sikorsky”)
Motion to Dismiss the Amended False Claims Act (“FCA”) Complaint. Discovery
has been stayed pending the outcome of this motion. Plaintiff Pellumb Ameti
(“Ameti” or “Plaintiff”) was fired by his employer, Sikorsky Aircraft Corporation
(“Sikorsky”) in February 2014. Upon his termination, he filed two cases that have
since been consolidated: (1) an FCA action and its related retaliation claims; and
(2) an employment discrimination and unfair practices action. Defendant seeks to
dismiss only the FCA action, which alleges violations of the FCA, 31 U.S.C. §
3729(a)(1)(A)-(C); retaliation in violation of 31 U.S.C. § 3730(h); and retaliation for
exercising free speech in violation of Conn. Gen. Stat. § 31-51q. For the following
reasons, the Court DISMISSES these claims.
Ameti filed this FCA action and its related claims on August 22, 2014. See
[Dkt. 1 (Compl.)]. On March 28, 2016, the United States notified the Court of its
decision not to intervene in this action. See [Dkt. 14 (Notice of Declination to
Intervene)]. On June 20, 2016, the Court consolidated this action with Ameti v.
Sikorsky Aircraft Corp., case no. 15-cv-235 (VLB) (D. Conn.), which raises
allegations of employment discrimination and unfair employment practices.1
A month later, Sikorsky filed a Motion to Dismiss as well as a Motion to Stay
Discovery pending resolution of the Motion to Dismiss.
Dismiss), 40 (Mot. Stay)].
See [Dkts. 39 (Mot.
On September 15, 2016, Plaintiff filed an Amended
Complaint pursuant to Fed. R. Civ. P. 15(a)(2), which eliminated any reference to
Defendant United Technologies Corporation (“UTC”). See [Dkt. 51 (Am. Compl.)].2
Defendant Sikorsky Aircraft Corporation (“Sikorsky”) then filed the instant Motion
to Dismiss on September 29, 2016. See [Dkt. 53-1 (Am. Mot. Dismiss)]. The Court
referred the pending Motion to Stay to Magistrate Judge Robert A. Richardson, who
granted the motion on November 28, 2016. See Dkt. 61 (Order to Stay)]. The Court
now addresses the Motion to Dismiss the Amended False Claims Act Complaint.
Specifically, the employment action raises violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C §2000e et seq.; Conn. Gen. Stat § 31-51m; the
Connecticut Fair Practices Act (“CFEPA”), codified as Conn. Gen. Stat. § 46a-60 et
seq..; intentional infliction of emotional distress; and wrongful discharge in
connection with Plaintiff’s employment termination. See [Dkt. 1, Ameti v. Sikorsky
Aircraft Corp., case no. 15-cv-235 (VLB) (D. Conn.) (Ameti II)].
Plaintiff deleted reference to UTC in the section labeled, “Parties.” See id. ¶¶6-7.
However, Plaintiff addresses Counts I, II, and IV against “All Defendants.” Of note,
Plaintiff withdrew his Complaint against UTC in the employment discrimination
action on March 26, 2015. See [Dkt. 10 (Ameti II)]. Defendant stated in the Joint
Rule 26(f) Report, which was filed before the Amended Complaint, that Plaintiff has
not served UTC and has indicated he will withdraw the Complaint against UTC. See
[Dkt. 30 (Joint Rule 26(f) Report)]. As the Amended Complaint does not present
any factual allegations against UTC, the Court dismisses the case as to UTC.
Sikorsky is a leading defense contractor that designs and manufactures
helicopters for use by all five branches of the United States armed forces, military
services, and commercial operators in 40 nations. [Dkt. 51 ¶¶ 8-9]. In 2008, Ameti
was hired as a Staff Engineer in the Blades Engineering Department at Sikorsky’s
Stratford, CT plant. Id. ¶ 10. He was transferred in November 2008 to the 53K group
to work on the 53K main blade composite spar project overseen by Frank Caputo,
53K Group Lead. Id. ¶¶ 18-21. The project was completed in 2010. Id. ¶ 22.
Thereafter Ameti was assigned to other projects behind schedule within the 53K
group. Id. ¶ 23.
Around March 2012, Caputo became Design Group Lead and Richard Lay
took over Caputo’s position as 53K Group Leader. Id. ¶¶ 24-25. Ameti requested a
transfer to a different group within Sikorsky, because he believed Caputo engaged
in unfair and harassing behavior towards him in the past, and Lay transferred him
from the design engineering group to the manufacturing engineering group led by
Corey Jones, Manufacturing Engineering Group Lead. Id. ¶¶26-27. Kneil Northrop,
Integrated Product Team (“ITP”) Lead, became his immediate supervisor. Id. ¶ 28.
A. Plaintiff’s Allegations of Defective Root End Fairing Parts
Root end fairings are fiberglass details bonded onto the leading edge of
helicopter blades to protect the blades’ electrical connections from water intrusion.
Id. ¶¶ 31-32. As the Contractor, Sikorsky subcontracted with GKN Aerospace, Inc.
(“GKN”), whereby Sikorsky supplied tooling and designs to GKN and GKN in turn
produced the root end fairings.
Id. ¶ 34.
While working as a manufacturing
engineer, Ameti came to believe the root end fairings produced by GKN were
defective “(i) because they did not meet drawing requirements; (ii) their laminate
quality was poor; and (iii) there were multiple defects and an incorrect trim line.”
Id. ¶ 35.
In the Amended Complaint, Ameti provides instances dating from May 2013
to January 2014 in which he notified others about his belief that the root end
fairings were defective. See id. ¶¶ 36-40. For example, throughout this time period
Ameti (1) emailed “multiple high-ranking Sikorsky employees” about “discuss[ing]
a way to improve the defective GKN parts;” (2) he “informed” various Sikorsky
managers, including his own, about particular defects pertaining to the fairings;
and (3) he “informed” GKN of the same. Id. ¶¶ 36-37, 41-42. GKN agreed the
fairings it supplied to Sikorsky was substandard, but stated the reason was
because Sikorsky itself supplied old and substandard tooling to GKN. Id. ¶ 41.
GKN recommended to Ameti that Sikorsky stop purchasing the defective parts and
purchase fairings from another supplier.
Id. ¶ 42.
In response to Ameti’s
investigation, GKN requested $4,000 to improve its tooling but never received the
funds from Sikorsky. Id. ¶ 46. Purchasing Manager, Maria Spencer, explained to
Ameti that Sikorsky had a multi-year contract with GKN and its parts cost
significantly less than other suppliers. Id. ¶ 45.
In addition to Ameti’s allegations that Sikorsky supplied GKN “poor tooling,”
he avers the engineering drawings were “not up to date.” Id. ¶ 47. Ameti filed
several “turn-backs”—“written description[s] of a procedure failure”—in response
to the outdated drawings. Id. ¶¶ 51-52. On January 24, 2014, Tim Conti, a design
engineer who had been assigned to correct drawing errors and release them to the
manufacturing floor, spoke to Ameti and “implied that by filing a turn-back against
his group, Plaintiff put his job in danger.” Id. ¶¶ 48, 55. Jones, “while knowing of
the defects about the fairings and [Ameti’s] complaints about the defects, emailed
a request that Ameti release defective parts from GKN that were set aside as
defective so the parts could be used in production. Id. ¶ 58.
Ameti alleges that Sikorsky used GKN defective parts and certified the
blades met drawing requirements “while knowing that these parts were not
meeting drawing requirements and as such were defective.” Id. ¶ 61. “Sikorsky
falsely certified that the blades met drawing requirements and passed all quality
inspections, both in-process and final inspection.” Id. ¶ 65. “Upon information
and belief, Sikorsky is still using the defective fairings on its blades.” Id. ¶ 66.
These defective blades were manufactured on Sikorsky helicopters, which were
then sold to all five branches of the United States military. Id. ¶ 67.
B. Plaintiff’s Allegations of Core Crush Issues
In “mid-2013” Ameti and “other members of his group” also noticed the
blades were being damaged by what is known as a “core crush.” Id. ¶ 74. A core
crush occurs when older tooling causes the blade to be improperly designed with
respect to impact damage protection, and the blade is then crushed either during
manufacturing when secondary parts are added or during the transportation
between manufacturing units. Id. ¶ 76. Solumina is a Sikorsky system that can
provide a list of damaged blades where a core crush is the defect. Id. ¶ 68. The
query can provide the blade serial number and discrepancy report number, upon
which it can then be determined which employee wrote the process plan and
performed the repairs and which inspector approved the repairs. Id. From January
27, 2012, until February 6, 2014, approximately 39 discrepancy reports were filed in
Solumina. Id. ¶ 73.
Ameti noticed the core crush defects and submitted multiple “turn-backs”
describing the core crush issue. See id. ¶¶ 80, 82-83. Ameti alleges that, rather
than following process plans to properly repair damaged blades, “lead men” were
“cutting corners to reduce time and lower the cost of repairs” by using “scrap skin”
to bond the patch over the crushed core and thereby conceal it. Id. ¶ 84.
Sikorsky’s Quality Assurance Department falsely certified that the blades
met drawing requirements to satisfy the daily shipping requirements for the blades
and to pass inspections. Id. ¶ 86. Sikorsky failed to follow proper procedure and
cosmetically bonded over the crushed core. Id. ¶ 89. Sikorsky improperly repaired
numerous blades for Black Hawk and Navy Hawk helicopters, which it sold to all
five branches of the United States military. Id. ¶ 90. Sikorsky then billed the
Government for the total job while using scrap skin as a patch and not following
the bond control drawings. Id. ¶ 92. Ameti raised his concern with his supervisor
and conducted a self-initiated
“internal investigation” in January 2014,
determining approximately 15 core crushes occurred per month; he sent this
information to his supervisor, CC’ing others, on February 18, 2014. Id. ¶ 97.
After concluding his investigation, Ameti wrote a Report that stated the
defects “were directly linked (1) to a specific tool on the Sikorsky manufacturing
floor or (2) transportation dollies used by Sikorsky.” Id. ¶ 102. Ameti circulated
the Report to multiple managers including his own. See id. ¶ 101-02. He then
contacted outside tooling experts to obtain price quotes for different methods and
conducted a cost-benefit analysis, concluding Sikorsky should invest in different
tooling, “which would increase Sikorsky’s profits in the future.” Id. ¶ 105. Upon
circulating this analysis to his supervisor, Ameti was told that “his group didn’t
have the financial support for new tools” but that he should enter the information
in the Sikorsky’s Cost Management System, designed as a cost cutting initiative.
Id. ¶ 106.
On February 27, 2014, Ameti was escorted to Human Resources and
unexpectedly terminated the next day.
Id. ¶¶ 11, 116.
wrongfully terminated for reporting defective products.
Ameti alleges he was
contends, “Sikorsky is obligated to provide safe, reliable, and quality tested
products which perform to their specifications to the Government.” Id. ¶ 120. “By
delivering and receiving payment for Black Hawk and Navy Hawk helicopters with
defective parts, Sikorsky is impliedly certifying compliance with the terms of its
contract with the Government for the products and implying that the product met
Government standards and were safe and reliable.” Id. ¶ 121. Ameti believes he
“attempted to prevent Sikorsky from continuing to submit false claims to the
government by reporting its fraudulent misconduct to his superiors but Sikorsky
took no steps to stop or remedy the fraud.” Id. ¶ 122.
Motion to Dismiss
To survive a motion to dismiss, a plaintiff must plead “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
considering a motion to dismiss for failure to state a claim, the Court should follow
a “two-pronged approach” to evaluate the sufficiency of the complaint. Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to begin by
identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). “At the
second step, a court should determine whether the ‘wellpleaded factual
allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’”
Id. (quoting Iqbal, 556 U.S. at 679). “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.” Iqbal, 556 U.S. at 678 (internal quotations
In general, the Court’s review on a motion to dismiss pursuant to Rule
12(b)(6) “is limited to the facts as asserted within the four corners of the complaint,
the documents attached to the complaint as exhibits, and any documents
incorporated by reference.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191
(2d Cir. 2007). The Court may also consider “matters of which judicial notice may
be taken” and “documents either in plaintiffs’ possession or of which plaintiffs had
knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d
142, 150 (2d Cir. 1993); Patrowicz v. Transamerica HomeFirst, Inc., 359 F. Supp. 2d
140, 144 (D. Conn. 2005).
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to
contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” While Rule 8 does not require detailed factual allegations, “[a]
pleading that offers labels and conclusions or formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Ashcroft, 556 U.S. at 678
(internal quotation marks and citations). “Where a complaint pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S.
A complaint alleging fraud or mistake must satisfy the heightened pleading
standard set forth under Rule 9(b) of the Federal Rules of Civil Procedure, which
requires the plaintiff to “state with particularity the circumstances constituting
fraud or mistake.” Rule 9(b) pleadings satisfy the particularity requirement when
they “(1) specify the statements that the plaintiff contends were fraudulent, (2)
identify the speaker, (3) state where and when the statements were made, and (4)
explain why the statements were fraudulent.” United States ex rel. Ladas v. Exelis,
Inc., 824 F.3d 16, 25 (2d Cir. 2016) (applying this standard to alleged violations
under 31 U.S.C. § 3729(a)(1)(A)-(C)); see United States ex rel. Monda v. Sikorsky
Aircraft Corp., No. 3:99CV1026 (JBA), 2005 WL 1925903, at *2 (D. Conn. Aug. 11,
2005) (citing Second Circuit standard and stating, “[o]ther courts have
characterized this pleading standard as the ‘who, what, when, where, and how’ of
the alleged fraud”). There are three main reasons why Rule 9(b)’s heightened
pleading standard exists: (1) “to provide a defendant with fair notice of a plaintiff’s
claim;” (2) “to safeguard a defendant’s reputation from improvident charges of
wrongdoing;” and (3) “to protect a defendant against the institution of a strike suit.”
O’Brien v. Nat’l Prop. Analysts Partners, 936 F.2d 674, 676 (2d Cir. 1991).
Violations of the False Claims Act (Counts I and II)
Plaintiff alleges Defendants defrauded the United States Government in
violation of the False Claims Act (“FCA”). Section 3729 of the FCA imposes liability
on a defendant3 who, in relevant part, “(A) knowingly presents, or causes to be
presented, a false or fraudulent claim for payment or approval; (B) knowingly
makes, uses, or causes to be made or used, a false record or statement material to
a false or fraudulent claim; [or] (C) conspires to commit a violation of subparagraph
(A) [or] (B). . . .” 31 U.S.C. § 3729(a)(1)(A)-(C). A “claim” is a direct request or
reimbursement request made to an entity receiving federal funds under a federal
benefits programs. See 31 U.S.C. § 3729(b)(2); Universal Health Servs., Inc. v.
United States, 136 S. Ct. 1989, 1996 (2016) (interpreting § 3729(b)(2)). “Knowing”
Although the language in § 3729(a)(1) confers liability on “any person,” the United
States Supreme Court has held that the statute imposes liability on corporations
as well. Cook Cty., Ill. v. United States ex rel. Chandler, 538 U.S. 119, 125-26 (2003).
and “knowingly” includes “actual knowledge,” “deliberate ignorance,” or
“reckless disregard” of the truth or falsity of information. 31 U.S.C. § 3729(b)(1).
“’[M]aterial’ means having a natural tendency to influence, or be capable of
influencing, the payment or receipt of money or property.” 31 U.S.C. § 3729(b)(4).
“It is self-evident that the FCA is an anti-fraud statute,” and the heightened
pleading standard therefore applies. Gold v. Morrison-Knudsen, Co., 68 F.3d 1475,
1476 (2d Cir. 1995).
To prove an FCA violation under § 3729(a)(1), a plaintiff must
show that the defendant “(1) made a claim, (2) to the United States government, (3)
that is false or fraudulent, (4) knowing of its falsity, and (5) seeking payment from
the federal treasury.” Mikes v. Straus, 274 F.3d 687, 695 (2d Cir. 2001) (applying
this standard to 31 U.S.C. §3729(a)(1)(A), (B), and (C)), abrogated on other grounds
by Universal Health Servs., Inc., 136 S. Ct. at 2001.
The complaint must contain
details identifying the particular false claims submitted to the government for
payment, such as the following: “details concerning the dates of the claims, the
content of the forms or bills submitted, their identification numbers, the amount
of money charged to the government, the particular goods or services for which
the government was billed, the individuals involved in the billing, and the length of
time between the alleged fraudulent practices and the submission of claims based
on those practices.” United States ex rel. Chorches v. Am. Medical Response, Inc.,
No. 3:12-cv-921 (MPS), 2015 WL 6870025, at *8 (D. Conn. Nov. 6, 2015) (quoting
United States ex rel. Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 233 (1st
Cir. 2004), abrogated on other grounds by United States ex rel. Booker v. Pfizer,
Inc., 847 F.3d 52, 59 n.8 (1st Cir. 2017)). While this information is not a mandatory
checklist, at least some of the information must be included in the complaint to
satisfy Rule 9(b). See id. Ultimately, the plaintiff “must plead the submission of
false claims with a high enough degree of particularity that defendants can
reasonably identify particular false claims for payment that were submitted to the
government.” Id. at *9 (quoting Kester v. Novartis Pharm. Corp., 23 F. Supp. 3d
242, 260 (S.D.N.Y. 2014)).
A. Count I: 31 U.S.C. § 3729(a)(1)(A),(B)
Defendant argues that the facts pleaded by Plaintiff in support of his claim
that it made false claims in violation of 31 U.S.C. § 3729(a)(1)(A),(B) (Count I), fail
to constitute the specificity necessary to satisfy the plausibility and particularity
standard required under Rules 12(b)(6) and 9(b) of the Federal Rules of Civil
Procedure because the Amended Complaint is “devoid of any details about any
claim for payment to the Government or any requirement in any contract between
Sikorsky and the Government.” [Dkt. 53-1 (Mot. Dismiss) at 9]. Defendants also
contend that the Amended Complaint must be dismissed because Plaintiff similarly
cannot identify any information about the contracts or contractual requirements.
Plaintiff posits that he has satisfied the “relaxed” Rule 9(b) pleading
standard that applies when the “factual information needed to fill out a plaintiff’s
complaint lies within the opposing party’s knowledge.”
[Dkt. 59 (Opp’n Mot.
Dismiss) at 8]. Instead, Plaintiff believes he should be permitted to take discovery
because he has pleaded enough factual details to give rise to “a strong inference
of fraudulent intent” pursuant to the relaxed standard.4 Id. at 9-10.
The Complaint Fails to Satisfy the Pleading Standard
The Court agrees with the Defendant. Ameti’s FCA claim does not satisfy
the heightened pleading standard because he does not provide the Court with any
specifics about any alleged “false claim.” In particular, he has not pleaded the
specific contract involved, the specific date on which a violation occurred, any
specific blade or batch of blades which was defective, or even the specific military
branch to which any defective part was sold. Moreover, he does not identify any
particular false claim submitted to the Government, who made the false claim or
when the false claim was allegedly made. Plaintiff fails to satisfy the pleading
standard despite alleging that he was integrally involved in the manufacturing
process and defect detection and assessment.
A plaintiff may not succeed under Rule 9(b) by “alleging a fraudulent scheme
in detail and concluding, that as a result of the fraudulent scheme, false claims
must have been submitted.” Kester, 23 F. Supp. 3d at 253 (quoting United States
ex rel. Polansky v. Pfizer, Inc., No. 04-cv-0704 (ERK), 2009 WL 1456582, at *5
(E.D.N.Y. May 22, 2009)). This is exactly what Ameti does here. For example, he
could have included (but did not) the dates of the claims, the content of the bills,
the identification numbers, the charged amount, particular goods or services
billed, and the length of time between the fraudulent practices and submitted bills.
In advocating for a “relaxed” Rule 9(b) pleading standard, it appears that Plaintiff
acknowledges he does not satisfy the heightened pleading standard.
Chorches, 2015 WL 6870025, at *8-9. Although there is no “mandatory checklist”
requiring Ameti to plead specific information, he provides zero details identifying
particular false claims and instead concludes fraudulent bills must have been
submitted.5 Id. At best, Plaintiff alleges a course of conduct or scheme which he
assumes culminated with the submission of claims.
Importantly, in 2005 Judge Arterton dismissed a similar FCA case against
Sikorsky based on a claim that identified a “1992 Black Hawk contract with the
government” without providing specifics on the allegedly fraudulent claims. See
Monda, 2005 WL 1925903, at *4, aff’d, 207 F. App’x 28 (2d Cir. 2006). While the
plaintiff in Monda was able to describe the government contract, the arrangements
to sell the helicopters, the governing federal regulations, the “suspect accounts,”
and Sikorsky’s history of improper billing, plaintiff “admit[ted] that he [did] not
have copies of or specific knowledge about the progress bills that Sikorsky
allegedly submitted.” Id. The court dismissed the claim and the case upon finding
the plaintiff could not provide details of any compliance failure or “how specific
progress bills were submitted in a manner inconsistent with the relevant
regulations.” Id. at *4-5. Here, Ameti fails for the same reasons and more. Ameti's
conclusory allegations are even less specific than those found wanting in Monda
and do not satisfy the heightened pleading standard.
Plaintiff’s contention that there exists repair work orders with signatures and
dates do not address the particularity requirements because work orders are not
claims submitted to the Government. See [Dkt. 51 ¶ 68]. Similarly, his contention
that 39 discrepancy reports were filed between January 27, 2012, and February 6,
2014, does not speak to any fraudulently filed claims because discrepancy reports
are part of the internal quality control system.
The decision in Monda is consistent with other cases in this circuit dismissing
and upholding dismissal of cases in which the plaintiff failed to plead with
specificity that a false claim was actually made.
In Ladas, 824 F.3d at 27, the
Second Circuit upheld the dismissal of an FCA case where the complaint did not
show any submitted claim was false or that the device delivered to Government
failed to satisfy the contract. Likewise in United States ex rel. Scharff v. Camelot
Counseling, No. 13-cv-3791 (PKC), 2016 WL 5416494, at *7-8 (S.D.N.Y. Sept. 28,
2016), the court dismissed the FCA claim where the plaintiff made no allegations
relating to any submission of a false claim, did not attach a sample of a false claim,
and did not describe the contents or format of the reimbursement claims.
The complaint would not survive scrutiny even assuming the relaxed
pleading standard applied. To date the Second Circuit has not set forth any binding
precedent elucidating whether the “relaxed” pleading standard applies in FCA
cases. See generally, United States ex rel. Monda v. Sikorsky Aircraft Corp., 207 F.
App’x 28, 29 (2d Cir. 2006) (“Even if we were to find that a qui tam relator may
benefit from a relaxed pleading standard under Fed. R. Civ. P. 9(b), a proposition
on which we express no opinion, our case law requires plaintiffs proceeding under
the relaxed standard to allege facts that would support a “strong inference of
fraud.”) (emphasis added); Wood ex rel. United States v. Applied Research
Assocs., Inc., 328 F. App’x 744, 747 n.1 (2d Cir. 2009) (noting plaintiff, in failing to
allege facts were peculiarly within the opposing party’s knowledge, did not plead
facts sufficient to warrant application of the “relaxed” pleading standard). Were it
to do so, a “relaxed” Rule 9(b) pleading standard is appropriate only when the
information is “peculiarly within the opposing party's knowledge.” Wexner v. First
Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990); see Wood, 328 F. App’x. at 747 n.1
(acknowledging Wexner but not applying the standard to an FCA claim); Chorches,
2015 WL 6870025, at *11 (D. Conn. Nov. 6, 2015). But where this is the case the
plaintiff must also “plead the factual basis which gives rise to a strong inference
of fraudulent intent.” Wexner, 902 F.2d at 172. Pleading scienter by inference is
not, however, to be “mistaken for license to base claims of fraud on speculation
and conclusory allegations.” Id. (internal quotation marks omitted). Ample facts
are required as Rule 9(b) is intended “to discourage the filing of complaints as a
pretext for discovery of unknown wrongs.” Madonna v. United States, 878 F.2d 62,
66 (2d Cir. 1989); Wood, 328 F. App’x at 747 (2d Cir. 2009) (same). Accordingly, a
plaintiff may not contend “that discovery will unearth information tending to prove
his contention of fraud” as that is “precisely what Rule 9(b) attempts to
discourage.” Madonna, 878 F.2d at 66. Pleadings based on “information and
belief” are likewise subject to the particularity requirements of Rule 9(b) even
where the relaxed standard applies. United States ex rel. Smith v. Yale Univ., 415
F. Supp. 2d 58, 83 (D. Conn. 2006). A plaintiff cannot assert allegations “based on
information and belief” without showing a “strong inference of fraud.” Wexner,
902 F.2d at 172; Wood, 328 F. App’x 747 n.1 (determining the “relaxed” pleading
standard did not apply where the plaintiff did not assert any facts “peculiarly within
the knowledge” of the defendant).
Notwithstanding the uncertainty surrounding the application of the
“relaxed” pleading standard, Ameti has not presented facts showing a “relaxed”
pleading standard would be availing. The “relaxed” pleading standard still requires
a plaintiff to provide some detail about the fraudulent claims. See Smith, 415 F.
Supp. at 86-87 (“If Relator is unable to identify a single false claim from the alleged
scheme of fraud or at least set forth an adequate basis on which his belief is based,
he cannot even meet a ‘bare-bones Rule 9(b) test.’”); Chorches, 2015 WL 6870025,
at *12 (finding a plaintiff did not meet the “relaxed” Rule 9(b) pleading standard due
to the failure to “plead the factual basis for the relator’s belief that ‘Medicare was
billed’”). Ameti acknowledges he is not in possession of the claims or contracts
See Wexner, 902 F.2d at 172. Ameti alleged he was integrally involved in the
manufacture of the allegedly defective produces and that he conducted an
investigation into the causes of the defects and identified a solution. Despite this
intimate knowledge, the complaint fails to identify any defective blade, any date on
which a defective blade was manufactured or sold to the Government or any
individual involved in the manufacture or sale of a defective blade. Plaintiff does
not even allege to have any personal knowledge of a fraudulent sale of a defective
blade to any governmental entity. The complaint alleges only that “[u]pon
information and belief, in 2013, approximately 70 blades were improperly repaired
and an average of approximately 20 blades per/month [sic] for the first two months
of 2014. While he alleges he informed his colleagues about blade manufacturing
problems, he does not allege that he informed them of these particular blade
defects. The complaint does not allege sufficient facts to create a strong inference
of fraud, much less fraudulent intent.
In addition, Ameti fails to show how the information needed to meet the
heightened pleading standard is so “peculiarly within Sikorsky’s knowledge” to
warrant the application of a relaxed pleading standard. He alleges that he was
involved in the manufacture of the defective blades, issued turn-backs of defective
blades, informed his superiors and co-workers of the defects, investigated the
cause of the defects, spoke with Sikorsky’s outside vendors about the defects and
their causes, discussed with those vendors solutions to the problem, and prepared
and submitted to his supervisors a report discussing the defects, their cause and
the retooling necessary to solve the problem. In view of his alleged intimate
knowledge of the alleged fraud, Ameti has failed to show only Sikorsky has access
to information necessary to meet the Rule 9 pleading standard.
Finally, Plaintiff avers that he believes that through discovery he can obtain
details about the bills and contracts which are solely in possession of the
Defendant. [Dkt. 59 at 11]. Plaintiff has not explained how discovery of Sikorsky's
records on the basis of such vagaries could be proportional much less lead to the
discovery of contracts or bills which support his fraud claim. In the absence of a
strong inference of fraud, discovery would be nothing more that the fishing
expedition Rule 9(b) aims to prevent. See Madonna, 878 F.2d at 66.
therefore holds that the “relaxed” pleading standard does not apply on the facts of
Plaintiff’s Legal Falsity Theory
Ameti contends that Sikorsky falsely certified the blades met drawing
requirements in disregard of the defects despite “cutting corners” to reduce time
and lower costs. [Dkt. 51 ¶¶ 86, 127-28]. Ameti also alleges that “[b]y delivering
and receiving payment for Black Hawk and Navy Hawk helicopters with defective
parts, Sikorsky is impliedly certifying compliance with the terms of its contract with
the Government for the products and implying that the product met Government
standards and were safe and reliable.” [Dkt. 51, ¶ 121]. Accordingly, the Court
acknowledges there may be some uncertainty worth addressing as to whether
Plaintiff alleges FCA violations due to express or implied false certifications of
The FCA is “not designed to reach every kind of fraud practiced on the
Government” but does make actionable a claim that is either “expressly” or
“impliedly” legally false. See id. An “expressly false” claim is one that “falsely
certifies compliance with a particular statute, regulation or contractual term, where
compliance is a prerequisite to payment.” Mikes, 274 F.3d at 697-98. An “impliedly
false” claim, in contrast, is one where the defendant “submits a claim for payment
that makes specific representations about the goods or services provided, but
knowingly fails to disclose the defendant’s noncompliance with a statutory,
regulatory, or contractual requirement.” Universal Health Servs., Inc., 136 S. Ct. at
1995; United States ex rel. Kolchinsky v. Moody’s Corp., No. 12cv1399, 2017 WL
825478, at *5 (S.D.N.Y. Mar. 2, 2017) (“Under an FCA theory of implied legal falsity,
a relator alleges that the ‘very submission’ of the defendant’s claim for payment to
the Government implicitly constitutes a certification of compliance with certain
Whether the Amended Complaint asserts a theory of express or implied
certification is irrelevant because it fails to state with particularity any details
identifying a governing contract or false claims. The Court cannot evaluate the
means by which a defendant commits an FCA violation if there is insufficient
information to determine whether a violation occurred. Therefore, the Court finds
Ameti’s claim would fail under either theory of legal falsity. See Mikes, 274 F.3d at
697-98 (imposing liability for express false certification of a particular statute,
regulation or contractual term); Universal Health Servs., Inc., 136 S. Ct. at 2001
(requiring a claim to make “specific representations about the goods or services
provided” and for the misrepresentation to be material).
B. Count II: 31 U.S.C. § 3729(a)(1)(C)
Section 3729(a)(1)(C) provides for civil penalties where a defendant
“conspires to commit a violation of subparagraph (A) [or] (B). . . .” 31 U.S.C. §
3927(a)(1)(C). Like the Count I allegations, the Amended Complaint fails to satisfy
the pleading requirements under Rule 9(b) with respect to the conspiracy claim.
See United States v. New York Soc. for the Relief of the Ruptured & Crippled,
Maintaining the Hosp. for Special Surgery, No. 07 Civ. 292 (PKC), 2014 WL 3905742,
at *25 (S.D.N.Y. Aug. 7, 2014) (requiring conspiracy under the FCA to be pleaded
with particularity under Fed. R. Civ. P. 9(b)) (citing United States ex rel. Gagne v.
City of Worcester, 565 F.3d 40, 45 (1st Cir. 2009)); United States ex rel. Capella v.
Norden Sys., Inc., No. 3:94-CV-2063 (EBB), 2000 WL 1336487, at *11 (D. Conn. Aug.
24, 2000) (stating that “general allegations of conspiracy do not meet the
particularity standard required by Fed. R. Civ. P. 9(b)); Kolchinsky, 162 F. Supp. 3d
at 193, 195 (applying Rule 9(b) to conspiracy under the FCA).
The Amended Complaint does not “identify a specific statement where [the
co-conspirators] agreed to defraud the government.” See Ladas, 824 F.3d at 27
(upholding dismissal made on these grounds) (internal quotation marks omitted);
Scharff, 2016 WL 5416494, at *9 (finding FCA conspiracy allegation failed to satisfy
Rule 9(b) when the complaint made “no allegations as to the existence of any
agreement to violate the FCA”); Capella, 2000 WL 1336487, at *11 (dismissing
conspiracy claim where plaintiff “merely allude[d] to an agreement without
specifying the particulars). Indeed, Ameti presently cannot even identify who are
the co-conspirators, but claims that he will do so after discovery. See [Dkt. 59 at
13-14]. Accordingly, Count II must be dismissed.
Retaliation under the False Claims Act (Count III)
Plaintiff also alleges Defendants retaliated against him in violation of the
FCA’s “whistleblower” provision, 31 U.S.C. § 3730(h). Section 3730(h)(1) provides
that an employee is entitled to relief if he “is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated against in the terms
and conditions of employment because of lawful acts done by the employee . . . in
furtherance of an action under this section or other efforts to stop 1 or more
violations of this subchapter.”
The Second Circuit has not yet articulated the standard for determining when
a plaintiff has sufficiently pleaded a retaliation claim under 31 U.S.C. § 3730(h). See
Weslowski v. Zugibe, 626 F. App’x 20, 22 (2d Cir. 2015) (electing not to articulate
the standard for establishing a retaliation claim under § 3730(h) because the
plaintiff did not adequately allege the defendant was aware that plaintiff’s refusal
to approve the contract was to prevent an FCA violation); United States v. N. Adult
Daily Health Care Ctr., 205 F. Supp. 3d 276, 297 n.11 (E.D.N.Y. 2016) (noting the
Second Circuit has not established a retaliation standard under § 3730(h)). District
courts within this circuit generally require “a plaintiff to establish: “(1) the
employee engaged in conduct protected under the FCA; (2) the employer knew that
the employee was engaged in such conduct; and (3) the employer discharged,
discriminated against or otherwise retaliated against the employee because of the
protected conduct.” Smith, 415 F. Supp. 2d at 102; see N. Adult Daily Health Care
Ctr., 205 F. Supp. 3d at 297 (citing New York district court cases). The retaliation
provision does not require the plaintiff to plead with particularity under Rule 9(b)
because “no showing of fraud is required.” Adult Daily Health Care Ctr., 205 F.
Supp. 3d at 297.
Defendants argue that Plaintiff failed to satisfy all three factors required to
establish a retaliation claim under 31 U.S.C. § 3730(h). First, Defendants posit
Plaintiff failed to engage in protected activity because his “internal complaints
focused on internal quality processes and suggestions for improvement and made
no mention of fraud.” [Dkt. 53-1 at 24]. Second, should the Court find Plaintiff did
engage in protected activity Defendants believe he nonetheless fails to set forth
facts showing Defendants had knowledge he engaged in protected conduct. Id. at
25. As a result, Defendants contend that Plaintiff cannot show “but-for causation”
as required by the third factor. Id. at 26.
Plaintiff disagrees. First, Plaintiff states his reports on the defective fairings
and core crushes constitute protected activity because such information were
calculated or reasonably could have led to a viable FCA claim. [Dkt. 59 at 14].
Second, Plaintiff argues the information in his reports means the Defendants knew
the Black Hawks and Navy Hawk helicopters were defective and were being sold to
all military branches at full price. See id. at 16. Third, Plaintiff contends he is
allowed to plead alternate theories of recovery and despite his past poor
performance, he could have still been terminated for engaging in protected activity.
A. Factor 1: Protected Conduct
To establish the plaintiff engaged in “protected conduct,” he “need only
have engaged in conduct ‘in furtherance of’ an FCA action.” Smith, 415 F. Supp.
2d at 102. Conduct “in furtherance of” an FCA action is broadly interpreted as
“conduct that was calculated to, or reasonably could lead to a viable FCA action.”
Id. at 103. This includes investigations, inquiries, testimonies, internal reporting,
objecting to employer directives, or “other activities that concern the employer’s
knowing submission of false or fraudulent claims for payment to the government.”
Karvelas, 360 F.3d at 237; Booker, 847 F.3d at 59 n.8 (citing Karvelas and clarifying
that the same standard applies subsequent to the 2010 amendment of this
provision). A plaintiff is not required to have filed an FCA lawsuit or develop a
winning claim. Smith, 415 F. Supp. 2d at 102. Rather, courts typically find the first
prong to be satisfied when the plaintiff engages in action creating a “distinct
possibility” of evidence of an FCA violation; ultimate failure to find such evidence
is immaterial to the retaliation claim.
Id. at 103.
A plaintiff also need not
contemplate an FCA suit to engage in conduct in furtherance thereof, but “must at
least demonstrate that his or her investigation, inquiries and complaints were
conducted with the purpose of exposing a fraud upon the government.” Id.; Grant
v. Abbott House, No. 14-cv-8703 (NSR), slip op. at 7 (S.D.N.Y. Feb. 22, 2016) (finding
the Amended Complaint lacked allegations that plaintiff conducted investigation to
expose fraud upon the Government). Ultimately, it is the “function or effect and
not the intent of the actor” that should determine whether the acts were “in
furtherance of” an FCA action. Smith, 415 F. Supp. 2d at 103.
It is clear Ameti believed Sikorsky was producing defective blades. He
conducted an investigation on GKN’s defective root end fairings, [Dkt. 51 ¶ 35],
filed turn-backs into Sikorsky’s Quality Control Process Clinic (“QCPC”), see, e.g.,
id.¶ 54, conducted an internal investigation on the cause of core crushes and wrote
an associated report, id. ¶¶ 96-102, and conducted a cost-benefit analysis about
investing in better tooling, id. ¶ 105. Nowhere in the Amended Complaint, however,
is there any reference that such investigations or reports were designed to expose
fraud upon the Government. Instead the turn-backs were a normal quality control
process conducted at Sikorsky. The apparent purpose of Ameti’s investigation
and report was to inform his superiors how to improve the quality of Sikorsky’s
manufacturing process. The Court thus finds Ameti did not engage in “protected
activity” within the meaning of § 3730(h). Notwithstanding this conclusion, the
Court will address the second factor.
B. Factor 2: Knowledge
For a plaintiff to show the defendant has knowledge of the protected activity, he
must adequately allege the defendant was aware the employee was engaged in
protected activity. See Weslowski, 626 F. App’x at 22; see Smith, 415 F. Supp. 2d
at 105 (“All that Defendant must have known is that Relator was engaged in
protected activity—that is, investigation of other activity concerning potentially
false or fraudulent claims that could reasonably lead to a FCA case.” Smith, 415 F.
Supp. 2d at 105. This does not mean the employer must know the employee is
contemplating an FCA action. Id. But where a plaintiff seeks to impute knowledge
on the defendant, “he must specifically tell the employer that he is concerned about
possible fraud.” Id. Put another way, the plaintiff must do something to put the
defendant on notice that his actions are in furtherance of an FCA action. See
Weslowski, 626 F. App’x at 22. Situations where a plaintiff makes an investigation
or internal complaint is insufficient if there is no allegation of actual fraud. Smith,
415 F. Supp. 2d at 105.
Ameti fails to establish Sikorsky’s knowledge for the same principle
resulting in his failure to establish “protected activity,” i.e. he communicated
information about defective products but did not alert anyone about fraud. For
example, he wrote an email to “high-ranking Sikorsky employees stating that he
needs to discuss a way to improve the defective GKN parts.” [Dkt. 51 ¶ 36]. He
notified his manager, Jones, and other managers about the fairing defects. See,
e.g., id. ¶ 43. Ameti took similar action with respect to the core crushes whereby
he emailed Jones multiple times about the core crushes and wrote a report, which
he also circulated to Jones, but he did not discuss any potential for fraud. See id.
¶ 81. Although the Amended Complaint states, “Realtor [sic] attempted to prevent
Sikorsky from continuing to submit false claims to the government by reporting its
fraudulent misconduct to his superiors but Sikorsky took no steps to stop or
remedy the fraud,” id. ¶ 122, such a conclusory allegation is not supported by the
Instead his efforts are more properly characterised as being detected
towards quality improvement and not fraud accusation. The Court cannot impute
knowledge upon the Defendant where there are no specifics putting the Defendant
on notice of actual fraud.
C. Factor 3: Nexus
Lastly, a plaintiff must allege he was retaliated against because of his
engagement in protected conduct and provide sufficient facts to support this claim.
Facts must show direct termination or an intentionally created work atmosphere
so intolerable it forced the plaintiff to involuntarily quit. See N. Adult Daily Health
Care Ctr., 205 F. Supp. 3d at 299 (citing Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d
Cir. 2003)). In failing to establish the first two factors, Ameti cannot prevail on the
third. Accordingly, the Court dismisses the retaliation claim.
State Retaliation Claim (Count IV)
The Court will not exercise supplemental jurisdiction of Ameti’s free speech
retaliation claim under Conn. Gen. Stat. § 31-51q and therefore dismisses it without
For the aforementioned reasons, Defendant’s Motion to Dismiss is
The counts are also DISMISSED against UTC as the Amended
Complaint asserts no factual allegations against this Defendant.
IT IS SO ORDERED.
_ ______ /s/ ______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: June 19, 2017
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