Lindsay v. Technical College Systems of Georgia et al

Filing 38

ORDER and OPINION GRANTING IN PART AND DENYING IN PART Pla's 34 Motion for Reconsideration or in the alternative to Motion to Amend and Modify Its Judgment. Court GRANTS Pla's motion only as to the § 3730(h) claim; it DENIES the mot ion as to any other grounds raised by plaintiff. Pla has an opportunity to file a Third Amended Complaint as set forth in this order within 28 days from the date of this order. Dfts will be permitted to file an additional Motion to Dismiss. Court DENIES Pla's motion to reconsider to the extent it contests the entry of a bill of costs. Should dfts submit such a bill, pla may file a timely objection at that time. Signed by Judge Julie E. Carnes on 3/29/11. (jlm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORG T
AT~NTA DIVISION

ALVIN N. LINDSAY, Plaintiff, CIVIL ACTION NO.
v.

1:09-CV-2:33-JEC

TECHNICAL CO~LEGE SYSTEMS OF
GEORGIA, ATLANTA TECHNICAL
COLLEGE, BRENDA JONES, ALVETTA
P. THOMAS, JONI WILLIAMS, AND
KRISTI WOLFSBERGER CARMAN,
Defendants.
ORDER & OPINION

This

case

is

before

the

Court

on

Plaintiff's

Motion

to

Reconsider or, [34] . parties

in the Alternative,

Amend and Modify Its Judgment

The Court has reviewed the record and the arguments of the and, for the reasons set out below, concludes that

Plaintiff's Hot ion to Reconsider or, in the Alternative, Amend and t10dify Its Judgment
part.

[34]

should be GRANTED in part and DENIED in

BACKGROUND

Plaintiff was previously employed by defendant Atlanta Technical College, and filed this law suit after defendant fired him. Plaintiff contended that this termination constituted retaliation in violation

of federal law. false claims

Further, he attempted to challenge certain allegedly for reimbursement that defendants had made to the

federal government by filing his own individual legal action against defendants under the federal False Claims Act. This Court issued an Order granting the defendants' motion to dismiss all federal claims. over The Court declined to exercise state law

supplemental clains.

jurisdiction

plaintiff's

remaining

Plaintiff has now filed a motion seeking reconsideration of

the Court's earlier order. As his basis for reconsideration, the plaintiff contends that

this Court erred in concluding that the plaintiff failed to comply with the False Claims Act as to the claim based on that statute. Plaintiff also argues that this Court applied the wrong statute of linitations to his that the Court
§

1983 group of claims.! have that

Plaintiff further argues against not plaintiff. have been

should not contends

imposed costs his case

Finally,

plaintiff

should

closed, as the defendants never addressed in their motion, and the Court therefore never addressed in its Order, plaintiff's claim of retaliatory discharge under the False Claims Act,
U.S.C.
§

pursuant to 31

3730(h).

For all the above reasons, plaintiff urges this Court to vacate

:i.

Plaintiff fi::!.ed a § 1983, a § 1985, and a § 1986 claim, \'lhich
§

are hereinafter referred to as his
2

1983 claims.

its previous Order dismissing plaintiff's federal claims and closing this case. Defendants oppose plaintiff's motion. «(35].)

DISCUSSION I. Standard of Review
Local Rule 7.2(E) authorizes a motion for reconsideration when ftabsolutely necessary." necessary where there LR 7.2(E), NDGa. is "the discovery Reconsideration may be of new evidence, an

intervening development or change in the controlling law, or the need to correct a clear errOr or prevent a manifest inj ustice.
n

Pres.
of

Endangered Areas Eng'rs,
However, 916 F.

of

Cobb's
1557,

History,
1560 a

Inc.

v.

U.S.

Army Corps

Supp.

(N.D. motion

Ga. for

1995) (O'Kelley, reconsideration

J.).

parties

cannot

use

to

relitigate old matters Or raise arguments that could have been raised earlier. 757, 763 1137 n. 69

Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d
(11th Cir. 2005). See also Mincey V. (11th Cir. 2000) (a motion for

Head, 206 F.3d 1106,
is not

reconsideration

intended to give the moving party another "bite at the apple" by permitting the party to raise issues that could, been raised prior to judgment). Defendant oppose plaintiff's motion, contending that plaintiff's arguments were either previously made during the briefing that and should, have

preceded the issuance of this Court's Order, or could have been made then. Accordingly, defendants argue,
3

plaintiff's motion fai.ls

to

demonstrate a clear or manifest injustice, which is the high standard that he must meet to trigger reconsideration of the previous Order.
II. Analysis of Plaintiff's Grounds for Reoonsideration A. Plaintiff's Qui !ram Claim Under The False Claims Act

Most of plaintiff's motion focuses on his argument that his qui
tam claim under the False Claims Act was improperly dismissed.

In

his response to Defendants' Motion to Dismiss, plaintiff had argued that he had constructively satisfied the statutory requirements for filing a claim under the False Claims Act, by reporting his

allegations of misconduct to the Government in 2007.

(See Order [32]

at 11). Plaintiff now essentially concedes that he did not satisfy the predicates required by the statute prior to filing suit. nevertheless contends that, He

because his noncompliance was not as (plaintiffs) in a case cited by (2nd Cir.

egregious as that of the relators

this Court--Pilon v. Martin Marietta Corp.,

60 F.3d 995

1995)--his claim should not have been dismissed. The argument now made by plaintiff could have been made in his original response to defendants' motion to dismiss. Because an

untimely argument does not constitute a ground for reconsideration, this new argument of plaintiff's must necessarily fail.
See Michael

Linet, Inc., 408 F.3d at 763 (a motion for reconsideration cannot be

used to make arguments that could have been made earlier); accord
Mincey, 206 F.3d at 1137 n.69 (the same).
4

Further, plaintiff's argument is unpersuasive, on the merits. As set out in the Court's Order, plaintiff failed to adhere to virtually
any of the statutory requirements of the False Claims Act.

(See

Order [32] at 9-11.)

These failures, such as plaintiff's failure to

file the Complaint in camera, deprived the Government of its ability to appropriately decide
(Id. at 10.)
tam
whe~her

or not to intervene in this action.

Moreover, a plaintiff cannot prosecute, pro se, a qui under the False Claims Act and it is the Court's

action

assumption that the n.4.)

plaintiff is still not an attorney.

(Id. at 11

Finally, even if it were true that plaintiff's noncompliance defendants clairr. with

was not as egregious as that of the relators in Pilon, note that, in this case, whereas the in Court
PiloD,

dismissed that

plaintiff's dismissed

without

prejudice,

court

prej udice. 2 In short, plaintiff has offered no persuasive reasons why the Court's dismissal of his qui tam action, under the False Claims Act, should be reconsidered.
B.
P~aintiff's

§§ 1983, 1985, 1986 C~aims

The

Court
§§

had

granted

the

defendants'

motion

to

dismiss

plaintiff's

1983, 1985, and 1986 claims on statute of limitations

2 This Court declined to dismiss plaintiff's qui tam claim with prejudice only because it concluded that the matter had been inadequately briefed, not due to any finding that plaintiff's actions did not necessarily warrant it. (See Order [32J at 11 n.6.)

5

grounds. sentence

In asking for argument that

reconsideration, the statutes of

plaintiff makes a limitations

one-

typically

applicable to such claims should not apply, but instead the statute of limitations applicable to False Claims [34] at 13.) Act claims should be

controlling. unpersuasive. rst,

(Notice of Mot.

Plaintiff's argument is

p:Caintiff

never

explains

what
§

the

False

Claim.s

Act

statute of limitations should be for a

1983 retaliation claim.

More importantly, even if that limitation period were longer than the period provided for by Georgia law, plaintiff's failure to make this argument in his original response dooms his efforts to now advance such an argument. Indeed, plaintiff originally argued that Georgia

state law supplied the applicable statute of limitations period for his § 1983 claim.' Further, plaintiff provides no support for

his argument that civil rights claims are governed by the statute of limitations periods for a False Claims Act claim whenever the latter appears in the same complaint as does the civil rights claim. Court certainly knows of no authority for that novel position. The

, Relying on Odum v. Rayonier, Inc., 2005 WL 3440817, *2 (S.D. Dec. 14, 2005) (Alaimo, J.), plaintiff originally argued that ~[t]he proper limitations period for all Section 1983 actions is Georgia State Law." (Resp.' Opp'nDefs.' Mot. Dismiss [17~ at 6.) While Odum addressed a § 1985 claim, plaintiff's original position that Georgia law governs the applicable statute of limitations for § 1983 actions was correct. Ga.
6

Likewise, plaintiff points to no evidence in support of his new allegation of fraud sufficient to toll the statute of limitations. Indeed, as noted in this Court's previous was well Order, known the and date of

defendants'

alleged

retaliation
(See

readily

aCknowledged by plaintiff.

Order [32] at 14.)

For all the above reasons, and especially plaintiff's failure to earlier raise these new arguments, plaintiff has not demonstrated

adequate grounds for this Court to reconsider its Order dismissing the
§

1983 group of claims based on statute of limitations grounds.
C. Plaintiff's
Cla~

of Retaliatory Discharge Under

§

3730(h)

Plaintiff also argues that the Court should not have indicated in its Order that all of plaintiff's federal claims had been

dismissed, as there was one more federal claim that the defendants had not moved to dismiss, and that consequently this Court had not ruled on. Specifically, plaintiff contends that his
§

complaint 3730(h). in his The

alleged a claim of retaliatory discharge under 31 U.S.C. Unfortunately, plaintiff does not identify

where

Complaint or Amended Complaint,

such a claim might be found.

Court has read through the complaints again, and cannot find such a claim. In the Complaint, plaintiff asserted four claims. Count 1

was labeled as a "False Claims Act" claim.

This claim asserted that

defendants had filed false claims with the federal government in regard to the attendance records of its students.
7

(See

Compl.

[1-3]

at

~~74-l02.)

In the introductory paragraph of the claim, plaintiff

does state that his employment contract was not renewed because he reported "his concerns about defendants' conduct of fraud, waste, and abuse of state and federal resources ... ," but he also indicated that defendant's
cond~ct

in this regard violated his First and Fourteenth

Amendment rights.

(Id. at

~74.)'

Other than this stray reference

to retaliation, the remaining paragraphs in the count clearly discuss only defendants' allegedly false claims. Plaintiff has listed a second "Count 1," which he denominates as "First Amendment."

(Id.

at

~~l04-125.)

In this

co~nt, b~t

plaintiff

goes into great detail about his retaliation theory, that the retaliation was in contravention of

he indicates "First and

his

fourteenth (sic) Amendment" rights." Plaintiff's Count 2

(Id. at U04.)

(which is really his third count) alleges

The paragraph provides: Plaintiff files this suit alleging (1) that his employment contract was not renewed in violation of the First and [FJ ourteenth [AJ mendment and retaliation for reporting his concerns about defendants' cond~ct of fraud, waste, and abuse of state and federal resources, and (2) that defendants, ATC and TCSG through and by its management personnel, knowingly submitted false or fraudulent claims to the united States and other government agencies in violation of the False Claims Act ("FCA 31 U.S.C § 3729 et seq" and 34 CFR 668.22 et seq.
U )

(Cm.pI.

[1-3J at 'l/74.)
8

again a "First Amendrnent Retaliation Claim."

(Id. at

~~l26-139.)

Again, this claim is raised under the First Amendment (id. at or both the First an Fourteenth Amendment (id. at Tt138.)

~127)

Further,

some paragraphs in the claim seem to represent an effort to track some of the elements of the Pickering" balancing test, which test provides claims. the analytic framework for First P.rnend.'nent retaliation

(See Id. at

~Tt127,

129-131, 134, 137-38.)

A careful review

of both First Amendment claims suggest that the Count 1 claim set out the factual basis for the claim, whereas the Count 2 claim set out the legal theory, including the Pickering factors. Plaintiff's Count 4 is denominated as an "Arbitrary and

Capricious Retaliation Claim." appears to reiterate, again,

(See Id. at TtTtl4l-l52.) plaintiff's disagreement

This claim with the

defendants' decision not to renew his contract. In addition to the above claims, which do not set out a False Claims Act retaliation claim under Title 31, in the preamble to his complaint, plaintiff clearly states that his claims for retaliation arise out of defendants' alleged violations of his rights under the First and Fourteenth Amendments, and that his claims under the False Claims Act only concern defendants' allegedly false filings.

Specifically, plaintiff avers:

5

Pickering v. Ed. of Educ., 391 U.S. 563 (1968).
9

Plaintiff brings claims. . based on federal law, specifically including claims based on the u.s. Constitution ([F]irst and ourteenth [A]mendment) for violation of plaintiff's right to free expression and afforded necessary protection from adverse employment action and retaliation; and, the Federal False Claim Act, for filing false, untruthful and misrepresenting claims.
(See CompI.' s

[l-:;'J at "Statement of the Case.

O

)

Plaintiff's First Amendment to Complaint [2] sets out a Count 5, as follows, "Count 5: 42 USC 1983 Violations." Again, plaintiff

reiterates his earlier disagreement with defendants' decision not to renew his contract. Finally, lest there be any doubts regarding what

plaintiff considers to be the legal source of his retaliation claim, plaintiff specifically states in his Amended Complaint that Counts II, III, and IV of his initial complaint concern defendants' alleged constitutional violations: Plaintiff states this claim by proving a violation of one of the Bill of Rights, the First Amendment of the Constitution. See Count 2,3, and 4. R
(See First Am.

Compl.

[2] at 'lIP.) failure to divine a False Claims Act

In

short,

defendants'
§

retaliation clai:r. under

3730 (h) in either plaintiff's "Complaint"

or his "First Amendment to Complaint" is entirely understandaole, as the Court has likewise been unable to find such a claim. Defendants plaintiff's further in argue that, their if defendants' motion recitation of incomplete,

claims

dismissal 10

was

plaintiff should have pointed out this omission in his responsive brief to their motion. 0efendants' point is well-taken. A motion plaintiff

for reconsideration is not the appropriate vehicle for a to raise a new All arguments of the on theory.

See Mincey, 206 F.3d at 1137 n.69. and defendants assert persuasive in reading through the docketed

above is true, issue. Yet,

pleadings again, the Court has reviewed the Response of the plaintiff [31] to the United States' Notice of Non-Party Status [30]. The United States [hereinafter "the Government"] filed this Notice on January 20, 2010, well after the removal of this action on August 5, 2009, and three months after the briefing on the defendants' motion to dismiss had concluded. The Court uncertain why the Government chose to file a Notice

at this late date or what purpose it intended that Notice to serve. In this Notice, the Government reiterated that it was not a party in interest, as the plaintiff had failed to comply with the statutory prerequisites for a False Claims Act claim, and hence no such claim was properly before this Court. gratuitously, The Government went on to note,

that it took no position on plaintiff's retaliatory
§

discharge pursuant to 31 U.S.C.

3730(h).

Why the Government made

this statement is unclear, as plaintiff had not explicitly set out such a claim. Perhaps, the Government the Notice to offer the

plaintiff a helpful hint.
11

At any rate, taking that hint and running with it, the plaintiff filed an unsolicited Response to this Notice, in which he then began discussing his § 3730(h) claim, as if it were clear that he had ever asserted such a claim. Specifically, the plaintiff states in this 3730 (h) claim and that the legal

Response that he has filed a §

standards and interests advanced by a § 3730(h) retaliation claim and a § 3730(b) qui tam claim are different. (Pl.'s Resp. [31j at 10.)

Plaintiff then proceeds to set out the elements of a § 3730(h)claim and states that his prior pleadings had averred facts satisfy these element.s. that just because
(Id.

that would

at 10-11.) might be

Further, plaintiff notes dismissal on the

the case

subject to

§ 3730(b) claim does not mean that the § 3730(h) claim should also be

dismissed. defendants'

(Id.

at 9.)

Finally, plaintiff states outright that the

pending motion for dismissal had neglected to address

plaintiff's § 3730(h) claim, meaning that his claim for retaliatory discharge should go forward.
(Id.

at. 12-13.)

Now, as noted above, there was clearly no mention of a § 3730(h) claim in plaintiff's earlier two complaints. With briefing long

completed, defendants could not be reasonably expected to treat this gratuitous response by plaintiff to an unsolicited Notice by the Government as a constructive amendment of his complaint. this Court, Nor could

which issued its Order shortly after the plaintiff's

Response to the Notice and doubts that it gave the latter much
12

attention, be faulted for failing to address a claim that was not a subject of the motion to dismiss and was not addressed in plaintiff's response to that motion. What the Court surmises to have happened is that plaintiff read the Government's Notice, realized that there was a stronger and more apt retaliation claim available to him than the one he had made, and decided to constructively amend his earlier complaints by filing an unnecessary response to the Government's Notice that would thereby merr.orialize
§

plaintiff's

assertion

that

he

had

actually filed a

3730{h) claim. Clearly, the plaintiff should have formally filed a motion to

amend his complaint to assert a

§

3730(h) claim, instead of handling There is also no

the matter in such an indirect and clumsy manner.

question that plaintiff has caused the Court and the defendants to expend more time and energy on this natter than was necessary.

Nevertheless, the Court is going to permit the plaintiff to amend his complaint to add a retaliatory discharge claim pursuant to
§

3730(h). First,

The Court makes this decision for the following reasons. FED. R. Crv. P. 15{a)

provides that leave to amend shall be freely
Campbell v. Emory Clinic, 166 F.3d

given when justice so requires. 1157, plaint 1162 (11th Cir. to be true, 1999). the

Here, assuming the facts alleged by plaintiff repeatedly educational pointed out to was

administrators

and

others

that

his 13

institution

falsely receiving reimbursements from the federal government based on student attendance statistics that the school was artificially

inflating.

In addition to causing harm to the taxpayers who fund

such reimbursements, the school was also inserting "F" grades into the transcripts of students who perhaps should have been have withdrawn from class,
dee~ed

to

rather than have this mark entered, and

the school allegedly did so for no reason other than to increase the monies it received from the federal government. Further, assuming

plaintiff's allegations to be true, school administrators refused to renew plaintiff's contract precisely because he had reported their conduct and had become a persistent thorn in their sides. These facts are clearly consistent with the spirit of the False Claims Act retaliatory discharge provision found at
§

3730(h).

Moreover, plaintiff made clear in his

Con~laint

that he was alleging rst

retaliatory discharge, although he incorrectly referenced the Amendment and § 1983, instead of the Given plaintiff's that pro se status of and
~ore

apt § 3730(h) provision. above facts, the Court the

the

concludes

the

interests

justice

support

allowing

plaintiff to have his full day in court on these allegations.

While

allowing plaintiff to amend does cause the defendants additional bother, as the defendants will now likely need to file another motion to dismiss, the defendants would have had to make these same

arguments in their original motion had the plaintiff correctly pled
14

the § 3730(h) claim. as it increases

Admittedly, piecemeal litigation is disfavored the costs to both the Court and parties.

Nevertheless, the Court concludes that, on the unique facts of this case, the interests of justice outweigh that consideration. While plaintiff's allegations may invoke the spirit of the False Claims Act retaliatory discharge provision, it is not at all clear, however, that they will actually give rise to a valid claim under First, the Court assumes that the defendants will At

that provision.

resurrect a statute of limitations attack on this claim as well. the
§

time 3730(h)

plaintiff were

filed his by

suit, claims for retaliation under the most closely analogous state

governed

limitations period. See Graham County Soil & Water Conserv. Dist. v.

United States ex re1. Wilson,

545 U.S. 409, 422

(2005).

In Graham,

the Supreme Court suggested, without deciding, that the most closelY analogous period for Georgia is the two-year limitations period found in O.C.G.A.
§

9-3-33.

rd.

at

419

n.3.

If

this

is

so,

then

plaintiff's § 3730{h) claim will likewise be barred by the statute of limitations.

(See Order

[32j

at 12-15) {granting defendants' motion

for surrmary judgment on the grounds that the statute of limitations bars plaintiff's claims).6

6 On the other hand, the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111 203 (July 21, 2010) amended § 3730 (h) to provide a three-year statute of limi tat:ions. This amenQment is indicated as being effective one day after the Act's

15

Further, the Court is uncertain to whom the plaintiff reported the defendants' allegedly improper conduct and whether those reports would constitute protected activity under § 3730(h). Likewise, the

plaintiff would ultimately have to prove that the defendants were aware of his protected conduct. Notwithstanding these uncertainties, the Court will give the

plaintiff an opportunity to file a Third Amended Coreplaint that sets out these allegations, after which defendants will be perreitted to file an additional motion to dismiss. This coreplaint should be filed It should under

within twenty-eight (28) days from the date of this Order.

address, and
§

allege, only

a

retaliatory

discharge

claim

3730(h}.

The allegations in support of the claim should succinctly

set out all facts that would support, or inform consideration of, the elements of a § 3730 (h) claim. With regard to any reports about

defendants' conduct made by plaintiff, plaintiff should allege with specificity to whom these reports were made and the approximate date. With regard to the defendants' knowledge of plaintiff's protected

activity, the plaintiff should state, with particularity, the facts from which one could infer knowledge on defendants' part. Finally,

passage, which occurred on July 21, 2010. The only decision of which is Court is aware as to the retroactivity of that amendment is Riddle v. DynCorp Intern. Inc., 733 F. Supp. 2d 743, 747-48 (N. D. Tex. 2010), which held that the amendment adding a new statute of limitations for § 3730(h) was not retroactive. 16

plaintiff should set out the retaliatory actions taken. Should there be deficiencies in plaintiff's newly-amended

complaint or non-compliance with these directions, the Court will be disinclined to give the plaintiff another chance. Defendants may

file a motion to dismiss within twenty-eight (28) days of the filing of plaintiff's D. newly-amended complaint.

Plaintiff's Arguments Concerning Cost

Plaintiff has also argued that he should not have to pay the costs of this action, as directed by the Clerk's Judgment. In

response, defendants argue that the issue is moot as they have not submitted a Bill of Costs. Accordingly, the Court DENIES plaintiff's

motion to reconsider to the extent it contests the entry of a bill of costs. Should defendants ever submit such a bill, plaintiff may file

a timely objection at that time.
CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART AND DENIES
IN PART Plaintiff's Motion to Reconsider or, in the Alternative Amend

and Modify Its Judgment [34}. only as to the
§

The Court grants plaintiff's motion

3730(h) claim; it denies the motion as to any other If plaintiff seeks to file an amended

grounds raised by plaintiff.

complaint, it must comply with the above directions concerning same.

17

SO ORDERED, this

J{LJ

day of March, 2011.

,YCHIEF UNITED STATES DISTRICT JUDGE

18