United States of America v. Bollinger Shipyards, Inc., et al

Filing 71

ORDER AND REASONS granting 27 Motion to Dismiss Case. Plaintiff's negligent misrepresentation and unjust enrichment claims are dismissed with prejudice, and the United States is granted leave to amend its False Claims Act and fraud claims within 20 days of the entry of this Order. Signed by Chief Judge Sarah S. Vance on 1/30/13. (jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA

CIVIL ACTION

VERSUS

NO: 12-920

BOLLINGER SHIPYARDS, INC., ET AL.

SECTION: R(5)

ORDER AND REASONS
Before the Court is defendants’1 motion to dismiss plaintiff
United States’ False Claims Act (FCA), common law fraud,
negligent misrepresentation, and unjust enrichment claims.2

For

the following reasons, defendants’ motion is GRANTED, and
plaintiff is granted leave to amend.

I. Background
The United States brings claims against Bollinger in
connection with its work on the United States Coast Guard’s
Deepwater program, which involved the replacement of the Coast
Guard’s fleet of water vessels, aircraft, and electronic systems.
The Government’s claims are based on the following allegations.

1

The motion was filed jointly by defendants Bollinger
Shipyards, Inc., Bollinger Shipyards Lockport, L.L.C., and
Halter-Bollinger Joint Venture, L.L.C. (collectively
“Bollinger”).
2

R. Doc. 27.
1

In Phase 1 of the Deepwater program, the Coast Guard
considered proposals from three prospective lead contractors.
The Coast Guard selected Integrated Coast Guard Systems (ICGS) to
proceed as the lead systems integrator under Phase 2 of the
project.

Part of the Deepwater program involved converting

existing 110-foot patrol boats into 123-foot patrol boats.
Bollinger, which had built the 110-foot fleet, was ultimately
selected as the subcontractor to design and construct the new
123-foot patrol boats.
The government alleges that in September 2000, during Phase
1 of the project, the Coast Guard notified ICGS and Bollinger
that it was concerned about the structural integrity of the hulls
of the vessels to be modified, since the vessels were to be
extended by thirteen feet.3

It said that no analysis had been

performed to determine if the increased stress on the hull would
produce unacceptable bending of the hull girder.4

On October 3,

2000, Bollinger submitted to the Coast Guard a calculation of
midship section modulus, which measures the hull’s resistance to
bending and is one measure of a boat’s longitudinal strength.5
Bollinger told the Coast Guard that it calculated the section
modulus to be 7,152 cubic inches, which compared favorably to the

3

R. Doc. 1 at 4-5.

4

Id.

5

Id. at 5.
2

standard of 3,113 cubic inches contained in the American Bureau
of Shipping (ABS) Guide for Building and Classing High Speed
Craft.6

The government alleges that Bollinger’s section modulus

calculation overstated the longitudinal strength of the proposed
123-foot patrol boat design by using thicker hull plating in its
calculation than existed in the vessels.7

The complaint alleges

that this initial representation was “unreasonable.”8

The

government alleges that it relied on Bollinger’s representation
of sufficient hull strength in accepting Bollinger’s design and
awarding the Phase 2 contract to ICGS on June 25, 2002, about two
years after it received Bollinger’s section modulus calculation.
The contract between the Coast Guard and ICGS contained a
Contract Data Requirements List (CDRL), which identified the
information that ICGS and Bollinger were required to provide the
Coast Guard concerning the contract deliverables.9

The United

States alleges that one of the requirements was that Bollinger
provide the Coast Guard with a Hull Load and Strength Analysis
(HLSA) in order to verify that the modified vessels met the
program and contract requirements.10

6

Id.

7

Id. at 5-6.

8

Id.

9

Id. at 6-7.

10

Id.
3

The Government never

specifically alleges what the program and contract requirements
were for the converted vessels.

In August 2002, the Coast Guard

issued the first of four Delivery Task Orders (DTOs) to ICGS for
Bollinger to commence the 110-foot patrol boat conversion project
on a firm fixed-price basis.11

In May and August 2003, the Coast

Guard issued three additional DTOs for converted patrol boats.12
The United States alleges that during Phase 1, Bollinger was
notified by a NGSS predecessor that the ICGS contract required
the contractor to use ABS to certify compliance with ABS
standards.13

The government does not allege that ABS

certification was in fact a written contract requirement or that
the CDRL included ABS certification as a requirement for
delivery.

The United States alleges that on August 26, 2002,

Bollinger's chief executive officer, Boysie Bollinger, advised
Bollinger personnel that an ABS executive who was a former Coast
Guard Commandant had offered to review the hull design of the
modified patrol boats confidentially.14

CEO Bollinger asked for

the views of his staff as to whether or not to accept the
offer.15

The United States alleges that Bollinger vice president

11

Id. at 7.

12

Id.

13

Id. at 6.

14

Id.

15

Id.
4

T.R. Hamblin responded by recommending that Bollinger decline
ABS’ offer to conduct a review.

Then on August 27, 2002, CEO

Bollinger allegedly replied to Hamblin:
I'm concerned that [Kramek] sells CG on the fact that
they need this review. . . . [ABS] would love the
additional responsibility from the CG and as we both
know, adverse results could cause the entire 123 to be
an un-economical solution if we had to totally rebuild
the hull. . . . MY CONCERN - we don't do anything - ABS
gets CG to require it without our input, and the result
is we BLOW the program.16
The United States alleges that on or about the same day an
unidentified Bollinger employee or employees performed a series
of calculations of the 123-foot patrol boat section modulus.17
They allegedly ran the Midship Section Calculator (MSC) program
at least three times, changing input data, and obtaining results
of 2,836, 3,037, and 5,232 cubic inches.18

The United States

alleges that Bollinger obtained the result of 5,232 cubic inches
by changing the physical properties of the shape files included
in the MSC model and by entering “data into the MSC program that
did not reflect the actual structural characteristics of the
converted vessels.”19

16

Id. at 7-8 (as quoted in the complaint)

17

Id. at 8.

18

Id.

19

Id. at 8-9.
5

On August 28, 2002, NGSS authorized Bollinger to proceed
with the work “in anticipation of definitizing a Firm Fixed Price
- type contract by 30 September 2002.”20

The complaint does not

allege when the contract was actually “definitized.”21

On

September 4, 2002, Bollinger submitted to the Coast Guard an
initial CDRL S012-11 report stating that the midship section
modulus was 5,232 cubic inches.22

This calculation was

significantly lower than the 7,152 cubic inches calculation that
Bollinger submitted during Phase 1, but still above the minimum
section modulus of 3,113 cubic inches contained in the ABS
Guide.23

The complaint also alleges that Bollinger created an

internal draft CDRL S012-11 report that showed a 3,037 cubic
inches section modulus, but it did not submit this to the Coast
Guard.
The United States alleges that on October 9, 2002, Bollinger
held a Preliminary Design Review meeting at which Bollinger told
the Coast Guard that ABS would review the midship section modulus
calculation and longitudinal strength.24

The complaint alleges

that on December 18, 2002, Bollinger informed the Coast Guard at

20

Id. at 8.

21

Id.

22

Id.

23

Id. at 5-6.

24

Id. at 9
6

a Critical Design Review Meeting that ABS had been engaged to
review compliance with “ABS rules.”25

The United States further

alleges that ABS did not certify or review Bollinger’s section
modulus calculations.26

On December 16, 2002, Bollinger

submitted a final CDRL S012-11 report with the same section
modulus of 5,232 cubic inches as the September report.27

In

March 2004, Bollinger delivered to the Coast Guard the first
converted patrol boat, the Matagorda, which the Coast Guard paid
for.28
The United States alleges that on August 20, 2004, after the
delivery of the Matagorda, a Bollinger Vice President signed CDRL
S016 certifying compliance with applicable contract
requirements.29

On September 10, 2004, the Matagorda suffered a

structural casualty.30

The United States alleges that the

subsequent Coast Guard investigation found that Bollinger’s
reported measurements “overstated the actual section modulus
depicting the longitudinal strength of the hull.”31

25

Id.

26

Id.

27

Id.

28

Id.

29

Id. at 10.

30

Id.

31

Id.
7

Bollinger

retested the hull strengths of the boats and reported an actual
section modulus of 2,615 cubic inches.32

The United States also

alleges that on October 13, 2004, after the failure of the
Matagorda, Bollinger vice president Hamblin emailed CEO Bollinger
and others that, “we did lead the CG into a false sense of
security by telling them early on that the Section Modulus for a
123 would be 5230 inches cubed as opposed to the real number,
just above 2600.”33

The complaint alleges that between November

22, 2002, and December 26, 2006, the Coast Guard paid
approximately $78 million in response to 65 requests for payment
from ICGS for work performed by Bollinger.34

The United States

alleges that all of the vessels supplied by Bollinger turned out
to be unseaworthy.35

The parties executed a statute of

limitations tolling agreement on December 5, 2008.36

32

Id.

33

Id.

34

Id.

35

Id. at 10-11.

36

Id. at 11. Before the government filed its complaint, it
had access to substantial information from its investigation into
the conduct of ICGS, Lockheed, NGSS, and Bollinger arising from
the WPB conversion project. R. Doc. 51 at 3, n. 3. Bollinger
asserts that it made eleven document productions, totaling more
than 40,000 documents, made eight of its employees available for
interviews, and agreed to toll the statute of limitations for
potential legal claims to give the Department of Justice more
time to complete its investigation. Id.
8

On July 29, 2011, the United States filed this action
against Bollinger based on allegations that “Bollinger knowingly
misled the Coast Guard to enter into a contract for the
lengthening of the Coast Guard cutters by falsifying data
relating to the structural strength of the converted vessels.”37
The United States alleges five causes of action: that Bollinger
(1) knowingly presented false or fraudulent claims for payment or
approval to the United States in violation of the False Claims
Act, 31 U.S.C.A. § 3729(a)(1)(A); (2) knowingly made false
records or statements material to false or fraudulent claims for
payment by the United States in violation of the False Claims
Act, § 3729(a)(1)(B); (3) committed common law fraud by making
misrepresentations of material fact; (4) made negligent
misrepresentations; and (5) was unjustly enriched.

Bollinger has

filed a motion to dismiss for failure to state a claim, and for
failure to plead fraud with particularity as required by Federal
Rule of Civil Procedure 9(b).

Bollinger also argues that the

statute of limitations bars the United States’ False Claims Act
and negligent misrepresentation claims.

II. Legal Standard
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts "to state a claim to relief that is

37

Id. at 1.
9

plausible on its face.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1960

(2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007)).

A claim is facially plausible when the plaintiff pleads

facts that allow the court to "draw the reasonable inference that
the defendant is liable for the misconduct alleged."
S.Ct. at 1940.

Iqbal, 129

A court must accept all well-pleaded facts as

true and must draw all reasonable inferences in favor of the
plaintiff.

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th

Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
But the Court is not bound to accept as true legal conclusions
couched as factual allegations.

Iqbal, 129 S.Ct. at 1949.

A legally sufficient complaint must establish more than a
"sheer possibility" that the plaintiff's claim is true.

Id.

It

need not contain detailed factual allegations, but it must go
beyond labels, legal conclusions, or formulaic recitations of the
elements of a cause of action.

Twombly, 550 U.S. at 555.

In

other words, the face of the complaint must contain enough
factual matter to raise a reasonable expectation that discovery
will reveal evidence of each element of the plaintiff’s claim.
Lormand, 565 F.3d at 256.

If there are insufficient factual

allegations to raise a right to relief above the speculative
level, Twombly, 550 U.S. at 555, or if it is apparent from the
face of the complaint that there is an insuperable bar to relief,

10

Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492
F.3d 325, 328 & n.9 (5th Cir. 2007), the claim must be dismissed.

III. Discussion
A.

False Claims Act
In its complaint, the United States alleges violations of

two different provisions of the FCA.

The first provision, 37

U.S.C. § 3729(a)(1)(A),38 imposes liability upon any person who
“knowingly presents, or causes to be presented, a false or
fraudulent claim for payment or approval” to the government.

The

second provision, section 3729(a)(1)(B), imposes liability upon
any person who “knowingly makes, uses, or causes to be made or
used, a false record or statement material to a false or
fraudulent claim.”

A violator of the FCA is liable to the United

States for civil penalties and three times the amount of the
government’s damage. Id. § 3729(a)(1).
For the purposes of the statute, “knowing” and “knowingly”
mean that a person either “has actual knowledge of the
information,” “acts in deliberate ignorance of the truth or
falsity of the information,” or “acts in reckless disregard of
the truth or falsity of the information.” 37 U.S.C. §

38

The subsections of § 3729 were reorganized by statute in
2009 as part of the Fraud Enforcement and Recovery Act of 2009
(FERA). See Pub.L. No. 111-21, 123 Stat. 1617, 1621-22 (2009).
References will be to the current version of the statute.
11

3729(b)(1)(A).
nothing more.

The mental-state requirement of the FCA requires
Id. § 3729(b)(1)(B).

Liability for a violation of sections 3729(a)(1)(A) and (B)
of the FCA rests on “(1) whether there was a false statement or
fraudulent course of conduct; (2) made or carried out with the
requisite scienter; (3) that was material; (4) that caused the
government to pay out money or to forfeit moneys due (i.e., that
involved a claim).”

United States ex rel. Longhi v. Lithium

Power Techs., 575 F.3d 458, 467 (5th Cir. 2009)(quoting United
States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d
370, 376 (4th Cir. 2008))(quotation marks removed).
Under this framework, defendants argue that the complaint
fails to meet the pleading standards required for FCA suits.
Actions brought under the FCA must meet the heightened pleading
standard of Federal Rule of Civil Procedure 9(b).

See United

States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 185 (5th Cir.
2009); United States ex rel. Thompson v. Columbia/HCA Healthcare
Corp., 125 F.3d 899, 903 (5th Cir. 1997).

Rule 9(b) requires a

party alleging fraud or mistake to “state with particularity the
circumstances constituting fraud or mistake.”
9(b).

Fed. R. Civ. P.

This standard supplements the pleading requirements of

Federal Rule of Civil Procedure 8(a), and together the two rules
necessitate that a plaintiff supply “simple, concise, and direct”
allegations of the circumstances amounting to the fraud. Grubbs,
12

565 F.3d at 186.

These allegations “must make relief plausible,

not merely conceivable, when taken as true.”

Id.; see also

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007).
In order to plead fraud with particularity, “a plaintiff
must state the factual basis for the fraudulent claim with
particularity and cannot rely on speculation or conclusional
allegations.”

United States ex rel. Rafizadeh v. Continental

Common, Inc., 553 F.3d 869, 873 (5th Cir. 2008).

In general,

such a statement should include the “time, place, and contents of
the false representation, as well as the identity of the person
making the misrepresentation and what that person obtained
thereby.”

Grubbs, 565 F.3d at 186 (quoting United States ex rel.

Russell v. Epic Healthcare Mgmt. Group., 193 F.3d 304, 308 (5th
Cir. 1999)); see also Thompson, 125 F.3d at 903.
In certain circumstances, the pleading requirements of Rule
9(b) may be slightly relaxed and the plaintiff may plead on
information and belief, in particular when facts about the fraud
are “peculiarly within the perpetrator's knowledge.”

United

States ex rel. Doe v. Dow Chem. Co., 343 F.3d 325, 330 (5th Cir.
2003)(quoting Russell, 193 F.3d at 308); see also United States
ex rel. Williams v. Bell Helicopter Textron, Inc., 417 F.3d 450,
454 (5th Cir. 2005).

Such relaxation, however, “must not be
13

mistaken for license to base claims of fraud on speculation and
conclusory allegations.”

Thompson, 125 F.3d at 903 (quoting

Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1068 (5th Cir.
1994)).

1.

The United States’ Fraud in the Inducement of the Contract

Theory
In the complaint, the United States alleges that Bollinger
fraudulently induced the Coast Guard to enter into the Phase 2
contract for the lengthening of the patrol boats by “falsifying
data related to the structural strength of the converted
vessels.”39

This theory cannot survive defendant’s motion to

dismiss because the government fails to allege that Bollinger
engaged in any fraudulent conduct before the Coast Guard awarded
the Phase 2 contract on June 25, 2002, or authorized Bollinger to
proceed with the work on the conversion project in August 2002.
The United States alleges that in Phase 1 the Coast Guard raised
concerns about the structural integrity of the converted vessels
if they were extended thirteen feet as the project envisioned.
The Government alleges that in October 2000, Bollinger submitted
a longitudinal strength analysis showing that the redesigned
boats would have a sufficient section modulus (7,152 cubic
inches), well above the 3,113 cubic inches in the ABS Guide.

39

Id. at 1.
14

The

government further alleges that it relied on Bollinger’s hull
strength representation in accepting its design and awarding the
Phase 2 contract to ICGS two years later on June 25, 2002.40
The complaint does not allege facts indicating that
Bollinger’s initial representation of the hull strength was
knowingly false or made in deliberate ignorance or disregard for
the truth.

Instead, the government alleges:

Bollinger submitted to the Coast Guard a longitudinal
strength analysis stating that ‘the required section
modulus is 3113 inches cubed and the actual section
modulus of the patrol boat is 7152 inches cubed.’ This
statement indicated to the Coast Guard that Bollinger’s
design for the 123-Ft WPB’s included a safety factor of
2.3 times the ABS required section modulus. Bollinger
obtained the section modulus values reported to the
Coast Guard in Phase 1 by using thicker hull plating in
its design calculation than existed in the 110-Ft WPBs
at the time. Bollinger did not tell the Coast Guard
that it had used thicker hull plating in its
calculations. Since there was no provision in the
proposal for replacing the hull plating on the 110-Ft
WPBs with thicker hull plating during the conversion,
using this thicker hull plating in the calculations was
not reasonable.41
Thus, the complaint does not even allege that Bollinger made an
intentionally false or recklessly untrue statement, or acted with
deliberate indifference.

Indeed, an unreasonable calculation is

not the equivalent of a fraudulent statement as unreasonableness
is consistent with negligence.

Moreover, the complaint alleges

40

Id. at 3-6.

41

Id. at 5-6 (emphasis added).
15

that Bollinger’s 7,152 cubic inches statement to the Coast Guard
was consistent with an internal statement made by Bollinger’s
chief naval architect, not that Bollinger knew one thing
internally but said something different to the Coast Guard.42
Because the United States does not allege any fraudulent
representations predating the award of the contract, it fails to
state a claim based on the theory of fraud presented in the
complaint - fraudulent inducement of the Phase 2 contract.

The

government’s fraud in the inducement theory also misses the mark
because the government acknowledges that it knew that the vessels
would not be constructed with a section modulus of 7,152 cubic
inches.

It alleges later in the complaint that Bollinger told

the Coast Guard that the vessels would have a section modulus of
5,232 cubic inches and it accepted that number.

Indeed, it never

even alleges that a section modulus of 7,152 cubic inches was a
contract specification that had to be met.

For these reasons,

its fraudulent inducement of the contract theory fails.

2.

Fraudulent Inducement of Acceptance of Delivery
In light of the difficulties posed by the government’s fraud

in the inducement of the contract theory, the United States
wisely abandoned it in responding to Bollinger’s motion to
dismiss.

42

The United States argues instead that Bollinger made

Id.
16

other overstatements of the section modulus after the award of
the contract, which fraudulently induced the Coast Guard to
accept delivery of the vessels and to pay for them.

The United

States relies on the following false statements identified in its
complaint:

Bollinger’s September 4, 2002, initial CDRL S012-11

report and December 16, 2002, final CDRL S012-11 report, which
allegedly overstated the hull strength of the 123-foot vessel;
Bollinger’s August 20, 2004, confirmation that it had complied
with applicable Phase 2 contract requirements; and Bollinger’s
October 9, 2002, and April 20, 2004 assurances that it had
engaged ABS to independently review the 123-foot design. Because
the United States has not alleged with particularity, pursuant to
Rule 9(b), that Bollinger made false statements with the proper
scienter and that the statements were material to the
government’s paying claims, its alternative theory of FCA
liability cannot survive defendant’s motion to dismiss.

a. The United States fails to plead the requisite scienter and a
plausible theory of materiality as required for both FCA claims.
The government fails to plead sufficient facts to meet the
scienter and materiality requirements shared by both section
3729(a)(1)(A) and section 3729(a)(1)(B).
467.

Longhi, 575 F.3d at

Regarding scienter, both FCA provisions require that the

acts be taken “knowingly,” which in turn means that a person
either “has actual knowledge of the information,” “acts in
17

deliberate ignorance of the truth or falsity of the information,”
or “acts in reckless disregard of the truth or falsity of the
information.” Id. §§ 3729(a)(1), 3729(b).
The United States does not allege that Bollinger’s contract
required a specific section modulus, and it is vague on exactly
what Bollinger’s contract specified as design requirements.

The

United States alleges that Bollinger ran a series of calculations
in 2002 on the section modulus and submitted only the largest
calculation, which was obtained by changing the physical
properties of the shape files included in the MSC model.

It

alleges that “Bollinger entered data into the MSC program that
did not reflect the actual structural characteristics of the
converted vessels.”43
conduct is fraudulent.

It is unclear what this means or how the
The complaint does not say which physical

properties were changed or how the changes affected the vessel as
constructed.

Nor does it allege that Bollinger knowingly, or

with reckless disregard or deliberate ignorance of the truth,
submitted a false calculation with the intention of building
something of lesser strength.

The complaint does not even allege

that the lower 2002 calculations which went unreported were the
correct ones.

In fact, the complaint indicates that all three of

the 2002 calculations were inaccurate.

None of the three alleged

calculations of 2,836, 3,037, and 5,232 cubic inches performed in

43

R. Doc. 1 at 8-9.
18

2002 matched the “true section modulus” of 2,615 cubic inches,
which Bollinger calculated following the casualty of the
Matagorda.44

The 2002 calculations, including the 5,232 cubic

inches reported to the Coast Guard, were also all significantly
lower than Bollinger’s Phase 1 calculation of 7,152 cubic inches.
Thus the complaint reflects that the Coast Guard was aware that
the section modulus calculations were susceptible to change
because Bollinger had submitted a section modulus calculation of
7,152 cubic inches in 2000, which was 35% higher than the 5,232
calculation it submitted later.

The Coast Guard decided to

proceed with the program with a difference of almost 2,000 cubic
inches for reasons that go unexplained in the complaint.

That

Bollinger ran three incorrect calculations and submitted the
highest one does not indicate that Bollinger acted with the
requisite scienter.
The complaint also identifies emails sent before and after
Bollinger submitted the inaccurate measurements, which indicate
that senior Bollinger personnel were worried about the Coast
Guard getting an independent ABS review of the hull design and
were aware after the fact that the section modulus reported by
Bollinger had misled the Coast Guard.

However, the allegations

are an insufficient factual predicate for the conclusion that
Bollinger was acting knowingly or with reckless disregard or

44

Id. at 8-10.
19

deliberate ignorance of the truth when it reported a section
modulus of 5,232 cubic inches.

Boysie Bollinger’s email

expressing concern that if Bollinger did not do anything, ABS
review, “without [Bollinger’s] input,” could “BLOW the
program,”45 is facially neutral on the issue.

It can be read as

indicating that Boysie Bollinger wanted Bollinger to be involved
in any ABS review in order to answer questions and provide
information or insights that could avoid misconceptions that
might occur without its input.

Plaintiff does not allege, and

the excerpted portion of the email does not indicate, that Boysie
Bollinger knew of any false hull strength calculations, intended
for the company to conduct false calculations in the future, or
instructed anyone to do so.

Nor does it indicate an intention to

provide false “input.”
Bollinger vice president T.R. Hamblin’s email also lacks the
necessary context to indicate the requisite scienter.

He wrote

that, “we did lead the CG into a false sense of security by
telling them early on that the Section Modulus for a 123 would be
5230 inches cubed as opposed to the real number, just above
2600.”46

This statement was made on October 12, 2004, after the

Matagorda failed, after Bollinger had recalculated the section
modulus,

and after everyone was aware that the 2002 calculation

45

Id. at 7-8.

46

Id. at 10.
20

was incorrect.47

Thus, while Hamblin is clearly admitting a

mistake, neither the quoted text nor other allegations in the
complaint support the inference that Bollinger deliberately led
the Coast Guard into a false sense of security knowingly or with
reckless disregard or deliberate ignorance of the truth at the
time the statements were made.

Indeed, Bollinger never

calculated a section modulus “just above 2600" before it
submitted CDRL S012-11 - its lowest calculation at that time was
2,836 cubic inches.
With regard to the remaining allegations, the complaint
fails to articulate a plausible theory of materiality.

To meet

the materiality requirement of section 3729(a)(1)(A), “the false
or fraudulent statements [must] have the potential to influence
the government's decisions.”

Longhi, 575 F.3d at 470.

Section

3729(a)(1)(B) requires that a defendant “knowingly makes, uses,
or causes to be made or used, a false record or statement
material to a false or fraudulent claim.”

The statute defines

“material” as “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).
The Complaint fails to allege that Bollinger’s October 8,
2002, and December 18, 2002, oral statements that Bollinger would
engage ABS to review the section modulus and that ABS had been

47

Id.
21

engaged to review compliance with “ABS rules” were material to
Bollinger’s claims for payment.

Although the United States

alleges that ABS review of Bollinger’s section modulus
calculations never took place, it provides no indicia that
Bollinger intended for the assurances to cause the government to
pay false claims.

Further, the complaint alleges that the Coast

Guard accepted the Matagorda in March 2004 without certification
that ABS had conducted any review.

Indeed, the government points

to no contract provision requiring ABS certification; nor does it
even allege that ABS certification was included on the CDRL as a
requirement for delivery of the converted vessels.

Thus,

Bollinger’s earlier statements were not material because the
Coast Guard was willing to accept delivery of and pay for the
converted vessels without requiring a certification from ABS or
contemporaneous evidence that ABS had in fact conducted a review.
The complaint contains no allegations that link Bollinger’s
statements regarding ABS review to the Coast Guard’s decisions to
accept delivery of the vessels and to pay for them.
Bollinger’s August 20, 2004, certification of compliance
with applicable contract requirements was also immaterial because
the Coast Guard had already accepted the Matagorda in March 2004.
Further, the complaint never specifically alleges which
contractual requirements were not satisfied or that the unnamed

22

Bollinger VP who signed the certification knew that they were not
satisfied.
Further weakening the plausibility of the United State’s
theory of materiality is the complaint’s allegation that the
Coast Guard continued to accept delivery of and pay for vessels
after it became aware in October 2004 that the section modulus
was not what it was represented to be, that it was 50% less, and
that the Matagorda had suffered a casualty and was unseaworthy.
The government is subject to the “government knowledge” defense
which forecloses FCA liability when the government pays claims
with knowledge of the falsity of the claims.

In United States v.

Southland Mgmt. Corp., 326 F.3d 669, 675 (5th Cir. 2003), for
example, the Fifth Circuit held that certifications of a
property’s habitability made on forms submitted to receive
government housing subsidies were not “false claims” because the
government was aware that the apartments had habitability
problems and agreed to work with owners to bring the property
back into compliance.

The Southland court held that “[i]f the

government knows and approves the particulars of a claim for
payment before that claim is presented, the presenter cannot be
said to have knowingly presented a fraudulent or false claim.”
Id. at 682.

The court in U.S. ex rel. Gudur v. Deloitte

Consulting LLP, 512 F. Supp. 2d 920, 932 (S.D. Tex. 2007), aff'd
sub nom. U.S. ex rel. Gudur v. Deloitte & Touche, 07-20414, 2008

23

WL 3244000 (5th Cir. Aug. 7, 2008), describes the rationale for
the “government knowledge defense”:
The government's knowledge of the alleged false claim
is relevant to whether the defendant “knowingly”
submitted a false claim. The inaptly-named “government
knowledge defense” captures the understanding that the
FCA reaches only the “knowing presentation of what is
known to be false.” Id. at 682 (citing Hagood, 81 F.3d
at 1478). This defense suggests that the “knowing”
submission of false or fraudulent claims is logically
impossible when responsible government officials have
been fully apprized of all relevant information. Id.
Since the crux of an FCA violation is intentionally
deceiving the government, no violation exists where
relevant government officials are informed of the
alleged falsity, thus precluding a determination that
the government has been deceived. Id. See also United
States ex rel. Butler v. Hughes Helicopters, Inc., 71
F.3d 321, 327 (9th Cir.1995); Wang, 975 F.2d at 1421.

Gudur, 512 F. Supp. 2d at 932.
The United States argues that the 2002 false statements
continued to taint claims for payment following discovery of
their falsity through December 2006 because the Coast Guard had
sunk costs in the program such that it had to continue accepting
the flawed vessels in the hope of repairing them.
found no law supporting this sunk costs theory.

The Court has

Therefore, FCA

liability is foreclosed for all claims for payment made after the
government knew that the section modulus was incorrect.
For all of the foregoing reasons, the United States fails to
plead claims under 31 U.S.C. § 3729(a)(1)(A) and § 3729(a)(1)(B)

24

with sufficient particularity or plausibility.

Its FCA claims

must therefore be dismissed.

B. Common Law Fraud Claim
The United States also makes a claim that defendants’
actions constituted common law fraud.

As with the FCA claims, a

common law fraud claim is subject to the heightened pleading
requirements of Rule 9(b).

The United States asserts that its

common law fraud claim is governed by federal law.48
asserts that Louisiana law applies.49

Bollinger

The Court determines that

the elements of fraud are essentially the same under both federal
and Louisiana law.

Louisiana courts have broken the statutory

fraud standard into the following elements: “1. a
misrepresentation of material fact; 2. made with the intent to
deceive; 3. reasonable or justifiable reliance by the plaintiff;
and 4. resulting injury.” Wooley v. Lucksinger, 14 So.3d 311,
378–79 (La. App. 1st Cir. 2008)(citing La. Civ. Code Ann. art.
1953).

The elements of fraud under federal common law are “(1) a

false representation (2) in reference to a material fact (3) made
with knowledge of its falsity (4) and with the intent to deceive
(5) with action taken in reliance upon the representation.”
Pence v. United States, 316 U.S. 332, 338 (1942)(identifying the

48

R. Doc. 49 at 18-19.

49

R. Doc. 27-1 at 20.
25

elements of fraud established by prior Supreme Court cases);

See

also United States v. Toyobo Co. Ltd., 811 F. Supp. 2d 37, 52
(D.D.C. 2011)(applying the same standard when government brought
common law fraud claim in addition to FCA claims against
government contractor).
Under both Louisiana and Federal common law, the fraud
standard is similar to the standard for FCA claims under 37
U.S.C. §§ 3729(a)(1)(A)-(B).

To make out either claim, a

plaintiff must show that the defendant made a material false
representation with scienter and that the plaintiff relied on it.
The scienter requirement of fraud, which calls for a plaintiff to
show defendant’s specific intent to deceive, is stricter than the
“knowing” element of FCA claims.

See Schaumburg v. State Farm

Mut. Auto. Ins. Co., 421 F. App'x 434, 442 (5th Cir. 2011).

The

United States bases its fraud claim on the same allegations
relied upon for its FCA claims.

As explained, supra, those

allegations, taken as true, fail to establish that Bollinger
knowingly deceived and defrauded the Coast Guard.

Thus,

plaintiff’s allegations also fail to satisfy the higher standard
of specific intent, and its fraud claim must be dismissed.

C. Negligent Misrepresentation Claim
The United States further alleges that Bollinger engaged in
negligent misrepresentation by reporting the false hull

26

strengths.

In its response memorandum, the United States cites

Brown v. Forest Oil Corp., 29 F.3d 966, 969 (5th Cir. 1994),
which describes the elements of negligent misrepresentation under
Louisiana law.50

In Louisiana, “[a] person commits the tort of

negligent misrepresentation when (1) he has a legal duty to
supply correct information; (2) he breaches that duty; and (3)
his breach causes damages to the plaintiff.”

Soc. of the Roman

Catholic Church of the Diocese of Lafayette, Inc. v. Interstate
Fire & Cas. Co., 126 F.3d 727, 742 (5th Cir. 1997)(citing
L.S.A.-C.C. arts. 2315 & 2216); Brown, 29 F.3d at 969.
can be committed by nondisclosure or misinformation.
Roman Catholic Church, 126 F.3d at 742.

This tort

Soc. of the

Federal Rule of

Procedure 8(a), without the stricter Rule 9(b) standard for
pleading fraud, applies to pleading negligent misrepresentation
claims.

See Cargill, Inc. v. Degesch America, Inc., No. 11-2036,

2012 WL 2367392 at 4 (E.D. La. 2012).

What matters, then, is

whether plaintiff has pleaded a plausible negligent
misrepresentation claim.

See Id.; see also Iqbal, 556 U.S. at

678-79; Twombly, 550 U.S. at 570.
Here, the complaint alleges that the Phase 2 contract
required Bollinger to provide the Coast Guard with a Hull Load
and Strength Analysis, in order to verify that the modified

50

R. Doc. 49 at 20.
27

patrol boats met program and contract requirements.51

Bollinger

submitted preliminary and final HLSA reports (CDRL S012-11),
which allegedly misrepresented the section modulus of the
retooled vessels.52

The complaint includes allegations that the

Coast Guard acted in reliance on the incorrect information by
accepting delivery and making payments, and that it suffered
damages as a result.

At least regarding payments made before the

Coast Guard learned of the true section modulus, the United
States’ factual allegations identify the elements of duty,
breach, and damages necessary for a plausible negligent
misrepresentation claim.
Nevertheless, the United States’ negligent misrepresentation
claim must be dismissed because facts in the complaint indicate
that it is time barred.

“A statute of limitations may support

dismissal under Rule 12(b)(6) where it is evident from the
plaintiff's pleadings that the action is barred and the pleadings
fail to raise some basis for tolling or the like.”

Jones v.

Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003); see also 5B
Charles Alan Wright & Arthur R. Miller, Federal

Practice &

Procedure, § 1357 at 714–21 (3d ed. 2004)(“[T]he inclusion of
dates in the complaint indicating that the action is untimely
renders it subject to dismissal for failure to state a claim.”)).

51

R. Doc. 1 at 6-7.

52

Id. at 8-9.
28

Pursuant to 28 U.S.C. § 2415(b), any action for money
damages “brought by the United States or an officer or agency
thereof which is founded upon a tort shall be barred unless the
complaint is filed within three years after the right of action
first accrues.”

However, 28 U.S.C. § 2416(c) provides that “all

periods during which...facts material to the right of action are
not known and reasonably could not be known by an official of the
United States charged with the responsibility to act in the
circumstances,” must be excluded when calculating the statute of
limitations periods set forth in § 2415.

Facts indicating the

presence of all elements of the right of action “are, in the
language of section 2416(c), the ‘facts material to the right of
action.’”

U.S. ex rel. Wilkins v. N. Am. Const. Corp., CIV.A. H-

95-5614, 2001 WL 34109383 (S.D. Tex. Sept. 26, 2001).

Thus, the

statute of limitations was tolled until the proper government
official knew, or reasonably should have known, the facts
constituting the elements of a negligent misrepresentation claim,
namely that Bollinger breached a legal duty to supply correct
information and thereby caused damages to the Coast Guard.
There is no Fifth Circuit case law addressing the question
of who qualifies as the “government official charged with the
responsibility to act in the circumstances,” in a similar case.
28 U.S.C. § 2416(c).

The legislative history for § 2416(c)

indicates:

29

This provision is required because of the difficulties
of Government operations due to the size and complexity
of the Government. It is not intended that the
application of this exclusion will require the
knowledge of the highest level of the Government.
Responsibility in such matters may extend down into
lower managerial levels within an agency. As a general
proposition, the responsible official would be the
official who is also responsible for the activity out
of which the action arose. Such an official is the one
likely to know whether the material fact does involve
the possibility of a cause of action which may be
asserted against the Government.
S. Rep. No. 1328 (1966), reprinted in 1966 U.S.C.C.A.N. 2502,
2507; see also United States v. Stella Perez, 956 F.Supp. 1046,
1052 (D.P.R.1997)(noting that under 28 U.S.C. § 2416(c), “it is
crucial that facts be known to a government official who is
charged with sufficient responsibility to take action under the
circumstances”); United States ex rel. Kreindler & Kreindler v.
United Techs. Corp., 777 F.Supp. 195, 205 (N.D.N.Y.1991) aff'd
sub nom. U.S. ex rel. Kreindler & Kreindler v. United
Technologies Corp., 985 F.2d 1148 (2d Cir. 1993)(noting that
under 28 U.S.C. § 2416(c), when official who could take action
recognizes the essential elements of the cause of action, the
statute of limitations is not tolled), aff'd 985 F.2d 1148 (2nd
Cir. 1993); U.S. ex rel. Zissler v. Regents of the Univ. of
Minnesota, 992 F. Supp. 1097, 1106 (D. Minn. 1998)(denying motion
to dismiss when reasonable fact finder could conclude that
limitations period was tolled because official who could take

30

action did not know and reasonably could not have known elements
of the cause of action).
Defendants argue that the United States’ negligent
misrepresentation claim is barred on its face by 28 U.S.C. §
2415(b) because the Coast Guard had knowledge of the injury
allegedly caused by Bollinger’s representations no later than
October 2004, more than three years before the tolling agreement
was executed on December 5, 2008.

The United States argues that

the official of the United States charged with the responsibility
to act under § 2416(c) is an official within the Department of
Justice.

It argues that the October 2004 date when the Coast

Guard learned of the falsity of the HLSA reports is irrelevant
because the Department of Justice did not learn until September
2008 that Bollinger possessed lower section modulus calculations
at the time it prepared its reports with the incorrect 5,232
cubic inches calculation.53

It argues it was at this time, that,

by way of document production during the government’s
investigation, the Department of Justice learned Bollinger had
breached its duty to exercise reasonable care.

Before this

discovery, the United States says, the official charged with
responsibility to act had no reason to believe that the false
section modulus report was anything other than an innocent and
reasonable mistake.

53

R. Doc. 49 at 24.
31

The United States relies on Martin J. Simko Const., Inc. v.
United States, 852 F.2d 540, 548 (Fed. Cir. 1988), in which the
Federal Circuit held that the Department of Justice is
responsible for investigating and bringing False Claims Act
claims.

852 F.2d at 548. But see Kreindler, 777 F. Supp. at 205

(Department of Defense contracting officer was one, but not the
only, official with the responsibility to act on False Claims Act
claims stemming from helicopter manufacturer’s contract with the
Army).

Even if the Court were to accept Simko’s conclusion that

the Department of Justice is exclusively responsible for
administering False Claims Act actions, it does not follow that
the Department of Justice is solely responsible for every claim
brought by the government, including the negligent
misrepresentation claim in this case.

For purposes of § 2416(c)

tolling, different officials within the government are
responsible for bringing different types of claims.

See, e.g.,

Fed. Deposit Ins. Corp. v. Martinez Almodovar, 671 F. Supp. 851,
855 (D.P.R. 1987)(the Federal Deposit Insurance Corporation
(FDIC) was government official charged with the responsibility to
bring actions seeking to collect assets acquired from the
receiver of a closed bank); Fed. Deposit Ins. Corp. v. Paul, 735
F. Supp. 375 (D. Utah 1990)(official at FDIC was responsible to
bring negligence, breach of fiduciary duties, and breach of
contract actions against former officers and directors of failed
32

bank); United States v. Gov't Dev. Bank, 725 F. Supp. 96, 100
(D.P.R. 1989)(government officials at the Federal Reserve Bank of
New York or the Food Nutrition Service were the officials
responsible for bringing contract claims against administrator of
the Food Stamp Program in Puerto Rico); United States v. Boeing
Co., Inc., 845 F.2d 476, 482 (4th Cir. 1988) rev'd sub nom.
Crandon v. United States, 494 U.S. 152, (1990)(Department of
Defense contracting officer for Boeing and employees of Defense
Contract Audit Agency charged with auditing responsibilities had
the responsibility to act to recover severance payments from
Boeing and former employees appointed to government posts under
18 U.S.C. § 209(a), a conflict of interest statute).
The United States also cites to Jankowitz v. U. S., 533 F.2d
538, 548 (Ct. Cl. 1976), in which the government brought a common
law claim for repayment of bribes and other illegal payments
received by a government official.

The Court of Claims refused

to dismiss the claim based on the statute of limitations when the
government presented an uncontroverted affidavit that the United
States Attorney had not received actual knowledge of facts
indicating fraud before the relevant date, March 23, 1970. Id.
However, although the Jankowitz court identified the Department
of Justice as one responsible official charged with investigation
of possible illegal payments, it did not rule out the existence
of others.

Id.

Nothing in the opinion indicates that any
33

government official had notice of the underlying facts of the
claim before March 23, 1970.

Id.

Further, the court in

Jankowitz did not deal with a negligent misrepresentation claim
and did not answer the question of whether the statute of
limitations on such a claim is always tolled until someone in the
Department of Justice has notice of the facts. 533 F.2d at 548.
Neither the cases cited by plaintiff nor any found by the
Court indicates that the responsible officials charged with
acting on a negligent misrepresentation claim are exclusively
within the Department of Justice.

The Court turns then to the

general proposition that the responsible official is the official
who is also responsible for the activity out of which the action
arose.

S. Rep. No. 1328.

Like the contracting officer in

Kreindler, the official charged with responsibility to take
action on this claim is the official or officials at the Coast
Guard who were responsible for the Deepwater Program and the
Coast Guard’s contract with ICGS and relationship with Bollinger.
It is those people who were responsible for the underlying Phase
2 agreement and who were familiar with Bollinger’s duty to supply
correct information out of which the cause of action arose.
Tellingly, the Coast Guard had the authority to conduct an
investigation into the failure, and it in fact did so in October
2004.54

54

R. Doc. 1 at 10.
34

The Coast Guard has had actual or constructive notice of all
elements of the negligent misrepresentation claim since October
2004, at the latest.

At that time, after the Coast Guard learned

that Bollinger had submitted erroneous measurements, the Coast
Guard became aware that Bollinger breached its duty to supply
correct information and had notice that Bollinger’s breach caused
damages to the Coast Guard.

The government argues that

prescription was tolled until the responsible official learned
that Bollinger possessed two lower calculations when it reported
the 5,232 cubic inches section modulus.

This argument is

incorrect because the knowledge necessary to trigger prescription
on the negligent misrepresentation claim is merely knowledge that
the information provided by the defendant was false.

Nat'l

Council on Comp. Ins. v. Quixx Temp. Services, Inc., 95-0725 (La.
App. 4 Cir. 11/16/95), 665 So. 2d 120, 124.

It is irrelevant to

the claim whether the misrepresentation was a negligent error or
an intentional misstatement, which the government has
unsuccessfully argued is shown by the existence of lower internal
measurements.

All that is required to “excite attention and

prompt further inquiry” into the claim is knowledge that the
information was wrong and that the government suffered damages.
Id.

Moreover, the Coast Guard already knew long before October

2004 that Bollinger had submitted a section modulus of 7,152
cubic inches in 2000, which was based on Bollinger’s

35

“unreasonable” use of thicker hull plating.

Knowing that

Bollinger submitted the wrong section modulus a second time
clearly put the Coast Guard on notice of its negligent
misrepresentation claim.

Because the official responsible for

acting had actual or constructive knowledge of the negligent
misrepresentation claim more than three years before Bollinger
and the United States entered the tolling agreement on December
5, 2008, this claim must be dismissed.

D. Unjust Enrichment Claim
Finally, the United States alleges that Bollinger has been
unjustly enriched at the expense of the United States and, in the
absence of another remedy, should be required to pay restitution.
Defendants urge this Court to dismiss plaintiff’s alternative
claim of unjust enrichment because the United States has not
established the requisite elements of unjust enrichment under
Louisiana law.

In Louisiana, there are five elements of an

unjust enrichment claim: (1) enrichment of the defendant; (2) an
impoverishment of the plaintiff; (3) a connection between the
enrichment and the resulting impoverishment; (4) an absence of
justification or cause for the enrichment and impoverishment; and
(5) there must be no other remedy at law available to the
plaintiff.

La. Civ. Code Ann. art. 2298; Baker v. Maclay

Properties Co., 648 So.2d 888, 897 (La. 1995).

36

Under Louisiana

law, an unjust enrichment claim cannot survive when, as here,
there is an express contract between the parties and other
remedies at law are available.

See Bamburg Steel Buildings, Inc.

v. Lawrence General Corp., 817 So.2d 427, 438 (La. Ct. App.
2002)(explaining that the existence of a contract makes
unavailable an unjust enrichment claim); Fagot v. Parsons, 958
So.2d 750, 753 (La. Ct. App. 2007)(dismissing plaintiff's unjust
enrichment claim because there were “two other remedies” that
plaintiff could have asserted against defendant); Westbrook v.
Pike Elec., L.L.C., 799 F. Supp. 2d 665, 672 (E.D. La.
2011)(plaintiff failed to state a claim for unjust enrichment
under Louisiana law where there were alternative remedies
available, including for breach of contract).
The United States asserts that its unjust enrichment claim
is governed by federal law, not state law.55

Nevertheless, it

fails to allege a standard of unjust enrichment under federal
common law, or that the federal standard differs from the
Louisiana standard.

Instead, it quotes the Louisiana standard

presented in Bollinger’s motion to dismiss, and argues that it
has alleged the first four elements and that the fifth element lack of another remedy - is preempted by the liberal pleading
standard applicable to federal courts under Federal Rule of Civil

55

R. Doc. 49 at 18-19.
37

Procedure 8(d)(2).56

As the government argues, “at the

motion-to-dismiss stage, courts ... have permitted the government
to proceed with claims alleging FCA violations as well as claims
for unjust enrichment or payment by mistake.”

United States ex

rel. Purcell v. MWI Corp., 254 F.Supp.2d 69, 79 (D.D.C. 2003).
However, federal courts have maintained that there can be no
claim for unjust enrichment when an express contract exists
between the parties.

See, e.g., United States v. United Techs.

Corp., 51 F.Supp.2d 167, 200 (D.Conn. 1999)(“The ... amended
complaint state[s] common law, quasi-contractual claims of unjust
enrichment and payment by mistake[.] Because these two common law
claims are quasi-contractual, they are inappropriate claims
where, as here, there is an express contract.”); United States v.
EER Sys. Corp., 950 F.Supp. 130, 133 (D.Md. 1996)(“Because the
above common law counts are quasi-contractual[,] ... they are
inappropriate claims when there is an express contract.”); United
States v. Hydroaire, Inc., No. 94 C 4414, 1995 WL 86733, at *6
(N.D.Ill. 1995)(“While it is true that a plaintiff can plead in
the alternative, as the Government suggests, the doctrine of
unjust enrichment has no application where, as in this case, a
specific contract governs the relationship of the parties.”).
Because the United States fails to cite, and the Court finds no
case in which Louisiana courts or Fifth Circuit federal courts

56

Id. at 22.
38

have permitted unjust enrichment claims despite the existence of
an express contract, the Court need not decide whether the claim
is governed by Louisiana law or federal common law.

In either

case, the Court must dismiss the unjust enrichment claim.

E. Leave to Amend
While the Court dismisses the United States' complaint in
its entirety, the Court grants leave to amend its FCA and common
law fraud claims.

See Fed.R.Civ.P. Rule 15(a)(2) (“The court

should freely give leave when justice so requires.”); Jamieson By
and Through Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.
1985)(noting a liberal federal policy regarding amendment of
pleadings, and listing undue delay, bad faith, dilatory motive,
repeated failure to cure deficiencies, undue prejudice to the
opposing party, and the futility of amendment as acceptable
justifications for denying leave). The United States may well
have False Claims Act or fraud claims to plead against Bollinger.
But given the federal pleading standards under Rule 9(b), Twombly
and Iqbal, the government’s factual allegations in the context of
the history of the parties’ dealings and the technical nature of
the government contract, do not add up to a plausible theory of
fraud.

After a Coast Guard investigation and a tolling

agreement, the government still has not said what was false about
Bollinger’s section modulus calculations so that an inference can

39

be drawn that whoever made them had to know they were untrue.
The government has already abandoned one theory of fraud.

It is

time for it to plead with particularity what the fraud is.

IV. Conclusion
For the foregoing reasons, defendants’ motion to dismiss is
GRANTED.

Plaintiff’s negligent misrepresentation and unjust

enrichment claims are dismissed with prejudice, and the United
States is granted leave to amend its False Claims Act and fraud
claims within 20 days of the entry of this Order.

30th

New Orleans, Louisiana, this

day of January, 2013.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

40