The State of New York Ex Rel Vinod Khurana et al v. Spherion Corp

Filing 96

OPINION & ORDER re: 91 MOTION for Entry of Judgment under Rule 54(b) filed by The State of New York Ex Rel Vinod Khurana, The City of New York Ex Rel Vinod Khurana, Vinod Khurana. For the reasons stated above, Plaintiff' ;s motion for certification of the Court's Orders as final judgments under Rule 54(b) is DENIED. The Clerk of Court is respectfully directed to terminate the motion docketed at ECF No. 91. SO ORDERED. (Signed by Judge John F. Keenan on 6/20/2018) (anc)

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Case 1:09-md-02013-PAC Document 57 Filed 09/30/10 Page 1 of 45

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------X
THE STATE OF NEW YORK EX REL
:
VINOD KHURANA and DISTRICT COURT :
UNITED STATES THE CITY OF
NEW SOUTHERN DISTRICT OF NEW YORK :
YORK EX REL VINOD KHURANA,
:
-----------------------------------------------------------x
Plaintiffs,
In re FANNIE MAE 2008 SECURITIES :
:
-against:
LITIGATION
:
:
:
SPHERION CORP. (N/K/A SFN GROUP, :
:
INC.),
:
-----------------------------------------------------------x
Defendant.
:
---------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 6/20/2018
No. 15 Civ. 7831 (PAC)
08 Civ. 6605 (JFK)
09 MD 2013 (PAC)
OPINION & ORDER

OPINION & ORDER

APPEARANCES
HONORABLE PAUL A. CROTTY, United States District Judge:
FOR PLAINTIFF/RELATOR VINOD KHURANA:
David E. Kovel, Esq.
BACKGROUND1
David A. Bishop, Esq.
KIRBY McINERNEY LLP
The early years of this decade saw a boom in home financing which was fueled, among
FOR DEFENDANT SPHERION CORP.:
other things, by low interest rates and lax credit conditions. New lending instruments, such as
Mark J. Hyland, Esq.
Rita M. Glavin, Esq.
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
Thomas Ross Hooper, Esq.
SEWARD & KISSEL LLP
kept the boom going. Borrowers played a role too; they took on unmanageable risks on the
FOR THE CITY OF NEW YORK:
assumption that the market would continue to rise and that refinancing options would always be
Zachary W. Carter, Esq.
Gail Rubin, Esq.
available in Krishnan, Esq.discipline was lacking in the system. Mortgage originators did
Sabita the future. Lending
Lilia Toson, Esq.
not hold these high-risk mortgage loans. Rather than carry the rising risk on their books, the
CORPORATION COUNSEL OF THE CITY OF NEW YORK
JOHNoriginators sold their loans into the secondary mortgage market, often as securitized packages
F. KEENAN, United States District Judge:

known as mortgage-backed securities(“Plaintiff”) moves the Court
Plaintiff Vinod Khurana (“MBSs”). MBS markets grew almost exponentially.
2006, the demand for for entry of
pursuant But then the housing bubble CivilInProcedure 54(b) housing dropped abruptly
to Federal Rule of burst.
thisand home prices began to fall. InOrdersthe changing housing market, banksqui tamtheir
Court’s Opinions and light of dismissing Plaintiff’s modified

lending practices and Plaintiff leave to amend his qui tam refinancing.
claims and denying became unwilling to refinance home mortgages without claims—
dated November 10, 2016 and April 21, 2017, respectively
1

Unless otherwise indicated, all references cited as “(¶ _)” or to the “Complaint” are to the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

1

1

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(together, the “Orders”)—as final judgments, and to stay
litigation of Plaintiff’s remaining retaliation claims pending
the appeal from the Orders.

For the reasons stated below,

Plaintiff’s motion is denied.
I.
A.

Background

Factual Background

The Court presumes familiarity with the factual background
of this case that was laid out extensively in the Orders.
ECF Nos. 70, 86.)

(See

Briefly stated, Plaintiff is a former

employee of Defendant Spherion Corp. (“Spherion”), a company
that provided quality assurance services over CityTime—a project
started by the Office of Payroll Administration (the “OPA”) in
1998 to automate time-keeping and payroll functions for New York
City employees. (Second Amended Complaint ¶¶ 9, 13 [hereinafter
SAC].)

Science Applications International Corporation (“SAIC”)

took over as the prime contractor on CityTime in 2002 and
Spherion was engaged to perform certain quality assurance
functions over SAIC. (Id. ¶¶ 14-15, 22.)
Spherion hired Mark Mazer and Scott Berger as consultants
on CityTime and they began work on the project in 2005. (Id.
¶¶ 3, 31.)

In 2006, SAIC’s prime contract was amended from a

fixed-price contract to a fixed-price level-of-effort contract,
which significantly increased the amount of compensable
consulting staffing on the project. (Id. ¶ 18.)
2

With access to

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additional consultant funding, Mazer used his position to award
lucrative contracts to companies controlled by friends or family
members in exchange for kickbacks. (Id. ¶ 19.)
Plaintiff claims that, in his position as a load
performance tester, he began noticing performance problems with
the CityTime software in late 2004. (Id. ¶ 29.)

From 2004 to

2005, Plaintiff alleges that he told individuals at the
Financial Information Services Agency (“FISA”) on multiple
occasions that the program would not support the number of users
required and that Mazer and Berger had told him they knew the
project was going to fail. (Id. ¶ 32.)

Plaintiff claims that

“on numerous occasions” he also told Spherion representatives
about “serious problems” with CityTime, but Spherion “continued
with the project as if those problems did not exist” and
continued billing the City of New York (the “City”) without
taking any action to remove Mazer and Berger. (Id. ¶¶ 34, 36.)
Further, Plaintiff alleges that he “personally witnessed or
developed knowledge of various other examples of suspicious or
outright fraudulent conduct,” including billing the CityTime
contract for services that were prohibited, unnecessary, or not
provided. (Id. ¶ 45.)

Plaintiff claims that he was retaliated

against and ultimately terminated in May 2007 for communicating
to Spherion and FISA that performance was poor and the project
was failing. (Id. ¶ 58.)
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In early 2009, Plaintiff drafted a “detailed complaint
memorializing his direct knowledge of the fraud,” mailed it to
the New York City Department of Investigations (“DOI”), and
posted it online as a CNN “iReport.” (Id. ¶ 62.)

Plaintiff

claims that after sending the DOI complaint he “went on an
extensive campaign to call as much public attention as possible
to the fraud,” including posting an “extensive series of
comments on articles on the New York Daily News website that
exposed the inner-workings of the CityTime contract in great
detail.” (Id. ¶ 63.)

Plaintiff alleges that he met with DOI

investigators in “December 2010 and thereafter” and provided “a
full accounting of his knowledge and experiences on the CityTime
project.” (Id. ¶ 64.)
The New York news media began publishing articles
discussing problems with CityTime in 2004, with increased
frequency in 2009 and 2010. (See Hyland Aff. Ex. 9.)

The

project also received scrutiny from public officials, including
the New York City Council and the Office of the Comptroller.
(See Hyland Aff. Exs. 20, 22.)

On December 15, 2010, the U.S.

Attorney’s Office for the Southern District of New York and the
DOI jointly unsealed a 35-page criminal complaint (the “Criminal
Complaint”) and announced charges against six individuals
connected to CityTime, including Mark Mazer and Scott Berger.
(See Hyland Aff. Exs. 7, 8.)

On March 8, 2012, SAIC signed a
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deferred prosecution agreement (the “DPA”) with the U.S.
Department of Justice, under which SAIC admitted to having
defrauded the City and agreed to a civil forfeiture of $500
million, with the majority of the funds intended to repay the
City (the “SAIC Settlement”). (See Krishnan Decl. Exs. A, O, P.)
Plaintiff brought this action on behalf of the City and the
State of New York (the “State”), alleging that Spherion is
liable under the New York False Claims Act (“NYS FCA”) and the
New York City False Claims Act (“NYC FCA”) for the submission of
false claims to the City.

Plaintiff advances four theories on

which he claims Spherion is liable under the NYS FCA and NYC
FCA.

First, Plaintiff contends that Spherion is vicariously

liable under its contract with the OPA for Mazer’s and Berger’s
acts in “steering billable work to their own entities then
inflating and falsifying timesheets” (the “vicarious liability
claims”).

Second, Plaintiff alleges that Spherion submitted

false claims to the City because it “failed to provide quality
assurance services” as required by its contract with the OPA
(the “quality assurance claims”).

Third, Plaintiff asserts that

Spherion is liable because it violated the conflict of interest
provision of its contract with the OPA by employing Mazer and
Berger (the “conflict of interest claims”).

Fourth, Plaintiff

alleges that Spherion is liable for engaging in certain false

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billing practices (the “false billing claims”).

Plaintiff also

alleges claims for retaliation under the NYS FCA and NYC FCA.
A.

Procedural History

On March 31, 2011, Plaintiff brought this action in New
York State Supreme Court.

On April 22, 2013, the State filed a

Notice of Election in New York Supreme Court, declining to file
a complaint against any of the defendants named in Plaintiff’s
action or to intervene in the action. (See “Notice of Election
by the State of New York,” Notice of Removal Ex. A, ECF No. 1-1
at 103-104 (filed Aug. 20, 2015).)

On March 4, 2015, the City

filed under seal a Notice of Election in New York Supreme Court
declining to intervene in Plaintiff’s action or convert it to a
civil enforcement action. (See “Notice of Election to Decline
Intervention by the City of New York,” Notice of Removal Ex. A,
ECF No. 1-1 at 106-108 (filed Aug. 20, 2015).)

On July 13,

2015, Plaintiff filed a second amended complaint (“SAC”).

On

August 20, 2015, Spherion removed the case to this Court. (See
Notice of Removal, ECF No. 1 (filed Aug. 20, 2015).)

On October

9, 2015, Spherion moved to dismiss the SAC pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 9(b) for failure to state
a claim and failure to plead fraud with particularity.

On

November 10, 2016, the Court granted in part Spherion’s motion
to dismiss as to Plaintiff’s qui tam claims. (See Op. & Order,
ECF No. 70 (filed Nov. 10, 2016).)
6

First, the Court dismissed

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Plaintiff’s vicarious liability claims as barred by the public
disclosure bars of the NYS FCA and NYC FCA because Plaintiff
does not qualify as an original source. (Id. at 34.)

Second,

the Court dismissed Plaintiff’s quality assurance claims and
conflict of interest claims for failure to state claims under
the NYS FCA and NYC FCA. (Id. at 38-39.)

Third, the Court

dismissed Plaintiff’s false billing claims for failing to comply
with the heightened pleading standard of Rule 9(b). (Id. at 42.)
The Court denied Spherion’s motion to dismiss Plaintiff’s
retaliation claims. (Id. at 49.)

The Court dismissed

Plaintiff’s qui tam claims without prejudice, but noted that it
would only allow amendment if Plaintiff could demonstrate that
he is “capable of curing the deficiencies in his qui tam claims
and that justice requires granting leave to amend.” (Id.)

On

January 8, 2016, Plaintiff moved for a relator’s share of the
SAIC Settlement. (See Mot. for Relator’s Share, ECF No. 47
(filed Apr. 15, 2016).)

On March 28, 2017, the Court denied

Plaintiff’s motion, finding that absent a valid qui tam action,
Plaintiff is not entitled to a relator’s share. (See Op. &
Order, ECF No. 84 (filed Mar. 28, 2017).)
On December 12, 2016, Plaintiff moved for leave to file a
Third Amended Complaint (“TAC”). (Mot. for Leave to File TAC,
ECF No. 72 (filed Dec. 12, 2016).)

Plaintiff contended that the

TAC contained “newly alleged information” from documentary
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discovery produced by the City that was unavailable when he
filed the SAC.

On April 21, 2017, the Court denied Plaintiff

leave to amend and dismissed Plaintiff’s qui tam claims with
prejudice, finding that the proposed TAC did not remedy the
deficiencies identified in the Court’s November 10, 2016 Order.
(See Op. & Order, ECF No. 86 (filed Apr. 21, 2017).)

On August

18, 2017, Plaintiff moved pursuant to Rule 54(b) for entry of
the Orders as final judgments and to stay proceedings on his
retaliation claims during the pendency of the appeal of the
Orders.
II.
A.

Discussion
Legal Standard

Rule 54(b) provides that “[w]hen an action presents more
than one claim for relief . . . or when multiple parties are
involved,” a district court “may direct entry of a final
judgment as to one or more, but fewer than all, claims or
parties only if the court expressly determines that there is no
just reason for delay.” Fed. R. Civ. P. 54(b).

“The

determination of whether to grant Rule 54(b) certification is
committed to the discretion of the district court and will be
set aside only for an abuse of discretion.” Hogan v.
Consolidated Rail Corp., 961 F.2d 1021, 1025 (2d Cir. 1992).
The district court’s discretion, however, is to be exercised
sparingly in light of the “‘historic federal policy against
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piecemeal appeals.’” Curtiss–Wright Corp. v. General Electric
Co., 446 U.S. 1, 8 (1980) (quoting Sears, Roebuck & Co. v.
Mackey, 351 U.S. 427, 438 (1956)).

Certification under Rule

54(b) should be granted only “where there are “interest[s] of
sound judicial administration and efficiency to be served, or .
. . where there exists some danger of hardship or injustice
through delay which would be alleviated by immediate appeal.”
Hogan, 961 F.2d at 1025 (internal quotation marks and citations
omitted).
B.

Analysis

Neither Spherion nor the City1 dispute that the first two
requirements of the 54(b) standard are met:

multiple claims are

present and at least one claim has been finally decided within
the meaning of 28 U.S.C. § 1291.

Thus, the only issue that

remains is whether there is “no just reason for delay.”
To determine whether there are no just reasons for delay, a
district court “must take into account judicial administrative
interests as well as the equities involved.” Curtiss-Wright, 446
U.S. at 8.

“The exercise of this discretion is guided by

considerations such as the institutional efficiency of the
district and appellate courts, as well as any ‘undue hardship’

1

The City submitted a Memorandum of Law in Opposition to Plaintiff’s
motion for certification under Rule 54(b). (See City’s Mem. of L. in
Opp’n to Pl.’s Mot. for Entry of Final Judgment Under Rule 54(b), ECF
No. 94 (filed Sept. 20, 2017).)

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that the parties may have to suffer absent an immediate appeal.”
L-7 Designs, Inc. v. Old Navy, LLC, 964 F. Supp. 2d 299, 317
(S.D.N.Y. 2013).

Courts in this Circuit have held that

certification under Rule 54(b) is appropriate either to serve
judicial administration and efficiency or where there is some
danger of unusual hardship or injustice through delay. See In re
Gentiva Sec. Litig., 2 F. Supp. 3d 384, 387 (E.D.N.Y. 2014) (“In
other words, to prevail on a Rule 54(b) certification motion,
the moving party must satisfy one of these two prongs.”); In re
Vivendi Universal, S.A., Sec. Litig., 02 CIV. 5571(RJH), 2012 WL
362028, at *4 (S.D.N.Y. Feb. 6, 2012) (“[E]ven though the Court
has determined that judicial efficiency will not be served by
certifying a partial appeal here, the plaintiffs could still
prevail on the motion if they are able to demonstrate prejudice
. . . of such a character as to ‘offset’ the Court’s efficiency
conclusion.”).

Plaintiff has not shown that certification is

appropriate under Rule 54(b) to serve judicial administration
and efficiency or that there is some danger of undue hardship or
injustice through delay.
Plaintiff argues that equitable considerations demonstrate
no just reason for delay for several reasons including (1)
Plaintiff would suffer hardship through delay because both
Plaintiff and the Government stand to gain a large recovery for
Plaintiff’s qui tam claims, (2) this action has been pending for
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over six years, (3) there is significant public interest in an
immediate appeal, (4) Plaintiff suffered the economic hardship
of joblessness, and (5) any further delay would impose undue
hardship resulting from “an expensive and duplicative trial” if
the Second Circuit were to reverse either Order after the
retaliation claims are resolved. (Pl.’s Mem. of L. in Supp. of
Mot. for Entry of Final Judgment Pursuant to Rule 54(b) at 6-8,
ECF No. 92 (filed Sept. 20, 2017) [hereinafter Pl.’s Mem.].)
First, regarding the argument that further delay would work
an undue hardship because both Plaintiff and the Government
stand to gain a large recovery for Plaintiff’s qui tam claims, a
district court may find that there is no just reason for delay
“where a plaintiff might be prejudiced by a delay in recovering
a monetary award.” Advanced Magnetics, Inc. v. Bayfront
Partners, Inc., 106 F.3d 11, 16 (2d Cir. 1997).

However, the

Court has dismissed Plaintiff’s qui tam claims with prejudice
and denied Plaintiff’s motion for a relator’s share.

Plaintiff

has not been awarded any judgment or monetary recovery for his
qui tam claims, thus, he is not prejudiced by any delay in
payment.

In both cases Plaintiff cites in support of this

argument, Curtiss-Wright and Ginett, the district courts entered
monetary judgments in favor of plaintiffs, and the appellate
courts affirmed the district courts’ decisions to enter final
judgments under Rule 54(b) because further delay in receiving
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the adjudged payment would work undue hardship on the
plaintiffs. See Curtiss–Wright, 446 U.S. at 6 (affirming
district court decision that plaintiff would suffer severe daily
financial loss from nonpayment of $19 million judgment because
current interest rates were higher than statutory prejudgment
rate); Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1097
(2d Cir. 1992) (affirming district court’s decision to enter
final judgment after granting plaintiff’s claim for severance
pay).
Second, as to Plaintiff’s argument that public interest
weighs in favor of certifying the Orders as final judgments,
Plaintiff has failed to show how public interest would support
an immediate appeal in this action, rather than the ordinary
progression of Plaintiff’s claims.

Indeed, both the City and

New York State declined to intervene in this action and the
Court has dismissed Plaintiff’s qui tam claims.

Third, the

“economic hardship of joblessness” that Plaintiff allegedly
suffered due to his retaliatory discharge would not be
alleviated by granting Rule 54(b) certification because
Plaintiff’s interlocutory appeal would only address his qui tam
claims.

Fourth, the fact that this litigation has been pending

for six years would only be exacerbated by an immediate appeal,
as discussed below.

Fifth, and finally, Plaintiff’s argument

that any further delay would impose undue hardship resulting
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from “an expensive and duplicative trial” if the Second Circuit
were to reverse either Order after the retaliation claims are
resolved is without merit.

The mere potential for duplicative

trials should not, by itself, result in 54(b) certification,
except “in the infrequent harsh case.” In re Bayou Hedge Fund
Litig., No. 06 CV 3026 (CM), 2007 WL 2363622, at *6 (S.D.N.Y.
Aug. 16, 2007).

For example, some courts have granted

certification under Rule 54(b) to avoid “duplicative trials” in
cases with multiple defendants, some of whom have been dismissed
from the action. See, e.g., Grand River Enters. Six Nations,
Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir. 2005) (finding “danger
of hardship or injustice” in further delay where district court
dismissed antitrust claim against thirty non-New York defendants
and “it would make no sense to try the antitrust count against
New York State alone if the dismissals of the other states or
the other claims turned out to be in error”).

However, other

courts have denied motions under Rule 54(b), even in cases with
multiple defendants. See, e.g., In re Bayou Hedge Fund Litig.,
2007 WL 2363622, at *6 (denying Rule 54(b) motion where some
defendants had been dismissed because “the so-called hardship of
duplicative trials will arise in every multiple party suit in
which one of the defendants is dismissed but must await the
finality of its release until the liability of the remaining
defendants has been determined and judgment has been entered”).
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Other courts have held that “certification may be
appropriate where an expensive and duplicative trial could be
avoided if, without delaying prosecution of the surviving
claims, a dismissed claim were reversed in time to be tried with
other claims.” Building Indus. Fund. v. Local Union No. 3 Int’l
Brotherhood of Elec. Workers, 992 F. Supp. 162, 191 (E.D.N.Y.
1996) (internal quotation marks and citation omitted).

However,

even if the Second Circuit reversed the Court’s dismissal of the
qui tam claims, there is no indication that a trial on
Plaintiff’s qui tam claims would be duplicative of a trial on
his retaliation claims. See, e.g., TADCO Const. Grp. Corp. v.
Dormitory Auth. of New York, No. 08-CV-73 KAM JMA, 2012 WL
3011735, at *6 (E.D.N.Y. July 23, 2012) (denying motion for
certification under Rule 54(b) because “any second trial would
be minimally duplicative because most of the remaining” claims
had no relation to underlying facts of dismissed claims).
Indeed, Plaintiff argues that his qui tam and retaliation claims
are distinct:

“the two sets of claims ‘involve at least some

different questions of fact and law and could be separately
enforced.’” (Pl.’s Mem. at 9 (quoting Advanced Magnetics, 106
F.3d at 22).)
Plaintiff also argues that judicial administrative
interests demonstrate no just reason for delay because (1)
Plaintiff’s qui tam and retaliation claims are distinct and
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separable; (2) if the qui tam claims are to be reinstated, it is
more efficient for that reinstatement to occur in time for trial
on both claims; and (3) a reversal of either Order by the Second
Circuit would facilitate a settlement, offsetting any
possibility that an appellate court would face the same issues
on a subsequent appeal. (Pl.’s Mem. at 9-11.)

First, the mere

fact that allowing the Second Circuit to rule on the dismissed
claims may increase the possibility of settlement could be made
in many cases in which there has been a partial dismissal and
“does not provide a basis to enter a partial judgment.”
Carpenter v. City of New York, 984 F. Supp. 2d 255, 272
(S.D.N.Y. 2013).

Second, granting Plaintiff’s motion for Rule

54(b) certification and staying Plaintiff’s retaliation claims
while the appeal is pending would not “expedit[e] a final
resolution to this case.” Correspondent Servs. Corp. v. J.V.W.
Inv. Ltd., 232 F.R.D. 173, 176 (S.D.N.Y. 2005).

Rather, it

would further delay the resolution of Plaintiff’s retaliation
claims, which, as Plaintiff repeatedly points out, have been
pending for over six years.

Finally, “[n]ot all final judgments

on individual claims should be immediately appealable, even if
they are in some sense separable from the remaining unresolved
claims.” Novick v. AXA Network, LLC, 642 F.3d 304, 310 (2d Cir.
2011) (quoting Curtiss–Wright, 446 U.S. at 8).

“It does not

normally advance the interests of sound judicial administration
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or efficiency to have piecemeal appeals that require two (or
more) three-judge panels to familiarize themselves with a given
case in successive appeals from successive decisions on
~nterrelated

issues." Id. at 311 (internal quotation marks and

citation omitted).

The interests of judicial economy weigh

against allowing for a piecemeal interlocutory appeal on
Plaintiff's qui tam claims, which the Court has twice held
insufficient, and further delaying resolution of Plaintiff's
retaliation claims, which are based on events that took place
over a decade ago.

Accordingly, Plaintiff has failed to show

how the interest of judicial efficiency requires that the Court
"short-circuit the normal progression of this case." Sea Trade
Co. v. FleetBoston Fin. Corp., No. 03 CIV. 10254

(JFK), 2009 WL

4 6 6 710 2, at * 2 ( S . D. N . Y. Dec . 9, 2 0 0 9) .
CONCLUSION
For the reasons stated above,

Plaintiff's motion for

certification of the Court's Orders as final judgments under
Rule 54(b)

is DENIED.

The Clerk of Court is respectfully

directed to terminate the motion docketed at ECF No.

91.

SO ORDERED.
Dated:

New York, New York
June /_o, 2018

if4~h~n

United States District Judge

16