United States of America v. Scott Thompson d/b/a Isosceles LLC

Filing 44

ORDER denying 30 Motion for Reconsideration; denying 31 Motion for Discovery; denying 30 Motion to Extend Deadlines; denying 33 Motion to Stay; denying 41 Motion to Stay; granting 12 Motion for Summary Judgment; granting 23 Motion to Dismiss; denying as moot 27 Motion. Signed by Chief Judge Jeffrey L. Viken on 8/30/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 15-5060-JLV

UNITED STATES OF AMERICA,
Plaintiff,

ORDER

vs.
SCOTT THOMPSON, Individually, and
d/b/a ISOSCELES LLC,
Defendant.

The United States government initiated this action against defendant Scott
Thompson.

(Docket 1).

The government’s complaint advances four causes of

action: False Claims Act (“FCA”) violations, common law fraud, unjust
enrichment and payment by mistake.

Id. at pp. 6-8.

pro se, filed an answer and counterclaims.

Defendant, proceeding

(Docket 20).

The government filed

a motion for summary judgment and a motion to dismiss defendant’s
counterclaims.

(Dockets 12 & 23).

Defendant filed several other motions,

including motions related to amending an earlier brief, reconsideration of a prior
motion, discovery matters and staying the case.

(Dockets 27, 30, 31, 33 & 41).

FACTS
The following recitation consists of the material facts developed from the
government’s complaint (Docket 1), defendant’s answer (Docket 20), the
government’s statement of undisputed material facts (Docket 14) and
defendant’s response.

(Docket 22).

The National Science Foundation (“NSF”) is a United States agency
Congress created “to initiate and support basic scientific research and other
scientific programs by providing grants, loans[] and other forms of financial
assistance to individuals, businesses and academic and nonprofit institutions.”
(Docket 14 ¶ 1) (citing 42 U.S.C. § 1862).

Individuals can “send grant

applications to the NSF, which disburses congressionally appropriated funds” to
approved projects.

Id. ¶ 2.

Dating back to 1996, defendant “submitted many

requests for grants from the NSF . . . .”

Id. ¶ 3.

Defendant met South Dakota State University (“SDSU”) Professor Qiquan
Qiao and “agreed to take [Dr. Qiao’s] project1 and place it under a limited liability
corporation (LLC) . . . named ‘Isosceles LLC.’ ”

Id. ¶¶ 4-5.

Defendant formed

Isosceles LLC, which was a Virginia LLC and “whose registered agent was Kelly
Holye, [defendant’s] sister,” before the corporation dissolved.

Id.

“On or about

June 23, 2009, NSF awarded [defendant’s] LLC, Isosceles LLC, $150,000 for the
project . . . .”

Id. ¶ 9.

“The award funds were to be paid to Isosceles LLC in two

installments: two-thirds at the beginning of the award performance period upon
submission of a request for initial payment, and one-third upon completion of
the project and NSF’s approval of a final project report.”

Id.

After the grant was approved, defendant “submitted a request [to the NSF]
via the internet for initial payment [of] the money approved for the project . . . .”

1The

project was named “Full Spectrum Conjugated Polymers for Highly
Efficient Polymer Photovoltaics.” Id. ¶ 4. The court refers to it as “the project.”
2

Id. ¶ 6.

In this initial payment request, defendant claimed to the NSF that Jing

Li, an SDSU post-doctorate candidate, was employed as the project’s principal
investigator.

Id. ¶ 7; (Docket 14-1 at p. 2).

Defendant claimed Mr. Li’s primary

employment was with Isosceles LLC, Mr. Li would continue to conduct the
research proposed in the initial proposal to the NSF, and Mr. Li was available at
that time to perform the proposed work.

(Docket 14-1 at p. 2).

Relying on

defendant’s representations, the NSF provided $100,000 of the grant to Isosceles
LLC.

(Docket 14 ¶ 10).

Based on defendant’s conduct in handling the grant,

he was indicted and a jury convicted him of making false claims in violation of
18 U.S.C. § 287.

(Dockets 14 ¶¶ 17-19 & 14-1 at pp. 2-3).

Defendant made

these claims to the NSF in documents and on that basis the jury convicted him of
submitting false documents to an agency of the United States in violation of
18 U.S.C. § 1001.

(Dockets 14 ¶¶ 17-19 & 14-1 at pp. 4-5).

Defendant submitted the project’s final report to the NSF on or about
January 14, 2010.

(Dockets 14 ¶ 12 & 14-1 at p. 2).

In the final report,

defendant claimed Mr. Li was employed as the principal investigator for Isosceles
LLC and Mr. Li worked more than 160 hours on the project.
p. 3).

(Docket 14-1 at

Based on these claims in the final report, a jury convicted defendant of

making false claims in violation of 18 U.S.C. § 287 and submitting false
documents to an agency of the United States in violation of 18 U.S.C. § 1001.
(Docket 14 ¶¶ 17-19).

3

The jury also convicted defendant of two counts of fraud by
wire—violations of 18 U.S.C. § 1343—for using the internet when submitting his
initial payment request and final report to the NSF.
pp. 6-7).

Id.; (Docket 14-1 at

Defendant’s jury trial resulted in an additional conviction for receiving

stolen government money, namely the $100,000 in NSF grant money, which
violates 18 U.S.C. § 641.

(Dockets 14 ¶¶ 17-19 & 14-1 at p. 7).

This court sentenced defendant to five years of probation on each count of
conviction, the probationary terms to run concurrently.

(Docket 1-1 at p. 2).

The court ordered defendant to pay $87,637.89 in restitution—$32,486.86 to
SDSU and $55,151.03 to the NSF.

Id. at p. 4.

DISCUSSION
I.

SUMMARY JUDGMENT
The government argues the court should grant summary judgment on its

FCA claim pursuant to Federal Rule of Civil Procedure 56(a).

(Dockets 12 & 13).

Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if the
movant can “show that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

Once the moving party meets its burden, the nonmoving party may not rest on
the allegations or denials in the pleadings, but rather must produce affirmative
evidence setting forth specific facts showing that a genuine issue of material fact
exists.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

Only

disputes over facts that might affect the outcome of the case under the governing
4

substantive law will properly preclude summary judgment.

Id. at p. 248.

“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”

Id. at 247-48

(emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party, then
summary judgment is not appropriate.

Id.

However, the moving party is

entitled to judgment as a matter of law if the nonmoving party failed to “make a
sufficient showing on an essential element of [his] case with respect to which [he]
has the burden of proof.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In such a case, “there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”

Id. at p. 323.

In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587-88 (1986).

The key inquiry is “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
at pp. 251-52.

5

Anderson, 477 U.S.

The government bases its first cause of action on the FCA.
p. 6).

(Docket 1 at

The FCA imposes liability on a person who “knowingly presents, or causes

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

At § 3731(e) the FCA codifies the principle of collateral

estoppel:
Notwithstanding any other provision of law, the Federal Rules of
Criminal Procedure, or the Federal Rules of Evidence, a final
judgment rendered in favor of the United States in any criminal
proceeding charging fraud or false statements, whether upon a
verdict after trial or upon a plea of guilty or nolo contendere, shall
estop the defendant from denying the essential elements of the
offense in any action which involves the same transaction as in the
criminal proceeding and which is brought under subsection (a) or (b)
of section 3730.
31 U.S.C. § 3731(e).

The government brought this case under § 3730(a), which

directs the federal government to initiate civil actions for violations of § 3729.
If defendant’s conviction establishes the essential elements of a FCA claim,
§ 3731(e) precludes him from denying those elements.

See United States v.

Munoz-Escalante, No. 5:14-CV-05085, 2015 WL 6158021, at *1-3 (D.S.D. Oct.
20, 2015).

A prima facie case under § 3729(a)(1) requires the government to

prove “that (1) the defendant made a claim against the United States; (2) the
claim was false or fraudulent; and (3) the defendant knew the claim was false or
fraudulent.”

United States ex rel. Quirk v. Madonna Towers, Inc., 278 F.3d

765, 767 (8th Cir. 2002).

“To act ‘knowingly’ under the [FCA], a person must

(1) have actual knowledge of the information, (2) act in deliberate ignorance of
the truth or falsity of the information, or (3) act in reckless disregard of the truth
6

or falsity of the information.”
31 U.S.C. § 3729(b)).
required.”

Munoz-Escalante, 2015 WL 6158021, at *2 (citing

“No proof of specific intent to defraud the government is

Quirk, 278 F.3d at 767 (citing 31 U.S.C. § 3729(b)).

intent is the knowing presentation of what is known to be false.
claim must be a lie.”

“The requisite
In short, the

Munoz-Escalante, 2015 WL 6158021, at *2 (citing Hindo

v. Univ. of Health Sci./Chi. Med. Sch., 65 F.3d 608, 613 (7th Cir. 1995) (internal
quotation marks omitted)).
Convictions for different offenses can estop a party from denying the
elements of a FCA claim.2 In United States v. Aleff, the United States Court of
Appeals for the Eighth Circuit affirmed a district court’s determination that a
conviction for “submitting false applications for loan-deficiency payments in
violation of 18 U.S.C. § 286[]” precluded the defendant from denying the
essential elements of the FCA claim the government brought following the
conviction.

United States v. Aleff, 772 F.3d 508, 510-11 (8th Cir. 2014).

In

United States v. Karron, a jury convicted Ms. Karron of misapplying federal grant
funds in violation of 18 U.S.C. § 666.
480, 484-86 (S.D.N.Y. 2011).

United States v. Karron, 750 F. Supp. 2d

The court determined Ms. Karron’s “prior

criminal conviction precludes her from denying the essential elements” of the
government’s FCA claim.

Id. at 488.

The defendants in Munoz-Escalante pled

guilty to making false statements, violations of 18 U.S.C. § 1001, and the district
2See

United States v. FastTrain II Corp., No. 12-Civ-21431, 2017 WL
606346, at *5 n.7 (S.D. Fla. Feb. 15, 2017) (collecting cases).
7

court concluded those convictions estopped the defendants from contesting a
FCA claim’s essential elements.

Munoz-Escalante, 2015 WL 6158021, at *1-3.

In this case, defendant’s convictions preclude him from denying the
essential elements of the government’s FCA claim.

Defendant’s pertinent

convictions are counts two and three, false claims in violation of 18 U.S.C. § 287,
and counts five and six, violating 18 U.S.C. § 1001 by submitting false
documents.

(Docket 14-1 at pp. 1-5); (CR. 11-50054, Dockets 208 at pp. 6-11 &

217 at pp. 1-2).3 The statute underlying counts two and three provides:
Whoever makes or presents to any person or officer in the civil,
military, or naval service of the United States, or to any department
or agency thereof, any claim upon or against the United States, or
any department or agency thereof, knowing such claim to be false,
fictitious, or fraudulent, shall be imprisoned not more than five
years and shall be subject to a fine in the amount provided in this
title.
18 U.S.C. § 287.
In defendant’s criminal case, the court instructed the jury on counts two
and three as follows:
Count 2:

On or about June 23, 2009, after the grant was
approved, Scott Thompson claimed Jing Li was
employed as the Principal Investigator, that Jing Li’s
primary employment was with Isosceles LLC and he
would continue to conduct the research proposed in the
Initial Proposal to the National Science Foundation and
that he was available at that time to perform the
proposed work, knowing those claims were false in that

3Counts

six and seven in the superseding indictment (Docket 14-1 at
pp. 1-5) became counts five and six in the jury instructions and verdict form.
(CR. 11-50054, Dockets 208 at pp. 6-11 & 217 at pp. 1-2). The court refers to
the counts using the numbering on the jury instructions and verdict form.
8

Jing Li was not an employee of Isosceles LLC, could not
continue working on the research and was not available
to perform the proposed work.
Count 3:

On or about January 14, 2010, in the final report for the
period June 2009 to June 2010, Scott Thompson
claimed Jing Li was employed as the Principal
Investigator for Isosceles LLC for the project titled “Full
Spectrum Conjugated Polymers for Highly Efficient
Polymer Photovoltaics,” and that Jing Li had worked
more than 160 hours on the project knowing the claims
were false in that Jing Li was not an employee of
Isosceles LLC and had not worked 160 hours on the
project.

(CR. 11-50054, Docket 208 at p. 6).
As to counts two and three, the jury found defendant guilty of making a
false claim.

(CR. 11-50054, Docket 217 at p. 1).

These convictions establish

the essential elements of the FCA claim the government advances now.
Aleff, 772 F.3d at 510-11.

See

Defendant knowingly presented false claims to the

government in order to receive funds from the NSF.

Based on the false claim

criminal statute, 18 U.S.C. § 287, and the jury’s conviction of defendant on
counts two and three, the court finds defendant is precluded from denying the
essential elements of the government’s FCA claim.

See 31 U.S.C. § 3731(e); see

also Aleff, 772 F.3d at 510-11.
Turning to counts five and six, defendant’s conviction for submitting false
documents to the government, the underlying statute provides:
[W]hoever, in any matter within the jurisdiction of the executive,
legislative, or judicial branch of the Government of the United
States, knowingly and willfully-9

(1) falsifies, conceals, or covers up by any trick, scheme, or
device a material fact;
(2) makes any materially false, fictitious, or fraudulent
statement or representation; or
(3) makes or uses any false writing or document knowing the
same to contain any materially false, fictitious, or fraudulent
statement or entry;
shall be fined under this title, imprisoned not more than 5 years
....
18 U.S.C. § 1001.
The court’s jury instructions on counts five and six included largely
similar factual content regarding Jing Li, but the counts have independent
requirements relating to the documents defendant submitted—the initial
proposal and final report.

(CR. 11-50054, Docket 208 at pp. 9-10).

Specifically, the counts required that defendant “voluntarily and intentionally
made or used a writing or document” which “contained a false, fictitious or
fraudulent statement” that defendant knew was false.
found defendant guilty of counts five and six.
p. 2).

Id. at p. 10.

The jury

(CR. 11-50054, Docket 217 at

These convictions embrace the essential elements of the government’s

FCA claim.

See Munoz-Escalante, 2015 WL 6158021, at *1-3 (finding

convictions of 18 U.S.C. § 1001 estopped defendants from denying FCA claims).
Defendant knowingly submitted documents containing false statements to the
NSF to receive funds.

Based on defendant’s convictions on counts five and six,

the court finds defendant is precluded from denying the essential elements of the

10

government’s FCA claim.

See 31 U.S.C. § 3731(e); see also Munoz-Escalante,

2015 WL 6158021, at *1-3.
Defendant argues collateral estoppel should not apply in this case.
(Docket 21 at pp. 8-11).

He asserts collateral estoppel is inapplicable because

there is not a final judgment in his criminal case.

Id. at p. 9.

This is incorrect

because a jury convicted defendant, this court sentenced him and defendant did
not appeal.

(Dockets 14 ¶¶ 17-19 & 1-1); see United States v. Ferro, 321 F.3d

756, 759 (8th Cir. 2003) (stating “final decisions” that are appealable “exist[] only
after conviction and sentencing[]”).
Relying on Federal Rule of Civil Procedure 60(b), defendant claims
summary judgment is not proper because the government committed fraud.
(Docket 21 at p. 4).

“To prevail on a Rule 60(b)(3) motion, [litigants] must show,

‘with clear and convincing evidence, that the opposing party engaged in a fraud
or misrepresentation that prevented the movant from fully and fairly presenting
its case.’ ”

Harley v. Zoesch, 413 F.3d 866, 870 (8th Cir. 2005) (quoting

Atkinson v. Prudential Property Co., 43 F.3d 367, 372-73 (8th Cir. 1994)).

“A

finding of fraud on the court is justified only by the most egregious misconduct
directed to the court itself, such as bribery of a judge or jury or fabrication of
evidence by counsel. . . .”

Greiner v. City of Champlin, 152 F.3d 787, 789 (8th

Cir. 1998) (emphasis added) (internal quotation marks and citations omitted).
Whether or not Rule 60 is relevant to this discussion, defendant has not made
the showing of fraud the case law requires.
11

Defendant argues summary judgment is not warranted because the
government has “unclean hands.”

(Docket 21 at pp. 4-5). “Before [a court] can

apply an equitable doctrine, [it] must determine ‘whether he who seeks equity
has done equity.’ ” Smith v. World Ins. Co., 38 F.3d 1456, 1462 (8th Cir. 1994)
(quoting Prow v. Medtronic, Inc., 770 F.2d 117, 122 (8th Cir. 1985)). “This is
part of the doctrine of unclean hands.” Id. (internal quotation marks omitted).
“A party seeking equity in the court must do equity, including entering the court
with clean hands.” Strong v. Atlas Hydraulics, Inc., 855 N.W.2d 133, 139 (S.D.
2014) (internal quotation marks omitted). Defendant fails to demonstrate how
the government’s conduct gives it unclean hands.
Because defendant is precluded from denying the essential elements of the
government’s FCA claim, and defendant does not present a contrary argument,
there are no genuine disputes of material fact. See Aleff, 772 F.3d at 510-11;
Munoz-Escalante, 2015 WL 6158021, at *1-3. The court finds summary
judgment in favor of the government on its FCA claim is proper.4
II.

DAMAGES
The government seeks damages based on its FCA cause of action.

(Docket 1 at pp. 8-9).

Someone who violates the FCA “is liable to the United

States Government for a civil penalty of not less than $5,000 and not more than
$10,000 . . . plus 3 times the amount of damages which the Government

4The

government’s summary judgment motion does not mention its
remaining causes of action, so the court does not address them.
12

sustains because of the act of that person.”

31 U.S.C. § 3729(a)(1).

“[T]he

measure of the government’s damages would be the amount that it paid out by
reason of the false statements over and above what it would have paid if the
claims had been truthful.”

United States v. Coop. Grain & Supply Co., 476 F.2d

47, 62 (8th Cir. 1973) (internal quotation marks omitted); see United States v.
Peters, 927 F. Supp. 363, 368 (D. Neb. 1996) (citing Coop. Grain & Supply for
this proposition); Munoz-Escalante, 2015 WL 6158021, at *4 (same).

“The civil

penalty is determined by counting ‘[e]ach individual false claim or statement
. . . .’ ”

Munoz-Escalante, 2015 WL 6158021, at *4 (quoting United States ex rel.

Schwedt v. Planning Research Corp., 59 F.3d 196, 199 (D.C. Cir. 1995)).
Under the FCA, defendant is liable for $222,362.11.

The government

disbursed $100,000 based on claims from defendant a jury found were false.
(Dockets 14 ¶ 10 & 1-4).
figure to $300,000.

Under 31 U.S.C. § 3729(a), the court must triple that

See Peters, 927 F. Supp. at 368 (“[S]ection 3729(a) requires

the imposition of treble damages.”).

As to the civil penalties, the court must

determine “the number of false claims for which this statutory penalty should be
assessed . . . .”

Hays v. Hoffman, 325 F.3d 982, 992-93 (8th Cir. 2003).

The

Hays court noted “the [United States Supreme] Court held ‘that the focus in each
case [must] be upon the specific conduct of the person from whom the
Government seeks to collect the statutory forfeitures . . . .’ ”
States v. Bornstein, 423 U.S. 303, 312-13 (1976)).

Id. (quoting United

Two specific instances of

defendant’s conduct—the initial report and final report—relate to the FCA cause
13

of action, so defendant is liable for two $5,000 civil penalties, totaling in $10,000.
See id.
When the court sentenced defendant, it ordered him to pay $87,637.89 in
restitution.

(Docket 1-1 at p. 4).

take that into account.

The court’s damage award in this case must

See United States v. Eghbal, 475 F. Supp. 2d 1008,

1012 (C.D. Cal. 2007) (subtracting restitution from FCA damages);
Munoz-Escalante, 2015 WL 6158021, at *4 (same).

The proper damage award

is $310,000, the treble damage figure plus the civil penalties, “less any amount
that [defendant] has paid or will pay to the Government in restitution.”
750 F. Supp. 2d at 493.

Karron,

Consequently, defendant must pay the government

$222,362.11—which is $310,000 minus $87,637.89.5
III. MOTION TO DISMISS COUNTERCLAIMS
Defendant’s answer to the government’s complaint sets forth seven
counterclaims.

(Docket 20 at pp. 13-20).

Four of the counterclaims allege

violations of defendant’s civil rights under 42 U.S.C. § 1983 or a conspiracy to
violate those rights.

Id. at pp. 13-18.

Defendant grounds two of the other

three counterclaims in South Dakota law.

Id. at pp. 18-20.

is brought under the Federal Tort Claims Act.

One counterclaim

Id. at pp. 18-19.

Each

counterclaim relates to defendant’s prior criminal jury trial that resulted in his
seven convictions, and each is aimed at the prosecutors who tried the criminal
5Because

the government has remaining causes of action, the court will
not enter a judgment on damages until the case is completely resolved. See Fed.
R. Civ. P. 54(b).
14

case.

Id. at pp. 9-20.6 The government moves to dismiss the counterclaims

under Rule 12(b)(6) of the Federal Rules of Civil Procedure because they fail to
state a claim upon which the court can grant relief.

(Docket 23).

Absolute immunity shields prosecutors from civil liability “for
prosecutorial functions such as the initiation and pursuit of a criminal
prosecution, the presentation of the [government’s] case, and other conduct that
is intimately associated with the judicial process.”
F.3d 762, 768 (8th Cir. 2003).

Anderson v. Larson, 327

“ ‘[A]ctions connected with initiation of

prosecution, even if those actions are patently improper’ are immunized.”
Schenk v. Chavis, 461 F.3d 1043, 1046 (8th Cir. 2006) (quoting Williams v.
Hartje, 827 F.2d 1203, 1208 (8th Cir. 1987)).

“However, purely administrative

or investigative actions that do not relate to the initiation of a prosecution do not
qualify for absolute immunity.”
259, 273 (1993)).

Id. (citing Buckley v. Fitzsimmons, 509 U.S.

In that case, the prosecutor’s immunity is qualified.

Anderson, 327 F.3d at 768.

See

“To determine whether an action is prosecutorial,

investigatory or administrative, the court must look to the ‘nature of the function
6Ordinarily,

the causes of action defendant advances in these
counterclaims would arise in a case where a complaint names specific people
who allegedly violated an individual’s rights. Because the government filed this
lawsuit against defendant, his counterclaims simply refer to a “plaintiff,” but
their content is clear: he seeks to hold the prosecutors from his criminal case
liable. The prosecutors in the case were both Assistant United States Attorneys.
To the extent defendant attempts to hold liable the federal agents who
investigated and prosecuted his criminal case, that would function as a suit
against the United States, which sovereign immunity blocks. See Walker v.
Harmon, Civ. 15-5037, 2016 WL 5376185, at *2-3 (D.S.D. Sept. 26, 2016), aff’d
No. 16-3928, 2017 WL 2399464 (8th Cir. June 2, 2017).
15

performed, not the identity of the actor who performed it.’ ”
Forrester v. White, 484 U.S. 219, 229 (1987)).

Id. (quoting

“The procedural difference

between the absolute and the qualified immunities is important.

An absolute

immunity defeats a suit at the outset, so long as the official’s actions were within
the scope of the immunity.

The fate of an official with qualified immunity

depends upon the circumstances and motivations of his actions, as established
by the evidence at trial.”

Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976).

Defendant’s statement of his counterclaims makes it clear he seeks to hold
the prosecutors from his criminal case liable for their conduct in “the initiation
and pursuit of a criminal prosecution, the presentation of the [government’s]
case, and other conduct that is intimately associated with the judicial process.”
Anderson, 327 F.3d at 768.

In setting out the facts supporting his

counterclaims, defendant includes sections titled “Officers of the Court Acting in
Bad Faith” and “Willful Perjury and Subornation of Perjury by Officers of the
Court,” both of which defendant directs at the prosecutors in his criminal case.
(Docket 20 at pp. 9-12).

Defendant boils down his counterclaims to the

following description:
This counter claim seeks redress against Plaintiff for unlawful and
egregious conduct in (1) falsely accusing Scott Thompson of
committing fraud when they knew the allegations were completely
untrue, (2) manufacturing and using false material evidence to
secure an indictment and convictions, (3) suborning and providing
perjured testimony to secure an indictment and convictions, (4)
causing permanent and irreparable harm to Scott Thompson’s
mental wellbeing.

16

Id. at p. 12.

Each counterclaim echoes these fundamental allegations aimed at

the prosecutors.

Id. at pp. 13-20.

Defendant’s counterclaims target conduct

he believes is unlawful, but absolute immunity protects that conduct.
Anderson, 327 F.3d at 768.

See

To the extent that defendant focuses on the

prosecutor’s interactions with witnesses, that conduct is immunized.
Reasonover v. St. Louis Cty., Mo., 447 F.3d 569, 580 (8th Cir. 2006) (holding a
prosecutor’s interviewing of a witness “was prosecutorial and not police work”
and was protected by absolute immunity).

The court finds defendant’s

counterclaims fail because the individuals he attempts to hold liable are immune
from suit.

See Parson v. McCann, 138 F. Supp. 3d 1086, 1105 (D. Neb. 2015)

(“[E]ven if the actions are ‘patently improper’ or made ‘in a consciously malicious
manner, or vindictively, or without adequate investigation, or in excess of [the
prosecutor’s] jurisdiction[,]’ ” the actions are absolutely immune from civil
liability”) (quoting Williams, 827 F.2d at 1208-09); Rayhons v. Brunes, No.
16-CV-3084, 2016 WL 4975205, at *4 (N.D. Iowa Sept. 16, 2016).
Because the prosecutors are immune from liability on defendant’s
counterclaims, the court finds the counterclaims fail to state a claim upon which
the court can grant relief and warrant dismissal under Rule 12(b)(6).

See

Parson, 138 F. Supp. 3d at 1118 (grounding in Rule 12(b)(6) a dismissal of claims
blocked by absolute immunity); Mangiafico v. Blumenthal, 358 F. Supp. 2d 6, 28
(D. Conn. 2005) (same).

17

IV.

DEFENDANT’S REMAINING MOTIONS
Defendant filed a motion for the court to reconsider its order denying his

earlier motion to dismiss the complaint for fraud.

(Docket 30).

The court

stated the high standard defendant must meet to show fraud on the court.
supra at pp. 10-11; (Docket 28 at pp. 1-2).

See

Defendant’s motion for

reconsideration does not meet that standard, so it is denied.
Although discovery has not fully commenced in this case, defendant filed a
motion relating to matters he believes should be included in discovery.
31).

(Docket

This motion is premature and touches on an issue the parties must

attempt to resolve once discovery begins in full.
Defendant filed two motions to stay the case.

(Dockets 33 & 41).

He

claims the court should grant a stay because he has a pending habeas claim
related to his criminal case.

“The proponent of a stay bears the burden of

establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997); see
Kreditverein der Bank Austria v. Nejezchleba, 477 F.3d 942, 948 (8th Cir. 2007)
(citing Jones for this proposition). A “district court ha[s] the inherent power to
grant [a] stay in order to control its docket, conserve judicial resources, and
provide for a just determination of the cases pending before it.” Contracting
Northwest, Inc. v. City of Fredericksburg, Iowa, 713 F.2d 382, 387 (8th Cir.
1983); Gen. Mills Mktg. v. Fritsch GmbH, No. 11-2099, 2012 WL 12894829, at *2
(D. Minn. Apr. 17, 2012) (citing Contracting Northwest for this proposition).
Defendant has not met his burden of demonstrating the need for a stay.
court finds a stay is not necessary.
18

The

ORDER
Based on the above analysis, it is
ORDERED that the government’s motion for summary judgment on its
FCA claim (Docket 12) is granted.
IT IS FURTHER ORDERED that the government’s motion to dismiss
defendant’s counterclaims (Docket 23) is granted.

The court dismisses

defendant’s counterclaims with prejudice.
IT IS FURTHER ORDERED that defendant’s motion to file an amended
brief (Docket 27) is denied as moot.
IT IS FURTHER ORDERED that defendant’s remaining motions (Dockets
30, 31, 33 & 41) are denied.
Dated August 30, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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