USA ex rel Sorenson

Filing 52

MEMORANDUM DECISION granting 45 Motion for Attorney Fees. For the reasons stated herein, Defendant is entitled to recover from Plaintiff its "reasonable attorneys' fees and expenses" under 31 U.S.C. § 3730(d)(4) . Thus, Defendant is ORDERED to, WITHIN TEN (10) DAYS, submit to the court a sworn and itemized statement showing 1) the actual time expended and the rate at which fees were computed and 2) anyexpenses for which it is seeking reimbursement. Signed by Judge Clark Waddoups on 2/3/21. (jwt)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

UNITED STATES OF AMERICA,
ex rel., KELLY E. SORENSON,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER GRANTING
DEFENDANT’S MOTION TO AWARD
FEES AND COSTS

vs.
WADSWORTH BROTHERS
CONSTRUCTION COMPANY, INC.,

Case No. 2:16-cv-875
Judge Clark Waddoups

Defendant.
Before the court is Defendant Wadsworth Brothers Construction Company, Inc.’s motion
to award fees and costs (ECF No. 45) which asks the court to reward Defendant its fees and
expenses incurred in this matter pursuant to 31 U.S.C. § 3730(g) or 31 U.S.C. § 3730(d)(4). The
motion has been fully briefed, and a hearing was not requested. Having reviewed the pleadings
and materials submitted, the court GRANTS Defendant’s motion.
Plaintiff Kelly E. Sorenson initiated this qui tam action against Defendant by Complaint
filed on August 11, 2016, alleging that Defendant violated the False Claims Act (the “FCA”) and
asserting five causes of action against Defendant: 1) fraudulent claim; 2) false record; 3)
conspiracy to defraud; 4) false receipt; and 5) retaliation. (See ECF No. 1). The United States
ultimately declined to proceed with this action but remained the real party in interest in the
matter. (See ECF Nos. 13 & 21.) On June 5, 2019, the court, on Defendant’s motion, dismissed
Plaintiff’s claims of fraudulent claim, false record, conspiracy to defraud, and false receipt. (See
ECF No. 24). Then on December 10, 2020, the court granted Defendant summary judgment on
Plaintiff’s remaining claim of retaliation. (See ECF No. 41). On that same date, the court

entered judgment in Defendant’s favor and closed this action. (See ECF No. 42). Defendant
now moves the court to award it the fees and costs it incurred in defending this matter pursuant
to 31 U.S.C. § 3730(g) and/or 31 U.S.C. § 3730(d)(4).
A. Defendant is not entitled to recover fees and expenses under 31 U.S.C. § 3730(g).
Defendant argues that it is entitled to recover its fees and expenses under 31 U.S.C. §
3730(g). That statute simply recognizes that the provisions of 28 U.S.C. § 2412(d) apply to civil
actions brought under the FCA by the United States. In relevant part, 28 U.S.C. § 2412(d)
requires a defendant seeking to recover its fees to file an “application for fees and other expenses
which shows that [it] is a prevailing party and is eligible to receive an award under this
subsection, and the amount sought, including an itemized statement from any attorney or expert
witness representing or appearing in behalf of the party stating the actual time expended and the
rate at which fees and other expenses were computed” within “thirty days of final judgment in
the action.” Here, final judgment was entered in this action on December 10, 2020 (ECF No.
42), and Defendant filed its motion for fees twenty-nine days later, on January 8, 2021.
However, its motion does not contain how much it is seeking or “an itemized statement from any
attorney . . . stating the actual time expended and the rate at which fees and other expenses were
computed.” While Defendant offers to provide such information if its motion is granted, as it
believes that is the “more appropriate” time to do so, (see ECF No. 45 at p. 5) that course of
action does not comply with the plain requirements of 28 U.S.C. § 2412(d) and does not
therefore entitle Defendant to recover the relief he seeks under 31 U.S.C. § 3730(g).
B. Defendant is entitled to recover fees and expenses under 31 U.S.C. § 3730(d)(4).
Defendant offers an alternative argument that it is also entitled to recover its fees and
expenses under 31 U.S.C. § 3730(d)(4). In relevant part, that statute provides that in an action in
which the United States chooses not to proceed, “the court may award to the defendant its
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reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds
that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or
brought primarily for purposes of harassment.”
As a preliminary matter, Defendant has prevailed in this action as required by 31 U.S.C.
§ 3730(d)(4). It obtained dismissal of four of Plaintiff’s five claims and then obtained summary
judgment on the remaining claim. (See ECF Nos. 24 & 41). Judgment has been entered in
Defendant’s favor, and this action has been closed. (See ECF No. 42).
While the terms “clearly frivolous, clearly vexatious, or brought primarily for purposes of
harassment” are not defined in the FCA, the Tenth Circuit has relied on Supreme Court guidance
to find that an award of fees and expenses is proper under § 3730(d)(4) when the plaintiff’s claim
“‘was frivolous, unreasonable, or groundless, or [when] the plaintiff continued to litigate after
it clearly became so.’” See In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d 1010, 1018 (10th
Cir. 2017) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)); see also
U.S. ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1058–59 (10th Cir. 2004). In making this
determination, the court must “review the entire course of the litigation.” Praxair, Inc., 389 F.3d
at 1059 (citing Christiansburg Garment Co., 434 U.S. at 421–22).
After reviewing the entire course of this action, the court finds that Plaintiff’s claims
were clearly frivolous. As discussed more fully in the court’s order granting, in part,
Defendant’s motion to dismiss (ECF No. 24), Plaintiff’s claims of fraudulent claim, false record,
conspiracy to defraud, and false receipt were conclusory, unsupported, and/or baseless.
Similarly, as recognized in the court’s order granting Defendant summary judgment (ECF No.
41), Plaintiff’s remaining claim of retaliation was meritless because he failed to communicate to
Defendant that it was accusing it of violating the FCA and because Defendant has not retaliated

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against him. In sum, the record before the court shows that Plaintiff’s claim that he was not paid
his proper Davis-Bacon wages is unsupported (and was heard, assessed, and dismissed in its
entirety by the Third Judicial District Court of Salt Lake County (see ECF No. 41 at ¶ 10)), that
Plaintiff failed to properly inform Defendant of his allegations, and that he was terminated, along
with all other truck drivers on the job, because the work he was hired to do was ending. 1
Bringing these claims in light of these facts, and then continuing to litigate them after those facts
were made indisputably clear, was frivolous.
Having found that Plaintiff’s action was frivolous, the court need not analyze whether it
was also “clearly vexatious[] or brought primarily for purposes of harassment.” A finding of any
of the three elements of 31 U.S.C. § 3730(d)(4) is sufficient to independently justify an award of
fees and expenses. See In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d at 1017–18.
For the reasons stated herein, Defendant is entitled to recover from Plaintiff its
“reasonable attorneys’ fees and expenses” under 31 U.S.C. § 3730(d)(4). Thus, Defendant is
ORDERED to, WITHIN TEN (10) DAYS, submit to the court a sworn and itemized statement
showing 1) the actual time expended and the rate at which fees were computed and 2) any
expenses for which it is seeking reimbursement.

DATED this 3rd day of February, 2021.
BY THE COURT:

_________________________________
Clark Waddoups
United States District Judge

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Defendant argues that the fact that the United States chose not to proceed with this action is proof of its
frivolousness. The court disagrees, noting that on its face 31 U.S.C. § 3730(d)(4) only applies to actions on which the
“Government does not proceed.” More than just the United States’ decision to not proceed with an action is therefore
needed to establish the frivolousness of an action.

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