Carter v. Halliburton Co. et al
Filing
144
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 05/25/16. (kgra, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES ex rel.
BENJAMIN CARTER,
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Plaintiff,
v.
HALLIBURTON CO.,
ET AL.,
Defendants.
1:11-cv-602 (JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on qui tam Relator
Benjamin Carter’s motion to supplement the appellate record
pursuant to Federal Rule of Appellate Procedure 10(e).
141.]
[Dkt.
For the following reasons, the Court will deny the
motion.
I.
Background
The facts and complex procedural history of this case
are described in full in the Court’s many memorandum opinions
addressing qui tam Relator Benjamin Carter’s (“Carter”)
allegations that defense contractors submitted false claims to
the Government in violation of the False Claims Act (“FCA”), 31
U.S.C. §§ 3729-3733.
That history is repeated here only to the
extent necessary to resolve the present motion.
1
The Court of Appeals for the Fourth Circuit1 and the
United States Supreme Court2 remanded Carter’s case for this
Court to determine how to apply the FCA’s first-to-file bar3 to
Carter’s timely allegations that Defendants submitted false
claims to the Government.
On remand, Defendants moved to
dismiss the case with prejudice, arguing that the FCA’s firstto-file bar requires dismissal and the statute of limitations
and repose would prevent the filing of a new lawsuit.
Carter
responded by requesting leave to amend, arguing that by amending
his complaint he could avoid the first-to-file bar because no
related cases are currently pending.
After careful consideration, the Court concluded that
the first-to-file bar would continue to bar Carter’s complaint,
even if he was granted leave to amend.
See United States ex
rel. Carter v. Halliburton Co., No. 11-cv-602, 2015 WL 7012542,
at *13 (E.D. Va. Nov. 12, 2015) (“[A]n amended complaint does
not save a qui tam suit that was barred when the relator filed
the initial complaint.”).
Thus, the Court denied leave to amend
1
United States ex rel. Carter v. Halliburton, 612 F. App’x
180, 181 (4th Cir. 2015) (remanding to this Court for
“proceedings consistent with the Supreme Court’s opinion” that
“dismissal with prejudice of respondent’s one live claim was not
called for under the first-to-file rule.”).
2
Kellogg Brown & Root Servs., Inc. v. United States ex rel.
Carter, 135 S. Ct. 1970 (2015), rev’g in part, aff’g in part
United States ex rel. Carter v. Halliburton Co., 710 F.3d 171
(4th Cir. 2013), rev’g No. 1:11-cv-602, 2011 WL 6178878 (E.D.
Va. Dec. 12, 2011).
3
See 31 U.S.C. § 3730(b)(5).
2
as futile and dismissed the case without prejudice.
The Court
declined to reach the issues of whether the statute of
limitations or repose would bar refiling a new case.
Carter then filed a motion to reconsider this Court’s
judgment.
The Court denied the motion and reasserted that “the
first-to-file bar applies to Relator’s current Complaint and
would continue to apply to Relator’s Amended Complaint.”
United
States ex rel. Carter v. Halliburton Co., No. 1:11-cv-602, 2016
WL 634656, at *7 (E.D. Va. Feb. 17, 2016).
The Court did modify
its prior memorandum opinion, however, so as to clarify that
“neither prejudice, the statute of limitations, nor the statute
of repose” would bar Carter from amending if the first-to-file
bar did not apply.4
The Court concluded that prejudice does not
preclude amendment, in part, because this case remains far from
resolution on the merits.
See id. at *4 (“[T]he present case
has undergone substantial motions practice, but remains far from
4
By reaching these alternative grounds for denying leave to
amend, this Court was in no way vacillating regarding its
November 12 holding that the first-to-file bar applies to
Relator’s initial complaint and would apply to his amended
complaint. This Court repeatedly reaffirmed that holding in its
February 17 Opinion. See Carter, 2016 WL 634656, at *1 (“[T]he
first-to-file bar continues to make amendment futile.”); id. at
*2 (concluding that the Court was not persuaded to “reconsider
its judgment that the first-to-file bar renders amendment
futile”); id. at *7 (“[T]he Court finds no basis to reconsider
its November 12, 2015 holding that the first-to-file bar applies
to Relator’s current Complaint and would continue to apply to
Relator’s Amended Complaint. Therefore, amendment is denied as
futile and Relator’s case is dismissed without prejudice.”)
3
mature in terms of resolution.”).
Carter appealed the Court’s
decisions and the Fourth Circuit is awaiting briefing.
Carter now moves to supplement the appellate record to
include a report from Defendants’ Theater Water Quality Manager
for Iraq and Kuwait, Wil Granger (“Granger Report”).
in Supp. Ex. A [Dkt. 141] at 10-31.)
(See Mem.
The report summarizes
Granger’s “cursory investigation” of Defendants’ water treatment
practices at Ar Ramadi.
(Ex. A at 13.)
Carter contends that
the Granger Report “corroborated” his allegations that
Defendants were not complying with their water treatment
obligations under the LOGCAP III contract.
111] ¶ 108.)
(Am. Compl. [Dkt.
Carter seeks to rely on the Granger Report to show
that Defendants had knowledge of malfeasance when they sought
bonuses under the LOGCAP III contract in June and July 2005.
(See Mem. in Supp. at 6.)
Carter did not file the Granger Report with this Court
in any of the post-remand proceedings.
The Court’s only
awareness of the Granger Report during those proceedings arose
from references to the Report in the amended complaint, (Am.
Compl. ¶¶ 108-110, 112, 148), and Carter’s brief attempt to
discuss the Report at oral argument regarding the motion to
amend, (see Tr. [Dkt. 126] at 15-16).
The Court rebuked
Carter’s reference to the Granter Report at oral argument by
interjecting that “[t]his gets to the merits.”
4
(Tr. at 16.)
The issues before the Court at that time, however, were
procedural and did not implicate the factual sufficiency of
Carter’s claims.
Thus, the Court did not rely on the Granger
Report and did not mention the Report in either its November 12
Opinion granting the motion to dismiss [Dkt. 124] or the
February 17 Opinion denying the motion to reconsider [Dkt. 136].5
II.
Standard of Review
Federal Rule of Appellate Procedure 10(a) defines the
record on appeal as “the original papers and exhibits filed in
the district court; the transcript of proceedings, if any; and a
certified copy of the docket entries prepared by the district
clerk.”
Fed. R. App. P. 10(a).
A district court may correct or
modify the record if (1) “any difference arises about whether
the record truly discloses what occurred in the district court”;
or (2) “if anything material to either party is omitted from or
misstated in the record by error or accident.”
5
See Fed. R. App.
Carter’s memorandum in support of this motion states that
“a hyperlink [to the Granger Report] was provided for the
Court’s convenience.” (Mem. in Supp. at 3.) Carter does not
specify when he “provided” this hyperlink (this case has been
pending since July 2011) or in what filing the hyperlink
appeared. Neither the Court nor Defendants have located this
hyperlink in the filings regarding the motions on remand. (See
Mem. in Opp’n [Dkt. 143] at 7 (“KBR is unable to identify any
place in the record where Carter cited or provided a hyperlink
to the document in briefing to this Court relating to either of
the orders on appeal.”). Accordingly, the Court gives no
credence to Carter’s statement that he provided a hyperlink to
the Court, as the Court is unaware of the hyperlink and did not
utilize that hyperlink to access the Granger Report regarding
the motions currently on appeal to the Fourth Circuit.
5
P. 10(e)(1)-(2); Himler v. Comprehensive Care Corp., 790 F.
Supp. 114, 115 (E.D. Va. 1992).
III.
Analysis
Carter presents two arguments in support of his motion
to supplement the record pursuant to Rule 10(e).
First, he
argues that the Granger Report should be added to the record to
“accurately reflect what occurred in the district court.”
in Supp. at 5-6.)
(Mem.
In the alternative, Carter argues under Rule
10(e)(2) that the Report was omitted from the trial court
proceedings due to “error or accident.”
(Mem. in Supp. at 7.)
As described below, neither of those arguments is persuasive.
Thus, the Court will deny the motion to supplement the record.
The clear weight of authority indicates that
ordinarily Rule 10(e) may not be employed to supplement an
appellate record with an exhibit that was not filed in the
district court proceeding leading to the appeal.
Rohbrough v.
Wyethy Labs., Inc., 916 F.2d 970, 973 n.8 (4th Cir. 1990)
(affirming district court’s decision not to supplement the
record with documents plaintiff had not filed or “brought to the
attention of the district court”); Appeal of Reckmeyer, 809 F.
2d 786 (table), 1987 WL 36174, at *1 (4th Cir. 1987) (stating
that Rule 10(e) is not intended “to introduce new evidence in
the courts of appeals”); Amr v. Va. State Univ., No. 3:07-cv628, 2009 WL 1208203, at *2 (E.D. Va. May 4, 2009) (“It is
6
elemental that a district court should properly refuse to
supplement the record on appeal with discovery documents that
were not filed . . . or brought to the attention of the district
court . . . .” (internal quotation and citation omitted); Thomas
v. Lodge No. 2461, 348 F. Supp. 2d 708, 710 (E.D. Va. 2004)
(“Our Court also has made clear that ‘the purpose of Rule 10(e)
is not to allow a district court to add to the record on appeal
matters that did not occur there in the course of the
proceedings leading to the judgment under review.’” (citation
omitted)); Complaint of Robins Maritime Inc., 162 F.R.D. 502,
504 (E.D. Va. 1995) (calling the above rule “well-settled”); 16A
Fed. Prac. & Proc. Juris. § 3956.4 (4th ed.) (“[O]rdinarily Rule
10(e) should not be used to insert in the record items that are
not properly a part of it—such as materials that were not
presented to the district court during the litigation that led
to the challenged district-court ruling.”)
Carter has not
identified a single case in which a court supplements an
appellate record with an exhibit that was not filed in the
district court.
This Court will not supplement the record with
the unfiled Granger Report in this case.
Carter’s arguments under the specific provisions of
Rule 10(e) are unpersuasive.
Carter first contends that Rule
10(e)(1) allows supplementation when “any difference arises
about whether the record truly discloses what occurred in the
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district court.”
Fed. R. App. P. 10(e)(1).
Only a record
without the Granger Report could truly disclose what occurred in
this Court’s proceedings after remand.
As it relates to the
Granger Report, what happened in this Court is as follows:
Carter did not file the Granger Report as an exhibit; Carter did
not otherwise present a physical copy of the Report to this
Court; the Court did not view or otherwise read the Report; the
Court did not rely on the Report when resolving the post-remand
motions; and the Court did not reference the Report in either of
its post-remand memorandum opinions.
In other words, the
Granger Report was not involved in the post-remand proceedings.
Adding the Granger Report to the appellate record would distort
the perception of the events precipitating Carter’s appeal and
frustrate the purpose of Rule 10(e).
See In re Robbins
Maritime, 162 F.R.D. at 504 (denying motion when “record of what
occurred before this court is thus more accurate without the
inclusion”); Thomas, 348 F. Supp. 2d at 710 (“[T]he purpose of
Rule 10(e) is not to allow a district court to add to the record
on appeal matters that did not occur there in the course of the
proceedings leading to the judgment under review.”).
Accordingly, Rule 10(e)(1) does not justify granting the motion.
Carter’s argument under Rule 10(e)(2) is also
unpersuasive.
Under that subsection, a court may supplement the
record when “anything material to either party is omitted from
8
or misstated in the record by error or accident.”
10(e)(2).
Rule
Carter “asks the Court to consider that the Granger
Report was omitted by error or accident,” but includes no
explanation for why a sufficient error or accident exists in
this case.
(Mem. in Supp. at 7.)
Courts have soundly rejected
similar requests to add portions of deposition testimony that a
party “accidently” failed to present to the district court.
See
Amr, 2009 WL 1208203, at *3 (“[C]ourts have consistently held
that a party’s failure to proffer deposition transcripts that
were in existence at the time of the challenged ruling does not
constitute actionable ‘error or accident’ under Rule 10(e).”
(citing Fassett v. Delta Kappa Epsilon, 807 F.2d 1150, 1165 (3d
Cir. 1986); Jones v. Jackson Nat’l Life Ins. Co., 819 F. Supp.
1385, 1387 (W.D. Mich. 1993)).
Carter’s failure to present the
Report to this Court requires the same outcome.6
Furthermore, as described above, the Granger Report is
not “material” to the issues currently pending on appeal.
Fed. R. App. P. 10(e)(2).
See
Carter relies on the Granger Report
to demonstrate Defendants’ knowledge of malfeasance in their
6
The Court notes that the amended complaint contained four
attachments, “A” through “D.” The amended complaint cites
directly to each of those attachments. (See Am. Comp. ¶¶ 145,
147, 148.) The paragraphs of the amended complaint that
reference the Granger Report, however, do not contain a citation
to a missing Granger Report exhibit. (See Am. Compl. ¶¶ 108110, 112, 148.) Thus, this is not a case where the complaint
explicitly incorporates a document that was merely left out of
the attached exhibits.
9
water treatment procedures prior to seeking performance bonuses
from the Government.
(See Mem. in Supp. at 6.)
As the Court
noted during oral argument, that is a merits issue.
None of the
motions before this Court after remand related to the
sufficiency of the amended complaint to state a claim.
Instead,
the Court considered procedural issues regarding the application
of the first-to-file bar, prejudice of amendment, and the
relation-back doctrine.
For that reason, the Granger Report
does not garner a citation or reference in the Court’s postremand memorandum opinions.
The Granger Report may well be
relevant to the ultimate success of Carter’s case on the merits,
but it was not at all material to the issues addressed by this
Court’s two memorandum opinions.
Accordingly, even if an
adequate error or accident did occur, the Granger Report is not
sufficiently material to supplement the appellate record.
Accordingly, the Court will deny Carter’s motion.
IV.
Conclusion
For the foregoing reasons, the Court will deny Relator
Benjamin Carter’s motion to supplement the appellate record.
An appropriate order will issue.
May 25, 2016
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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