Aaron Wright et al v. Mobius Industries et al

NOTICE OF MOTION AND MOTION to Dismiss Case Or In the Alternative, Motion for More Definite Statement

C.D. Cal.December 28, 2016

Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Juanita R. Brooks (SBN 75934) brooks@fr.com FISH & RICHARDSON P.C. 555 West Fifth Street, 31st Floor Los Angeles, CA 90013 Tel: (213) 533-4240/Fax: (877) 417-2378 Michael A. Amon (SBN 226221) amon@fr.com Veronica Sandoval (SBN 302980) sandoval@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Tel: (858) 678-5070/Fax: (858) 678-5099 William K. Walker (SBN 67924) wkw@att.net Walker Reausaw 910 17th Street NW, Suite 800 Washington DC 20006 Tel: (202) 857-7910/Fax: (202) 857-7912 Attorneys for Defendant MOBIUS INDUSTRIES UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION UNITED STATES OF AMERICA ex rel. AARON WRIGHT and AARON WRIGHT, IN HIS INDIVIDUAL CAPACITY, Plaintiffs, v. MOBIUS INDUSTRIES; CUBIC APPLICATIONS; and DOES 1 through 25, inclusive, Defendants. Case No. EDCV14-00297 JGB (DTBx) MOBIUS INDUSTRIES’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES, AND IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT Judge: Hon. Jesus G. Bernal Courtroom: 1 Hearing: January 30, 2017 Time: 9:00 AM Case 5:14-cv-00297-JGB-DTB Document 33 Filed 12/28/16 Page 1 of 4 Page ID #:197 1 NOTICE OF MOTION AND MOTION Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 30, 2017 at 9:00 A.M., or as soon as the matter may be heard in the courtroom of the Honorable Jesus G. Bernal at the United States District Court for the Central District of California, Eastern Division, Defendant Mobius Industries (“Mobius”) will and does hereby move this Court to dismiss all counts in Plaintiffs’ United States of America ex rel. Aaron Wright and Aaron Wright, in his individual capacity, First Amended Complaint for Damages, and in the alternative, for an order requiring Plaintiffs to provide a more definite statement of their allegations against Mobius. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on December 19, 2016. This Motion is based upon this Notice, the accompanying Memorandum of Points and Authorities and Declaration of Michael Amon, and exhibits thereto, any other briefing or exhibits submitted by Mobius, and any arguments and evidence as may properly come before the Court. Dated: December 28, 2016 Respectfully Submitted, FISH & RICHARDSON P.C. By: /s/ Michael A. Amon Juanita R. Brooks (SBN 75934) FISH & RICHARDSON P.C. 555 West Fifth Street, 31st Floor Los Angeles, CA 90013 Tel: (213) 533-4240/Fax: (877) 417-2378 Michael A. Amon (SBN 226221) amon@fr.com Veronica Sandoval (SBN 302980) sandoval@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Tel: (858) 678-5070/Fax: (858) 678-5099 William K. Walker (SBN 67924) wkw@att.net Case 5:14-cv-00297-JGB-DTB Document 33 Filed 12/28/16 Page 2 of 4 Page ID #:198 2 NOTICE OF MOTION AND MOTION Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Walker Reausaw 910 17th Street NW, Suite 800 Washington DC 20006 Tel: (202) 857-7910/Fax: (202) 857-7912 Attorneys for Defendant Mobius Industries Case 5:14-cv-00297-JGB-DTB Document 33 Filed 12/28/16 Page 3 of 4 Page ID #:199 1 CERTIFICATE OF SERVICE Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on December 28, 2016 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civ. L.R. 5-3.2.2. Any other counsel of record will be served by electronic mail and certified U.S. Mail. /s/ Michael A. Amon Michael A. Amon (226221) Case 5:14-cv-00297-JGB-DTB Document 33 Filed 12/28/16 Page 4 of 4 Page ID #:200 Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Juanita R. Brooks (SBN 75934) brooks@fr.com FISH & RICHARDSON P.C. 555 West Fifth Street, 31st Floor Los Angeles, CA 90013 Tel: (213) 533-4240/Fax: (877) 417-2378 Michael A. Amon (SBN 226221) amon@fr.com Veronica Sandoval (SBN 302980) sandoval@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Tel: (858) 678-5070/Fax: (858) 678-5099 William K. Walker (SBN 67924) wkw@att.net Walker Reausaw 910 17th Street NW, Suite 800 Washington DC 20006 Tel: (202) 857-7910/Fax: (202) 857-7912 Attorneys for Defendant MOBIUS INDUSTRIES UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION UNITED STATES OF AMERICA ex rel. AARON WRIGHT and AARON WRIGHT, IN HIS INDIVIDUAL CAPACITY, Plaintiffs, v. MOBIUS INDUSTRIES; CUBIC APPLICATIONS; and DOES 1 through 25, inclusive, Defendants. Case No. EDCV14-00297 JGB (DTBx) MOBIUS INDUSTRIES’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT, OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT Judge: Hon. Jesus G. Bernal Courtroom: 1 Hearing: January 30, 2017 Time: 9:00 am Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 1 of 30 Page ID #:201 i MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ..................................................................................................... 1 II. FACTUAL BACKGROUND ................................................................................... 1 III. PROCEDURAL BRACKGROUND ...................................................................... 3 IV. ARGUMENT ............................................................................................................... 3 A. Legal Standard: Motion to Dismiss Under Rule 12(b)(6) .......................... 3 B. Wright’s FCA Allegations Against Mobius Fail to Satisfy the Heightened Pleading Requirement of Rule 9(b). Count 1 Should Be Dismissed. ................................................................................... 5 1. Nowhere does Wright allege that Mobius made a false claim. ............................................................................................. 5 2. The complaint does not sufficiently plead the materiality element of the FCA claim. ............................................... 7 3. Wright does not allege that Mobius acted with scienter to defraud the Government. ................................................ 9 4. Wright does not allege that the Government paid any money to Mobius. ......................................................................... 9 C. Wright’s Retaliation Claims Fail to Satisfy the Notice and Causal Link Requirements. Counts 2 and 3 Should Be Dismissed. ...................................................................................................... 10 1. Wright does not allege Mobius knew he was engaged in protected activity. .......................................................................... 11 2. Because Wright does not allege Mobius knew of his protected activity, he cannot allege a causal link to his termination. .................................................................................. 12 D. Wright’s Claim for Failure to Prevent Retaliation Does Not Allege that Mobius Retaliated. Count 4 Should Be Dismissed. ...................................................................................................... 14 E. Wright Fails to State a Sufficient Claim for Wrongful Termination in Violation of Public Policy. Count 5 Should Be Dismissed. ................................................................................................. 15 F. Wright’s Breach of Contract Claim Fails Because He Expressly Acknowledged He Was Not Offered An Employment Contract. Count 6 Should Be Dismissed ......................... 16 G. Wright’s Promissory Fraud Claim Fails Because “At-Will” Employees Cannot Reasonably Rely on an Alleged Oral Promise. Count 7 Should Be Dismissed................................................... 18 Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 2 of 30 Page ID #:202 ii MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 H. Wright’s Intentional Infliction of Emotional Distress (“IIED”) (Count 8) and Negligent Infliction of Emotional Distress (“NIED”) (Count 9) Claims Are Preempted by California Law and Should Be Dismissed. ................................................ 19 V. IN THE ALTERNATIVE, WRIGHT NEEDS TO PROVIDE MORE DEFINITE STATEMENTS ................................................................... 20 VI. CONCLUSION ........................................................................................................ 21 Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 3 of 30 Page ID #:203 iii MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Abeel v. Summit Lending Solutions, Inc., No. 09-cv-1892-JM(NLS), 2010 WL1445179 (S.D. Cal. Apr. 9, 2010) ......................... 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................. 4 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................................. 3, 4 Bly-Magee v. California, 236 F.3d 1014 (9th Cir.2001) ................................................................................................. 5 United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (9th Cir.2011) ............................................................................................... 10 California Fair Employment & Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004 (2004) ............................................................................................. 11 United States ex rel. Cericola v. Federal Nat Mortg Assoc., 529 F. Supp. 2d 1139 (C.D. Cal. 2007) ................................................................................. 4 Ebeid v. Lungwitz, 616 F.3d 993 (9th Cir. 2010) .................................................................................................. 5 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502 (9th Cir. 2013) .................................................................................................. 5 Estrada v. Wal-Mart Stores, Inc., Case No. 16-cv-04091-LB, 2016 WL 5846977 (N.D. Cal. Oct. 6, 2016) ................ 15, 16 Gardner v. Marino, 563 F.3d 981 (9th Cir. 2009) .................................................................................................. 4 Graff v. City of Tehachapi, No. 1:14-cv-00095-LJO-JLT, 2014 WL931823 (E.D. Cal. Mar. 10, 2014) ................... 12 Graves v. Pau Hana Group, LLC, No. 2:13-cv-01278-JAM-EFB, 2013 WL6000986 (E.D. Cal. Nov. 12, 2013) ........................................................................................................................................ 11 Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 4 of 30 Page ID #:204 iv MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Grotz v. Kaiser Foundation Hospitals, 2012 WL 5350254 (N.D. Cal. October 29, 2012) ............................................................. 20 Gulaid v. CH2M Hill, Inc., Case No. 15-cv-04824-JST, 2016 WL 5673144 (N.D. Cal. Oct. 3, 2016) ............... 14, 15 Hittle v. City of Stockton, No. 2:12-cv-00766-TLN, 2016 WL1267703 (E.D. Cal. Mar. 30, 2016) ........................ 14 United States ex rel. Hopper v. Anton, 91 F.3d 1261 (9th Cir.1996) ................................................................................................... 5 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) ................................................................................................ 4 Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132 (E.D. Cal. 2010) ............................................................................... 11 Langevin v. FedEx, Corp., 2015 WL 1006367 (C.D. Cal. March 6, 2015) ............................................................. 19, 20 United States ex rel. Lee v. Corinthian Colls., 655 F.3d 984 (9th Cir. 2011) .................................................................................................. 5 United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048 (9th Cir. 2001) ................................................................................................ 5 Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc)............................................................................... 4 May v. Semblant, Inc., Case No. 13-cv-01576-BLF, 2014 WL 3725296 (N.D. Cal. July 23, 2014) ........................................................................................................................................ 17 United States ex rel. McGrath v. Microsemi Corp., 140 F. Supp. 3d 885, 909 (D. Ariz. 2015) ............................................................................ 9 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097 (9th Cir. 2008) .............................................................................................. 10 Miklosky v. Reagents of the Univ. of Cal., 44 Cal. 4th 876 (2008) ..................................................................................................... 19, 20 United States ex rel. Modglin v. DJO Global Inc., 114 F. Supp. 3d 993, 1017-18 (C.D. Cal. 2015) .................................................................. 6 Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 5 of 30 Page ID #:205 v MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moore v. Kayport Package Exp., Inc., 885 F.2d 531 (9th Cir.1989) ................................................................................................... 6 Nordstrom v. U.S. Bank, N.A., Inc., No. 11-cv-1554-BEN, 2011 WL5150010 (S.D. Cal. Oct. 28, 2011) .............................. 15 Ortega v. Aune, No. C-95-20770-JW, 1996 WL119475 (N.D. Cal. Mar. 14, 1996) ................................. 10 Rubadeau v. M.A. Mortenson Co., No. 1:13-cv-339-AWI, 2013 WL 3356883 (E.D. Cal. July 3, 2013) ............................... 12 Rubinstein v. SAP AG, No. C 11-06134 JW, 2012 WL726269 (N.D. Cal. Mar. 1, 2012) .............................. 18, 19 Salsgiver v. America Online, Inc., 147 F. Supp. 2d 1022 (C.D. Cal. 2000) ......................................................................... 17, 18 Student Loan Mktg. Ass’n v. Hanes, 181 F.R.D. 629 (S.D. Cal. 1998) ............................................................................................ 4 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ............................................................................................................... 20 United States ex rel. Trice v. Westinghouse Elec. Corp., No. 96-cs-171-WFN, 2000 WL 34024248 (E.D. Wash. Mar. 1. 2000) ......................... 11 Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016) ......................................................................................................... 7, 8 Wild v. City of San Diego, No. 14-cv-2204 JM (MDD), 2014 WL6388500 (S.D. Cal. Nov. 13, 2014) ........................................................................................................................................ 10 Statutes 28 U.S.C. § 1331 ........................................................................................................................... 10 31 U.S.C. § 3729(a)(1)(A) .......................................................................................................... 5, 9 31 U.S.C. § 3730(h)(1) ................................................................................................................. 10 Cal. Gov’t Code § 12940(k) ........................................................................................................ 14 Cal. Lab. Code § 2922 ........................................................................................................... 15, 17 Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 6 of 30 Page ID #:206 vi MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Fair Employment and Housing Act, §12940(h) .................................10-14, 16, 20 California’s Worker’s Compensation Act .................................................................................. 1 Federal False Claims Act ...................................................................................................... 3, 5, 7 California’s Worker’s Compensation Act ...................................................................... 1, 19-20 Other Authorities Fed. R. Civ. P. 8(a) ......................................................................................................................... 3 Fed. R. Civ. P. 12 ........................................................................................................ 3, 10, 20, 21 Rule 9(b) ................................................................................................................................ 4-6, 10 Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 7 of 30 Page ID #:207 1 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Plaintiff Aaron Wright’s most recent allegations against Mobius Industries- amended after the Government declined to intervene in Wright’s case-fail to allege any wrongdoing by Mobius. Quite simply, Wright alleges only that Mobius hired Wright and that Mobius terminated Wright-an “at will” employee-as a result of contractual changes. Other than that, Wright’s complaint fails to identify a single act, by a single person at Mobius, at any time that would give rise to any liability under the asserted claims. Wright never identifies whether there was any contract involving Mobius (whether with Cubic or the Government), whether Mobius was made aware of the requirements in the “Statement of Work” contained in the Cubic contract with the Government, and never even alleges that he (Wright) ever informed anyone at Mobius regarding the alleged wrongdoing. Indeed, Wright only ever identifies two non-Mobius employees as the individuals who participated in any alleged wrongdoing. Given the vague, unsupported, and conclusory nature of the allegations against Mobius, Wright’s claims fail to state any cause of action for which relief can be granted. And, because further amendment of Wright’s claims more than two years after they were first filed and after the Government declined to intervene would be futile, Wright’s claims against Mobius should be dismissed with prejudice. In addition, at least two claims-Wright’s intentional infliction of emotional distress and negligent infliction of emotional distress claims-are preempted by California’s Worker’s Compensation Act (“WCA”). Because the exclusive remedy for those claims is provided under the WCA, those claims must be dismissed with prejudice. II. FACTUAL BACKGROUND Mobius Industries is a full service staffing company that provides both skilled and general labor to major industries, non-profits, and the U.S. Government. Mobius finds employees for both domestic and foreign positions. In some situations, Mobius contracts directly with an employer, and in others it acts as a subcontractor for other Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 8 of 30 Page ID #:208 2 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 general contractors who are filling employment needs. Between 2012-2013, Mobius was acting as a subcontractor for Defendant Cubic Applications in its fulfillment of a government contract that included a need for personnel at 29 Palms, California. D.I. 26 at ¶¶ 13-15. According to Plaintiff Aaron Wright, the contract between Cubic and the Government “required the contractor to provide Subject Matter Experts (SME) with specific expertise for various training programs,” although the full scope of the contract for those positions is not identified by Wright. Id. As part of its business with Cubic to provide personnel for various positions, Mobius interviewed and offered Wright a job as a “Combat Emergency Medical Training Subject Matter Expert.” Id. On November 5, 2012, Mobius sent Wright an employment offer letter for the stated position. See Exhibit A at MOBI_000012-13. The November 5 employment letter contained the terms of the employment, including an express statement that the employment being offered was on an “at-will basis and that neither [Wright], nor any [Mobius] representative have entered into a contract regarding the terms or the duration of [Wright’s] employment.” Id. The letter also stated that “the Company will have the right to reassign you, change your compensation, or to terminate your employment at any time with, or without cause or advance notice.” Id. On November 6, 2012, Wright signed the employment offer, acknowledging his understanding of the terms of the employment, including its “at-will” nature, and returned it to Mobius. Id. Thereafter, Wright relocated to 29 Palms, California and started working on November 26, 2012. D.I. 26 at ¶ 14-15. According to Wright’s allegations, throughout his employment, Wright was under the supervision of and reported to Fred Strickland (Project Manager) and Mark Slingerland (Medical Department Lead)-neither of whom were Mobius employees. D.I. 26 at ¶¶ 15-17. When Wright noticed a number of deficiencies in the medical department, he alleges that he brought them to the attention of Slingerland and Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 9 of 30 Page ID #:209 3 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Strickland. Id. For example, Wright claims that he pointed out the alleged lack of credentialing among the staff and the corpsman that were being trained, and that the instructors did not meet the mandatory requirements pertaining to rank or experience. Id. at ¶¶ 15-21. Wright also maintains that when Slingerland allegedly asked him to falsify his time sheet and claim hours during the holiday period that Wright did not work, Wright reported this violation to Strickland. Id. at ¶ 17. There is no allegation that Wright ever reported these (or any other) alleged violations to anyone at Mobius. Wright’s employment with Mobius ended on June 30, 2013. See Exhibit B at MOBI_000003. Wright admits that he was told that his name was submitted for termination “due to the contract being downsized.” D.I. 26 at ¶ 22. This is confirmed by Mobius’ notice to Wright that “as a result of contract changes, your current position with Mobius will no longer be available after 30 June 2013.” Exhibit B at MOBI_000003. Because of the contract changes Wright and six other Mobius employees were laid-off. Exhibit C at MOBI_000007. III. PROCEDURAL BRACKGROUND Wright filed his original complaint under seal on February 18, 2014. At that time, Wright asked the U.S. Government to intervene in the suit in light of the Federal False Claims Act (“FCA”) allegations. The Government declined to intervene, and on August 26, 2016, Wright’s complaint was unsealed. Wright filed a First Amended Complaint (“FAC”) on November 23, 2016. By stipulation, Mobius’ response is due by December 19, 2016. IV. ARGUMENT A. Legal Standard: Motion to Dismiss Under Rule 12(b)(6) A complaint that fails “to state a claim upon which relief can be granted” should be dismissed. Fed. R. Civ. P. 12(b)(6). To “state a claim” a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The Supreme Court has explained that Rule 8(a) “requires a showing, rather than a blanket assertion, of entitlement to relief.” Bell Atl. Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 10 of 30 Page ID #:210 4 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Corp. v. Twombly, 550 U.S. 544, 555 n. 3 (2007). To survive a motion to dismiss for failure to state a claim, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A complaint meets this standard only if it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a complaint’s allegations generally need not be detailed, they must “possess enough heft” to propel the claims across a threshold of plausibility. Twombly, 550 U.S. at 557. Material allegations, even if doubtful, are assumed to be true and the court must construe all facts in a light most favorable to the nonmoving party. Id. at 555. A court, however, “will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action.” Student Loan Mktg. Ass’n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In addition, claims that are “grounded in fraud” must also satisfy the particularity requirements of Rule 9(b). See Fed. R. Civ. P. 9(b). Specifically, the plaintiff must “state with particularity the circumstances constituting fraud or mistake.” Id. They must set forth “the who, what, when, where, and how of the misconduct charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009). The complaint must be specific enough “to give [a] defendant[] notice of the particular misconduct which is alleged to constitute the fraud charged so that [it] can defend against the charge and not just deny that [it has] done nothing wrong.” United States ex rel. Cericola v. Federal Nat Mortg Assoc., 529 F. Supp. 2d 1139, 1144 (C.D. Cal. 2007). As such, the particularity requirements of Rule 9(b) should present less of a barrier in qui tam actions than might exist in other kinds of cases. Id. If a complaint fails to state a plausible claim, leave to amend should generally be granted unless the court “determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc); see also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (noting no abuse Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 11 of 30 Page ID #:211 5 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of discretion in denying leave to amend when amendment would be futile). Although a district court should freely give leave to amend when justice requires, “the court’s discretion to deny such leave is particularly broad where the plaintiff has previously amended its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013). B. Wright’s FCA Allegations Against Mobius Fail to Satisfy the Heightened Pleading Requirement of Rule 9(b). Count 1 Should Be Dismissed. Rule 9(b)’s heightened pleading standard applies to the Federal False Claims Act (FCA) claims because they are based in fraud. Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir.2001). The FCA creates liability for any 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)(A). To prove an FCA violation, plaintiff must allege and show: (1) a false statement or fraudulent course of action, (2) that is material, and (3) made with knowledge of that falsity (scienter), that causes (4) the government to pay out money. United States ex rel. Lee v. Corinthian Colls., 655 F.3d 984, 992 (9th Cir. 2011). Wright fails to allege that Mobius engaged in any conduct that would satisfy these elements. 1. Nowhere does Wright allege that Mobius made a false claim. Courts in the Ninth Circuit require that some falsity be alleged to succeed on a false certification theory. See United States ex rel. Hopper v. Anton, 91 F.3d 1261, 1266- 67 (9th Cir.1996). Such falsity should, at minimum, include the identification of a false statement or fraudulent conduct designed to elicit payment by the government, and identification of the specific individuals engaged in that conduct. See Ebeid v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010) (the plaintiff must set forth what is “false or misleading about a statement, and why it is false”); see also United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1051 (9th Cir. 2001) (finding that plaintiff’s broad claim had no factual support because it did not specify the types of tests implicated in the alleged fraud, identify the employees who performed the allegedly Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 12 of 30 Page ID #:212 6 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fraudulent tests, or provide any dates, times, or places those tests were conducted). Plaintiffs are required to identify this for each named Defendant. See United States ex rel. Modglin v. DJO Global Inc., 114 F. Supp. 3d 993, 1017-18 (C.D. Cal. 2015) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 764-65 (9th Cir.2007)) (Rule 9(b) “does not allow a complaint ... merely [to] lump multiple defendants together but require[s] plaintiffs to differentiate their allegations when suing more than one defendant ... and inform each defendant separately of the allegations surrounding his alleged participation in the fraud”); Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 541 (9th Cir.1989) (affirming court’s denial of a motion to amend to add RICO claims because “[a]llegations of fraud under section 1962(c) ‘must identify the time, place, and manner of each fraud plus the role of each defendant …’” (emphasis added)). Here, Wright’s allegations do not identify any fraudulent statement or conduct by Mobius to ensure payment by the Government, much less which Mobius employees made the allegedly false statements or conduct. Although the complaint alleges conduct by Strickland and Slingerland, notably, not a single allegation is levied against any Mobius employee, nor does Wright identify any Mobius employees who did not have proper credentials or who falsified their resumes. Indeed, there is no allegation that Mobius had an existing contract with the Government, or that the Government made any payments to Mobius. And, Wright’s allegations do not adequately state what mandatory requirements of the Statement of Work Mobius failed to meet, nor allege that Mobius was ever made aware of the Statement of Work’s requirements. Indeed, the allegations do not even state whether the requirements were in Cubic’s contract with the Government, or in Cubic’s contract with Mobius, or in both. The FAC only contains vague, unsubstantiated accusations of supposed misrepresentation of services and false certification claims by Strickland and Slingerland, neither of whom were Mobius employees. Thus, Wright’s claims fail to allege any false statement or action by Mobius required for a FCA claim. Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 13 of 30 Page ID #:213 7 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The complaint does not sufficiently plead the materiality element of the FCA claim. In its recent unanimous decision in Universal Health Services, Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989 (2016), the Supreme Court held that “[a] misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act.” Id. at 1996. Mere noncompliance with a regulation is not enough to give rise to FCA liability. Id. at 2002. As the Supreme Court explained: [B]illing parties are often subject to thousands of complex statutory and regulatory provisions. Facing False Claims Act liability for violating any of them would hardly help would-be defendants anticipate and prioritize compliance obligations. Id. (stating that the concern that government contractors could be subject to open-ended liability for violations of thousands of complex statutory and regulatory provisions are best addressed through “strict enforcement” of the FCA’s materiality and scienter requirements). The materiality requirement is both “demanding” and “rigorous.” Id. at 2002-03. A plaintiff cannot “simply allege that a violation of a statutory requirement is material because that violation may influence the government’s decision to pay a claim.” Id. at 2002-04 (rejecting the view “that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be entitled to refuse payment were it aware of the violation”). Rather, an alleged misrepresentation is material “in only two circumstances: (1) [if] a reasonable [person] would attach importance to [it] in determining [their] choice of action in the transaction; or (2) if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter in determining his choice of action, even though a reasonable person would not.” Id. at 2002-03. The Supreme Court stated that although evidence that the government has expressly identified a statutory, regulatory, or contractual requirement as a condition of payment is relevant, it is not dispositive. Id. at 2003. Rather, courts should consider Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 14 of 30 Page ID #:214 8 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 evidence of the government’s actual payment practices. Evidence that the government “consistently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement” supports a finding of materiality. Id. On the other hand, “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.” Id. (emphasis added). Likewise, “if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material.” Id. at 2003-04. Wright’s FCA claim fails on all accounts to allege that the supposed misrepresentations are material. First, as described above, Wright’s FAC contains no facts about who at Mobius “participated in this fraudulent scheme by failing to hire employees with proper credentials, failing to meet the mandatory requirements of the Statement of Work, encouraging employees to falsify their resumes, and ignoring the information provided by its employee Aaron Wright, that they were not in compliance.” D.I. 26 at ¶ 28. Nor does it contain any facts about when this happened, where it happened, or that anyone at Mobius knew that the alleged misrepresentations were occurring. Indeed, the only two individuals identified of any alleged wrongdoing are Slingerland and Strickland-neither of whom were Mobius employees. Second, applying the Supreme Court’s holding in Escobar, there is no allegation at all that any of the alleged misrepresentations by Mobius-vague and unsubstantiated as they are-are the type of conduct that would cause the Government not to pay on the Cubic contract if they knew about them. Indeed, the fact that the Government refused to intervene in Wright’s original complaint is a strong indication that they are not the type of violation that would prevent the Government from paying on the contract, to the extent there were any violations. As such, Wright’s FCA claim fails to sufficiently plead the materiality element of an FCA claim. And, given the Supreme Court’s recent Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 15 of 30 Page ID #:215 9 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 instruction that this element is to be strictly enforced, this alone is sufficient to dismiss Wright’s FCA claim. 3. Wright does not allege that Mobius acted with scienter to defraud the Government. Under the FCA, the scienter requirement is met where a person acts “knowingly” with respect to information if they have actual knowledge of the information, or they act in deliberate ignorance of, or in reckless disregard of, the truth or falsity of the information. See 31 U.S.C. § 3729(b)(1)(A). The scienter requirement is not met, however, where the complaint is “void of any allegations that defendants made a claim which they knew to be false.” United States ex rel. McGrath v. Microsemi Corp., 140 F. Supp. 3d 885, 909 (D. Ariz. 2015). In McGrath, the court dismissed the FCA claims, noting that the complaint did not “identify a single employee of defendants who allegedly certified ITAR [International Traffic in Arms Regulation] compliance, much less that that person knew of or recklessly disregarded the shared domain which is the basis for Relator’s claim of ITAR violations.” Id. Here, Wright’s allegations are deficient with respect to Mobius’ intent to defraud the Government. The FAC does not (1) identify any Mobius personnel who knew or should have known about the alleged false statements or conduct, or (2) allege that anyone at Mobius made or acted in a false way with knowledge that they were saying or acting in a false manner. Indeed, as described above, there is no allegation that Mobius had any knowledge of the requirements of the contract between Cubic and the Government. Under these facts, the scienter requirement is simply not sufficiently alleged. 4. Wright does not allege that the Government paid any money to Mobius. As already identified, Wright does not allege that the Government made any payments to Mobius. Indeed, it does not allege that the Government made any payments at all. As shown above, the FAC fails to sufficiently plead any of the elements Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 16 of 30 Page ID #:216 10 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required to maintain a FCA claim. And, because Wright cannot identify any false conduct by anyone at Mobius, i.e., amendment would be futile, the Court should dismiss Wright’s FCA claim against Mobius with prejudice. C. Wright’s Retaliation Claims Fail to Satisfy the Notice and Causal Link Requirements. Counts 2 and 3 Should Be Dismissed.1 The FCA protects employees from being “[d]ischarged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee … on behalf of the employee … or associated other in furtherance of other efforts to stop 1 or more violations of this subchapter.” 31 U.S.C. § 3730(h)(1). A FCA retaliation claim requires plaintiff to allege and show that: (1) the employee engaged in conduct protected under the Act; (2) the employer knew the employee was engaging in such conduct; and (3) the employer discriminated against the employee because of the protected conduct. United States ex rel. Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1060 (9th Cir.2011).2 Similarly, the California Fair Employment and Housing Act (“FEHA”), Section 12940(h) makes it unlawful “for any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person 1 Wright’s sole basis for federal jurisdiction are the FCA (Count 1) and Federal Retaliation (Count 2) claims. The complaint makes no allegation that federal jurisdiction exists based on diversity of citizenship, and makes no allegation that the damages meet the case and controversy amount required for diversity. See D.I. 26 at ¶¶ 1, 3-5. Thus, dismissal of Wright’s FCA and Federal Retaliation claims against Mobius eliminates federal jurisdiction and the court has discretion to dismiss all remaining state claims for lack of jurisdiction. See Fed. R. Civ. P. 12(b)(1); see also Ortega v. Aune, No. C-95-20770-JW, 1996 WL119475, at *4 (N.D. Cal. Mar. 14, 1996) (finding that because Plaintiff’s claims containing federal questions have been dismissed, the Court cannot have supplemental jurisdiction over the state law claims); Abeel v. Summit Lending Solutions, Inc., No. 09-cv-1892-JM(NLS), 2010 WL1445179, at *4 (S.D. Cal. Apr. 9, 2010) (in light of the dismissal of the federal claims, the court concluded that it lacked subject matter jurisdiction under 28 U.S.C. § 1331 to entertain Plaintiffs’ state causes of action because once all federal claims are dismissed from an action, the court has discretion to decline to exercise supplemental jurisdiction over state law claims); Wild v. City of San Diego, No. 14-cv-2204 JM (MDD), 2014 WL6388500, at *2 (S.D. Cal. Nov. 13, 2014) (granting the motion to dismiss the federal claims with prejudice and declining to exercise supplemental jurisdiction over the state law claims because when federal claims are dismissed early in the case, courts routinely decline to exercise supplemental jurisdiction over the remaining state law claims). 2 Rule 9(b)’s particularity requirement does not apply to a FCA retaliation claim. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 17 of 30 Page ID #:217 11 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because the … the person filed a complaint, testified, or assisted in any proceeding under this part.” Cal. Gov’t. Code § 12940(h). A claim for retaliation under Section 12940(h) requires that plaintiff allege and show: (1) the employee engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link existed between the protected activity and the employer’s adverse action. Graves v. Pau Hana Group, LLC, No. 2:13-cv-01278-JAM-EFB, 2013 WL6000986, at *3 (E.D. Cal. Nov. 12, 2013) (quoting Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005)). 1. Wright does not allege Mobius knew he was engaged in protected activity. Under the FCA, an employee engages in protected activity by, among other things, “investigating matters which are calculated or reasonably could lead to a viable FCA action.” United States ex rel. Trice v. Westinghouse Elec. Corp., No. 96-cs-171-WFN, 2000 WL 34024248, at *16 (E.D. Wash. Mar. 1. 2000) (quoting Hopper, 91 F.3d at 1269). Even assuming that Wright’s complaint sufficiently alleged he was engaged in protected activity against Mobius-which it does not, see D.I. 26 at ¶¶ 18-21; 32-39-Wright fails to allege that Mobius knew of Wright’s supposed protected conduct. Nowhere in the FAC does Wright identify any Mobius manager or other employee that he told, or who otherwise knew of Wright’s complaints, or of his looking “into the contract and the requirement to work at Advisor Training Group.” D.I. 26 at ¶ 18. Wright’s complaint identifies only Slingerland and Strickland-neither of whom were Mobius employees- as individuals who knew about his supposed protected activity. D.I. 26 at ¶¶ 15-21. Similarly, Section 12940(h)’s “protected activity” prong requires “some evidence that the employer knew that the employee was engaged in activities in opposition to the employer at the time of the claimed retaliatory action.” Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1144 (E.D. Cal. 2010). Under California law, an employer’s knowledge can be established by informal complaints. See California Fair Employment & Hous. Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th 1004, 1018 (2004) (holding that the Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 18 of 30 Page ID #:218 12 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff had engaged in protected activity under FEHA because “[i]nformal complaints to management about discriminatory employment practices are considered sufficient opposition to trigger the prohibition against retaliation”). However, Wright’s FAC contains no allegation that Wright formally or informally complained to any Mobius personnel regarding the alleged misrepresentations, much less identify those Mobius employees. Rather, as discussed above, Wright’s only complaints were placed with Strickland and Slingerland. See D.I. 26 at ¶¶ 16-17. And, Wright does not allege that Mobius learned of Wright’s conduct elsewhere. This deficiency alone warrants dismissal of Wright’s retaliation claims under the FCA and Section 12940(h). 2. Because Wright does not allege Mobius knew of his protected activity, he cannot allege a causal link to his termination. Because Wright fails to allege that Mobius knew about his complaints or his “look[ing] into the contract,” his allegations do not and cannot allege the causal link required to maintain retaliation claims under the FCA or Section 12940(h). “A causal link may be established by an inference derived from circumstantial evidence, such as the employer’s knowledge that the employee engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.” Rubadeau v. M.A. Mortenson Co., No. 1:13-cv-339-AWI, 2013 WL 3356883, at *10 (E.D. Cal. July 3, 2013) (quoting Morgan v. Regents of University of Cal., 88 Cal. App. 4th 52, 70 (2001)). The knowledge requirement for a causal link may be met by showing: (1) the relevant decision maker actually knew about the employee’s protected activity, or (2) decision maker was influenced into taking the adverse action by an individual who knew about the protected activity. Id. As already discussed, there is no allegation that Mobius “actually knew” that Wright was engaged in alleged protected activity. Wright only alleges reporting misrepresentations and inadequate training of military personnel to Slingerland and Strickland-not to any Mobius employees. D.I. 26 at ¶ ¶ 16-21. See Graff v. City of Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 19 of 30 Page ID #:219 13 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tehachapi, No. 1:14-cv-00095-LJO-JLT, 2014 WL931823, at *5 (E.D. Cal. Mar. 10, 2014) (noting that plaintiffs’ allegations are insufficient to show retaliation because plaintiffs fail to indicate when many of the retaliatory acts took place, which police officer(s) plaintiffs reported, which officer(s) engaged in conduct that resulted in a hostile work environment or retaliation, and whether those officers had knowledge of plaintiffs’ protected speech). And, there is no allegation that Slingerland or Strickland somehow influenced Mobius to terminate Wright’s position, much less that Slingerland or Strickland had that type of influence over Mobius decision makers. Wright does allege, however, that Slingerland told him he was being let go “due to the contract being downsized…[and that] they [Mobius] were releasing people based on least seniority.” D.I. 26 at ¶ 22. This allegation is confirmed by Mobius’ termination notice to Wright, which states that “as a result of contract changes, [Wright’s] current position with Mobius will no longer be available after 30 June 2013.”3 See Exhibit B at MOBI_000003. Indeed, Wright’s admission in this regard directly conflicts with any claim that Mobius engaged in retaliatory conduct against Wright. Thus, Wright’s claims fail to sufficiently allege that Mobius knew that Wright had complained about Cubic employees or that he was “look[ing] into the [Cubic] contract. Nor does Wright allege any causal link between his complaints about Cubic or looking into the Cubic contract and Mobius’ decision to terminate his position. Quite the opposite, Wright’s own admissions undermine any claim of retaliation. This, combined with that fact that Wright was an at-will employee make it impossible, i.e., futile, for Wright to amend his claims to allege a claim for retaliation. Wright’s retaliation claims under the FCA and California’s Section 12940(h) should be dismissed with prejudice.4 3 As described above, six other employees were terminated by Mobius on the same date as Wright because of contractual changes. 4 See fn. 1, above. Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 20 of 30 Page ID #:220 14 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Wright’s Claim for Failure to Prevent Retaliation Does Not Allege that Mobius Retaliated. Count 4 Should Be Dismissed. FEHA requires an employer to “[t]ake all reasonable steps necessary to prevent discrimination and harassment from occurring.” See Cal. Gov’t Code § 12940(k). To state a claim for failure to prevent retaliation under Section 12940(k), plaintiff must allege that: (1) plaintiff was subjected to discrimination, harassment, or retaliation, (2) defendant failed to take all reasonable steps necessary to prevent discrimination, harassment, or retaliation, and (3) this failure caused plaintiff to suffer injury, damage, loss, or harm. Hittle v. City of Stockton, No. 2:12-cv-00766-TLN, 2016 WL1267703, at *6 (E.D. Cal. Mar. 30, 2016). However, no suit may be maintained for violation of this affirmative duty if the plaintiff has not actually suffered any employment discrimination or harassment. Id. (quoting Cozzi v. Cnty. Of Marin, No. C 08-3633 PJH, 2010 WL 1532359, at *14 (N.D. Cal. Apr. 16, 2010); see also Gulaid v. CH2M Hill, Inc., Case No. 15- cv-04824-JST, 2016 WL 5673144, at *10 (N.D. Cal. Oct. 3, 2016) (“[b]ecause Plaintiff does not sufficiently state claims for discrimination or harassment under the FEHA, as a matter of law plaintiff therefore also does not sufficiently state a claim for failure to take all reasonable steps to prevent such conduct”). In Hittle, the Court found plaintiff’s complaint failed to adequately establish a cause of action for retaliation because plaintiff did not allege that he alerted his employer that he believed discrimination occurred and he failed to provide a factual basis to develop the causal link between his own conduct and his termination of employment with the city of Stockton. Hittle, 2016 WL1267703, at *6. As a result, the court found that plaintiff did not adequately establish a cause of action for retaliation under FEHA. Id. Importantly, the Hittle court also found that plaintiff’s failure to allege a retaliation claim precluded failure to prevent retaliation under the Section 12940(k). Id. As in Hittle, Wright does not adequately establish causes of action for retaliation, either under the FCA or FEHA. See Counts 2 and 3, above. For that reason alone, Wright’s failure to prevent retaliation claim also fails. See Hittle, 2016 WL1267703, at *6. Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 21 of 30 Page ID #:221 15 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wright’s claim is also deficient for other reasons. Wright’s FAC contains only vague, unsubstantiated accusations that Mobius “had no policy or had a policy that was ineffective, had in place no procedures or ineffective procedures, and failed to implement any such policies, practices, and procedures in an effective manner.” Id. at ¶ 42. Yet, Wright does not allege that (1) he reviewed Mobius’ policies, (2) he identified what policies were violated by Mobius, (3) Mobius did not enforce its policies, and/or importantly, (4) he alerted Mobius of such policy violations. For these additional reasons, Wright’s claim that Mobius failed to prevent retaliation is insufficient. Based on the applicable case law applied to the facts here, Wright cannot maintain a claim for either retaliation (see Counts 2 and 3 above) or a claim that Mobius failed to prevent retaliation. And, because Wright’s retaliation claims are not amenable to amendment, so too is Wright’s claim for failure to prevent retaliation. This claim should be dismissed with prejudice. E. Wright Fails to State a Sufficient Claim for Wrongful Termination in Violation of Public Policy. Count 5 Should Be Dismissed. In California, an employer may generally terminate an employee “at-will” or without cause. Cal. Lab. Code § 2922. An exception to this rule is that “[a]n employer may not discharge an at-will employee for a reason that violates fundamental public policy.” Nordstrom v. U.S. Bank, N.A., Inc., No. 11-cv-1554-BEN, 2011 WL5150010, at *3 (S.D. Cal. Oct. 28, 2011). In general, a claim for wrongful termination in violation of public policy requires: (1) an employer-employee relationship, (2) termination or adverse action, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm. Gulaid, 2016 WL 5673144, at *13 (quoting Nosal- Tabor v. Sharp Chula Vista Med. Ctr., 239 Cal.App.4th 1224, 1234-35 (N.D. Cal. 2015)). Plaintiff must establish the existence of a public policy, and a nexus between the public policy and an employee’s termination. Estrada v. Wal-Mart Stores, Inc., Case No. 16-cv- 04091-LB, 2016 WL 5846977, at *6 (N.D. Cal. Oct. 6, 2016). The public policy must be: Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 22 of 30 Page ID #:222 16 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1) delineated in constitutional or statutory provisions; (2) “public” in that it inures to the benefit of the public rather than serving merely the interests of the individual; (3) well established at the time of discharge; and (4) substantial and fundamental. Id. In California, public policy cases fall into one of four categories: the employee (1) refused to violate a statute; (2) performed a statutory obligation; (3) exercised a constitutional or statutory right or privilege; or (4) reported a statutory violation for the public’s benefit. Id. Wright fails to allege any facts that Mobius’ decision to terminate Wright was substantially motivated by reasons that would violate public policy. Wright generically alleges that he had “complained of and/or reported illegal conduct by Defendants that violated” the FCA and FEHA. D.I. 26 at ¶ 51. But, as discussed above, Wright nowhere alleges that he reported any illegal conduct to Mobius, or that Mobius was otherwise aware that he had “complained of and/or reported illegal conduct” that allegedly violated the FCA and FEHA. See D.I. 26 at ¶ 16-21, 49-53. And, Wright admits that he was told his job was being eliminated due to changes in the contract-a fact confirmed by the termination notice that Wright received from Mobius. See Exhibit B at MOBI_000003. Thus, Wright does not and cannot allege the nexus necessary to maintain a cause of action for wrongful termination in violation of public policy. Moreover, given that Wright has now twice attempted and failed to identify any misconduct by Mobius, or that Mobius had any knowledge of Wright’s complaints or reports of wrongdoing, it is unlikely that Wright will be able to amend his allegations a second time to allege facts to overcome the deficiencies. As such, further amendment would be futile. Wright’s claims for wrongful termination in violation of public policy should be dismissed with prejudice. F. Wright’s Breach of Contract Claim Fails Because He Expressly Acknowledged He Was Not Offered An Employment Contract. Count 6 Should Be Dismissed To plead a breach of contract, a plaintiff must show (1) the existence of a Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 23 of 30 Page ID #:223 17 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contract; (2) that the plaintiff performed his contractual duties, or was otherwise excused from non-performance; (3) defendant’s breach of the contract; and (4) resulting damages. May v. Semblant, Inc., Case No. 13-cv-01576-BLF, 2014 WL 3725296, at *3 (N.D. Cal. July 23, 2014). Here, Wright cannot show an employment contract existed. In California, employment is presumed to be at-will. See Cal. Lab. Code § 2922. This presumption can be rebutted only with evidence showing that the parties expressly or impliedly agreed to limit the employer’s right to terminate. Salsgiver v. America Online, Inc., 147 F. Supp. 2d 1022, 1028 (C.D. Cal. 2000). Wright alleges that he “believed he was an employee of both Defendants” (Cubic and Mobius), and that “Defendants Cubic and Mobius promised [] Wright in discussions prior to November 2012 that if [Wright] went to work for Mobius as an Emergency Medical Training Combat Subject Matter Expert, [Wright] would have secure employment so long as he performed his job satisfactorily, would be treated fairly and would earn income throughout the years of his employment.” D.I. 26 at ¶¶ 55, 59 (emphasis added). Despite these allegations, Wright’s employment with Mobius was “at will”-a fact Wright expressly acknowledged when he signed the employment offer letter from Mobius. See Exhibit B at MOBI_000012-13. That employment letter makes clear that Wright’s employment was offered on an “at-will basis and that neither [Wright], nor any [Mobius] representative have entered into a contract regarding the terms or the duration of [Wright’s] employment.” Id. The offer letter also states that “the Company will have the right to reassign you, change your compensation, or to terminate your employment at any time with, or without cause or advance notice.” Id. Notably, Wright signed the Mobius offer letter on November 6, 2012-after he was allegedly told by Mobius he would have “secure” employment. In the absence of an express agreement not to terminate without good cause, Wright can only argue that there was an implied-in-fact agreement not to terminate without good cause. Salsgiver 147 F. Supp. 2d at 1028. However, an implied-in-fact agreement not to terminate without good cause cannot exist when there is an express Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 24 of 30 Page ID #:224 18 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agreement that employment is at-will. Salsgiver, 147 F. Supp. 2d at 1029; see also Rubinstein v. SAP AG, No. C 11-06134 JW, 2012 WL726269, at *3 (N.D. Cal. Mar. 1, 2012) (noting that evidence of an implied agreement that is inconsistent with an at-will provision in a written employment agreement is inadmissible in determining the terms of the contract). Thus, because Wright and Mobius expressly agreed to an at-will employment relationship, Wright cannot now allege that an implied agreement existed. As a result, Mobius had the right to terminate Wright at any time, and Wright cannot assert that his termination breached any agreement he had with Mobius. Moreover, because the existence of an express “at-will” employment agreement precludes Wright from alleging that there was an implied-in-fact employment contract, Wright cannot amend his claims to allege facts in support of a breach of contract claim, i.e., amendment would be futile. See Rubinstein, 2012 WL726269, at *5 (Dismissing plaintiffs’ breach of contract claim because the documents provided by plaintiff demonstrate unambiguously that he was an at-will employee and allowing amendment of the claim would be futile). Thus, the Court should dismiss Count 6 for breach of contract with prejudice. G. Wright’s Promissory Fraud Claim Fails Because “At-Will” Employees Cannot Reasonably Rely on an Alleged Oral Promise. Count 7 Should Be Dismissed. To maintain a claim for promissory fraud in California, a plaintiff must allege and show: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promisee.” Rubinstein, 2012 WL726269, at *5. Thus, a party can only succeed on a promissory fraud claim if their reliance on the false promise is reasonable, i.e., “justifiable.” Id. As discussed above with respect to Wright’s claim for breach of contract (count 6), by signing Mobius’ offer letter, Wright expressly agreed to the “at-will” terms of the Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 25 of 30 Page ID #:225 19 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment offered by Mobius. As a result, Wright could not have reasonably relied on the alleged discussions with Mobius prior to November 2012 “that if [he] went to work for Mobius [he] would have secure employment so long as he performed his job satisfactorily[.]” D.I. 26 at ¶ 59. See Rubinstein, 2012 WL726269, at *5-6 (when an employee has signed an employment agreement containing an at-will provision, the employee’s “reliance on [an employer’s] oral promises of continuing employment is simply not justifiable”). Separately, Wright’s FAC adds no allegations that would support the assertion that Wright reasonably relied on the discussions that took place prior to November 2012, or that Mobius had the requisite intent not to perform some alleged promise at the time it was made. Given these facts, Wright fails to allege sufficient facts to support a promissory fraud claim. See Rubinstein, 2012 WL726269, at *6 (noting that “[t]he lack of reasonable reliance alone provides a sufficient ground for dismissal of plaintiff’s promissory fraud claim”). And, for the same reasons discussed above with respect to Wright’s breach of contract claim, any attempt by Wright to amend the promissory fraud claim would be futile. Thus, the Court should dismiss the promissory fraud claim with prejudice. H. Wright’s Intentional Infliction of Emotional Distress (“IIED”) (Count 8) and Negligent Infliction of Emotional Distress (“NIED”) (Count 9) Claims Are Preempted by California Law and Should Be Dismissed. Under California law, Intentional Infliction of Emotional Distress (“IIED”) and Negligent Infliction of Emotional Distress (“NIED”) claims for retaliation related to “whistleblower” activity are preempted by California’s WCA. See Langevin v. FedEx, Corp., 2015 WL 1006367 *12 (C.D. Cal. March 6, 2015) (citing Miklosky v. Reagents of the Univ. of Cal., 44 Cal. 4th 876, 903 (2008)) (“Given the California Supreme Court’s holding in Miklosky, and the authority cited above, the court concludes that, under well- established California law, [plaintiff] may not assert an IIED claim against the individual defendants based on their purported violation of fundamental public policy; the Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 26 of 30 Page ID #:226 20 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exclusive remedy for such a claim is provided by the WCA. … As the Miklosky Court observed, ‘whistleblower retaliation’ is a risk inherent in the employment relationship.” (emphasis added)); see also Grotz v. Kaiser Foundation Hospitals, 2012 WL 5350254 *10-11 (N.D. Cal. October 29, 2012) (dismissing NIED claim because “[p]laintiff’s allegations here concern Kaiser’s alleged misconduct in the course of handling her workplace grievances, disciplining her, and ultimately firing her. As all the alleged misconduct arose in the context of her employment relationship, her claims fall squarely within the kind of conduct that Cole, Shoemaker, and Miklosy found to be pre- empted by workers’ compensation.”). That is, the WCA presents the exclusive remedy available to plaintiffs alleging IIED and/or NIED related to conduct arising from the normal part of the employment relationship, such as demotions, promotions, criticism of work practices, frictions in negotiations as to grievances, and terminations. See Langevin, 2015 WL 1006367 at *9-10; see also Grotz, 2012 WL 5350254 at *11. Here, Wright’s IIED and NIED claims against Mobius are related solely to Wright’s allegations that Mobius “retaliated against Plaintiff for complaining of and/or reporting illegal conduct by [Mobius] that violated the [FCA], and retaliated against Plaintiff for complaining of and/or reporting illegal conduct that violated” FEHA. D.I. 26 at ¶¶ 72, 77-81. As in Langevin and Grotz, these claims arise in the context of Wright’s employment relationship. Indeed, all of Wright’s allegations fall squarely within the “normal part” of Wright’s employment relationship with Mobius (and Cubic). As such, California’s WCA law preempts Wright’s IIED and NIED claims. Based on well- established California law, Wright’s IIED and NIED claims should be dismissed with prejudice. V. IN THE ALTERNATIVE, WRIGHT NEEDS TO PROVIDE MORE DEFINITE STATEMENTS “If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Under Rule 12(e) Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 27 of 30 Page ID #:227 21 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a more definite statement is required when the complaint is “so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). If the Court determines that Wright’s claims against Mobius should not be dismissed-which they should-Mobius requests, under Rule 12(e), that Wright provide a more definite statement setting forth in sufficient detail Wright’s specific allegations against Mobius. As demonstrated above, the FAC is deficient in multiple respects. This vagueness makes it impossible for Mobius to determine what specific wrongdoing is at issue and inhibits Mobius’ ability to prepare a meaningful Answer and defense to any of the claims the FAC attempts to allege. At a minimum, Wright needs to address the deficiencies identified by this motion to dismiss. VI. CONCLUSION For the reasons stated above, the Court should dismiss all of Wright’s claims against Mobius with prejudice. In the alternative, to the extent that any individual claim survives, the Court should order Wright to file a more definite statement to address the deficiencies identified. Dated: December 28, 2016 Respectfully Submitted, FISH & RICHARDSON P.C. By: /s/ Michael A. Amon Juanita R. Brooks (SBN 75934) FISH & RICHARDSON P.C. 555 West Fifth Street, 31st Floor Los Angeles, CA 90013 Tel: (213) 533-4240/Fax: (877) 417-2378 Michael A. Amon (SBN 226221) amon@fr.com Veronica Sandoval (SBN 302980) sandoval@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Tel: (858) 678-5070/Fax: (858) 678-5099 William K. Walker (SBN 67924) wkw@att.net Walker Reausaw 910 17th Street NW, Suite 800 Washington DC 20006 Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 28 of 30 Page ID #:228 22 MEMORANDUM OF POINTS AND AUTHORITIES Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tel: (202) 857-7910/Fax: (202) 857-7912 Attorneys for Defendant Mobius Industries Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 29 of 30 Page ID #:229 1 CERTIFICATE OF SERVICE Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on December 28, 2016 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civ. L.R. 5-3.2.2. Any other counsel of record will be served by electronic mail and certified U.S. Mail. /s/Michael A. Amon Michael A. Amon (SBN 226221) Case 5:14-cv-00297-JGB-DTB Document 33-1 Filed 12/28/16 Page 30 of 30 Page ID #:230 Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Juanita R. Brooks (SBN 75934) brooks@fr.com FISH & RICHARDSON P.C. 555 West Fifth Street, 31st Floor Los Angeles, CA 90013 Tel: (213) 533-4240/Fax: (877) 417-2378 Michael A. Amon (SBN 226221) amon@fr.com Veronica Sandoval (SBN 302980) sandoval@fr.com FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Tel: (858) 678-5070/Fax: (858) 678-5099 William K. Walker (SBN 67924) wkw@att.net Walker Reausaw 910 17th Street NW, Suite 800 Washington DC 20006 Tel: (202) 857-7910/Fax: (202) 857-7912 Attorneys for Defendant MOBIUS INDUSTRIES UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION UNITED STATES OF AMERICA ex rel. AARON WRIGHT and AARON WRIGHT, IN HIS INDIVIDUAL CAPACITY, Plaintiffs, v. MOBIUS INDUSTRIES; CUBIC APPLICATIONS; and DOES 1 through 25, inclusive, Defendants. Case No. EDCV14-00297 JGB (DTBx) DECLARATION OF MICHAEL A. AMON IN SUPPORT OF MOBIUS INDUSTRIES’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES, AND IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT Judge: Hon. Jesus G. Bernal Courtroom: 1 Hearing: January 30, 2017 Time: 9:00 A.M. Case 5:14-cv-00297-JGB-DTB Document 33-2 Filed 12/28/16 Page 1 of 3 Page ID #:231 1 DECLARATION OF MICHAEL A. AMON IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS Case No. EDCV14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Michael A. Amon, declare as follows: 1. I am a principal with the law firm of Fish & Richardson P.C., counsel of record in this action for Defendant Mobius Industries (“Mobius”). 2. I make this declaration in support of Mobius’ Motion to Dismiss Plaintiff’s First Amended Complaint for Damages. I make this declaration of personal, firsthand knowledge unless indicated otherwise, and if called and sworn as a witness, I could and would testify competently thereto. 3. Attached as Exhibit A to this Declaration is a true and correct copy of Aaron Wright’s offer of employment letter, an excerpt of Wright’s employment file from Mobius. 4. Attached as Exhibit B to this Declaration is a true and correct copy of Aaron Wright’s termination of employment letter, an excerpt of Wright’s employment file from Mobius. 5. Attached as Exhibit C to this Declaration is a true and correct copy of Shannon Hoover’s email regarding the exit-processing procedures for Aaron Wright after his termination from Mobius. I declare under penalty of perjury that the foregoing is true and correct, pursuant to 28 U.S.C. § 1746. Executed in San Diego, California on this 28th day of December, 2016. By: /s/ Michael A. Amon Case 5:14-cv-00297-JGB-DTB Document 33-2 Filed 12/28/16 Page 2 of 3 Page ID #:232 2 Case No. CV 14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served on December 28, 2016 to all counsel of record who are deemed to have consented to electronic service via the Court’s CM/ECF system per Civ. L.R. 5-3.2.2. Any other counsel of record will be served by electronic mail and certified U.S. Mail. /s/Michael A. Amon Michael A. Amon (226221) Case 5:14-cv-00297-JGB-DTB Document 33-2 Filed 12/28/16 Page 3 of 3 Page ID #:233 Exhibit A REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL Case 5:14-cv-00297-JGB-DTB Document 33-3 Filed 12/28/16 Page 1 of 3 Page ID #:234 Ex. A - Page 1 Case 5:14-cv-00297-JGB-DTB Document 33-3 Filed 12/28/16 Page 2 of 3 Page ID #:235 Ex. A - Page 2 Case 5:14-cv-00297-JGB-DTB Document 33-3 Filed 12/28/16 Page 3 of 3 Page ID #:236 Exhibit B REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL Case 5:14-cv-00297-JGB-DTB Document 33-4 Filed 12/28/16 Page 1 of 2 Page ID #:237 Ex B - Page 3 Case 5:14-cv-00297-JGB-DTB Document 33-4 Filed 12/28/16 Page 2 of 2 Page ID #:238 Exhibit C REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL Case 5:14-cv-00297-JGB-DTB Document 33-5 Filed 12/28/16 Page 1 of 3 Page ID #:239 Ex. C - Page 4 Case 5:14-cv-00297-JGB-DTB Document 33-5 Filed 12/28/16 Page 2 of 3 Page ID #:240 Ex. C - Page 5 Case 5:14-cv-00297-JGB-DTB Document 33-5 Filed 12/28/16 Page 3 of 3 Page ID #:241 [PROPOSED] ORDER Case No. CV 14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION UNITED STATES OF AMERICA ex rel. AARON WRIGHT and AARON WRIGHT, IN HIS INDIVIDUAL CAPACITY, Plaintiffs, v. MOBIUS INDUSTRIES; CUBIC APPLICATIONS; and DOES 1 through 25, inclusive, Defendants. Case No. CV 14-00297 JGB (DTBx) [PROPOSED] ORDER GRANTING MOBIUS INDUSTRIES’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT FOR DAMAGES, AND IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT The Hon. Jesus G. Bernal Case 5:14-cv-00297-JGB-DTB Document 33-6 Filed 12/28/16 Page 1 of 2 Page ID #:242 1 [PROPOSED] ORDER Case No. CV 14-00297 JGB (DTBx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court, having considered Defendant Mobius Industries’ (“Mobius”) Motion to Dismiss Plaintiff’s First Amended Complaint for Damages, and finding good cause exists, HEREBY GRANTS Mobius’ motion and ORDERS this action dismissed with prejudice, each party to bear its own fees and costs. SO ORDERED. Dated:______________ _____________________________ The Honorable Jesus G. Bernal United States District Judge Case 5:14-cv-00297-JGB-DTB Document 33-6 Filed 12/28/16 Page 2 of 2 Page ID #:243