Trainer et al v. Austal USA, LLC

MOTION to Dismiss

S.D. Ala.March 30, 2015

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA UNITED STATES OF AMERICA, ex rel. WILLIAM GATES, et al. Relators vs. AUSTAL USA, LLC Defendant Civil Action No.: 1:14-cv-00261-CG-M DEFENDANT, AUSTAL USA, LLC’S MOTION TO DISMISS FOR FAILURE TO PLEAD FRAUD WITH SPECIFICITY, FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED, DEFECTIVE SERVICE OF PROCESS & LACK OF PERSONAL JURISDICTION Pursuant to Rules 9(b), 12(b)(2), (b)(5), and (b)(6) of the Federal Rules of Civil Procedure, Defendant, Austal USA, LLC (“Austal”), 1 Dunlap Drive, Mobile, AL 36602, hereby respectfully moves the Court to dismiss Relators’ June 9, 2014, False Claims Act Complaint (Dkt. No. 1) and/or to quash Relators’ defective service of process of that Complaint and the March 3, 2015, Summons (the “Summons”) (Dkt. No. 12). Individually and in combination with one another the substantive and procedural defects with the Complaint and ineffective service Case 1:14-cv-00261-CG-M Document 16 Filed 03/30/15 Page 1 of 4 2 of process require that the Court dismiss this action in its entirety rather than require Austal to file an Answer. Before discussing the flaws with the Complaint and defective service of process, Austal would like to affirmatively state that it has complied with all contractual, regulatory, and statutory obligations in performance of its contracts with the United States. Austal takes its commitments under the law and its Federal contracts very seriously, and it is fully prepared to defend against the Relators’ spurious allegations. Austal flatly denies that it has knowingly, with deliberate ignorance, or with reckless disregard for the truth, presented or caused to be presented any false or fraudulent claims for payment to the Federal government. Nor has Austal made, used or caused to be made any false records or statements to get a false or fraudulent claim paid or approved by the United States. Finally, Austal has not engaged in any form of retaliation against any of the Relators in this litigation or, for that matter, or any of its employees. Nonetheless, before requiring Austal to file an Answer or incur additional expense in this action, there are several flaws in the Complaint that the Court must address. In particular, Relators have failed to plead fraud under the First Claim (“Causing False Claims”) and Second Claim (“Use of False Statements”) of their Complaint with the requisite particularity under Fed. R. Civ. P. 9(b). Furthermore, Relators’ Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) Case 1:14-cv-00261-CG-M Document 16 Filed 03/30/15 Page 2 of 4 3 because, as pled, it fails to state a claim upon which relief can be granted. This is true with regard to the underlying presentment of “false claims” and “use of false records” on which the First and Second Claims of the Complaint are based. It is even more evident with regard to Relators’ Third Claim (“Relief from Retaliatory Action”), because Relators Three, Four, and Five's allegations fail to establish a prima facie case that they were engaged in any “protected conduct” under 31 U.S.C. § 3730(h), or that there was any basis for Austal to believe that the actions of which they allegedly complained regarding Austal’s bids/proposals or the Federal government’s “maintenance” of Austal’s existing contracts could subject Austal to liability under the False Claims Act. Finally, Relators’ counsel’s attempted March 9, 2015, service of process (see Dkt. No. 13) was defective under Fed. R. Civ. P. 4(h)(1)(A) and (e)(1). Relators’ defective service should be quashed and/or this action should be dismissed due to insufficient service of process and a lack of personal jurisdiction over Austal pursuant to Fed. R. Civ. P. 12(b)(2) and (5). As required by Local Rule LR 7.1(a), the rationale supporting this Motion is set forth in the Memorandum Brief In Support of Defendant, Austal USA, LLC’s, Motion To Dismiss For Failure To Plead Fraud With Specificity, Failure To State A Claim Upon Which Relief Can be Granted, Defective Service Of Process & Lack Of Personal Jurisdiction. Case 1:14-cv-00261-CG-M Document 16 Filed 03/30/15 Page 3 of 4 4 Pursuant to Local Rule LR 7.3, Defendant Austal also respectfully requests an oral hearing on this Motion. Respectfully submitted, s/ C. William Daniels, Jr . C. WILLIAM DANIELS, JR. (DANIC4169) Counsel for Austal USA, LLC OF COUNSEL: BURR & FORMAN LLP P. O. Box 2287 Mobile, AL 36652-2287 Telephone: (251) 344-5151 Facsimile: (251) 344-9696 CERTIFICATE OF SERVICE I hereby certify that on March 30, 2015, I served a true and correct copy of the foregoing Defendant's Motion to Dismiss with the Clerk of the Court using the CM/ECF system which will send notification to the following: Thomas M. Loper, Esq. David C. Tufts, Esq. The Gardner Firm, P.C. 210 S. Washington Avenue Mobile, Alabama 36602 Derdre L. Colson, Esq. Assistant United States Attorney United States Attorney’s Office Southern District of Alabama Riverview Plaza, 63 S. Royal Street, Suite 600 Mobile, Alabama 36602 s/ C. William Daniels, Jr . Case 1:14-cv-00261-CG-M Document 16 Filed 03/30/15 Page 4 of 4