United States of America, EX Rel, et Al. v. The Public Warehousing Company, et Al.

REPLY BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

N.D. Ga.December 23, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA ex rel. KAMAL MUSTAFA AL- SULTAN, Plaintiff/Relator, v. THE PUBLIC WAREHOUSING COMPANY, K.S.C., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:05-CV-02968-TWT CHARLES TOBIAS SWITZER’S REPLY BRIEF IN SUPPORT OF HIS MOTION TO DISMISS RELATOR KAMAL MUSTAFA AL-SULTAN’S COMPLAINT William R. Mitchelson, Jr. Georgia Bar. No. 513811 T.C. Spencer Pryor Georgia Bar No. 589251 Daniel F. Diffley Georgia Bar No. 221703 ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7000 Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 1 of 23 i TABLE OF CONTENTS Page I. Relator’s amended Complaint fails to state a substantive FCA claim against Mr. Switzer as a matter of law. ............................................... 3 II. Relator failed to state an FCA conspiracy claim against Mr. Switzer as a matter of law. ........................................................................... 7 III. All of the claims against Mr. Switzer fail to meet Rule 9(b)’s heightened pleading standard. ...................................................................... 9 A. Relator is not entitled to a relaxed Rule 9(b) standard. ....................... 9 B. The Complaint’s lumped and conclusory allegations are improper and fail to give Mr. Switzer notice of his alleged participation. .........................................................................11 IV. Relator has not properly sought leave to amend the Complaint. ..................13 V. Relator did not follow this Court’s order on alternative service. .................14 Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 2 of 23 ii TABLE OF AUTHORITIES Page(s) CASES Barys ex rel. U.S. v. Vitas Healthcare Corp., 298 F. App’x 893 (11th Cir. 2008) ............................................................... 3, 10 Britton ex rel. U.S. v. Lincare Inc., 634 F. App’x 238 (11th Cir. 2015) ................................................................... 14 Burgess v. Religious Tech. Ctr., Inc., 600 F. App’x 657 (11th Cir. 2015) ................................................................... 13 Corsello v. Lincare, Inc., 428 F.3d 1008 (11th Cir. 2005) .................................................................... 7, 10 Currie v. Cayman Res. Corp., 595 F. Supp. 1364 (N.D. Ga. 1984).................................................................. 12 Degulis v. LXR Biotech., Inc., 928 F. Supp. 1301 (S.D.N.Y. 1996) ................................................................. 12 Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv. Inc., 556 F.3d 1232 (11th Cir. 2009) ........................................................................ 14 Hopper v. Solvay Pharm., Inc., 588 F.3d 1318 (11th Cir. 2009) .......................................................................... 6 In re Theragenics Corp. Sec. Litig., 105 F. Supp. 2d 1342 (N.D. Ga. 2000) ............................................................. 12 Rosenberg v. Gould, 554 F.3d 962 (11th Cir. 2009) .......................................................................... 13 U.S. ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301 (11th Cir. 2002) .......................................................................... 1 U.S. ex rel. Friddle v. Taylor, Bean & Whitaker Mortg. Corp., No. 1:06-CV-3023-JEC, 2012 WL 1066510 (N.D. Ga. Mar. 27, 2012) ................................................................................................................. 6 Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 3 of 23 iii U.S. ex rel. Graves v. Plaza Med. Ctrs. Corp., No. 10-23382-CIV, 2014 WL 5040284 (S.D. Fla. Oct. 8, 2014) ............... 10, 11 U.S. ex rel. Heater v. Holy Cross Hosp., Inc., 510 F. Supp. 2d 1027 (S.D. Fla. 2007) ............................................................. 12 U.S. ex rel. Mastej v. Health Mgmt. Associates, Inc., 591 Fed. App’x 693 (11th Cir. 2014) ............................................................... 11 U.S. ex rel. Matheny v. Medco Health Solutions, Inc., 671 F.3d 1217 (11th Cir. 2012) ........................................................................ 11 U.S. ex rel. Piacentile v. Wolk, No. 93-5773, 1995 WL 20833 (E.D. Pa. Jan. 17, 1995) ..................................... 5 U.S. ex rel. Sikkenga v. Regence BlueCross BlueShield of Utah, 472 F.3d 702 (10th Cir. 2006) ........................................................................ 4, 7 United States v. Marder, No. 1:13-CV-24503-KMM, 2016 WL 5404303 (S.D. Fla. Sept. 23, 2016) ................................................................................................................. 4 United States v. Stevens-Henager Coll., 174 F. Supp. 3d 1297 (D. Utah 2016) ................................................................ 5 Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039 (11th Cir. 2015) ........................................................................ 14 W. Coast Roofing and Waterproofing, Inc. v. Johns Manville, Inc., 287 Fed. App’x 81 (11th Cir. 2008) ................................................................... 3 RULES Fed. R. Civ. P. 8 ...................................................................................................... 2 Fed. R. Civ. P. 9(b) ........................................................................................ passim Fed. R. Civ. P. 12(b)(6) ........................................................................................... 2 Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 4 of 23 iv STATUTES 31 U.S.C. § 3729(a)(1) ........................................................................................ 3, 6 31 U.S.C. § 3729(a)(2) ........................................................................................ 5, 6 Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 5 of 23 1 INTRODUCTION Relator’s Complaint and multiple amendments fail to allege any specific facts involving Mr. Switzer or his conduct and their connection to alleged violations of the False Claims Act (the “FCA”). Detailed allegations of a defendant’s conduct are necessary for claims of fraud under the FCA to proceed beyond the pleading stage. For the last decade, the government has declined to intervene in any of Relator’s claims against Mr. Switzer. Relator responds to Mr. Switzer’s (and other defendants’) identification of the patent deficiencies in his Complaint with an invitation to the Court to dig through nearly 200 pages of Complaint exhibits and then to draw inferences from those exhibits which Relator was unwilling to allege himself as required by law. Relator’s response brief improperly attempts to salvage by unpleaded innuendo his general and unspecific allegations against an indiscriminate group of “Defendants,” leaving Mr. Switzer without even a hint of the acts he supposedly committed and for which Relator seeks to impose FCA liability upon him. There is no “guilt by association” under the FCA. U.S. ex rel. Clausen v. Lab. Corp. of Am., 290 F.3d 1301, 1308 (11th Cir. 2002). Indeed, Relator’s opposition to this motion only confirms that Mr. Switzer is merely an afterthought in this litigation. The government did not intervene against Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 6 of 23 2 him, and he has not been charged in any criminal action. Mr. Switzer is mentioned only four times in the Complaint, including the two amendments where he is not mentioned at all. Relator glosses over those facts and tries to bolster his claims by pointing to the government’s briefs relating to claims in which Mr. Switzer is not a defendant and referencing a criminal action in which Mr. Switzer is not and has never been a party.1 Under any applicable standard-Rule 12(b)(6), Rule 8, or Rule 9(b)-Relator has not stated a single proper FCA claim against Mr. Switzer. Moreover, as his response brief and decade of pleading demonstrate, Relator cannot state a claim against Mr. Switzer, and the Court should dismiss all of Relator’s claims against Mr. Switzer with prejudice. ARGUMENT Even if all of Relator’s factual allegations are accepted as true, the Complaint fails to state any plausible claim against Mr. Switzer under Rule 12(b)(6). Relator does not make a single allegation that Mr. Switzer presented or caused a false claim to be presented to the government, which is fatal to his substantive FCA claims. 1 Given that the government did not intervene against Mr. Switzer, Relator’s adoption and incorporation of parts of the government’s briefing relating to the complaint in intervention (see Relator’s Response Brief (“Resp.”) at 1) has no bearing on Mr. Switzer’s motion to dismiss. Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 7 of 23 3 Relator also fails to allege that Mr. Switzer entered an unlawful agreement to violate the FCA, which extinguishes Relator’s conspiracy claim. Relator tries to avoid these fatal pleading deficiencies by pointing to a few unremarkable allegations and extrapolating information from exhibits to the Complaint, but “[e]xhibits, alone, afford defendants no particularized notice of the allegations against them.” W. Coast Roofing and Waterproofing, Inc. v. Johns Manville, Inc., 287 Fed. App’x 81, 87 (11th Cir. 2008). The Complaint also falls far short of informing Mr. Switzer of the nature of his personal participation in alleged violations of the FCA because it reveals nothing about Mr. Switzer’s role in the allegations. Finally, Relator has not properly sought leave to amend the Complaint and he still has not complied with this Court’s order on alternative service. I. Relator’s amended Complaint fails to state a substantive FCA claim against Mr. Switzer as a matter of law. To state a claim against Mr. Switzer in Count I (Presentment of False Claims), Relator must allege that Mr. Switzer actually submitted a false claim to the government or, at the least, that he caused one to be submitted. See Barys ex rel. U.S. v. Vitas Healthcare Corp., 298 F. App’x 893, 894 (11th Cir. 2008) (emphasis added) (§ 3729(a)(1) imposes liability only for false claims that are “presented, or caused to be presented, by the defendant to the United States”). “To cause” a claim to be Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 8 of 23 4 presented means committing an affirmative act that proximately causes the claim submission. See United States v. Marder, No. 1:13-CV-24503-KMM, 2016 WL 5404303, at *10 (S.D. Fla. Sept. 23, 2016); U.S. ex rel. Sikkenga v. Regence BlueCross BlueShield of Utah, 472 F.3d 702, 713-14 (10th Cir. 2006).2 By contrast, the FCA does not impose liability “merely for failing to prevent the fraudulent acts of others. [M]ere knowledge of the submission of claims and knowledge of the falsity of those claims is insufficient to establish liability under the FCA.” Id. at 714. Here, Relator spends several pages of his response brief drudging through PWC invoices that he attached to or referenced in his Complaint, but he is silent on his glaring failure to allege that Mr. Switzer submitted any of those invoices to the Government or “caused” them to be submitted. Resp. at 8-10. Relator did not allege (and does not even contend that he alleges) Mr. Switzer performed any affirmative act, played any role in, or had any involvement in preparing, reviewing, or submitting invoices to the Government. Nor has Relator alleged that Mr. Switzer oversaw or delegated the invoice submission process, or that Mr. Switzer knew the 2 Although Relator is not required to prove proximate causation at this stage, establishing the standard is necessary for this Court to “consider whether [Relator’s] factual allegations are sufficient to support a ‘causes to be presented’ FCA claim.” Sikkenga, 472 F.3d at 715 n.17. “A bald assertion that a defendant has caused a false claim to be presented would plainly fail to state a claim for relief.” Id. Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 9 of 23 5 contents of the invoices. Contrast United States v. Stevens-Henager Coll., 174 F. Supp. 3d 1297, 1316 (D. Utah 2016) (denying motion to dismiss where the individual defendant did not personally submit claims but relator alleged that he was “architect” and “orchestrator” of the defendant schools’ fraudulent scheme and personally signed the program participation agreements that triggered payment by the government). There are no remotely similar allegations in Relator’s Complaint. Instead, pointing to the mere existence of invoices and to Mr. Switzer’s role at PWC, Relator suggests that some unalleged, invisible link connects the submission of the invoices to Mr. Switzer. This is a paradigmatic failure to plead that a FCA defendant knowingly “caused” any claim to be presented; and Relator’s pleadings make no effort to allege personal presentment. See U.S. ex rel. Piacentile v. Wolk, No. 93- 5773, 1995 WL 20833, *3-4 (E.D. Pa. Jan. 17, 1995) (dismissing FCA claim where relator alleged that the individual defendant, who owned the corporate defendant, knew about and profited from the submission of false claims but failed to inform the government of said claims). Likewise, Relator has failed to state a claim in Count II (Use of False Statements). Under the pre-FERA version of § 3729(a)(2), Relator must show “that (1) [Mr. Switzer] made a false record or statement for the purpose of getting a false Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 10 of 23 6 claim paid or approved by the government; and (2) [Mr. Switzer’s] false record or statement caused the government to actually pay a false claim….” Hopper v. Solvay Pharm., Inc., 588 F.3d 1318, 1327 (11th Cir. 2009). The Complaint “must describe with particularity how [Mr. Switzer’s] false statements ‘ultimately led the government to pay amounts it did not owe.’” U.S. ex rel. Friddle v. Taylor, Bean & Whitaker Mortg. Corp., No. 1:06-CV-3023-JEC, 2012 WL 1066510, at *4 (N.D. Ga. Mar. 27, 2012) (quoting Hopper, 588 F.3d at 1329). Other than the conclusory allegation against “Defendants” that merely parrots the statute’s language (see Compl. ¶ 70), Relator does not make a single allegation that Mr. Switzer made any false statement at all, much less that he made a false statement that caused the government to make a payment. Again, Relator hangs his hat on some intangible, unspecified connection between Mr. Switzer and the alleged false claims-another quintessential failure to state a claim. See Friddle, 2012 WL 1066510, at *4 (dismissing claims under § 3729(a)(1) and (2) where relator alleged that the individual defendant falsified an employment verification for an unidentified loan, and relator did not allege that the specific loan was submitted to the government). Moreover, Relator has failed to state a claim in both Counts because the Complaint does not allege that Mr. Switzer had knowledge of any false claim, record, Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 11 of 23 7 or statement. Instead, Relator points to an exhibit and explains that Mr. Switzer “had intimate knowledge of the [PVCs].” Resp. at 15. Clearly, the allegation that Mr. Switzer had knowledge of a contract is not an allegation that Mr. Switzer knew about any false claim or statement. Even if Relator had alleged that Mr. Switzer knew about a false claim, that would not be sufficient to state a claim without also alleging that Mr. Switzer took some affirmative act-that he presented or caused invoices to be presented, made or used a false statement, or caused a false statement to be made or used. Sikkenga, 472 F.3d at 714 (no FCA liability “for failing to prevent the fraudulent acts of others”). II. Relator failed to state an FCA conspiracy claim against Mr. Switzer as a matter of law. In order to state an FCA conspiracy claim, Relator must show, among other things, that Mr. Switzer entered into an agreement with at least one other person to get a false claim paid by the United States. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005). Relator does not dispute that his bald allegation that Mr. Switzer “knew about, advanced, and conspired in directing and perpetuating fraudulent conduct” is insufficient to show any agreement. Switzer Motion at 12; Compl. ¶ 76. Instead, Relator points to a few other paragraphs in the Complaint that he contends show Mr. Switzer’s agreement. Resp. at 19-20. Those few allegations, however, actually state that Mr. Switzer did not agree with anyone to participate in Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 12 of 23 8 any scheme or plan. Specifically, Relator alleges that “[d]uring discussions among Plaintiff/ Relator, PWC’s representatives (including the individually named Defendants) and TSC in the June/July 2003 time period, PWC announced that it expected KMSCO to buy Local Market Produces and then invoice PWC at Plaintiff/Relator’s sale prices [] rather than at KMSCO’s cost of goods, as the First [PVC] stipulates.” Compl. ¶ 32. Relator alleges that “[t]he remaining Defendants asserted no objection to PWC’s announced intention…” Compl. ¶ 33. At best, Relator has alleged that at a meeting in 2003, one defendant (PWC) “announced [an] intention” or an “expectation” of a third party to do something, and Mr. Switzer did not raise his hand to pipe up with an objection. No matter how you slice it, Relator did not allege that anyone agreed to anything, much less that Mr. Switzer conspired to participate in a false claims submission scheme. Moreover, Relator’s suggestion that Mr. Switzer had “actual knowledge” of the PVC provisions that PWC supposedly announced its intent to violate is not found in the Complaint. To the contrary, the exhibit Relator cites shows that Mr. Switzer signed only the second PVC in 2005-a full two years after the alleged 2003 meeting when the first PVC was in effect. Resp. at 3, 7-8; see Compl., Ex. B-1.3 3 Likewise, Relator’s reference to a 2003 email that he sent to some PWC Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 13 of 23 9 Relator also suggests that he has satisfied Rule 9(b) with respect to his conspiracy claim because he has “first-hand, direct knowledge” of Mr. Switzer’s supposed agreement to the conspiracy because Relator was present at the alleged 2003 meeting. Resp. at 19-20. If Relator was at that meeting, one must presume that he accurately alleged what transpired at the meeting, and his allegations do not state that any agreement was reached. III. All of the claims against Mr. Switzer fail to meet Rule 9(b)’s heightened pleading standard. Relator tries to skirt around his failure to plead claims against Mr. Switzer with required particularity by arguing that: (1) he is entitled to a more flexible pleading standard and (2) lumping Mr. Switzer into allegations against “Defendants” put Mr. Switzer on notice of allegations against him. Both arguments fail. A. Relator is not entitled to a relaxed Rule 9(b) standard. At three places in his brief, Relator contends that he has “personal knowledge” of the alleged fraudulent conduct, entitling him to a less rigorous pleading standard than typically required by Rule 9(b). Resp. at 7, 14, 19. He is mistaken. A relator must allege personal knowledge of the supposed fraudulent conduct employees, including Mr. Switzer, does not amount to an allegation that Mr. Switzer agreed to any fraudulent scheme. See Resp. at 4. That email reveals nothing about Mr. Switzer, much less that he entered into an agreement. Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 14 of 23 10 in his complaint. U.S. ex rel. Graves v. Plaza Med. Ctrs. Corp., No. 10-23382-CIV, 2014 WL 5040284, at *4 n.4 (S.D. Fla. Oct. 8, 2014) (relator not entitled to a relaxed Rule 9(b) standard where she claimed insider status for the first time in response to a motion to dismiss). Here, the only place Relator has claimed personal knowledge of any alleged fraud is in his response brief. In fact, he repeatedly alleges the exact opposite of personal knowledge in the Complaint-he admits that PWC cut him out of all PVC operations immediately after a 2003 meeting where PWC unilaterally “announced” its “intention.” See Compl. ¶ 39 (“PWC transferred responsibility [] from KMSCO to TSC” “shortly after” Relator refused to participate in PWC’s announced intentions); ¶ 40 (“PWC stripped KMSCO of its responsibility….”); ¶ 41 (“PWC effectively excluded KMSCO from any aspect of the [PVC].”); ¶ 42 (“PWC unilaterally declared the Partnership Agreement terminated.”). An “assertion of personal knowledge cannot provide [] conclusory allegations with the indicia of reliability necessary to support a claim for fraud under Rule 9(b).” Barys ex rel. U.S. v. Vitas Healthcare Corp., 298 F. App’x 893, 895 (11th Cir. 2008). Relator must show “an underlying basis” for personal knowledge. Corsello, 428 F.3d at 1013-14. Here, at most, the Complaint alleges that Relator had personal knowledge of a 2003 meeting that he attended, where he claims that PWC-not Mr. Switzer-made an announcement of its “intent.” Compl. ¶ 33. Beyond that, Relator Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 15 of 23 11 has not only failed to provide an “underlying basis” for his belated and improper assertion of personal knowledge, but he has also repeatedly admitted that he had no personal knowledge whatsoever of any alleged fraudulent conduct. Accordingly, this case is not one where Relator should be given leniency in pleading under Rule 9(b). See Graves, 2014 WL 5040284, at *4 n.4 (relator not entitled to relaxed pleading standard where she offered only “generalized, conclusory assertions of ‘intimate knowledge,’ and she was never employed at Humana or participated in Humana’s internal data submission processes”). This Relator was never employed by PWC, and by his own account, he was cut out of the PWC loop before the FCA violations he tries unsuccessfully to allege ever began.4 B. The Complaint’s lumped and conclusory allegations are improper and fail to give Mr. Switzer notice of his alleged participation. Relator concedes that Rule 9(b) requires his Complaint to “inform each 4 Relator is also wrong that asserting personal knowledge relaxes the pleading standard for all aspects of FCA claims. Resp. at 7, 19. A relator with real insider knowledge may receive leniency only with respect to pleading “particularities of the submissions of a false claim.” U.S. ex rel. Matheny v. Medco Health Solutions, Inc., 671 F.3d 1217, 1230 (11th Cir. 2012) (emphasis added); see also U.S. ex rel. Mastej v. Health Mgmt. Associates, Inc., 591 Fed. App’x 693, 707-08 (11th Cir. 2014) (emphasis added) (relator’s extensive personal knowledge and insider status was sufficient indicia of reliability to show defendants “actually submitted [] claims”). Here, even if Relator had alleged personal knowledge in the Complaint, it would not, as he claims, help him show Mr. Switzer’s “agreement” for his conspiracy claim. See Resp. at 19. Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 16 of 23 12 defendant of the nature of his participation in the fraud.” Resp. at 13 (emphasis added). His Complaint, however, does not accomplish that requirement with respect to Mr. Switzer, and none of the cases he cites remedy this fatal flaw. In U.S. ex rel. Heater v. Holy Cross Hosp., Inc., 510 F. Supp. 2d 1027, 1036 (S.D. Fla. 2007), the court found it permissible to use “Defendants” as a defined term in the complaint to refer to a hospital and the hospital’s corporate parent, given that the complaint spelled out “the day-to-day interrelationship between the[] two entities.” The court, however, required the plaintiff to plead allegations against the individual defendants by name, just as Relator is required to do here. Id. Relator next cites an old New York securities fraud case, arguing that he did not have to plead a “specific connection” between Mr. Switzer and any alleged false claims because Mr. Switzer is a so-called “insider.” See Degulis v. LXR Biotech., Inc., 928 F. Supp. 1301, 1311 (S.D.N.Y. 1996); Resp. at 12. While that type of pleading is generally permitted for securities fraud claims, see In re Theragenics Corp. Sec. Litig., 105 F. Supp. 2d 1342, 1357-58 (N.D. Ga. 2000), it directly contradicts the fundamental pleading requirements for FCA claims. Finally, in Currie v. Cayman Res. Corp., 595 F. Supp. 1364, 1372 (N.D. Ga. 1984) (emphasis added), the court found that allegations against a corporation may be extended to an individual only where there is “a small corporation” and “a single Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 17 of 23 13 defendant whose potential liability derives from misconduct alleged to have been committed by the corporation of which he was director and controlling person.” The court affirmed the bedrock principle that in cases with “multiple corporate or individual defendants,” Rule 9(b) is not satisfied “where the plaintiff levels blanket allegations of fraud [] without specifying the actions or circumstances for which he seeks to have these participants held liable.” Id. Relator’s Complaint here does precisely that. None of the lumped allegations against “Defendants” apply to Mr. Switzer, nor do they inform him of his supposed participation in the alleged scheme. IV. Relator has not properly sought leave to amend the Complaint. Relator seeks leave to amend his Complaint through his response brief. Resp. at 20-21. The Eleventh Circuit, however, has repeatedly held that plaintiffs cannot seek leave to amend their complaint through a response to a motion to dismiss. See Burgess v. Religious Tech. Ctr., Inc., 600 F. App’x 657, 665-66 (11th Cir. 2015); see also Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file an amended complaint simply is imbedded within an opposition memorandum, the issue has not been raised properly.”). The proper way to seek leave to amend is by filing a motion, which must “set forth the substance of the proposed amendment or attach a copy of the proposed amendment.” Burgess, 600 F. App’x at 665. Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 18 of 23 14 Relator did none of those things. Indeed, in a case Relator relies on, the Eleventh Circuit affirmed a dismissal with prejudice where the relator “never made a motion to amend his complaint, nor did he ever suggest how he could cure his defective complaint in a subsequent pleading.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1057 n.14 (11th Cir. 2015); see also Britton ex rel. U.S. v. Lincare Inc., 634 F. App’x 238, 241 (11th Cir. 2015). If Relator had any more facts about Mr. Switzer’s participation in the alleged conduct, he would have already pleaded them.5 At this point, eleven years and two amendments after Relator filed his Complaint, any amendment would be futile. See Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv. Inc., 556 F.3d 1232, 1241 (11th Cir. 2009). The Court should deny Relator’s improper and futile request for a fourth try. V. Relator did not follow this Court’s order on alternative service. Finally, Relator still has not complied with half of the service methods he proposed and the Court ordered. It nearly goes without saying that service by publication requires more than one publication, but Relator published just one notice in two Arabic papers on the same day. Dkt. 186, Exs. E-1, E-2. Relator admits that 5 In his response to Mr. Al-Saleh’s Motion to Dismiss, Relator stated that he submitted an affidavit with “facts and documents that would be included in an amended complaint” (Dkt. 257 at 24), but he later filed a notice admitting that he never submitted any such affidavit. Dkt. 263. Again, if Relator had more to say, he would have said it. Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 19 of 23 15 he failed to serve Mr. Switzer by international courier but (again) blames Mr. Switzer for apparent deficiencies in his own submissions to the Court. Resp. at 22. Relator drew with his own hand his request regarding alternative service of process and his failure to comply with the Court’s order is the product of his sole design. Having set his own bar, Relator should bear the consequence of dismissal for his failure to chin to it.6 At the end of the day, Relator still has not followed the Court’s order. CONCLUSION After over a decade of living in legal limbo, Mr. Switzer’s purported role in Relator’s alleged scheme remains an unpleaded mystery. Relator has not, and cannot, point to any particularized allegations or facts connecting Mr. Switzer to the invoices he slapped onto his insufficient Complaint or any specific averments showing Mr. Switzer agreed to participate in any alleged scheme. For these reasons, and the reasons stated in Mr. Switzer’s Motion to Dismiss, the Court should dismiss all claims against Mr. Switzer with prejudice. 6 Par for the course, Relator still improperly lumps Mr. Switzer in with other defendants, claiming that Mr. Switzer filed suit in Kuwait to invalidate Relator’s service attempt. Resp. at 23. But Mr. Switzer was not a party to that lawsuit and only learned that PWC had filed it after the proceedings were underway. See April 9, 2012 Switzer Declaration (Dkt. 83, Ex. 2 ¶ 4). Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 20 of 23 16 Respectfully submitted this 23rd day of December, 2016. /s/ Daniel F. Diffley William R. Mitchelson, Jr. Georgia Bar No. 513811 T.C. Spencer Pryor Georgia Bar No. 589251 Daniel F. Diffley Georgia Bar No. 221703 ALSTON & BIRD LLP 1201 West Peachtree Street Atlanta, Georgia 30309-3424 (404) 881-7000 (phone) (404) 881-7777 (fax) Attorneys for Charles Tobias Switzer Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 21 of 23 17 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA ex rel. KAMAL MUSTAFA AL- SULTAN, Plaintiff/Relator, v. THE PUBLIC WAREHOUSING COMPANY, K.S.C., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:05-CV-02968-TWT LOCAL RULE 7.1D CERTIFICATION In accordance with L.R. 7.1D, the undersigned counsel for Defendant Charles Tobias Switzer hereby certifies that, consistent with L.R. 5.1B, the foregoing document was prepared in Times New Roman font, 14 point. This 23rd day of December, 2016. /s/ Daniel F. Diffley DANIEL F. DIFFLEY Georgia Bar No. 221703 Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 22 of 23 18 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION UNITED STATES OF AMERICA ex rel. KAMAL MUSTAFA AL- SULTAN, Plaintiff/Relator, v. THE PUBLIC WAREHOUSING COMPANY, K.S.C., et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 1:05-CV-02968-TWT CERTIFICATE OF SERVICE This is to certify that I have this 23rd day of December, 2016, electronically filed the foregoing Charles Tobias Switzer’s Reply Brief in Support of his Motion to Dismiss Relator Kamal Mustafa Al-Sultan’s Complaint with the Clerk of the Court using the CM/ECF system, which will automatically send an e-mail notification to the all attorneys of record on this matter. /s/ Daniel F. Diffley DANIEL F. DIFFLEY Georgia Bar No. 221703 Case 1:05-cv-02968-TWT Document 267 Filed 12/23/16 Page 23 of 23