Warder et al v. Shaw Group, Inc. et al

MOTION for Summary Judgment

E.D. La.August 2, 2016

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA U.S., ex rel. THOMAS WARDER, GARY KEYSER, AND ELIZABETH REEVES Relators VERSUS THE SHAW GROUP, INC., FLUOR ENTERPRISES, INC., AND CH2M HILL, INC. Defendants CIVIL ACTION: 09-4191-HGB-DEK JUDGE JAY C. ZAINEY MAG. JUDGE KNOWLES MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY FLUOR ENTERPRISES, INC. Defendant, Fluor Enterprises, Inc. (“Fluor”), prays that the Court grant this “no evidence” motion for partial summary judgment. Fluor prays that the Court grant partial summary judgment and dismiss Counts 1 and 3 with prejudice, which counts are based upon the following allegations in the Fifth Amended Complaint (“5AC”) (R. #258): 1. Fluor charged FEMA for about 10,000 trailers that it did not haul or install, Fluor double billed for the installation of trailers, and Fluor billed for trailers that another contractor also billed for; R. #258, 5AC, ¶¶2, 33, 35, 37, 38, 54; 2. Fluor charged FEMA for useless hauling that was outside the scope of the FEMA contract; R. #258, 5AC, ¶¶53, 59; 3. Fluor charged FEMA for work not done; R. #258, 5AC, ¶¶2, 59; 4. Fluor installed travel trailers pursuant to unauthorized work orders; R. #258, 5AC, ¶¶21-29, 31, 34, 38; and 5. Pursuant to unauthorized work orders, Fluor deactivted trailers, performed emergency deactivations on trailers, and performed maintenance on trailers. R. #258, 5AC, ¶30, 37. Case 2:09-cv-04191-JCZ-DEK Document 303 Filed 08/02/16 Page 1 of 3 2 For the reasons outlined in the attached memorandum, which is incorporated herein by reference, Fluor prays that the Court grant this motion for partial summary judgment dismissing Counts 1 and 3 of the 5AC with prejudice. Respectfully submitted, s/ Brandon K. Black BRANDON BLACK (#24298) PAULINE F. HARDIN (#6542) JAMES C. PERCY (#10413) Jones Walker L.L.P. Four United Plaza 8555 United Plaza Boulevard Baton Rouge, Louisiana 70809-7000 Telephone: (225) 248-2128 Facsimile: (225) 248-3128 Attorneys for Defendant, Fluor Enterprises, Inc. CERTIFICATE OF SERVICE I hereby certify that on the 2d day of August, 2016, I electronically filed the foregoing pleading with the Clerk of the Court using the Court's CM/ECF system, which sent electronic notifications to: Ray Shepard (rshepard@shepardlf.com) Craft Hughes (craft@hughesellzey.com) Bobby Delise (bdelise@dahlaw.com) Counsel for Plaintiff-Relators Andre Lagarde (Andre.Lagarde@usdoj.gov) Counsel for the United States of America Roy C. Cheatwood - rcheatwood@bakerdonelson.com M. David Kurtz - dkurtz@bakerdonelson.com Brian M. Ballay - bballay@bakerdonelson.com Sandra B. Wick Mulvany - swickmulvany@mckennalong.com Thomas A. Lemmer - tlemmer@mckennalong.com Counsel for Shaw Environmental, Inc. Case 2:09-cv-04191-JCZ-DEK Document 303 Filed 08/02/16 Page 2 of 3 3 and I hereby certify that I have mailed by United States Mail, postage prepaid, the document to the following non-ECF participants: NONE. /s/ Brandon K. Black Brandon K. Black Case 2:09-cv-04191-JCZ-DEK Document 303 Filed 08/02/16 Page 3 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA U.S., ex rel. THOMAS WARDER, GARY KEYSER, AND ELIZABETH REEVES Relators VERSUS THE SHAW GROUP, INC., FLUOR ENTERPRISES, INC., AND CH2M HILL, INC. Defendants CIVIL ACTION: 09-4191 JUDGE ZAINEY MAG. JUDGE KNOWLES NOTICE OF SUBMISSION PLEASE TAKE NOTICE that Defendant, Fluor Enterprises, Inc., will bring for submission its Motion for Partial Summary Judgment before the Honorable Jay C. Zainey, United States District Judge for the Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana, on August 17, 2016. By Attorneys: s/ Brandon K. Black BRANDON BLACK (#24298) PAULINE F. HARDIN (#6542) JAMES C. PERCY (#10413) Jones Walker, LLP Four United Plaza 8555 United Plaza Boulevard Baton Rouge, Louisiana 70809-7000 Telephone: (225) 248-2128 Facsimile: (225) 248-3128 bblack@joneswalker.com Attorneys for Fluor Enterprises, Inc. Case 2:09-cv-04191-JCZ-DEK Document 303-1 Filed 08/02/16 Page 1 of 2 CERTIFICATE OF SERVICE I hereby certify that on the 2d day of August, 2016, I electronically filed the foregoing pleading with the Clerk of the Court using the Court's CM/ECF system, which sent electronic notifications to: Ray Shepard (rshepard@shepardlf.com) Craft Hughes (craft@hughesellzey.com) Bobby Delise (bdelise@dahlaw.com) Counsel for Plaintiff-Relators Andre Lagarde (Andre.Lagarde@usdoj.gov) Counsel for the United States of America Roy C. Cheatwood - rcheatwood@bakerdonelson.com M. David Kurtz - dkurtz@bakerdonelson.com Brian M. Ballay - bballay@bakerdonelson.com Sandra B. Wick Mulvany - swickmulvany@mckennalong.com Thomas A. Lemmer - tlemmer@mckennalong.com Counsel for Shaw Environmental, Inc. and I hereby certify that I have mailed by United States Mail, postage prepaid, the document to the following non-ECF participants: NONE. /s/ Brandon K. Black Brandon K. Black Case 2:09-cv-04191-JCZ-DEK Document 303-1 Filed 08/02/16 Page 2 of 2 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA U.S., ex rel. THOMAS WARDER, GARY KEYSER, AND ELIZABETH REEVES Relators VERSUS THE SHAW GROUP, INC., FLUOR ENTERPRISES, INC., AND CH2M HILL, INC. Defendants CIVIL ACTION: 09-4191 JUDGE ZAINEY MAG. JUDGE KNOWLES STATEMENT OF MATERIAL FACTS NOT IN DISPUTE FILED BY FLUOR ENTERPRISES, INC. Defendant, Fluor Enterprises, Inc. (“Fluor”), files the following Statement of Material Facts Not in Dispute in support of Fluor’s motion for partial summary judgment. There are no genuine issues of material fact in dispute with rega d to the following: 1. Relators have no admissible evidence that Fluor charged FEMA for about 10,000 trailers that it did not haul or install. Exhibit 1 (Depo. of Keyser, pp. 109); Exhibit 2 (Depo. of Warder, pp. 14-16, 38-40, 55, 57, 59, 319-320); Exhibit 3 (Depo. of Reeves, pp. 71-72). 2. The FRRATS database was not used by Fluor to invoice FEMA for travel trailers. Exhibit 5 (Declaration of Charles A. Whitaker). 3. The only way one can determine whether Fluor billed FEMA for the hauling/installing of trailers is to review the actual invoices submitted by Fluor to FEMA—not reviewing the FRRATS database. Exhibit 2 (Depo. of Warder, p. 16). 4. Except for 109 trailers which will be the subject of a another motion for partial summary judgment, Relators have no admissible evidence that Fluor double billed or triple billed Case 2:09-cv-04191-JCZ-DEK Document 303-2 Filed 08/02/16 Page 1 of 3 2 for the hauling and/or installing of trailers. Exhibit 1 (Depo. of Keyser, pp. 25, 101, 118, 190); Exhibit 2 (Depo. of Warder, pp. 14-16, 38-40, 55, 57, 59, 319- 20); Exhibit 3 (Depo. of Reeves, p. 30-32, 37, 271-272). 5. Relators have no admissible evidence that Fluor and Shaw invoiced for trailers that the other installed. Exhibit 2 (Depo. of Warder, 18, 21, 29, 175, 249-252); Exhibit 3 (Depo. of Reeves, pp. 38-39). 6. Relators have no admissible evidence that Fluor invoiced FEMA for “work not done.” Exhibit 1 (Depo. of Keyser, pp. 21-22); Exhibit 2 (Depo. of Warder, p. 14, 18, 29). 7. Relators have no admissible evidence that Fluor useles ly hauled trailers. Exhibit 1 (Depo. of Keyser, pp. 105-107, 113-116); Exhibit 2 (Depo. of Warder, pp. 88-93); Exhibit 3 (Depo. of Reeves, p. 108). 8. Fluor did not install travel trailers pursuant to una thorized work orders. Exhibit 4 (Declaration of Stephen DeBlasio, FEMA); Exhibit 2 (Depo. of Warder, pp. 77-78); Exhibit 1 (Depo. of Keyser, pp. 66-67); Exhibit 3 (Depo. of Reeves, pp. 90-92); Exhibit 4 (Declaration of Stephen Deblasio). 9. Relators have no admissible evidence of a claim related to deactivations, emergency deactivations, and miscellaneous and emerg ncy maintenance. Exhibit 1 (Depo. of Keyser, pp. 188-190); Exhibit 2 (Depo. of Warder, pp. 315-317); Exhibit 3 (Depo. of Reeves, p. 273-724). Case 2:09-cv-04191-JCZ-DEK Document 303-2 Filed 08/02/16 Page 2 of 3 3 Respectfully submitted, s/ Brandon K. Black BRANDON BLACK (#24298) PAULINE F. HARDIN (#6542) JAMES C. PERCY (#10413) Jones Walker L.L.P. Four United Plaza 8555 United Plaza Boulevard Baton Rouge, Louisiana 70809-7000 Telephone: (225) 248-2128 Facsimile: (225) 248-3128 Attorneys for Defendant, Fluor Enterprises, Inc. CERTIFICATE OF SERVICE I hereby certify that on the 2d day of August, 2016, I electronically filed the foregoing pleading with the Clerk of the Court using the Court's CM/ECF system, which sent electronic notifications to: Ray Shepard (rshepard@shepardlf.com) Craft Hughes (craft@hughesellzey.com) Bobby Delise (bdelise@dahlaw.com) Counsel for Plaintiff-Relators Andre Lagarde (Andre.Lagarde@usdoj.gov) Counsel for the United States of America Roy C. Cheatwood - rcheatwood@bakerdonelson.com M. David Kurtz - dkurtz@bakerdonelson.com Brian M. Ballay - bballay@bakerdonelson.com Sandra B. Wick Mulvany - swickmulvany@mckennalong.com Thomas A. Lemmer - tlemmer@mckennalong.com Counsel for Shaw Environmental, Inc. and I hereby certify that I have mailed by United States Mail, postage prepaid, the document to the following non-ECF participants: NONE. /s/ Brandon K. Black Brandon K. Black Case 2:09-cv-04191-JCZ-DEK Document 303-2 Filed 08/02/16 Page 3 of 3 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA U.S., ex rel. THOMAS WARDER, GARY KEYSER, AND ELIZABETH REEVES Relators VERSUS THE SHAW GROUP, INC., FLUOR ENTERPRISES, INC., AND CH2M HILL, INC. Defendants CIVIL ACTION: 09-4191 JUDGE ZAINEY MAG. JUDGE KNOWLES FLUOR’S MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant, Fluor Enterprises, Inc. (“Fluor”), prays that the Court grant this “no evidence” motion for partial summary judgment (“MPSJ”). For the following reasons, partial summary judgment should be granted dismissing the five claims listed below. Simultaneous herewith, Fluor filed another MPSJ seeking the dismissal of the last claim by Relators. If both MPSJ are granted, then the result will be that all claims filed by Relators against Fluor will be dismissed. I. INTRODUCTION A. Procedural History This qui tam action premised on the False Claims Act (“FCA”) was filed under seal on June 26, 2009. R. 1. On September 28, 2012, the Unit d States filed its notice of intent to decline intervention in the case. R. 30. On October 3, 2012, the case was unsealed (R. 31). On February 7, 2013, the case was consolidated with another qui tam captioned U.S. ex rel. McLain v. Fluor Enterprises, Inc., et al, Civil Action No. 06-11129 (the “McLain case”). R. 84. Because Count 2 of this case is identical to the claims in the McLain case, Count 2 was dismissed for lack of Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 1 of 23 2 subject matter jurisdiction pursuant to the first-to-file rule (31 U.S.C. §3730(b)(5)). R. 87. After the Court dismissed Count 2, the cases were deconsolidated. R. 87. On November 13, 2013, Relators filed a Fifth Amended Complaint (“5AC”), which is the current operative complaint. The 5AC was filed while the case was consolidated with the McLain case, and was assigned R. 258 in the McLain case. After the dismissal of Count 2 by the court, only Counts 1 and 3 are now pending against Fluor in the 5AC. The original trial date was July 13, 2015. R. 90. However, on November 12, 2014, Relators’ counsel moved to withdraw. R. 115. On November 13, 2014 and December 11, 2014, the court granted the motion to withdraw and ordere that the case be stayed 75 days to allow Relators to find replacement counsel. R. 116, 117. During January and February, 2015, new Relators’ counsel was substituted. R. 120-127. On April 9, 2015, Relators moved to continue the trial date. R. 133. The Court granted the motion to continue, and the trial date was continued until January 19, 2016. R. 133, 145. On September 22, 2015, Shaw moved to continue the trial. R. 189. The motion was granted, and the trial was reset for September 12, 2016. R. 195. On January 5, 2016, the case was reassigned from Judge Berrigan to this Court. R. 196. The Court set a trial date for October 31, 2016. R. 235. The discovery cutoff was July 27, 2016. R. 235. The dispositive motion deadline is August 3, 2016, and all dispositive motions must be set for submission no later than August 17, 2016. R. 235. B. The Previous MPSJ On March 18, 2016, Fluor filed a MPSJ substantially identical to this one. R. 223. Relators did not oppose the MPSJ. Instead, Relators filed a Rule 56(d) motion to defer ruling pending additional discovery. R. 244. On June 3, 2016, the Court granted Relators’ Rule 56(d) Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 2 of 23 3 motion and denied without prejudice Fluor’s MPSJ to all w Relators time to conduct additional discovery. R. 267. With the discovery deadline having passed on July 27, 2016, Fluor re-files this MPSJ. C. Case Overview This case arises out of the work by Fluor and Shaw Environmental, Inc. (“Shaw”) to haul/install FEMA trailers after Hurricanes Katrina and Rita pursuant to contracts with FEMA. After having taken the depositions of the Relators, Thomas Warder, Gary Keyser, and Elizabeth Reeves, it is now clear, and Relators admit, that te allegations in the 5AC are totally baseless. The three Relators were deposed on September 28-30, 2015. In the depositions of Relators Keyser and Warder on September 28 and 29, 2015, each t stified they had no evidence of any of their claims and no idea what the alleged damages were. Desperate to keep the case alive, in the deposition of Relator Reeves on September 30, 2015, Reeves testified that this entire FCA case is based upon the potential double billing of 109 FEMA. Fluor had detailed internal audit procedures to detect double billing both before invoices were submitted to FEMA and after invoices were submitted. Initially, when invoices were submitted, Fluor did not detect that 109 trailers out f ~54,850 hauled/installed trailers had been potentially doubled billed. However, through Fluor’s proactive internal audit procedures, Fluor discovered these 109 trailers. During spring, 2009, Fluor alerted FEMA to the potential double billing, and Fluor reimbursed FEMA about $945,000 for the potentially double billed 109 trailers. When this case was filed, Relators had no idea about the 109 trailers, or that Fluor through its own efforts discovered the 109 trailers, or that Fluor had informed FEMA of the issue, or that Fluor had reimbursed FEMA for the error. All of this was done 3.5 years before Fluor even knew this suit existed (suit was unsealed in October, 2012). Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 3 of 23 4 There is no genuine issue of material fact in dispute that Fluor did not have the requisite scienter1 with respect to these 109 trailers. Accordingly, simultaneous herewith, Fluor filed a separate MPSJ addressing these 109 trailers. The instant MPSJ seeks dismissal of all of Relators’ other claims filed in the 5AC, in which Relators admit that they have no evidence and never had any evidence. D. Summary of Claims/Request for Relief In Count 1 of the 5AC, Relators contend that Fluor vi lated 31 U.S.C. §3729(a)(1)(A) of the FCA because it submitted claims for work that includes double or triple billing or billing for work not done. R. M258, 5AC, ¶56.2 In Count 3 of the 5AC, Relators contend Fluor violated 31 U.S.C. §3729(a)(1)(A) of the FCA “because it charged for work outside the scope of the contract and/or for work that was not done.” R. M258, 5AC, ¶59. Counts 1 and 3 are based on the following allegations contained in the 5AC: 1. Fluor charged FEMA for about 10,000 trailers that it did not haul or install, Fluor double billed for the installation of trailers, and Fluor billed for trailers that another contractor also billed for; R. M258, 5AC, ¶¶2, 33, 35, 37, 38, 54; 2. Fluor charged FEMA for useless hauling that was outside the scope of the FEMA contract; R. M258, 5AC, ¶¶53, 59; 3. Fluor charged FEMA for work not done; R. M258, 5AC, ¶¶2, 59; 4. Fluor installed trailers pursuant to unauthorized work orders; R. M258, 5AC, ¶¶21-29, 31, 34, 38; and 5. Pursuant to unauthorized work orders, Fluor deactivted trailers, performed emergency deactivations on trailers, and performed maintenance on trailers. R. M258, 5AC, ¶¶30, 37. 1 “For FCA liability to attach, not only must the defendant submit false claims, but the defendant must have “knowingly or recklessly cheated the government.” U.S. v. Shaw Services, Inc., 418 Fed.Appx. 366 (5th Cir. 2011). 2 The designation “R. M258” indicates that the 5AC was filed in the McLain case when the cases were consolidated, and assigned Document No. 258 in the McLain case. Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 4 of 23 5 Relators testified in their depositions that they had no admissible evidence to support any of these five allegations. Fluor prays that the Court grant partial summary judgment dismissing Counts 1 and 3 with prejudice. II. SUMMARY JUDGMENT STANDARD “Summary judgment is appropriate when the record shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Flowers v. Deutsche Bank Nat. Trust Co., 614 Fed.Appx. 214, 215 (5th Cir. 2015), citations omitted. “A dispute regarding a material fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party.” Id., citation omitted. “Once the moving party has made an initial showing that there is no evidence to support the nonmoving party’s case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuin dispute of material fact.” Id. “The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim.” Id , citation omitted). “The failure to respond to a summary judgment motion leaves the movants facts undisputed.” Id., citation omitted. “The court need only decide whether those undisputed facts are material and entitle the movant to judgment as a matter of law.” Id., citation omitted. III. ARGUMENT For the following reasons, Fluor prays that the Court grant partial summary judgment. A. FCA—Summary of the Law “The FCA permits a private person (i.e., a relator) bring suit against a person who has made false claims for payment from the United States.” U.S., ex rel. Spicer v. Westbrook, 751 F.3d 354, 364 (5th Cir. 2014), citing 31 U.S.C. §§3729(a) and 3730(b). “The qui tam provision Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 5 of 23 6 of the FCA allows the relator to prosecute the lawsuit on behalf of himself and the United States.” Id., citing §3730(b). “Under 31 U.S.C. §3729(a)(1)(A), liability attaches if a person “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.” U.S. ex. rel. Guth v. Roedel Parsons, 2015 WL 5693302 *3 (5th Cir. 9/29/15). “Generally, four elements must be pleaded to state a cause of action under the FCA: ‘(1) a false statement or fraudulent course of conduct; (2) that was made or carried out with the requisite scienter; (3) that was material; and (4) that caused the government to pay out money.” Id., citing Spicer, 751 F.3d at 365. “The qui tam relator must also show that the federal government was injured-in-fact as a result of a defendant’s fraud.” U.S. ex rel. McLain v. Fluor Enterprises, Inc., 60 F.Supp.3d 705, 717 (E.D. La. 2014), citation omitted. “To meet the ‘requisite scienter’ requirement, [the d fendant must have] acted with knowledge of the falsity of the statement, which is defined, at a minimum, as acting ‘in reckless disregard of the truth or falsity of the information.’” U.S. v. Bollinger Shipyards, Inc., 775 F.3d 255, 260 (5th Cir. 2014). “For FCA liability to attch, not only must the defendant submit false claims, but the defendant must have “knowingly or recklessly cheated the government.” U.S. v. Shaw Services, Inc., 418 Fed.Appx. 366, 370 (5th Cir. 2011), citations omitted. Because Relators have no evidence to support any of the four elements with respect to the five allegations listed above, Fluor prays for partial summary judgment. A. Allegation No. 1: There is No Evidence to Support the Claim that Fluor Charged FEMA for about 10,000 trailers that it did not Haul or Install, or that Fluor Double Billed for the Installation of Trailers, or that Fl uor or Shaw Billed for a Trailer that One or the Other Had not Installed. In paragraph 2 of the 5AC, Relators contend that “Fluor has charged FEMA for about 10,000 trailers that it did not haul or install.” R. M258. In paragraph 54 of the 5AC (R. M258), Relators allege: Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 6 of 23 7 Thus, in about August 2010, in an effort to have more funding allocated to its IA- TAC 1 contract (which expired August 31, 2007), FEMA reported that it had readied approximately 54,000 units for occupancy and billed the Government for these units. However, a master list of units that Fluor presented to the Government previously showed a total of about 45,000 units had been installed. In other words, Fluor has billed the Government for approximately 10,000 more units that it actually installed. Relators also allege Fluor double billed for hauling and installing trailers. R. M258, 5AC, ¶¶2,33,35,38. Finally, Relators allege that Fluor and Shaw billed for the installation of trailers that one or the other had not installed. I . at ¶38. This motion does not address the 109 trailers discussed above, which are the subject of the other MPSJ filed simultaneously herewith. The three Relators are Gary Keyser, Tommy Warder and Elizabeth Reeves. Relators’ deposition excerpts were filed under seal and assigned Exhibits 1-3. Gary Keyser testified that he had no evidence that Fluor billed FEMA for 10,000 trailers that it did not haul or install, except to say that he learned it from Warder and that it was “hearsay.” Exhibit 1 (Depo. of Keyser, pp. 117-118). Keyser also testified he had no information about what travel trailers were double billed, stating early in the deposition that only Tommy Warder would know.3 Keyser later testified he had no idea the amount of damages, if any, caused by Fluor allegedly double billing for trailers that were installed once.4 Keyser testified he had no idea how many travel trai ers Fluor allegedly double billed FEMA for installation.5 Keyser also testified that he had no idea what invoices that Fluor submitted to FEMA that may contain any alleged double billing. See 3 Excerpt from Keyser Depo.: Q: “The question of which invoices that Fluor submitted to FEMA contained double billing would be more properly directed toward Mr. Warder and not you, is that correct? A. Correct.” Exhibit 1 (Depo. of Keyser, p. 25); see also, p. 190. 4 Excerpt from Keyser Depo.: “Q. And it’s fair to say that you don’t know what the government’s damages are for Fluor allegedly double billing for trailers that were only installed once; is that correct? A. No I don’t. Not at this time. The lawyers will know though.” Exhibit 1 (Depo. of Keyser, p. 118). 5 Excerpt from Keyser Depo.: Q: “Could you—is there any way, as you sit here today, for you to come up with the number of travel trailers that Fluor allegedly double billed FEMA for installation? A. Not me personally no. That’s…Mr. Warder, Yeah he would know that.” Exhibit 1 (Depo of Keyser, p. 101). Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 7 of 23 8 footnote 3. In fact, other than looking at one of Fluor’s invoices, Keyser admitted either he did not remember or alternatively had never dealt with any Fluor invoices, because his responsibilities at FEMA related to Shaw only.6 Tommy Warder testified that he believed that Fluor charged FEMA for about 10,000 trailers that it did not haul or install because Fluor stated in a report that it had invoiced FEMA for about 54,000 trailers, but the FRRATS database included only about 45,000 trailers. Exhibit 2 (Depo. of Warder, p. 14). FRRATS is an acronym for FEMA Response and Recovery Applicant Tracking System. Exhibit 4 (Declaration of Stephen DeBlasio, ¶22). The FRRATS database was originally used by FEMA as a method of tracking applicants for temporary housing after the 2004 Florida hurricanes. Id. at ¶23. After Hurricane Katrina, FRRATS was upgraded and “became the primary means in Louisiana by which FEMA managed the housing of hurricane survivors, determined which trailers were assigned to hurricane survivors, assigned and issued work orders to FEMA contractors (including Fluor), tracked the progress of haul/install trailers, and a number of other functions.” Id. at ¶26. However, the FRRATS database was not used by Fluor to invoice FEMA for the haul/install of travel trailers. Exhibit 5 (Declaration of Charles A. Whitaker). The only way to determine what Fluor actually billed FEMA is to revi w the invoices submitted by Fluor to FEMA—not by reviewing FRRATS. Id. Warder also admitted that the only way one could determine whether Fluor billed FEMA for trailers was to look at the actual invoices submitted by Fluor to FEMA—not the FRRATS database.7 Warder also testified he never tried to reconcile 6 Exhibit 1 (Depo. of Keyser, pp. 85-87, 121, 124). 7 Excerpt from Warder Depo.: “Q: Isn’t it true that the only way you will be able to determine what Fluor billed FEMA is to look at Fluor’s invoices, correct? A. Yes. And looking at FRRATS would not tell you what FEMA billed—what Fluor billed FEMA, correct? A. It tells me what work they did. Q. But it doesn’t tell you what Fluor billed FEMA, correct? A. Correct. Q. So looking at FRRATS wouldn’t tell you at all what claims were made against FEMA, correct? A. No.” Exhibit 2 (Depo. of Warder, p. 16). Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 8 of 23 9 FRRATS with the invoices submitted by Fluor to FEMA to determine whether there was any discrepancy. Id. at p. 15. In addition, Warder testified that the basis for the allegation that Fluor billed for 10,000 trailers it did not haul/install was (1) that he had heard a rumor, and (2) when he heard the rumor, he asked FEMA officials and Fluor but got no response. Id. at pp. 55, 57. Warder testified that, when suit was filed, he did not know if it was true whether Fluor had actually billed FEMA for 10,000 trailers that it had not hauled and installed.8 Again, Warder admitted that the only way one could determine whether Fluor double billed FEMA for trailers was to look at the actual invoices submitted by Fluor to FEMA—not the FRRATS database. Id. at p. 16. However, Warder testified he never reviewed any of Fluor’s invoices to determine whether Fluor double billed FEMA for trailers. Id. at pp. 14-16. Warder testified that he could not identify the trailers “that you claim Fluor double or triple billed for” Id. at p. 38. When asked to identify, from the list of invoices submitted by Fluor to FEMA, which invoices contained double billing, Warder testified he did not know. Id. at p. 41. When asked whether he knew the total amount of damages Relators are claiming against Fluor for double billing for the installation of travel trailers, Warder testified, “Not at this time.” Id. at p. 54. Moreover, Louisa Kirakosian, former counsel for Relators, prepared a spreadsheet containing 194 trailers that were included in databses maintained by Fluor and Shaw. Exhibit 2 (Depo. of Warder, pp. 18, 21). Since the same trailers were included in Fluor’s and Shaw’s databases, it was Lawyer Kirakosian’s assumption that either Fluor or Shaw had billed FEMA 8 “Q. When you filed suit or when you filed this suit, you did not know, however, whether it was true that Fluor had actually billed FEMA for 10,000 travel trailers that it had not hauled and installed; is that correct? A. Definitely, no. I did not know that.” Id. at p. 59. Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 9 of 23 10 for a trailer that one or the other had not installed. Id. However, Warder testified he did no “work to determine the accuracy of the exhibit” (i.e., spreadsheet) prepared by Lawyer Kirakosian.9 Warder also testified that, of the 194 trailers on the spreadsheet prepared by Lawyer Kirakosian, Warder randomly chose 4 trailers and reviewed the FRRATS database in an attempt to determine whether both Fluor and Shaw had installed the same 4 trailers. Id. at pp. 25-26. At the same time, Warder admitted there are errors in the FRRATS database. Id. at p. 26. Warder also admitted that he did not know whether Fluor and Shaw had actually invoiced FEMA for the 4 trailers that he attempted to verify on Lawyer Kirakosian’s spreadsheet.10 In fact, Warder testified that he would need to review the invoices submitted by Fluor to FEMA to determine if there was any double billing, not the FRRATS database. Id. at p. 141-142. Warder claims that Fluor did not produce all of theinvoices submitted to FEMA with the backup. However, Fluor made the invoices/backup available to the Relators in a warehouse in South Carolina in the usual course of business under Rule 34,11 Relators visited the warehouse, and Fluor produced the FEMA invoices/backup that Relators requested to review.12 Id. at p. 31. With respect to the 10,000 trailers that Warder testifi d were “rumored” to have been billed by Fluor but not installed, Relator, Elizabeth Reeves, testified she had no information and would have to rely on Warder. Exhibit 3 (Depo. of Reeves, pp. 71-72). Reeves also admitted 9 Id. at p. 18; Excerpt from Depo. of Warder: “Q. So you haven’t prepared anything with respect to these alleged double billings, right, you personally? A.Correct.” Id.. at p. 175. 10 Excerpt from Depo. of Warder: “Q. Do you know whet r or not Fluor and/or Shaw billed FEMA for any of these trailers that you marked with a star? A. I mean it was impossible to know that. Q. So the answer is no, you don’t know? A. Correct.” Id. at pp. 29, 249-252. 11 Exhibit 6 (Fluor’s Response to Relators’ Discovery Requests, 8, 11). 12 Excerpt from Depo. of Warder: “A. Counsel at the time requested a cross-section of the invoices, yes. Q. And you were provided with the invoices that your counsel requested, correct? A. Correct. Q. And the supporting data as well, correct? A. Correct.” Exhibit 2 (Depo. of Warder, p. 31). Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 10 of 23 11 that she did not review any of Fluor’s invoices submitted to FEMA to determine whether any of these 10,000 trailers had actually been billed. Id. at pp. 71-72. Reeves further testified that, except for the 109 trailers (which are the subject of the other MPSJ), she had no other evidence of any double billd trailers by Fluor.13 Moreover, Reeves has no idea what invoices submitted by Fluor to FEMA might contain double billing. Id. at p. 37. Reeves has no knowledge of the 194 trailers identifi d by Lawyer Kirakosian as trailers possibly billed by Fluor and/or Shaw, and deferred to Warder. Id. at p. 38-39. Again, other than the 109 trailers which are dealt wi h in the other MPSJ filed simultaneously herewith, Relators have absolutely no evidence to support the claims that Fluor charged FEMA for about 10,000 trailers that it did not haul or install, or that Fluor double billed for the installation of trailers, and/or that Fluor r Shaw billed for trailers that one or the other did not install. As such, Fluor is entitled to parti l summary judgment on these claims. B. Allegation No. 2: There is No Evidence that Fluor billed for Work Not Done. At paragraph 59 of the 5AC (R. M258), Relators allege that Fluor violated 31 U.S.C. §3729(a)(1)(A) of the FCA because it charged FEMA “for work it did not in fact do.” Fluor asked each of the Relators to outline the evidence for these allegations. Keyser testified that, with respect to the claim for billing for work not done, he did not have all the data and that it wasn’t “his body of work actually identifying the specific tems of fraud.” Exhibit 1 (Depo. of Keyser, p. 21). Keyser also testified it was the lawyer’s job to identify the factual allegations of fraud, not his. Id. at p. 22. 13 Excerpt from Depo. of Reeves: “Q. So it’s your testimony that you believe there is additional double billing in addition to Reeves 3, but as you sit here today you’re not—you don’t have evidence of that yet, is that correct. A. I’m going through the evidenc. Do I believe there is more? Yes. Do I have it to give you today? No. It’s –I split the answer. That’s all I can do.” Exhibit 3 (Depo. of Reeves, p. 36; see also, pp. 30-32, 271-272). Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 11 of 23 12 Warder was asked to explain the work Fluor charged FEMA for that Fluor did not in fact do. Warder explained that this was referring to the 10,000 trailers that he alleged Fluor billed FEMA but did not install. Exhibit 2 (Depo. of Warder, p. 14). As discussed, above, Warder has no evidence to support this claim. In identifying other work that Fluor billed FEMA for that it allegedly did not in fact do, Warder also referred to the 194 trailers that were identified by Lawyer Kirakosian as being included in both Fluor’s and Shaw’s records. Id. at p. 17. However, Warder admitted he did nothing to determine whether Fluor and/or Shaw had actually double billed for the installation of these 194 trailers. Id. at pp. 18, 29. Reeves testified that she had no evidence of any damages related to the alleged billing by Fluor to FEMA for work not done, except for the 109 trailers that Fluor identified and reimbursed FEMA in 2009 (which are the subject of the other MPSJ) and the 10,000 trailers of which she had no evidence. Exhibit 3 (Depo. of Reeves, p. 272). Again, other than the 109 trailers which are dealt with in the other MPSJ, Relators have absolutely no evidence to support the claim that Fluor invoiced FEMA for work allegedly not done. As such, Fluor is entitled to partial summary judgment on this claim. C. Allegation No. 3: There is No Evidence that Fluor Uselessly Hauled Trailers, which is alleged to be Work Outside the Scope of the FEMA Contract. In paragraphs 53 and 59 of the 5AC (R. M258), Relators contend that Fluor uselessly hauled trailers for no purpose, which work was outside the scope of the FEMA contract. In response to questions asking for evidence supporting this claim, Keyser testified he had no idea what trailers Fluor had invoiced FEMA for that were alleged to have been uselessly hauled. Exhibit 1 (Depo. of Keyser, p. 107). Keyser further testified he learned of the alleged useless hauling from two truckers who had flat tires on theside of the road. Id. at pp. 105-106. Keyser stopped to talk to the two truckers on the side of the road, and the two truckers told him of the Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 12 of 23 13 alleged useless hauling. Id. Other than Keyser’s conversation with two truckers on the side of the road, Keyser admitted he had no other evidence of alleged useless hauling by Fluor.14 Id. at pp. 113-114, 116. Keyser also admitted that he had no evidence of whether Fluor actually made a claim against FEMA for the alleged useless hauling. Id. at p. 115. In Warder’s deposition, Warder remembered that one f the trucker’s names was Aaron Dugas, and that in 2006, Trucker Dugas told Warder that trailers were allegedly uselessly hauled. Exhibit 2 (Depo. of Warder, pp. 88-89). Warder has no idea how many trailers were allegedly uselessly hauled. Id. at p. 89. When asked whether the basis of the useless hauling allegation was Warder’s conversation with Trucker Dugas, Warder replied “You will have to ask the lawyer that drew that up. I just gave my part.” Id. at p. 90. Warder testified that he and Keyser talked to Aaron Dugas together. Id. at p. 91. Warder also testified that he did not personally investigate Aaron Dugas’ allegations to determine whether the alleg tions were true. Id. Warder also stated he never asked Fluor about the useless hauling alleations, and that he never found any invoice submitted by Fluor to FEMA that contained charges for useless hauling. Id. at pp. 91-92. Finally, Warder testified he does not know whether Fluor ever submitted an invoice to FEMA that contained charges for useless hauling. Id. at p. 93. Reeves testified she had no knowledge of the allegations of useless hauling by Fluor. Exhibit 3 (Depo. of Reeves, p. 108). As such, the only evidence of useless hauling is a conversation that Keyser had with two unnamed truckers on the side of the road, and a conversation that Warder had with a trucker named Aaron Dugas. None of the Relators did any resea ch to determine whether the allegations 14 Excerpt from Keyser Depo: “Q. Mr. Keyser, what other evidence do you have of this useless hauling, please? A. Only verbal testimony. Q. From who? From you or fr m other witnesses? A. From the people who reportd it to me. Q. So who were the people who reported it to you? A. The—I keep telling you—Q. The two truckers. A. Right.” Exhibit 1 (Depo. of Keyser, pp. 113-114). Excerpt from Keyser Depo.: Q. Other than the two trailers being hauled by the two truckers, “Do you know if any other trailers that were allegedly uselessly hauled? A. I can’t think of any right now.” Exhibit 1 (Depo. of Keyser, p. 116. Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 13 of 23 14 by the truckers of useless hauling were true. None f the Relators have any evidence that Fluor ever submitted a claim to FEMA for useless hauling. Since the conversation with the truckers on the side of the road is inadmissible hearsay, and because there is no other evidence of useless hauling, Fluor prays for summary judgment on the usless hauling claim. D. Allegation No. 4: The Unauthorized Work Order Claim Has No Merit. Although not included in any of the counts pleaded in the 5AC, Relators claim in the 5AC that Defendants improperly issued work orders to themselves in violation of the Federal Acquisition Regulations (“FAR”). It does not appear that Relators are making a claim for damages based on this allegation. However, if Relators are making a damages claim under the FCA based on unauthorized work orders, then Fluor is entitled to summary judgment based on the fact that Stephen DeBlasio of FEMA testified the work orders were in fact authorized by FEMA, and Relators in their depositions either exprssly agreed with DeBlasio or testified they did not know the answer. In paragraph 2 of the 5AC, Relators allege that Defendants were able to get away with double billing for trailers “due to the fact that they improperly issued work orders to themselves in violation of the FAR.” R. M258. Relators also allege that, “[f]rom about September 2005 through at least November 2006, Fluor and Shaw’s employees entered the FRRATS database to issue work to themselves, using their own work orders issued to themselves and/or subcontractors to perform work for which they later invoiced FEMA and they were paid.” R. M258, 5AC, ¶21. Relators further contend “Fluor and Shaw’s employees did not provide information or notification to the contracting officer or the COTRs about the work orders they were issuing to themselves.” R. M258, 5AC, ¶21. Relators then give examples of work orders Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 14 of 23 15 being issued in paragraphs 22-25 of the 5AC. In paragr phs 26-33 of the 5AC, Relators contend that Fluor violated the FEMA contract and the FARs by allegedly issuing work orders to itself. As Stephen DeBlasio testified in the declaration attached as Exhibit 4 , the procedure for issuance of work orders was outlined and implemented by FEMA. DeBlasio has 35 years of experience working for the U.S Government, including 24 years with the General Services Administration and 11 years with FEMA. Id. at ¶2. After Hurricane Katrina made landfall on August 29, 2005 until mid-2006, DeBlasio was the Chief, Director of Housing Operations (“DHOPS”) for FEMA and was stationed in Baton Rouge. Id. at ¶4. As Chief of DHOPS, DeBlasio was responsible for leading the effort to h use families that were displaced by Hurricanes Katrina and Rita in trailers. Id. During the height of the disaster response, it was DeBlasio’s goal to house 400 to 600 families per day in trailers. Id. at ¶5. DeBlasio testified that, prior to Hurricane Katrina, Fluor entered into a contract with FEMA to provide personnel, materials, services, equipment, and facilities to provide temporary housing solutions and related services in response to natural and man-made disasters that may occur in the future (the “FEMA contract”). Id. at ¶6. Thus, the FEMA contract was already in place prior to Hurricane Katrina, and was not a contract entered into as a result of Hurricane Katrina. Id. Under the FEMA contract, Fluor was assigned multiple Task Orders for natural disaster response work across the United States, includ g Wyoming, Louisiana, Texas and Florida. Id. at ¶9. The work performed by Fluor to haul/install trailers to house victims of Hurricanes Katrina and Rita was performed pursuant to Task Order 20. Id. at ¶10. Also, under Task Order 8 issued pursuant to the FEMA contract, Fluor provided temporary employees to FEMA, similar to a staffing agency. Id. at ¶14. These employees were Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 15 of 23 16 seconded to (i.e., under the supervision of) FEMA and received direction from FEMA, and are referred to herein as “FEMA-seconded employees.” Id. As director of FEMA, DHOPS, DeBlasio directed and approved the process by which applicants for temporary housing were screened, approved for housing, and placed in trailers. Id. at ¶16. The process was designed to ensure that housing applicants were placed into housing as quickly and efficiently as possible, to help alleviate human suffering. Id. at ¶17. The process approved by FEMA is set forth below. Hurricane survivors (applicants) in need of housing assistance contacted FEMA either in person, by phone or by website, and FEMA conducted a pre-placement interview (“PPI”). Id. at ¶18. FEMA employees received the applicant’s information and input the information into the National Emergency Management Information System (“NEMIS”) database. Id. at 19. Based on the information in NEMIS, FEMA employees made a determination regarding whether the applicant was eligible for FEMA housing assistance, including trailers. Id. at ¶20. Initially, the information in NEMIS on eligible applicants was used by FEMA to prepare work orders in paper form. The paper work orders were provided by FEMA to Fluor instructing Fluor to haul/install trailers among other things. Id at ¶21. Over time, information on each eligible applicant was automatically downloaded from the NEMIS database to the FRRATS database. Id. at ¶22. FRRATS became the primary means in Louisiana by which FEMA managed the housing of hurricane survivors, determined which trailers were assigned to hurricane survivors, assigned and issued work orders to FEMA contractors (including Fluor), and tracked the progress of hauling/installing trailers. Id. at ¶25. FEMA strictly monitored all persons with access to FRRATS, including the FEMA- seconded employees (including Fluor employees) who FEMA granted access. Id. at ¶26. FEMA Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 16 of 23 17 was the gatekeeper for FRRATS, and was the sole agency/entity with the power to grant individuals access to FRRATS. Id. at ¶27. Fluor had no authority to grant individuals ccess to FRRATS. Id. at ¶27. As Chief of FEMA, DHOPS, DeBlasio directed Fluor to place applicants in trailers as quickly and efficiently as possible. Id. at ¶28. Given the difficult and dire circumstances for applicants who had no place to live, FEMA determined the following process provided the most efficient means for housing as many applicants as quickly as possible. Id. In sum, if FEMA determined that an applicant was eligible for housing assistance and was eligible to receive a trailer, then FEMA input the applicant’s eligibility status into NEMIS. Id. All eligible applicants were downloaded daily by FEMA from NEMIS into FRRATS. Id. The process for issuing work orders depended upon whether the trailer would be installed at a private site (i.e., driveway at a home), a group site constructed by FEMA, or a commercial trailer park. For private sites, FEMA’s procedure provided that, for each applicant deemed eligible for a trailer by FEMA, a work order would be issued to conduct an assessment of the site where the applicant desired to have the trailer installed to determine whether the site was feasible. Id. Daily, FEMA authorized either a FEMA employee or a FEMA-seconded employee (including Fluor employees) to instruct Fluor to conduct site assessments for the eligible participants within Fluor’s assigned geographic area to determine whether the proposed site for the trailer was feasible. Id. After assessing the site, FEMA input into FRRATS whether the site was feasible or infeasible. Id. If the private site was feasible, then a daily report was generated from FRRATS listing all eligible applicants whose site was feasible for the installation of a trailer within the geographic area assigned to Fluor. Id. From this daily report, FEMA’s procedures required FEMA or a Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 17 of 23 18 FEMA-seconded employee (including Fluor employees) to issue a work order to Fluor to install a trailer on the site. Id. FEMA granted the FEMA-seconded employees access to FRRATS to issue work orders to expedite the placement of trailers so that homeless hurricane survivors could be housed as soon as possible. Id. Thus, under FEMA’s procedure, once a site was marked as feasible in FRRATS by FEMA, the applicant was automatically approved by FEMA to receive a trailer, and FEMA-seconded employees (including Fluor employees) were authorized by FEMA to issue work orders to Fluor to install the trailers. Id. For private sites, since it was approved by FEMA that all eligible applicants with feasible sites would receive a trailer, the issuance of the work orders was a perfunctory task under FEMA’s established procedure. Id. This process was designed and approved by FEMA, such that, once an applicant was determined by FEMA to be eligible to receive a trailer and if the proposed site was feasible, then the work order would a tomatically issue by FEMA or a FEMA–seconded employee (including Fluor employees) for the haul/install of the trailer. Id. at ¶29. For group sites, the process was similar, in that, once the group site was constructed, FEMA authorized a FEMA employee or a FEMA-seconded employee (including Fluor employees) to issue work orders (called Unit Delivery Tickets) to Fluor to haul/install the trailers at the group site. Id. at ¶32. Likewise, for commercial trailer parks, once specific lots were approved by FEMA for the installation of trailers, FEMA would authorize a FEMA employee or a FEMA-seconded employee (including Fluor employees) to issue work orders directing that a trailer be installed. Id. at ¶35. Relator Warder admitted that the process described by DeBlasio correctly described the process for the issuance of work orders for the installation of trailers. Exhibit 2 (Depo. of Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 18 of 23 19 Warder, pp. 77-78). While DeBlasio, Chief of DHOPS at FEMA, testified that the above process was approved by FEMA—including that FEMA-seconded employees (including Fluor employees) were authorized to issue work orders, Warder said he did not know if the process was approved by FEMA—but that such was the process actually used. Id. at p. 78. Keyser testified he did not know what the process wa for issuing work orders and did not know whether FEMA approved the process. Exhibit 1 (Depo. of Keyser, p. 66-67). Relator Reeves testified that it was FEMA’s approved procedur that from a daily report listing all eligible applicants whose site was feasible for theinstallation of a travel trailer within a geographic region assigned to Fluor, either FEMA or a FEMA-seconded employee (including Fluor employees) would issue a work order to Fluor to install a trailer on the site. Exhibit 3 (Depo. of Reeves, pp. 90-92). Reeves also agreed with DeBlasio that the above process for the issuance of work orders was approved/authorized by FEMA. Id. at p. 92. As such, there is no genuine issue of material fact in dispute that FEMA’s authorized, implemented and approved the procedure whereby FEMA-seconded employees, including Fluor employees, issued work orders for the haul/install of trailers for eligible. In addition, there is no genuine issue of material fact in dispute that work rders alleged to have been issued by Fluor employees were in fact authorized by FEMA and Fluor is entitled to summary judgment dismissing the unauthorized work order claim with prejudice. E. Allegation No. 5: Relators Admit They Have No Claim related to Deactivations, Emergency Deactivations and Miscellaneous and Emergency Maintenance. In paragraph 30 of the 5AC, Relators allege that “Fluor and Shaw were issuing work orders, including for installations, deactivations, emergency deactivations, and miscellaneous and emergency maintenance, without direction from a COTR or other authorized designee at FEMA.” R. M258. In paragraph 37, Relators contend “Fluor and Shaw submitted hundreds of Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 19 of 23 20 invoices for payment to the federal government for work orders for the same trailers that defendants issued themselves, including hauling andinstalling trailers, maintenance and emergency maintenance of trailers, deactivation and emergency deactivation of trailers, without proper authorization and in order to be able to bill the government multiple times or for trailers that were not actually placed.” Id. Relators admit they have no evidence of these claims. Keyser testified he “did not know” if Relators were claiming damages related to maintenance services and had no evidence of maintenance double billing. Exhibit 1 (Depo. of Keyser, pp. 188, 190). Keyser testified h had no evidence of any deactivation double billing. Id. at p. 189. When asked whether Relators were making any claims gainst Fluor with respect to work done pursuant to allegedly unauthorized work orders for maintenance and emergency maintenance of trailers, Warder responded, “No.” Exhibit 2 (Depo. of Warder, p. 315). When asked whether Relators were making claims against Fluor for double billing for deactivation and emergency deactivation of trailers, Warder replied “I can’t answer that question.” Id. at p. 316. Warder also stated Relators are not making any claims for double billing for deactivation and emergency deactivation of trailers. Id at pp. 316-317. Reeves testified that Relators were making no claims against Fluor related to maintenance and emergency maintenance of trailers. Exhibit 3 (Depo. of Reeves, p. 273). Reeves testified she did not know if Relators were making claims against Fluor related to deactivation and emergency deactivation of trailers. Id. at p. 274. Since Relators have no evidence, Fluor prays for summary judgment dismissing Relators’ claims related to maintenance and emergency maintenc of trailers, deactivation and emergency deactivation of trailers. Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 20 of 23 21 IV. CONCLUSION For the above reasons, Fluor prays that the Court grant this motion for partial summary judgment, and dismiss Counts 1 and 3 of the 5AC based on the following allegations: 1. Fluor charged FEMA for about 10,000 trailers that it did not haul or install, Fluor double billed for the installation of trailers, and Fluor billed for trailers that another contractor also billed for; R. M258, 5AC, ¶¶2, 33, 35, 37, 38,54; 2. Fluor charged FEMA for useless hauling that was outside the scope of the FEMA contract; R. M258, 5AC, ¶¶53, 59; 3. Fluor charged FEMA for work not done; R. M258, 5AC, ¶¶2, 59; 4. Fluor installed trailers pursuant to unauthorized work orders; R. M258, 5AC, ¶¶21-29, 31, 34, 38; and 5. Pursuant to unauthorized work orders, Fluor deactiv ted trailers, performed emergency deactivations on trailers, and performed maintenance on trailers. R. M258, 5AC, ¶30, 37. Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 21 of 23 22 Respectfully submitted, s/ Brandon K. Black BRANDON BLACK (#24298) PAULINE F. HARDIN (#6542) JAMES C. PERCY (#10413) Jones Walker L.L.P. Four United Plaza 8555 United Plaza Boulevard Baton Rouge, Louisiana 70809-7000 Telephone: (225) 248-2128 Facsimile: (225) 248-3128 Attorneys for Defendant, Fluor Enterprises, Inc. Case 2:09-cv-04191-JCZ-DEK Document 303-3 Filed 08/02/16 Page 22 of 23 23 CERTIFICATE OF SERVICE I hereby certify that on the ___ day of August, 2016, I electronically filed the foregoing pleading with the Clerk of the Court using the Court's CM/ECF system, which sent electronic notifications to: Ray Shepard (rshepard@shepardlf.com) Craft Hughes (craft@hughesellzey.com) Bobby Delise (bdelise@dahlaw.com) Counsel for Plaintiff-Relators Andre Lagarde (Andre.Lagarde@usdoj.gov) Counsel for the United States of America Roy C. Cheatwood - rcheatwood@bakerdonelson.com M. David Kurtz - dkurtz@bakerdonelson.com Brian M. Ballay - bballay@bakerdonelson.com Sandra B. Wick Mulvany - swickmulvany@mckennalong.com Thomas A. Lemmer - tlemmer@mckennalong.com Counsel for Shaw Environmental, Inc. and I hereby certify that I have mailed by United States Mail, postage prepaid, the document to the following non-ECF participants: NONE. /s/ Brandon K. Black Brandon K. 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