Civil Action No. 00-11632-RWZ.
January 25, 2005
MEMORANDUM OF DECISION
On August 14, 2000, plaintiff United States, acting on behalf of the United States Postal Service ("USPS"), filed a complaint against defendants Andrew Buckley and his various businesses, alleging that they were paying a third party to tamper with their postage meters thereby enabling them to obtain postage without paying the USPS. Both parties move for summary judgment.
Defendants contend that the statute of limitations bars Count One, which alleges that they violated the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq., by knowingly mailing items with fraudulently obtained postage meter impressions from October 1989 through March 1995. Under the FCA, a civil action may not be brought "more than 6 years after the date on which the violation . . . is committed, or more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the [responsible] official of the United States . . . whichever occurs last." 31 U.S.C. § 3731(b)(1) and (2). Since the complaint was filed on August 14, 2000, plaintiff admits that under the six-year statute of limitations, it can only recover for misconduct beginning on August 14, 1994. Gov't's Mot. at n. 2. However, plaintiff states that it will "likely pursue FCA recoveries back to June 1, 1994, since [defendant] and the Government entered into an FCA Tolling Agreement for this time period during pre-Complaint settlement discussions." Id. The record includes no such agreement. I do not, therefore, consider the argument.
Count Two alleges common law fraud. This claim is subject to a three-year statute of limitations, which, according to defendant, has run. Stolzoff v. Waste Systems International, Inc., 792 N.E.2d 1031, 1038 (Mass.App.Ct. 2003); 28 U.S.C. § 2415(b) ("[E]very action for money damages brought by the United States or an officer or agency thereof which is founded upon a tort shall be barred unless the complaint is filed within three years after the right of action first accrues. . . ."). Plaintiff's reliance on disputed facts "with respect to the Defendants' engagement in fraudulent activity during the time period of 1989 to 1995" is misplaced. Gov't's Reply at 7. Whether disputed or not, the activity admittedly occurred before 1995, and, therefore, falls outside the three-year statute of limitations.
Finally, the equitable remedies sought in Count Three, unjust enrichment and disgorgement, are unavailable as there is an adequate remedy at law. Ben Elfman Son, Inc. v. Criterion Mills, Inc., 774 F. Supp. 683, 687 (D. Mass. 1991). Plaintiff concedes that the FCA provides a remedy, but argues that because the statute of limitations bars recovery for the period prior to June 1, 1994, the legal remedy for that time period has evaporated. Thus, plaintiff seeks to rely on the equitable remedies in Count Three. It cites no authority for its position and I have found none. The motion is allowed as to Count Three.
Plaintiff's motion for summary judgment implicates disputed issues of fact, and is irrelevant in view of the application of the statute of limitations.
Accordingly, plaintiff's motion for summary judgment is denied. Defendant's motion for summary judgment is allowed as to Count One, with respect to claims that arose prior to August 14, 1994. The motion is allowed as to Counts Two and Three.