Ohio court denies interlocutory appeal on denial of 9(b) motion to dismiss in GSA landscaping case

by Ben Vernia | January 19th, 2012

On January 12, District Judge Michael R. Barrett of the Southern District of Ohio, in U.S. ex rel. Elliot v. Brickman Group Ltd., LLC refused to certify for interlocutory appeal his November 2011 denial of the defendant landscaping company’s motion for summary judgment. The relator in the declined qui tam suit worked as a manager for the company and alleged that the company caused its client to submit fraudulent bids for office leases to the General Services Administration, and that when he reported this to the company, it retaliated against him, ultimately forcing him to resign. In November, Judge Barrett denied the motion to dismiss on particularity grounds, reasoning that the rule should be relaxed for the relator, because under the circumstances he could not allege actual false claims that in all likelihood exist, and that his inability to do so was not his fault.

In rejecting the defendant’s motion for an interlocutory appeal (filed after Judge Barrett rejected the company’s motion for reconsideration, too), he found that a recent Sixth Circuit opinion raised no doubts about the basis for his initial decision, and failed to establish the criteria to justify an interlocutory appeal in the case. In addition, Judge Barrett noted that an appellate decision favorable to the defendant on its objection to his 9(b) ruling would not terminate the litigation, because it would not affect the relator’s retaliation claim. Finally, the Court rejected the company’s equitable argument, that the relator intended to launch a competing business. The relator denied any such intent, Judge Barrett noted, and the defendant’s concerns were not relevant to the interlocutory appeal they requested.

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