by Ben Vernia | June 7th, 2010
In a May 28 order, Judge Richard Kopf of the District of Nebraskagranted a motion by General Dynamics Armament and Technical Products, Inc. to dismiss a declined qui tam complaint under Fed. R. Civ. P. 9(b). Judge Kopf previously granted a similar motion by General Dynamics, but granted the relator leave to amend his complaint to comply with the requirements of Rule 9(b).
The relator, Phillip Cox, is a Quality Assurance Specialist assigned to oversee production of goods for the U.S. government at General Dynamics’ Lincoln, Nebraska plant. Cox alleges numerous defects in products manufactured by General Dynamics to fulfill government contracts, listing fourteen “problems which led to . . . instances of fraud/false claims.”
Judge Kopf ruled that Cox’s allegations as to manufacturing defects were insufficient to satisfy the requirements of Rule 9(b), since nothing in his complaint particularly alleged that any false claims were presented to the government. Kopf reasoned:
To comply with Rule 9(b), Cox must provide details showing that claims for payment were actually made with respect to the allegedly defective device . . . Cox’s allegations fail to demonstrate that he has knowledge that the government was actually billed for a product that failed to pass his inspection.
Judge Kopf declined to grant Cox leave to amend his complaint, because “he has not shown that the pleading deficiencies can be corrected.” General Dynamics also filed a motion for attorneys’ fees under 31 U.S.C. § 3730(d)(4), which was denied because “the claim is not clearly frivolous, . . . [or] clearly vexatious or brought primarily for the purposes of harassment.”
