How To Defend A Whistleblower Retaliation Claim In A Federal Court In Texas

Transcription

1 Case 3:10-cv L Document 7 Filed 05/27/10 Page 1 of 7 PageID 31 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MICHAEL RIDDLE Plaintiff, v. CIVIL ACTION NO. 3:10-cv L DYNCORP INTERNATIONAL INC., MARK RAY, AIMAN K. ZUREIKAT AND RICHARD C. CASHON Defendants. DEFENDANTS' BRIEF IN SUPPORT OF MOTION TO DISMISS TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE: Defendants DynCorp International Inc., Aiman K. Zureikat and Richard C. Cashon (collectively, "Defendants") file this Brief in Support of Defendants' Motion to Dismiss Plaintiff's Original Complaint (the "Complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and would respectfully show the Court the following: I. RELEVANT FACTS Plaintiff Michael Riddle ("Plaintiff") was terminated from employment on September 21, (Complaint, page 3, 12). On March 18, 2010, one hundred and seventy-eight days after his termination, Plaintiff filed the instant lawsuit, alleging that Defendants retaliated against him by discharging him because of lawful acts done by Plaintiff in furtherance of a False Claims Act action, in violation of 31 U.S.C. 3730(h). (Complaint, page 11, 62). DALLAS\

2 Case 3:10-cv L Document 7 Filed 05/27/10 Page 2 of 7 PageID 32 A. Standard of Review II. ARGUMENT AND AUTHORITIES A plaintiff's claims for relief may be dismissed by a court pursuant to Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). The United States Supreme Court, in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct (2007), clarified the standards that apply to dismissals under Rule 12(b)(6), holding that, to survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." 1 Id. at 570; Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly); Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007) (same). "[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should... be exposed at the point of minimum expenditure of time and money by the parties and the court." Cuvillier v. Sullivan, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Twombly, 550 U.S. at 558). In considering a motion to dismiss under Rule 12(b)(6), the court "accepts all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff." Sonnier, 509 F.3d at 675. The court does not look beyond the face of the pleadings when determining whether the plaintiff has stated a claim under Rule 12(b)(6). Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). A court, however, is not required to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. R2 Invs. 1 The U.S. Supreme Court previously held in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99 (1957) that a case should not be dismissed under Rule 12(b)(6) "unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46, 80. In Twombly, the Supreme Court retired the Conley "no set of facts" language, stating that "[t]he phrase is at best forgotten as an incomplete, negative gloss on an accepted pleading standard." 550 U.S. at

3 Case 3:10-cv L Document 7 Filed 05/27/10 Page 3 of 7 PageID 33 LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005). "If a Complaint omits facts concerning pivotal elements of the pleader's claim, the court is justified in assuming the nonexistence of such facts." Ledesma for Ledesma v. Dillard Dep't Stores, Inc., 818 F. Supp. 983, 984 (N.D. Tex. 1993). B. Plaintiff's Original Complaint Must Be Dismissed Under Rule 12(b)(6) for Failure to Timely File His Lawsuit Plaintiff's Original Complaint should be dismissed in its entirety because Plaintiff's sole claim is a retaliation claim under Section 3730(h) of the False Claims Act, and Plaintiff failed to timely file the instant lawsuit within ninety days of his termination from employment. In Graham County Soil & Water Conservation District v. United States ex rel. Wilson, the United States Supreme Court held that the six-year statute of limitations period found in Section 3731(b)(1) of the False Claims Act does not extend to retaliation actions under Section 3730(h). 545 U.S. 409, 422 (2005). Rather, the Court found that "[t]he most closely analogous state statute of limitations... applies." Id. In Graham County, the Supreme Court listed the probable analogous statutes for each of the fifty states. Id. at 419 n.3. For a Section 3730(h) claim filed in Texas, the Supreme Court indicated that the limitations period found in either Section of the Texas Government Code or Section of the Texas Civil Practice and Remedies Code would likely apply. Id. Of these statutory provisions, the Texas Whistleblower Act is clearly more analogous. Section (a) of the Texas Government Code provides that "[a] state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority." The statute of limitations for filing an action under the Texas Whistleblower Act is ninety days. -3-

4 Case 3:10-cv L Document 7 Filed 05/27/10 Page 4 of 7 PageID 34 Tex. Govt. Code Ann Section 3730(h) of the False Claims Act, like the Texas Whistleblower Act, provides relief from retaliation for individuals who suffer an adverse action because they attempt to stop or report violations of law. In contrast, Section of the Texas Civil Practice and Remedies Code is merely a catch-all limitations period which sets a two-year statute of limitations for suits for trespass for injury to the estate or property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer, and forcible detainer. Tex. Civ. Prac. & Rem. Code Ann In the only case to consider the applicable statute of limitations under Section 3730(h) of the False Claims Act pursuant to Texas law since Graham County, Judge Rainey applied the limitations period in the Texas health-care whistleblower retaliation statute. United States ex rel. Smart v. CHRISTUS Health, 626 F. Supp. 2d 647, (S.D. Tex. 2009). The plaintiff in that case alleged Medicare fraud against a health system. Id. at 649. The court noted that "[t]his Court does not decide what statute of limitations would apply in cases outside the health care industry, where perhaps there is no specific whistleblower statute." Id. at 658 n.11. In selecting the health care retaliation statute's limitations period over Texas' residual statute of limitations, the Court noted that the choice between the two was "far from difficult to resolve" because while the catch-all provision applied to "trespass for injury to the estate or to the property of another, conversion of personal property, taking or detaining the personal property of another, personal injury, forcible entry and detainer and forcible detainer," the hospital whistleblower statute, like Section 3730(h), applied to "retaliation for whistleblowing...." Id. at 657. Just as the Supreme Court listed both the statute of limitations applicable to Texas' whistleblower statute and its catch-all statute of limitation as likely candidates for the appropriate -4-

5 Case 3:10-cv L Document 7 Filed 05/27/10 Page 5 of 7 PageID 35 statute of limitations in a Section 3730(h) action in Texas, it also identified two similar possibilities for the state of Idaho. Graham County, 545 U.S. at 419 n.3. In United States ex rel. Suter v. Nat'l Rehab Partners, Inc., a federal court in Idaho analyzed whether its state whistleblower statute or residual statute of limitations provision more closely approximated Section 3730(h), and decided to apply the state whistleblower statute's limitations period. Case Nos. CV S-BLW, CV S-BLW, 2009 U.S. Dist. LEXIS 88630, at *5-6 (D. Idaho Sept. 24, 2009). Other courts have similarly found the limitations periods in state whistleblower statutes to be applicable to claims under Section 3730(h). See, e.g., United States ex rel. Repko v. Guthrie Clinic, P.C., 557 F. Supp. 2d 522, 528 (M.D. Pa. 2008) ("Pennsylvania's most closely analogous statute would be its whistleblower law..."); United States ex rel. Lockyer v. Haw. Pac. Health, 490 F. Supp. 2d 1062, 1082 (D. Haw. 2007) (noting that the statute of limitations pertinent to a Section 3730(h) claim in Hawaii is the limitations period found in the Hawaii Whistleblower Protection Act); Lehoux v. Pratt & Whitney, Civ. No P-S, 2006 U.S. Dist. LEXIS 5452, at *3 (D. Me. Feb. 8, 2006) (applying limitations period pertinent to claims under Maine's Whistleblower's Protection Act to retaliation claim under federal False Claims Act). Relevant case authority, coupled with the similarity of the language, coverage and objectives of Section 3730(h) and the Texas Whistleblower Act, clearly indicates that the limitations period in Section of the Texas Government Code should apply to Plaintiff's False Claims Act retaliation claim. Dismissal of a claim under Section 3730(h) is proper where the plaintiff fails to timely file his lawsuit. See, e.g. Smart, 626 F. Supp. 2d at 658 (dismissing retaliation claim under False Claims Act when plaintiff failed to timely file suit). Given the fact that the Texas Whistleblower -5-

6 Case 3:10-cv L Document 7 Filed 05/27/10 Page 6 of 7 PageID 36 Act, which prohibits retaliation against whistleblowers who complain of violations of law, is much more analogous to Section 3730(h) than the catch-all limitations period of Section of the Texas Civil Practices and Remedies Code, Plaintiff had ninety days to file his lawsuit from the date of his termination. Tex. Govt. Code Ann ; Graham County, 545 U.S. at 422. As Plaintiff failed to file the instant action until one hundred seventy-eight days following his termination, a time period outside the ninety days allotted by the Texas Whistleblower Act, his Section 3730(h) claim is time barred and should be dismissed. (Complaint, page 11, 62). III. CONCLUSION As shown herein, Plaintiff's sole claim should be dismissed because it is time barred, and he has failed to plead sufficient facts to state a claim to relief that is plausible on its face. Accordingly, Plaintiff has failed to state a claim upon which relief may be granted. WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that Plaintiff's retaliation claim under Section 3730(h) of the False Claims Act be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) and that they be awarded their costs, and such other and further relief to which they may be justly entitled. Respectfully submitted, /s/ Robert E. Sheeder Robert E. Sheeder State Bar No Bracewell & Giuliani LLP 1445 Ross Avenue, Suite 3800 Dallas, Texas Telephone: (214) Telecopy: (214)

7 Case 3:10-cv L Document 7 Filed 05/27/10 Page 7 of 7 PageID 37 ATTORNEY FOR DEFENDANTS CERTIFICATE OF SERVICE I hereby certify that on May 27, 2010, a copy of the foregoing document was electronically filed. Notice of this filing will be sent to counsel of record for all parties by operation of the Court s Electronic Filing System. /s/robert E. Sheeder -7-