Case 1:10-cv WMH Document 70 Entered on FLSD Docket 06/06/2013 Page 1 of 3

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1 Case 1:10-cv WMH Document 70 Entered on FLSD Docket 06/06/2013 Page 1 of 3 MARJAN MAZZA, on behalf of the UNITED STATES OF AMERICA, vs. Plaintiff/Relator MIAMI-DADE COUNTY and MIAMI-DADE TRANSIT DEPARTMENT, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO.: 1:10-cv HOEVELER Defendants. / NOTICE OF THE UNITED STATES OF ITS OPPOSITION TO DISMISSAL ON THE BASIS OF THE PUBLIC DISCLOSURE BAR Pursuant to the False Claims Act, 31 U.S.C. 3730(e)(4)(A), the United States notifies the Court that it is exercising its right to object to dismissal of Relator Marjan Mazza s ( Ms. Mazza ) First Amended Complaint on the basis of the Public Disclosure Bar. On January 31, 2013, Miami-Dade County and Miami-Dade County Transit Department filed their Motion to Dismiss Plaintiff s First Amended Complaint (the County s Motion to Dismiss. ) (DE 53.) In Section III of the County s Motion to Dismiss, defendants assert that the First Amended Complaint must be dismissed because this Court has no subject matter jurisdiction under the Public Disclosure Bar. The County asserts that Ms. Mazza s allegations were publicly disclosed during a federal government investigation and audit involving the same issues alleged in the First Amended Complaint. See County s Motion to Dismiss at The County also contends that the First Amended Complaint fails to allege sufficient facts showing that Ms. Mazza is an original source. See id. at The FCA states in pertinent part: The court shall dismiss an action or claim under this section, unless opposed by the Government, if substantially the same allegations or transactions as

2 Case 1:10-cv WMH Document 70 Entered on FLSD Docket 06/06/2013 Page 2 of 3 alleged in the action or claim were publicly disclosed-- (i) in a Federal criminal, civil, or administrative hearing in which the Government or its agent is a party; (ii) in a congressional, Government Accountability Office, or other Federal report, hearing, audit, or investigation; or (iii) from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. 31 U.S.C. 3730(e)(4)(A) (emphasis added). 1 In sum, the statute provides that, if the United States objects, the court may not dismiss the action on the ground of public disclosure. The United States hereby notifies that Court that it is exercising its right to object to the dismissal of the action on this ground. Accordingly, defendants motion to dismiss on the ground of public disclosure bar should be denied. The United States takes no position on the remaining grounds asserted for dismissal in the County s Motion to Dismiss. June 6, 2013 STUART F. DELERY Acting Assistant Attorney General MICHAEL D. GRANSTON JAMIE ANN YAVELBERG MELISSA R. HANDRIGAN Attorneys U.S. Department of Justice Civil Division P.O. Box 261, Ben Franklin Station Washington, DC Tel.: /Fax: Melissa.R.Handrigan@usdoj.gov Counsel for United States WIFREDO A. FERRER United States Attorney James A. Weinkle JAMES A. WEINKLE Assistant United States Attorney Fla. Bar No.: N.E. 4th Street, 3rd Floor Miami, Florida Tel.: /Fax: James.Weinkle@usdoj.gov Counsel for United States 1 The public disclosure bar of the FCA was amended on March 23, Because the instant action was filed on December 10, 2010, the amended version of the public disclosure bar applies. See United States of America, ex rel. Sanchez, v. Abuabara, No.: , 2012 U.S. Dist. LEXIS *3-*4 and n.1 (S.D. Fla. Jun. 4, 2012) ( Since the suit in this case was filed many months after the Act was signed into law, this Court will apply the amended language. The parties agree that the amended version of the Public Disclosure Bar is applicable. ) -2-

3 Case 1:10-cv WMH Document 70 Entered on FLSD Docket 06/06/2013 Page 3 of 3 CERTIFICATE OF FILING AND SERVICE I hereby certify that on June 6, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system. I also certify that the foregoing document is being served this day on all counsel of record on the attached Service List via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsels who are not authorized to receive electronically Notices of Electronic Filing. Michael R. Josephs Adam Charles Josephs THE JOSEPHS LAW FIRM 255 Alhambra Circle, Suite 700 Coral Gables, Florida Counsel for Plaintiff Marjan Mazza Telephone: Facsimile: mrj@florida-attorneys.com acj@florida-attorneys.com Counsel for Relator-Plaintiff James D. McCarthy Diamond McCarthy, LLP Renaissance Tower 1201 Elm Street 34th Floor Dallas, TX Telephone: jmccarthy@diamondmccarthy.com Robert Sadowski, Esq. Raphael Katz, Esq. Diamond McCarthy LLP 620 8th Avenue 39th Floor, New York Times Building New York, NY Telephone: rsadowski@diamondmccarthy.com rkatz@diamondmccarthy.com Pro Hac Vice Counsel for Relator- Plaintiff Oren Rosenthal Hugo Benitez Assistant County Attorneys Miami-Dade County Attorney Office 111 N.W. 1st Street, Suite 2810 Miami, Florida Telephone: Facsimile: heb2@miamidade.gov orosent@miamidade.gov Counsel for the County James A. Weinkle Assistant United States Attorney Office of United States Attorney 99 N.E. 4th Street, Suite 300 Miami, FL Telephone: Facsimile: James.Weinkle@usdoj.gov Melissa Handrigan Trial Attorney U.S. Department of Justice, Civil Division P.O. Box 261, Ben Franklin Station Washington, DC Telephone: Facsimile: Melissa.R.Handrigan@usdoj.gov Counsel for United States James A. Weinkle JAMES A. WEINKLE Assistant United States Attorney -3-

4 Case 1:10-cv WMH Document 76 Entered on FLSD Docket 08/12/2013 Page 1 of 5 * UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO CIV-H0EVELER MARJAN MAZZA, Plaintiff, MIAMI.DADE COUNTY, and MIAMI.DADE TM NSIT DEPARTMENT, Defendants. / ORDER DENYING MOTION T0 DISMISS THIS CAUSE comes before the Court on the Defendants' M otion to Dismiss. The Court has review ed the briefs and pertinent portions of the file, and finds that dism issal is not w arranted. The Court also notes that the United States, pursuant to 31 U.S.C. j 3730(e)(4)(A), has filed notice of its opposition to dism issal on the basis of the public disclosure bar(which was one of the grounds on which the Defendants sought dism issal, as noted below). BACKGROUND Plaintiff is a form er em ployee of M iam i-dade Transportation Departm ent w ho claims that she was harassed and then discharged in retaliation for reporting the m isuse of federal funds.plaintiff alleges that the Defendantsjeopardized hundreds of m illions of dollars of federalgrants by disregarding regulations controlling those grants and m aking false reports, which had resulted in the suspension of som e federal

5 Case 1:10-cv WMH Document 76 Entered on FLSD Docket 08/12/2013 Page 2 of 5 *<. funding to Defendants. On December 20, 2010, Plaintiff filed a qui tam complaint, which was im m ediately placed under seal, against M iam i-d ade County and M iam i-dade Transit Department alleging violations of the False Claims Act, 31 U. S.C. j 3729, et seq. (FCA).1 On M ay 21, 2012, the United States filed a notice stating that it would not intervene in the case, but reserving its right to intervene at a later date, z and the qui tav com plaint w as unsealed. An Am ended Com plaintw as filedon Decem ber 17, 2012, aleging violations of the FCA, as to false records and statements made by Defendants, and retaliatory steps taken against Plaintiff M azza in violation of the anti-retaliation provisions of the FCA, 31 U.S.C. j 3730(h). Defendants filed a motion to dismiss on January 31, 2013, arguing that the Plaintiff failed to allege fraud w ith sufficient particularity, and that Plaintiff had not alleged a proper claim under the FCA. Defendants also argue that the Defendant M iam i-dade Transit Departm ent is a departm ent of the County and is not subject to suit. The United States has advised the Court, pursuant to 3IU.S.C. j 3730(e)(4)(A), that the governm ent opposes dism issal of this case on the basis of the public disclosure lon March 25, 2011, while this qui tam case remained under seal, Plaintiff filed a new case alleging a violation of the anti-retaliation provision of the FCA (31 U.S.C. j 3730(h)), m aking the sam e allegations as contained in the instant case. The later-filed case, Case No. 11cv21032 has been dismissed as duplicative. 2The notice also stated the requirements of 31 U. S.C. j 37301)(1), which provides that the Relator m ay m aintain the action in the nam e of the U nited States but that this action m ay not be dism issed unless the Attorney General gives written consent to the dism issal, with reasons for the consent. 2

6 Case 1:10-cv WMH Document 76 Entered on FLSD Docket 08/12/2013 Page 3 of 5 # bar. ECF No. 70. ANALYSIS As this case is before the Court on a m otion to dism iss, the Court takes a1l factual allegations and inferences contained in the com plaint and accepts them as true and construes them in w hatever light is m ost favorable to the Plaintiff; how ever, the sam e approach does not apply to legal conclusions. A shcroft v. Iqbal, 556 U.S. 662, 678 (2009). W hen ruling on a motion to dism iss, courts m ust determ ine w hether a plaintiff s allegations are 'enough to raise a right to relief above the speculative level.' Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 555 (2007). lt is undisputed that actions brought pursuant to the FCA m ust satisfy the pleading standards of Fed. R. Civ. P. 8(a)(2) (requiring a short and plain statement showing that the pleader is entitled to relieg and also of Fed. R. Civ. P. 94b) (requiring a party to state with particularity the circumstances constituting fraud or m istake). Rule 9(b) is satisfied when a FCA com plainant alleges dtlfacts as to tim e, place) and substance of the defendant's alleged fraud,' specifically lthe details of the defendants' a legedly fraudulent acts, when they occurred, and who engaged in them.' Hopper v. Solvay Pharm.. Inc., 588 F.3d 1318, 1324 (11th Cir. 2009) (quotations om itted). The Eleventh Circuit has explained that a relator m ust dtidentify the particular document and statement alleged to be false, who m ade or used it, when the statement was m ade, how the statement was false, and what the defendants obtained as a result.' U nited States ex rel. M athenv v. M edco H ealth 3

7 Case 1:10-cv WMH Document 76 Entered on FLSD Docket 08/12/2013 Page 4 of 5 1 Solutions. Inc., 671 F.3d 1217 (11th Cir. 2012). According to the alegations in the complaint, 3 Plaintiff began working for Defendants in June 2009.First Amended Complaint, ECF No. 46, IT 10, 14. The United States Department of Transportation (USDOT) had conducted an dimproper paym ent audit' of M iam i-dade County in 2009 and as a result the County returned $845,930 to the federal governm ent because four contracts from 2007 had om itted mandatory language as to the purchase of American-manufactured products, and requirem ents to pay proper wages to transit laborers. ld.,!! Plaintif claim s that instead of this sm all am ount of adm ittedly im proper contracts there were as m any as 95% of the contracts which had this faw. LḷL,! 130. A subsequent audit w as conducted by the U SD OT in 2010, as to contracts issued in 2008, and found additional contracts missing the mandatory language. Id., jr 131. Plaintiff alleges that she and others w ere told to retroactively generate tim e-sheets for expenses on contracts dating back to 2003, and to prepare tdrevised' num bers for prior years as to preventative maintenance grants reimbursement. 1d.,!! Plaintiff claim s that she refused to m ake false statem ents and was discharged on November 23, 2010.According to Plaintiff, on December 7, 2010, County officials appeared before the M iam i-dade County Com m issioners and falsely stated that the suspension of federal funds had resulted from accounting 3plaintiff also has submitted a declaration, upon which the Court does not rely. A lthough the Court m ay consider w hen ruling on a m otion to dism iss certain docum ents outside the pleadings, the Court does not reach that question here and specifically is not relying on any aspect of Plaintiff s declaration. 4

8 Case 1:10-cv WMH Document 76 Entered on FLSD Docket 08/12/2013 Page 5 of 5 Z errors and that dthose responsible had been removed.' Id.,!t 147. Defendants argue that the Plaintiff has not m et the pleading standards of Rule 9*), but this Court disagrees. Plaintiff has sufficiently stated her claims such that the Defendants are able to respond. And, as to Defendants' argum ent that the public disclosure bar justifies dismissal because Plaintiff was not an 'doriginal source,' the Court also disagrees w ith Defendants. M oreover, as the U nited States has opposed dism issal on this basis, the Court's directive is clear - the Defendants' m otion to dism iss on this ground m ust be denied. Finally, as to Defendant's argum ent that the M iam i-dade Transit Department is not subject to suit, the Court denies the m otion to dism iss, but does so without prejudice for the County to raise this argum ent again after dem onstrating that the Transit Departm ent is, indeed, a department' not subject to suit. Based on the above, it is ORDERED AND ADJUDGED that the Defendants' Motion to Dismiss is DENIED. Defendants shall respond to the complaint within twenty (20) days of this Order. # l $ x $ G 9* DONE AND ORDERED in Miami, Florida this day of copies to: counsel of record : Ik WILLIAM M. HOEVELER SENIOR UNITED STATES DISTRICT JUDGE