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UNITED STATES EX REL. SCHIFF v. ATLANTIC BASIN IRO

December 10, 1943

UNITED STATES ex rel. SCHIFF et al.
v.
ATLANTIC BASIN IRON WORKS et al.



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Two motions have been made by the defendants herein, under paragraph (b), subdivision (6), and paragraph (e), respectively, of Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

The first presents a defense by motion before answer that the action be dismissed because of plaintiffs' failure to state a claim upon which relief can be granted. This is a qui tam suit pursuant to 31 U.S.C.A. §§ 231-235.

 Necessarily the claim for relief is that of the United States which the plaintiffs present as an undertaking for profit.

 Such a claim involves the following:

 A. That the alleged misconduct must be that which is referred to in 18 U.S.C.A. § 80; that is, the presentation, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, of a claim upon or against the Government of the United States, knowing such claim to be false, fictitious, or fraudulent. It is also an offense, for the purpose of obtaining the payment or approval of such a claim, to falsify, conceal or cover up a material fact, or to make a false or fraudulent statement or representation or to knowingly use any false bill, receipt, voucher, etc.

 B. That the person who shall do or commit any of the above acts, not being in the military or naval forces of the United States, shall forfeit $2,000 to the United States and in addition double the amount of damages which the United States may have sustained by reason of the prohibited conduct, and these items may be sued for in the same suit.

 It will be observed, from the title of the action, that John Doe and Richard Roe are named as individual defendants, and that they possess no personal identity. Where these traditional pseudonyms are employed in such a lawsuit, there would be nothing unreasonable in expecting that designated officials or directors whose identity is certain, but whose names are unknown, be so indicated that identification of them would be possible, instead of reference to two fictitious human beings who are supposed to have knowledge of what is alleged in a complaint.

 As a matter of fact, it might well be that there are no officers or directors who are "the persons intended being officers and directors of the Atlantic Basin Iron Works, having knowledge of the facts alleged in the complaint herein".

 Since the plaintiff is unable to point his finger at any one individual whose name he does not happen to know, and to charge him with complicity in fraud upon the Government, it is not clear how he can truthfully assert, except as to the corporation, that "the defendants were not and are not in the military or naval forces", as averred in paragraph Fifth.

 The complaint alleges in each instance upon information and belief:

 (1) That in or about the year 1940 the United States of America entered into a contract with the corporate defendant, whereby the latter was to supply material, supplies and labor upon designated vessels owned or leased by the Government for the purpose of converting, repairing or preparing them for military purposes.

 (2) That the United States was to pay the corporate defendant for all materials and supplies necessarily purchased and used under the contract.

 (3) That the corporate defendant contracted to keep and maintain an accurate accounting system of all expenses incurred and ...


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