PENTAGEN TECHNOLOGIES INTERN. LTD. v. U.S.

The opinion of the court was delivered by: Sprizzo, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiffs Pentagen Technologies International Limited ("Pentagen") and Russell D. Varnado (collectively "plaintiffs") bring the instant action alleging violations of the Federal False Claims Act ("False Claims Act") and abuse of process by defendants United States of America ("United States"), E.F. Brasseur ("Brasseur")*fn1 (collectively "United States defendants"), CACI International Inc. ("CACI International"), CACI Systems Integration, Inc. ("CACI Systems"), CACI, Inc. — Federal ("CACI Federal"), International Business Machines Corporation ("IBM"), Lockheed Martin Corporation ("Lockheed Martin"), AT & T Company ("AT & T"), PRC Inc. ("PRC"), I-Net Inc. ("I-Net"), Statistica, Inc. ("Statistica"), Express Company Secretaries Limited ("Express"), Jordans & Jordan & Sons Limited ("Jordan"), Jordan Group LTD ("Jordan Group"), Steptoe and Johnson ("Steptoe"), J. William Koegel, Jr., Esq., Davies Arnold & Cooper ("Davies"), and George Menzies, Esq. ("Menzies") (collectively "non-United States defendants"). United States defendants and non-United States defendants have moved to dismiss plaintiffs' complaint pursuant to Rules 12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of Civil Procedure. Moreover, during the pendency of these motions, plaintiffs have requested leave to file a Second Amended Complaint which includes several new causes of action based upon evidence they claim was recently discovered. Defendants have opposed such request by arguing that all new claims asserted by plaintiffs must be dismissed and, accordingly, the proposed amendment would be futile. For the reasons set forth herein, this action is dismissed in its entirety with prejudice and plaintiffs' request to amend their complaint is denied.

BACKGROUND

This action, like approximately ten other actions previously brought by plaintiffs, stems from Pentagen's failure to procure a substantial contract to provide software to the United States Army ("the software contract"). Most relevant here, after the software contract was awarded to several other contractors and subcontractors, many of them defendants in the instant action, plaintiffs brought forward an action against such contractors and subcontractors under the qui tam provisions of the False Claims Act, 31 U.S.C. § 3729, et seq. In that action which was before Judge Robert L. Carter of this Court ("the first qui tam action"), plaintiffs alleged, inter alia, that (1) such contractors and subcontractors had without plaintiffs' permission submitted a proposal to the Army that required the use of a software application owned by plaintiff ("Mentix"); and (2) defendants, upon being awarded the software contract, were generally failing in their performance obligations under such contract.*fn2 Judge Carter dismissed the first qui tam action for lack of subject matter jurisdiction on November 21, 1995.*fn3 See United States ex rel. Pentagen Tech. Int'l Ltd. v. CACI Intern. Inc., No. 94 Civ. 2925(RLC), 1995 WL 693236 (S.D.N.Y.).

In the instant action, plaintiffs allege that defendants' conduct while litigating the qui tam actions constituted an abuse of due process under state law and was in violation of the False Claims Act.*fn4 Specifically, with respect to the United States defendants, plaintiffs allege that the United States improperly (1) filed an amicus curiae brief in the first qui tam action; (2) colluded with non-performing government contractor defendants in their defense of the first and second qui tam action; (3) prohibited plaintiffs from meeting with members of the Executive Branch to assist them in their prosecution of the first and second qui tam actions; and (4) permitted defendant Brasseur, a Government employee, to meet with defendant contractors and provide a witness statement ("the Brasseur statement") for use in related litigation proceedings pending in the United Kingdom ("the U.K. Proceeding"). See Amend. Cmplt. at ¶¶ 41, 46. Similarly, plaintiffs claim that the remaining defendants colluded with the United States in preparing the aforementioned amicus curiae brief and the Brassuer statement, and in otherwise seeking the United States' assistance in preparing for their defense of the qui tam actions. See id. at ¶¶ 42-45.

DISCUSSION

A. Personal Jurisdiction

Defendants CACI Systems, CACI International, CACI Federal, Davies, Menzies, Express, Jordan and Jordan Group each move to dismiss plaintiffs' complaint pursuant to Fed. Rule Civ. Proc. 12(b)(2) for lack of personal jurisdiction. Here, where the parties have not engaged in discovery, "a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith . . . legally sufficient allegations of jurisdiction, i.e., by making a prima facie showing of jurisdiction." See Jazini v. Nissan Motor Company, Ltd., 148 F.3d 181, 184 (2d Cir. 1998) (citations and quotations omitted).

With respect to defendants CACI Systems, CACI International, Express, Jordan, and Jordan Group, plaintiffs' Amended Complaint pleads absolutely no factual allegations detailing the basis for this Court's jurisdiction over such defendants. Moreover, plaintiffs have entirely failed to respond to such defendants' arguments that the Court lacks personal jurisdiction over them. In these circumstances the Court must dismiss plaintiffs' action as to such defendants.

As to defendant CACI Federal, plaintiffs' complaint alleges that such defendant is authorized to do business in New York and is presently found in the State of New York. See Amend. Cmplt. at ¶ 6. Similarly, plaintiffs plead that law firm Davies is comprised in part of New York attorneys, namely its partner defendant Menzies, who allegedly is licensed to practice in New York and met with plaintiff Pentagen in New York at times relevant to this action. See id. at ¶ 15. While defendants argue that such allegations are either inaccurate or legally insufficient to assert personal jurisdiction over them, at this early stage of litigation they constitute prima facie jurisdictional allegations sufficient to survive a motion to dismiss.*fn5

B. False Claims Act

The False Claims Act empowers the United States to recover damages from those who knowingly make false claims for payment upon the United States. See 31 U.S.C. § 3729(a); United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 16 (2d Cir. 1990). As noted by the Supreme Court, a "claim against the Government normally connotes a demand for money or for some transfer of public property." United States v. McNinch, 356 U.S. 595, 599, 78 S.Ct. 950, 2 L.Ed.2d 1001 (1958) (internal quotation and citation omitted). Accordingly, the terms "claim against the government . . . must be carefully restricted, not only to their literal terms but to the evident purpose of Congress in using those terms, particularly where they are broad and susceptible to numerous definitions." Id.

To encourage reporting of false claims, any person may commence a civil action on behalf of the United States for a violation of the False Claims Act. See 31 U.S.C. § 3730(b). Such person must serve a copy of the complaint upon the United States, which may proceed with the action and take "primary responsibility" for its prosecution. See 31 U.S.C. § 3730(c)(1). It may also decline to proceed with the action, whereupon the originator of the suit may proceed as a qui tam plaintiff. See id. Should the Government decline to proceed with the action, it is still entitled to be served with copies of all pleadings in the action and may upon good cause intervene at a later date. See id. at § 3730(c)(3). In either case, if the action is ultimately successful, the qui tam plaintiff is entitled to a portion of the recovery. See id. at § 3730(d).

As to the United States defendants, plaintiffs claims under the False Claims Act must be dismissed as the United States has never waived its sovereign immunity with respect to such suits. The United States is immune from suit unless it has unequivocally waived its sovereign immunity by statute. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). No such waiver has been promulgated by Congress and, to the contrary, the False Claims Act provides that any person who violates the Act will be "liable to the United States Government." See 31 U.S.C. § 3729(a); see also Juliano v. Federal Asset Disposition Ass'n, 736 F. Supp. 348, 352, 353 (D.D.C. 1990) ("The Court is aware of nothing in the Act ...