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.
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
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
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
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 ...