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United States ex rel. Grupp v. DHL Express (USA), Inc.

United States Court of Appeals, Second Circuit

February 5, 2014

THE UNITED STATES OF AMERICA ex rel., Plaintiff, KEVIN GRUPP, ROBERT MOLL, Plaintiffs-Appellants,
v.
DHL EXPRESS (USA), INC., DHL Worldwide Express, Inc., DHL HOLDINGS (USA), INC., Defendants-Appellees

Argued March 21, 2013.

Appeal from an order of the United States District Court for the Western District of New York (John T. Curtin, Judge) dismissing a qui tam action for failure to satisfy a statutory notice requirement that applies to shipping-rate disputes. We vacate and remand.

JOHN L. SINATRA, JR. (Daniel C. Oliverio, Reetuparna Dutta, on the brief), Hodgson Russ, LLP, Buffalo, NY, for Plaintiffs-Appellants.

LAWRENCE VILARDO (Terrence M. Connors, James W. Grable, Jr., on the brief), Connors & Vilardo, LLP, Buffalo, NY, for Defendants-Appellees.

MICHAEL S. RAAB (Joshura P. Waldman on the brief), Appellate Staff of the Civil Division, for Stuart F. Delery, Principal Deputy Assistant Attorney Genera, U.S. Department of Justice, Washington D.C.; William J. Hochul, Jr., U.S. Attorney for the Western District of New York, Buffalo, NY, for Amicus Curiae United States of America.

Before: WINTER, CABRANES, and LIVINGSTON, Circuit Judges.

OPINION

Page 52

WINTER, Circuit Judge:

Kevin Grupp and Robert Moll appeal from Judge Curtin's order dismissing their qui tam action for failure to satisfy a statutory notice requirement. Appellants commenced this action against DHL Express, Inc. and its parent company DHL Holdings, Inc. (collectively, " DHL" ) under the False Claims Act, 31 U.S.C. § 3729 et seq., alleging that DHL billed the United States jet-fuel surcharges on shipments that were transported exclusively by ground transportation. We vacate and remand.

BACKGROUND

We assume the facts as alleged in the complaint to be true. DHL is an international package delivery company. Appellants own MVP Delivery Services and Logistics, a delivery company that served as an independent contractor for DHL. From 2003 to 2008, DHL provided delivery services to the General Services Administration, the Department of Homeland Security, and the Department of Defense.

During this time, DHL offered three types of so-called " Air Express Services" -- " Same Day", " Next Day", and " Second Day" -- and a " Ground Delivery Service", which provided delivery in one to six business days. Customers who purchased one of the " Air Express Services" were charged a jet-fuel surcharge and those who purchased the " Ground Delivery Service" were charged a diesel-fuel surcharge, without regard to the type of transportation actually used in the delivery. The surcharges were calculated using the monthly jet and diesel fuel price indexes published by the U.S. Department of Energy.

According to appellants, DHL was obligated by its contract with ...


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