United States District Court, S.D. New York
Xiomara Hayes, Plaintiff, Pro se, New York, NY.
For The Department of Education of The City of New York, Defendant: Stephen Edward Kitzinger, LEAD ATTORNEY, New York City Law Depart. Office of the Corporation Counsel, New York, NY.
OPINION AND ORDER
KATHERINE POLK FAILLA, United States District Judge.
Pending before the Court is Defendant's motion to dismiss Plaintiff's Amended
Complaint for failure to state a claim. As explained below, the motion is granted.
A. Factual Background
In 2009, Plaintiff Xiomara Hayes worked as a special education teacher at Humanities Preparatory Academy at 351 West 18th Street in Manhattan. (Am. Compl. ¶ 10). Plaintiff alleges that Defendant Department of Education of the City of New York violated the False Claims Act, 31 U.S.C. § § 3729-3733, by receiving federal funding for special education services and then illegally using those funds for other purposes. ( Id. at ¶ 11).
B. Procedural Background
Plaintiff filed a qui tam Complaint in this action on February 23, 2012. (Dkt. #1). As is always the case with qui tam actions, the Government was notified of Plaintiff's filing and the Complaint remained sealed while the Government considered whether to intervene and prosecute the action. (Dkt. #7). On October 3, 2012, the Court ordered the Complaint to be unsealed. (Dkt. #6). Plaintiff moved for additional time to serve Defendant on February 1, 2013 (Dkt. #9-12), and again on April 1, 2013 (Dkt. #13-14); both motions were granted on April 1, 2013, permitting Plaintiff until April 22, 2013, to effect service (Dkt. #15). On April 16, 2013, Plaintiff filed an Amended Complaint, once again stating a single claim for relief regarding violation of the False Claims Act. (Dkt. #16).
On June 18, 2013, Plaintiff's counsel moved to withdraw from the case. (Dkt. #21). The Court set a conference for July 12, 2013, to discuss the motion to withdraw. (Dkt. #24). Plaintiff appeared personally, along with her counsel and counsel for Defendant. Moreover, Plaintiff was accompanied by separate counsel, who represented to the Court that she was at that time appearing on Plaintiff's behalf (7/12/13 Tr. 12:20-23, 13:23-14:2), and would shortly put in a notice of appearance formalizing her representation ( id. at 14:7-8). After some discussion of the issues involved, the Court granted the motion to withdraw and imposed a 45-day stay in the proceeding to permit Plaintiff to prepare to proceed with new counsel. (Dkt. #25).
On August 28, 2013, Plaintiff wrote the Court explaining that she had been unable to retain counsel. (Dkt. #27). The parties returned for a pre-motion conference on September 18, 2013, preparatory to the motion to dismiss currently before the Court. That same day, Plaintiff filed an application for pro bono counsel. (Dkt. #28). The Court granted that application, but explained that it could not guarantee when (or even if) any attorney would
volunteer to represent Plaintiff, and that she would be held to the briefing schedule previously ordered. (Dkt. #29).
Defendant filed a motion to dismiss on November 18, 2013. (Dkt. #34-35). Plaintiff filed an affidavit in opposition on December 27, 2013 (Dkt. #36), and Defendant replied on January 6, 2014 (Dkt. #37).
Plaintiff wrote the Court on January 31, 2014, to relate that an attorney had contacted her to discuss taking the case pro bono, but had ultimately decided against doing so. (Dkt. #38). Thereafter, the Court reached out to the Office of Pro Se Litigation and requested that another effort be made to canvass for available attorneys potentially interested in taking on Plaintiff's representation. One month later, the Office of Pro Se Litigation advised the Court that, despite extraordinary efforts, it had been unable to locate pro bono counsel to represent Plaintiff. (Dkt. #39). Accordingly the Court at that time turned to consider Defendant's pending motion with Plaintiff proceeding pro se.
A. Applicable Law
1. Motions to Dismiss Generally
The Court must consider a motion to dismiss by " 'construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.'" Chase Grp. Alliance LLC v. City of New York Dep't of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). " 'To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Kelly, 716 F.3d at 14 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). " A claim has facial plausibility when 'the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Spataro v. Glenwood Supply, 479 F.App'x 403, 404 (2d Cir. 2012) (summary order) (quoting Iqbal, 556 U.S. at 678).
Rule 8 of the Federal Rules of Civil Procedure requires a plaintiff to include in her complaint " a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). The Supreme Court has explained that the Rule requires only that " [s]uch a statement must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). " This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. Nonetheless, " [t]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)) (second, third, and fourth alterations in Twombly ).
" Rule 8's 'liberal pleading principles' do not permit dismissal for 'failure in a complaint to cite a statute, or to cite the correct one.... Factual allegations alone are what matters.'" Wynder v. McMahon,
360 F.3d 73, 77 (2d Cir. 2004)
(quoting Northrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997)) (alteration in Wynder ). Dismissal for failure to include a statement of claim pursuant to Rule 8 " 'is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Id. at 80 (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (1988)). Indeed, the Second Circuit has held that it will " it will generally be an abuse of discretion to deny leave to amend when dismissing a nonfrivolous original complaint on the sole ground that it does not constitute the short and plain statement required by Rule 8." Salahuddin, 861 F.2d at 42. " Further, if the court dismisses the complaint for failure to comply with Rule 8, it should generally give the plaintiff leave to amend. This is especially true when the complaint states a claim that is on its face nonfrivolous." Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995).
2. The False Claims Act
The False Claims Act (" FCA" ) prohibits false claims against government funds. 31 U.S.C. § 3729. Under the FCA, " individuals are authorized to 'bring a civil action for a violation of [the Act] for the [complaining] person and for the United States Government.'" United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1153 (2d Cir. 1993) (quoting 31 U.S.C. § 3730(b)(1) (1988)) (alterations in Kreindler ).
A party, often termed a " relator" in this context, Kreindler, 985 F.2d at 1153, may commence an action by filing a qui tam complaint, 31 U.S.C. § 3730(b)(1). After the action is brought, the complaint must remain sealed for at least 60 days, id. § 3730(b)(2), and the Government may extend the duration of the sealing period by applying to the court and showing good cause, id. § 3730(b)(3). " The action is brought in the name of the government, and the government may either intervene and prosecute the action, or allow the original plaintiff -- the qui tam relator -- to proceed with the suit under § 3730(b)(4)(B)." Kreindler, 985 F.2d at 1153 (internal citations omitted). " Whether or not the government joins in the action, the relator is entitled to a portion of the proceeds if the prosecution is successful." Id.
" While relators indisputably have a stake in the outcome of False Claims Act qui tam cases that they initiate, 'the Government remains the real party in interest in any such action.'" United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2d Cir. 2008) (quoting Minotti v. Lensink, 895 F.2d 100, 104 (2d Cir. 1990)). " Because relators lack a personal interest in ...