SARA LIOI, District Judge.
Before the Court is the motion of Defendants Brookfield Township Board of Trustees ("Brookfield"), Keith Barrett, Ronald Haun, Gary Lees, Janalyn Saloom, and John Schmidt for judgment on the pleadings or, in the alternative, to dismiss pursuant to Fed.R.Civ.P. 9(b). (Doc. 18.) Defendants' motion is
Plaintiff Brian Kachaylo filed the Complaint on April 15, 2010. (Doc. 1; herein "Compl.") Defendants answered on August 12, 2010. (Doc. 13.) Plaintiff, a former lieutenant firefighter/paramedic and EMS operations officer for defendant Brookfield, alleges that he was asked by Defendant Fire Chief Barrett to instruct other paramedics to submit false Medicaid and Medicare claims to the federal government. (Compl. ¶¶ 5, 13, 14.) Plaintiff further alleges that Chief Barrett directed all aspects of the Medicaid and Medicare billing process for ambulance services even though he had been debarred by the Department of Health and Human Services ("DHHS") from participation in Medicaid and Medicare programs. (Id. ¶ 13.) Plaintiff claims that he informed Brookfield of Chief Barrett's debarment. (Id. ¶ 15.) Plaintiff alleges that Defendants presented or caused to be presented numerous false claims for payment or approval in violation of the False Claims Act, and that Plaintiff refused to participate. (Id. ¶¶ 17, 18.)
Plaintiff brings one claim against all Defendants, under the whistleblower section of the False Claims Act, 31 U.S.C. § 3730(h). (Compl. ¶¶ 16-20.) The Complaint
On September 23, 2010, Defendants moved for judgment on the pleadings or, in the alternative, to dismiss pursuant to Fed. R.Civ.P. 9(b). (Doc. 18.) Plaintiff opposed their motion (Doc. 20), and Defendants replied (Doc. 21). This matter is ripe for determination.
A Rule 12(c) motion may be filed "after the pleadings are closed—but early enough not to delay trial." Fed.R.Civ.P. 12(c). The standard of review for a motion under Rule 12(c) is the same as that for a motion brought pursuant to Rule 12(b)(6). Jelovsek v. Bredesen, 545 F.3d 431, 434 (6th Cir.2008); E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998)). The Court must take all well-plead allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Jelovsek, 545 F.3d at 434; see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted). "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.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[,]" Fed. R.Civ.P. 8(a)(2), in order to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Although this pleading standard does not require great detail, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing authorities). In other words, "Rule 8(a)(2) still requires a `showing,' rather than a blanket assertion, of entitlement to relief." Id. at 556, n. 3, 127 S.Ct. 1955 (criticizing the Twombly dissent's assertion that the pleading standard of Rule 8 "does not require, or even invite, the pleading of facts") (quoting Fed.R.Civ.P. 8(a)(2)).
The whistleblower section of the False Claims Act ("FCA") protects employees who contribute to an action exposing fraud against the government. 31 U.S.C. § 3730(h). The whistleblower section was amended by Congress on May 20, 2009, and in enacting the amendment Congress explicitly provided that it "shall take effect on the date of enactment of this Act and shall apply to conduct on or after the date of enactment." Fraud Enforcement and Recovery Act of 2009, Pub.L. No. 111-21, § 4(f), 123 Stat. 1617, 1625. Where, as here, Congress has "expressly provided that the statute in question [. . .] should not apply retrospectively" a court should "follow Congress' express prescription and apply the statute accordingly." Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 160 (3d Cir.1998). Accordingly, this Court shall apply the whistleblower section valid at the time the incidents alleged in the Complaint occurred.
31 U.S.C. § 3730(h) (amended 2009).
In order to establish a claim for retaliatory discharge under the law that was in effect prior to the 2009 amendments, a plaintiff must show that "(1) he engaged in a protected activity; (2) his employer knew that he engaged in the protected activity; and (3) his employer discharged or otherwise discriminated against the employee as a result of the protected activity." Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (2003) (citing McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 513-14 (6th Cir.2000) ("McKenzie II")
Here, the Complaint alleges that Plaintiff "in fact investigated and assisted a Federal investigation of the false claims" and "engaged in protected activities as defined by 31 U.S.C. § 3730(h)." (Compl. ¶¶ 18, 19.) Such general conclusions, however, are "not entitled to the assumption of truth" by a court considering a Rule 12 motion; they "must be supported by factual allegations" to state a claim and meet the Rule 8 pleading requirements. Iqbal, 129 S.Ct. at 1950; see also Twombly, 550 U.S. at 556, n. 3, 127 S.Ct. 1955 ("Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only `fair notice' of the nature of the claim, but also `grounds' on which the claim rests.") (citation omitted).
In his opposition papers, Plaintiff argues that the Complaint includes two factual allegations to support his claims that he engaged in a "protected activity": First, that he refused to instruct other paramedics to submit false claims to the federal government; and second, that he informed Brookfield of Chief Barrett's debarment from Medicaid and Medicare billing. (See Doc. No. 20 at 6.) There are no additional facts alleged in the Complaint that might possibly be read to support Plaintiff's allegation that he engaged in a "protected activity." The Court finds that Plaintiff's broad conclusory allegations are insufficient to meet the first requirement of the relevant whistleblower section.
Furthermore, even if Plaintiff had alleged facts to support his claim that he was involved in a protected activity, he nonetheless failed to plead facts that would meet the second element of notice. "`When seeking legal redress for retaliatory discharge under the FCA, plaintiff has the burden of pleading facts which would demonstrate that defendants had been put on notice that plaintiff was either taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the government.'" Yuhasz, 341 F.3d at 567 (quoting United States ex. rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.1996)). The Sixth Circuit has held that to meet the notice element a plaintiff must allege activities "that would have given [the defendant] reason to believe that she was contemplating a qui tam action." McKenzie I, 123 F.3d at 944 (see also McKenzie II, 219 F.3d at 516 (a plaintiff "must sufficiently allege activity with a nexus to a qui tam action, or fraud against the United States government.")).
The only factual allegation of the Complaint possibly relevant to notice is that Plaintiff informed his employer,
Even if this Court were to infer from the allegations of the Complaint that Plaintiff had informed Brookfield of these issues, such an inference would not support a finding that Plaintiff had alleged sufficient facts in support of the notice requirement. Plaintiff asserts in the Complaint that he had "assisted a Federal investigation" into the debarment of Barrett and the submission of false claims to the government, but he pleads no facts to indicate that Brookfield was actually aware of his activities or that it had any reason to believe that Plaintiff was contemplating a qui tam action. See, e.g., Campion v. Northeast Utils., 598 F.Supp.2d 638, 658 (M.D.Penn.2009) (dismissing § 3730(h) claim under Fed.R.Civ.P. 12 because a plaintiff's "merely reporting his concern about mischarging the government to his supervisor does not suffice to establish that he was acting `in furtherance of' a qui tam action.")
Had Plaintiff shown that he had given notice of alleged billing misfeasance to his employer, he would still need to show that "his employer was aware of his protected activity. Merely grumbling to the employer about [. . .] regulatory violations does not satisfy the requirement." McKenzie II, 219 F.3d at 518 (quoting United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 740 (D.C.Cir.1998) (holding "an employee's investigation of nothing more than his employer's non-compliance with federal or state regulations" does not state a whistleblower claim)). While the notice need not explicitly characterize a plaintiff's concerns as involving false claims against the government, there must be some reason for the employer to suspect that the plaintiff was contemplating a qui tam action or was assisting the government in an FCA investigation. See United States ex rel. Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439 (6th Cir.2008) (complaint alleging that Plaintiff clearly communicated concerns about the employer's actions and connected them with "a concern about fraud on the federal government" sufficiently stated a claim under the FCA). Here, the notice alleged in the Complaint fails to connect Plaintiff's activity to an FCA claim or investigation. Plaintiff failed to allege facts under which Defendants could have had any indication that Chief Barrett's debarment related to the submission of false claims to the government. By extension, Plaintiff failed to allege facts under which Defendants would have had any indication that Plaintiff may have ultimately initiated an FCA action or reported Defendants' activities to the federal government. This Court finds Plaintiff's allegations insufficient to state notice of the distinct possibility that Plaintiff intended to pursue an FCA claim or investigation.
Finally, Plaintiff's Complaint also fails to satisfy the third requirement, namely that his employer discharged or otherwise discriminated against him as a result of his participation in a protected activity. Plaintiff's Complaint merely alleges that Defendants "approved, condoned, and participated in retaliation against [Plaintiff] for exposing false claims made to the Federal Government Medicare and Medicaid programs" and Defendants "retaliated in their official and individual
For all the reasons explained above, Defendants do not have "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. Accordingly, the claim against Defendants as set forth in the Complaint does not satisfy the requirements of Fed. R. Civ. P. 8(a)(2) and fails to state a claim.
For the foregoing reasons, Defendants' motion (Doc. No. 18) is
