Mann v. Heckler & Koch Defense, Inc., No. 1:08cv611 (JCC).

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtJames C. Cacheris
Citation639 F.Supp.2d 619
PartiesJason MANN, Plaintiff, v. HECKLER & KOCH DEFENSE, INC. et al., Defendants.
Docket NumberNo. 1:08cv611 (JCC).
Decision Date01 July 2009
639 F.Supp.2d 619
Jason MANN, Plaintiff,
v.
HECKLER & KOCH DEFENSE, INC. et al., Defendants.
No. 1:08cv611 (JCC).
United States District Court, E.D. Virginia, Alexandria Division.
July 1, 2009.
Opinion Denying Reconsideration September 2, 2009.

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Robert Scott Oswald, Jason M. Zuckerman, The Employment Law Group PC, Washington, DC, Matthew H. Sorensen, Greenberg Traurig LLP, McLean, VA, for Plaintiff.

Mark Lee Hogge, Greenberg Traurig LLP, Washington, DC, Matthew H. Sorensen, Virginia Ellen Robinson, Greenberg Traurig LLP, McLean, VA, for Defendants.

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MEMORANDUM OPINION

JAMES C. CACHERIS, District Judge.


This matter is before the Court on Defendants Heckler & Koch Defense, Inc. (HKD) and Heckler & Koch GmbH's (HKGmbH) (collectively, Defendants') Motion for Summary Judgment.1 For the reasons below, the Court will grant the motion for summary judgment.

I. Background

The undisputed facts are as follows. HKD is a Virginia corporation specializing in the sale of firearms and related equipment to the United States military and state and federal law enforcement agencies. Plaintiff Jason Mann (Mann) is an individual domiciled in the Commonwealth of Virginia. He was employed as HKD's Law Enforcement Sales Manager from April 2, 2007 until July 17, 2008. Mann's direct supervisor was Wayne Weber (Weber).

On November 23, 2007, the United States Secret Service (Secret Service) published a Request for Proposals (RFP) to procure assault rifles equipped with ambidextrous selector levers (ambi-levers). Ambi-levers are devices that allow the same rifle to be used by either a left-handed person or a right-handed person. The RFP required interested parties to submit both a bid and sample rifles by February 29, 2008. In response to the RFP, HKD decided to offer its model HK416 rifle, which was not equipped with ambi-levers.

On February 28, 2009, HKD submitted its bid and sample rifles without ambi-levers to the Secret Service. HKD's written proposal stated that "HK416 ambidextrous selector level item is currently in production and available, however will not be available for the initial delivery date of the test weapons due to import timelines." Def.'s Mot. for Summ. J., Sorensen Decl. at Ex. 7. The parties dispute the veracity and significance of this statement. Plaintiff was not aware of this statement until after he instituted this action.

Later in the day on which HKD submitted its bid, Weber received aftermarket ambi-levers from a consultant, Larry Vickers (Vickers). The combination of the HKD rifle and the aftermarket ambi-lever did not meet HKD's typical quality standards. After the Secret Service's RPF had closed, Weber directed Robbie Reidsma (Reidsma), one of Mann's subordinates, to hand-deliver the aftermarket ambi-levers to Secret Service Officer Galvin. On March 3, 2008, Reidsma gave them to Officer Galvin in a parking lot at night.2

On April 25, 2008, the Secret Service sent Reidsma a letter rejecting HKD's response to the RFP because the bid did not comply with the solicitation. Def.'s Mot. for Summ. J., Sorensen Decl. at Ex. 13. It also stated that "[n]o revised proposals will be considered under the subject solicitation." Id. On May 21, 2008, the Secret Service sent HKD a letter saying that the entire subject solicitation would be canceled.

On March 10, 2008, before the Secret Service took either of these actions, Weber informed Mann about Reidsma's delivery of the ambi-levers to Officer Galvin. Mann expressed disapproval of this action to both Weber and Reidsma. Mann also shared his concerns with others. John Aliveto (Aliveto), HKD's Director of Business Development, informed other HKD personnel, including Judy Cox (Cox), HKD's controller, and Roz Weaving

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(Weaving), HKD's Human Resources Manager, about Mann's assertions against Weber. Weaving initiated her own informal investigation of Mann's allegations. On April 8, 2008, Cox and Weaving notified Martin Newton (Newton), the President of HKD and CEO of HKGmbH, of Mann's allegations. Newton directed Weber, Mann, Cox, Weaving, Aliveto, and Rob Tarter, HKD's Manager of Military Sales (Tarter), to stop their discussion and investigation of Mann's assertions until a proper inquiry could be completed. HKD then conducted a formal investigation into Mann's allegations.

HKD placed Mann on paid administrative leave for approximately one week, beginning on April 9, 2008. During that time, he was not allowed into HKD's office unescorted and his access to his HKD e-mail, phone, and files was cut off. On April 14, 2008, Weber sent a four-paragraph e-mail to six HKD employees that included the statement: "You may or may not be aware of what occurred last week, but in the event that you are not, here is a brief update. Jason Mann has been placed on administrative leave as of April 9th, pending an internal investigation." Def.'s Mot. for Summ. J. Ex. 17. The e-mail also discussed procedures for the employee-recipients to address issues that might arise during Mann's absence.

On June 11, 2008, Mann filed a complaint against Defendants, alleging one False Claims Act (FCA) violation for retaliation under 31 U.S.C. § 3730(h) and one state-law defamation claim. On June 24, 2008, HKD informed Mann that he was under investigation for his conduct pertaining to an unrelated sale of weapons to the Blue Lake Police Department. HKD suspended him without pay pending the outcome of its investigation. On July 17, 2008, Newton notified Mann that, effective immediately, HKD had terminated his employment for cause.

On July 18, 2008, Mann filed an amended complaint (Amended Complaint) alleging additional violations of the FCA. Specifically, he alleged that Defendants retaliated against him, in violation of 31 U.S.C. § 3730(h), after Mann complained to his superiors about possible fraud on the government (Count I) and again after he filed this action based on those same complaints (Count II). Mann also restated his prior defamation claim (Count III) and brought a second defamation claim based on another statement by one of Defendants' employees (Count IV). He requested reinstatement or front pay, economic damages for lost wages and benefits, compensatory damages for emotional distress and loss of reputation, punitive damages, injunctive relief to prevent further harm to the public, and reasonable attorney's fees and costs.

Defendants filed a Motion to Dismiss the Amended Complaint on August 22, 2008. The Court granted this motion with respect to Count II on October 7, 2008. 2008 WL 4551104. On October 21, Plaintiff moved to file a Second Amended Complaint that added new factual allegations to Count I. The presiding magistrate judge granted the motion on November 7, 2008. On February 10, 2009, the Court granted a Joint Stipulation to dismiss Count IV with prejudice.

Defendants moved for summary judgment in their favor on Counts I and III on April 8, 2009. Plaintiff opposed the motion and Defendants filed a reply. This matter is currently before the Court.

II. Standard of Review

Summary judgment is appropriate only if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Evans v. Techs. Apps. & Serv.Co., 80 F.3d 954, 958-59 (4th Cir. 1996) (citations omitted). The party seeking summary judgment has the initial burden to show the absence of any dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once a motion for summary judgment is properly made and supported, the opposing party bears the burden to show that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Id. (quotation omitted). A "mere scintilla" of evidence, id. at 248-52, 106 S.Ct. 2505, or unsupported speculation, Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir.1986), are insufficient to withstand a motion for summary judgment. In reviewing the record on summary judgment, "the court must draw any inferences in the light most favorable to the non-movant." Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir.1991) (citations omitted).

III. Analysis

Defendants argue that the Court should grant summary judgment in their favor on Count I because the alleged conduct does not violate the FCA. They submit that Count III should be similarly resolved in their favor because the allegedly defamatory statement is not actionable and, in any event, is protected by a qualified privilege. The Court will address the merits of each argument in turn.

A. Count I: Retaliation under 31 U.S.C. § 3730(h)

The FCA creates civil liability for "[a]ny person who knowingly" presents, makes, or uses "a false or fraudulent claim for payment or approval by the Government." 31 U.S.C. § 3729(a)(1)-(7). A claim under the FCA may be brought by the government, or by an individual in a qui tam action. Id. at § 3730(h). In addition, § 3730 (Civil Actions for False Claims), under which Plaintiff brings Count I, provides that:

Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his or her employer because of lawful acts done by the employee on behalf of the employee or others in furtherance of an action under this section,...

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14 practice notes
  • United States ex rel. Fadlalla v. DynCorp Int'l LLC, Civil Action No. 8:15-cv-01806-PX
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 4, 2019
    ...essential to the fraud and resulted in the Government overpaying GLS and these subcontractors. See Mann v. Heckler & Koch Def., Inc., 639 F. Supp. 2d 619, 629 (E.D. Va. 2009) (quoting U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 543 (1943)) (The Supreme Court has held "that the 'taint' of fra......
  • United States ex rel. Fadlalla v. Dyncorp Int'l LLC, Civil Action No. 8:15-cv-01806-PX
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 5, 2019
    ...essential to the fraud and resulted in the Government overpaying GLS and these subcontractors. See Mann v. Heckler & Koch Def., Inc. , 639 F. Supp. 2d 619, 629 (E.D. Va. 2009) (quoting U.S. ex rel. Marcus v. Hess , 317 U.S. 537, 543, 63 S.Ct. 379, 87 L.Ed. 443 (1943) ) (The Supreme Court ha......
  • Goulmamine v. CVS Pharmacy, Inc., Civil Action No. 3:15cv370.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 9, 2015
    ...cases founded on the foregoing general principles deal with intra-organizational immunity. E.g., Mann v. Heckler & Koch Def., Inc., 639 F.Supp.2d 619, 636 (E.D.Va.2009) ; Kuley v. Fayez, 89 Va.Cir. 238, 2014 WL 10190138 (2014) ("The genesis of the qualified privilege doctrine in Virginia ca......
  • Smith v. Sch. Bd. For City of Norfolk, Civil Action 2:21-cv-138
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 5, 2021
    ...if she shows by clear and convincing evidence that the defendant made the statement with malice. Mann v. Heckler & Koch Def, Inc., 639 F.Supp.2d 619, 636 (E.D. Va. 2009), aff'd, 630 F.3d 338 (4th Cir. 2010). A non-exhaustive list of ways to prove malice in this context includes showing that......
  • Request a trial to view additional results
14 cases
  • United States ex rel. Fadlalla v. DynCorp Int'l LLC, Civil Action No. 8:15-cv-01806-PX
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 4, 2019
    ...essential to the fraud and resulted in the Government overpaying GLS and these subcontractors. See Mann v. Heckler & Koch Def., Inc., 639 F. Supp. 2d 619, 629 (E.D. Va. 2009) (quoting U.S. ex rel. Marcus v. Hess, 317 U.S. 537, 543 (1943)) (The Supreme Court has held "that the 'taint' of fra......
  • United States ex rel. Fadlalla v. Dyncorp Int'l LLC, Civil Action No. 8:15-cv-01806-PX
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 5, 2019
    ...essential to the fraud and resulted in the Government overpaying GLS and these subcontractors. See Mann v. Heckler & Koch Def., Inc. , 639 F. Supp. 2d 619, 629 (E.D. Va. 2009) (quoting U.S. ex rel. Marcus v. Hess , 317 U.S. 537, 543, 63 S.Ct. 379, 87 L.Ed. 443 (1943) ) (The Supreme Court ha......
  • Goulmamine v. CVS Pharmacy, Inc., Civil Action No. 3:15cv370.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • October 9, 2015
    ...cases founded on the foregoing general principles deal with intra-organizational immunity. E.g., Mann v. Heckler & Koch Def., Inc., 639 F.Supp.2d 619, 636 (E.D.Va.2009) ; Kuley v. Fayez, 89 Va.Cir. 238, 2014 WL 10190138 (2014) ("The genesis of the qualified privilege doctrine in Virginia ca......
  • Smith v. Sch. Bd. For City of Norfolk, Civil Action 2:21-cv-138
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • November 5, 2021
    ...if she shows by clear and convincing evidence that the defendant made the statement with malice. Mann v. Heckler & Koch Def, Inc., 639 F.Supp.2d 619, 636 (E.D. Va. 2009), aff'd, 630 F.3d 338 (4th Cir. 2010). A non-exhaustive list of ways to prove malice in this context includes showing that......
  • Request a trial to view additional results

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