State v. Aramark Corr. Servs., LLC
Decision Date | 15 January 2014 |
Docket Number | No. 32,128.,32,128. |
Citation | 321 P.3d 128 |
Parties | STATE of New Mexico ex rel. David PETERSON, Qui Tam, Plaintiff–Appellant, v. ARAMARK CORRECTIONAL SERVICES, LLC, Defendant–Appellee. |
Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
Streubel Kochersberger Mortimer LLC, Donald F. Kochersberger III, Albuquerque, NM, for Appellant.
Rodey, Dickason, Sloan, Akin & Robb, P.A., Andrew G. Schultz, Albuquerque, NM, for Appellee.
{1} Qui Tam Plaintiff David Peterson (Plaintiff), on behalf of the State, sued Aramark Correctional Services, LLC (Aramark) in May 2010, claiming that Aramark violated the Fraud Against Taxpayers Act (the Act), NMSA 1978, §§ 44–9–1 to –14 (2007). See § 44–9–5(A) ( ). The lawsuit was based on allegations that Aramark, who was under contract to provide meals for inmates in the Western New Mexico Correctional Facility (the Facility) of the New Mexico Department of Corrections (the Department), failed and refused to comply with certain provisions of the contract and then sought payment under the contract based on false representations of compliance. Plaintiff filed the lawsuit in an effort “to recoup the moneys wrongfully paid to Aramark.”
{2} Aramark moved for summary judgment claiming that a lawsuit brought by Plaintiff in 2008 barred the present action on the bases of claim preclusion and issue preclusion.1 Separately, Aramark moved to dismiss Plaintiff's claims that were based on conduct that occurred prior to the enactment of the Act so as to comply with the prohibition against the application of ex post facto laws. The district court granted summary judgment in favor of Aramark on the bases of claim and issue preclusion, and it also granted Aramark's motion to dismiss Plaintiff's claims for conduct that occurred before the enactment of the Act. Plaintiff appeals.
{3} We reverse the court's summary judgment, holding that the doctrines of claim preclusion and issue preclusion do not apply in this case. We affirm the court's dismissal of claims that were based on Aramark's conduct that occurred prior to the enactment of the Act.
{4} The Act “tracks closely the longstanding federal False Claims Act [.]” State ex rel. Foy v. Austin Capital Mgmt., Ltd., 2013–NMCA–043, ¶ 7, 297 P.3d 357,cert. granted,2013–NMCERT–003, 300 P.3d 1181. In relevant part, Section 44–9–3 of the Act provides that:
A. A person shall not:
(1) knowingly present, or cause to be presented, to an employee, officer [,] or agent of the [S]tate or to a contractor, grantee[,] or other recipient of state funds a false or fraudulent claim for payment or approval;
(2) knowingly make or use, or cause to be made or used, a false misleading [,] or fraudulent record or statement to obtain or support the approval of or the payment on a false or fraudulent claim[.]
Section 44–9–3(A)(1), (2). The Act provides that “[a] person may bring a civil action for a violation of [the Act's prohibitions] on behalf of the person and the [S]tate[,]” which action “shall be brought in the name of the [S]tate.” Section 44–9–5(A). When a complaint is filed by a qui tam plaintiff, the attorney general may intervene on behalf of the State and take over the action. See § 44–9–5(C). If the attorney general declines to take over, however, the qui tam plaintiff may proceed with the action. See § 44–9–5(D)(2). The court “may permit the attorney general to intervene at a later date upon a showing of good cause.” Section 44–9–6(F).
{5} A person who violates the Act's prohibitions is liable for “three times the amount of damages sustained by the [S]tate because of the violation [,] ... a civil penalty[,] ... the costs of a civil action brought to recover damages or penalties[,] and ... reasonable attorney fees[.]” Section 44–9–3(C). Further, “[i]f the [S]tate does not proceed with an action brought by a qui tam plaintiff and the [S]tate prevails in the action, the qui tam plaintiff shall receive an amount that is not less than twenty-five percent or more than thirty percent of the proceeds of the action or settlement[.]” Section 44–9–7(B). The remaining proceeds collected in an action or a settlement must be paid to the State. Section 44–9–7(E).
{6} Plaintiff is an inmate at the Facility, in the custody and care of the Department. Aramark entered into a contract (the contract) with the State of New Mexico in 2004 to provide food services for a number of adult corrections facilities in New Mexico including the Facility where Plaintiff resides.
{7} Pursuant to the contract, Aramark had an obligation to provide meals to inmates that were comprised of ingredients of a specific quality and met specific nutritional content requirements. Among the provisions of the contract was a requirement that Aramark provide food for religious diets for those inmates who had been approved by the Department to receive a religious diet. Also, Aramark was required to provide the State with monthly status reports that were to include a detailed invoice reflecting the number and type of meals served and the cost associated therewith. It was also required, bi-weekly, to submit a bill to the State to generate payment for meal services that it had provided.
{8} At the outset, we note that a 2002 lawsuit filed by Plaintiff is not relevant to the issues in this appeal; thus, although it is mentioned in the record, it will not be discussed further in this Opinion.
{9} In 2008 Plaintiff, pro se, filed a lawsuit against Aramark, among others, claiming breach of duty, fraud, unfair practices, and violation of the New Mexico Religious Freedom Restoration Act, NMSA 1978, §§ 28–22–1 to –5 (2000), and seeking actual and punitive damages. Plaintiff's overarching claim in the 2008 lawsuit was that although he had been approved to receive a religious vegetarian diet, the defendants “refused to provide [him] with a nutritionally adequate vegetarian diet.”
{10} In relevant part, in the 2008 lawsuit, Plaintiff alleged that the “[c]ontract and prison policy require the [d]efendant [to] provide 3400 calories and 60 grams of high biological protein per day[,]” but “[t]he [d]efendants provide ... Plaintiff with between 1400 and 1900 calories per day [,]” and they provide Plaintiff “with between zero and [thirty] grams of high biological protein per day.” Plaintiff also stated that “[t]he ... [Department], the prison[,] and the taxpayers have paid the [d]efendants to provide ... Plaintiff with a nutritionally adequate diet that complies with prison policy, state law, and the contract[.]” Yet, he alleged that “[t]he [d]efendants do not provide sufficient fresh fruit and fresh [vegetables] for a nutritionally adequate diet[,]” and they “proffered a vegetarian diet menu” but they “falsely claim[ed]” that beans or legumes and peanut butter are high biological protein food sources. He furtheralleged that “[t]he [d]efendants provide a product that claims to be scrambled egg mix[, but which] does not comply with the [New Mexico] egg grading act nor the contract.”
{11} Based on the foregoing, Plaintiff claimed that the defendants “restrict [his] free exercise of religion by denying him a nutritionally adequate vegetarian diet”; “intentionally misappropriated and [took away] ... food[ ] that belongs to ... Plaintiff and others by means of fraudulent conduct, practices[,] and representations”; “falsely made parts of any writing purporting to have legal efficacy with intent to injure and defraud ... Plaintiff”; and “made false material statements upon public vouchers and invoices supporting public vouchers with intent that the vouchers and invoices shall be relied upon for the expenditure of public money.” Plaintiff claimed that he “was and is being harmed by these actions of the [d]efendants” in that he “is hungry all the time[,] ... is chronically malnourished[,] ... is caused to have his family and friends support him with food money contrary to state law[, and] ... is prohibited from freely exercising his religious beliefs.”
{12} The district court granted summary judgment in favor of the defendants in Plaintiff's 2008 lawsuit. Based on the undisputed facts before it, the court found that Plaintiff failed “to demonstrate that the defendants ... breached any duty owed to ... [P]laintiff or that he ... suffered any damages as a result of their actions or failures[.]” The court also found that Plaintiff “failed to show that the defendants ... made any untrue representations of fact to ... [P]laintiff,” and that Plaintiff failed “to show that the defendants ... restricted [his] right to exercise his religion.” As such, the court concluded that Plaintiff's claims lacked merit. The court also concluded that, as a private citizen, Plaintiff lacked standing to prosecute any violations of the New Mexico Criminal Code; therefore, his claims alleging criminal activity lacked merit.
{13} Plaintiff appealed the court's summary judgment, and this Court issued a memorandum opinion affirming the judgment. See Peterson v. Neubauer, No. 30,235, 2010 WL 4621717, at *1 (N.M.Ct.App. July 28, 2010). In relevant part, the memorandum opinion stated the following.
In his docketing statement, Plaintiff contends that he was entitled to summary judgment on his claims of making or permitting false public vouchers.... In our notice of proposed summary disposition, we proposed to disagree because [that claim[ ] ... involve[s] criminal allegations, and Plaintiff is not authorized to prosecute criminal violations.
....
Finally, in our notice, we proposed to hold that Plaintiff was not entitled to prevail on his claim to restrain the payment or receipt of public money pursuant to NMSA 1978, Section 30–23–4 (1963) because Plaintiff's complaint fails to request injunctive relief and the governmental agency that is allegedly...
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