U.S.A Ex Rel. Brian Wall v. Circle Constr. LLC, No. 3:07-0091.

CourtUnited States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
Writing for the CourtWILLIAM J. HAYNES, JR
Citation700 F.Supp.2d 926
PartiesUNITED STATES of America ex rel. Brian WALL, Plaintiff,v.CIRCLE CONSTRUCTION, LLC, Defendant.
Docket NumberNo. 3:07-0091.
Decision Date16 June 2010

700 F.Supp.2d 926

UNITED STATES of America ex rel. Brian WALL, Plaintiff,
v.
CIRCLE CONSTRUCTION, LLC, Defendant.

No. 3:07-0091.

United States District Court,
M.D. Tennessee,
Nashville Division.

March 15, 2010.
Opinion Denying Motion to Alter or Amend Judgment June 16, 2010.


700 F.Supp.2d 927

COPYRIGHT MATERIAL OMITTED

700 F.Supp.2d 928
James S. Higgins, Jonathan A. Street, Higgins, Himmelberg & Piliponis, Nashville, TN, Matthew E. Wright, Perry Allan Craft, Craft & Sheppard, P.L.C., Brentwood, TN, for Plaintiff.
700 F.Supp.2d 929
C. Dean Furman, Law Offices of C. Dean Furman, PLLC, D. Sean Nilsen, Furman, Nilsen & Lomond, PLLC, Louisville, KY, Daniel Mark Nolan, Jennifer A. Deen, Kathryn W. Olita, Batson, Nolan, Pearson, Miller & Joiner, Clarksville, TN, for Defendant.
MEMORANDUM
WILLIAM J. HAYNES, JR., District Judge.

Plaintiff, Brian Wall, as Relator, filed this action on behalf of the United States under the False Claims Act (“FCA”), 31 U.S.C. § 3729(a)(1)(B), against the Defendants: Circle C Construction, Inc., (“Circle C”) and Phase Tech, Inc. The United States later joined this action and filed its complaint and was granted leave to file an amended complaint. In essence, Plaintiffs' claims are that Circle C knowingly submitted false payroll certifications to the Department of the Army in violation of its agreement to abide by the Davis-Bacon Act requirements in the construction of buildings on the Fort Campbell military facility in Clarksville, Tennessee. The Defendants denied liability and the parties engaged in discovery. Plaintiffs later settled and dismissed their claims against Phase Tech. (Docket Entry No. 63).

Before the Court are the following motions: (1) the United States's and Relator's motion for summary judgment (Docket Entry No. 73); (2) Circle C's motion for judgment on the record (Docket Entry No. 85); and (3) the Defendant Circle C's motion to dismiss amended complaint (Docket Entry No. 99). Of these motions, the Court considers Circle C's motions first.

A. Circle C's Motions

In its motions to dismiss and for judgment on the record (Docket Entry Nos. 85 and 99), Circle C contends that Plaintiff's amended complaint fails to meet the heightened pleadings requirements of Fed.R.Civ.P. 9(b) and that the Department of Labor (“DOL”) has primary jurisdiction under the Davis-Bacon Act over Plaintiff's claims about Phase Tech's employees' wages in different job classifications. Plaintiffs respond that Circle C's motions are untimely given its answer to the amended complaint and the Court's Order setting the deadline for dispositive motions has passed.

The Court granted the United States's motion for leave to file its amended complaint on October 23, 2008. (Docket Entry No. 41). On March 27, 2009, Circle C filed an Answer to the Amended Complaint. (Docket Entry No. 56). 1 On December 30, 2009, the Clerk's Office re-filed the United States's amended complaint with a separate docket number. See Docket Entry No. 94. The Clerk's Office's failure to assign a new docket entry number to the amended complaint upon the filing of the March 30, 2009 Order granting leave to file an amended complaint is a technical error. Upon Circle C's motions, the deadline for dispositive motions was November 13, 2009. (Docket Entry No. 71).

These motions were filed after that deadline for dispositive motions in the Court's case management order. The Court deems Circle C's motions to be untimely. The Clerk's office's technical error does not allow Circle C to file its motion to dismiss. “[O]rdinarily, a motion for judgment on the pleadings should be made promptly after the close of the pleadings. If a party engages in excessive delay before moving under Rule 12(c), the district court may refuse to hear the motion on the grounds that its consideration will delay or

700 F.Supp.2d 930
interfere with the commencement of the trial.” 5C Wright & Miller, Fed. Practice & Proc. § 1367, at 215-16 (3d ed. 2004). A Rule 12(b) motion “must be made before pleading if a responsive pleading is allowed.” Thus, Circle C's answer precludes its motions to dismiss Hester v. United Healthcare Ins. Co., No. 1:08-cv-105, 2009 WL 128303, at *1 (E.D.Tenn. Jan. 16, 2009). Moreover, courts have rejected the argument that the Davis-Bacon Act somehow precludes use of an FCA remedy, where, as here, the specific issue is the amount of wages paid. See Foundation for Fair Contracting, Ltd. v. G & M Eastern Contracting & Double E, LLC, 259 F.Supp.2d 329, 339-40 & n. 9 (D.N.J.2003); United States ex rel. IBEW v. G.E. Chen Construction, Inc., 954 F.Supp. 195, 197 (N.D.Cal.1997). The Court also concludes that under Fed.R.Civ.P. 12(h), Circle C's motions are untimely and that Circle C's prior answer waived its right to file these motions.
B. United States's Motion for Summary Judgment
1. Findings of Fact2

Circle C signed an agreement with the Army to construct buildings at the Fort Campbell military base. Circle C's agreement included determinations of hourly wages for electrical workers with a base hourly rate of $19.19, plus fringe benefits of $3.94 an hour. Prior to this contract, Circle C has had government contracts for almost twenty (20) years. Frances Cates, a Circle C co-owner, and Dorothy Tyndall, Circle C's bookkeeper, attended a training session at Fort Campbell on the prevailing wage requirement for federal government contracts. In this Fort Campbell contract, Circle C acknowledged its “familiarity with” the prevailing wage requirements in all of its contracts. (Docket Entry No. 91, Defendant's Response to Plaintiffs Statement of Undisputed Facts at ¶ 11). John W. Cates, Circle C's corporate representative conceded Circle C's knowledge of various Davis-Bacon Act requirements. Id. at ¶ 14.

Among Circle C's contractual obligations on the Fort Campbell project were Circle C's obligations to pay electricians according to the wage determinations in the contract, to ensure that persons doing electrical work were paid as electricians; to submit payroll certifications to Fort Campbell as a condition of payment; and

700 F.Supp.2d 931
to ensure that its subcontractors complied with Davis-Bacon Act and that the payroll certification submitted to Fort Campbell were complete and accurate, including information on Circle C's subcontractors. Circle C conceded that it “should submit payroll certifications for all employees on the Fort Campbell project.” (Docket Entry No. 75-1 at 12, Exhibit 3). Circle C submitted its payroll certifications for the original certifications, but did not list Phase Tech's employees. Circle C asserts that it never promoted itself as the prime contractor on this project. Yet, during this same period, Circle C submitted separate certified payrolls for its other subcontractors. Phase Tech did not submit any payroll certification for 2004 and 2005.

Phase Tech was Circle C's subcontractor on at least 98 percent of the electrical work on the Fort Campbell project, but did not sign a written contract with Circle C. Circle C provided Phase Tech with the wage determination excerpts from its contract, but did not discuss the Davis-Bacon Act requirements with Phase Tech nor verify whether Phase Tech submitted its own payroll certifications to Fort Campbell. Circle C did not provide a blank payroll certification form to Phase Tech. Circle C lacked a protocol or procedure to monitor Phase Tech's employees' work on the Fort Campbell project and did not take measures to ensure payment of proper wages under the Davis-Bacon Act to Phase Tech's employees. According to Charles Cooper, Phase Tech co-owner and certified electrician, Circle C did not inform Phase Tech of the need to submit certified payrolls for the Fort Campbell project until approximately 2006, two years after the project commenced.

Phase Tech had eight employees, including Wall, who worked on the Fort Campbell contract, performed electrical and conduit work as electricians. Wall, the relator, and Ryan McPherson were Phase Tech employees on a construction project for which Circle C was the prime contractor and Phase Tech was a subcontractor. Wall also performed preparatory and finishing work for the electrical wiring on the Fort Campbell project. According to John W. Cates, Circle C's corporate representative for this project, Circle C neither supervised, directed nor paid for Wall's or McPherson's work on Fort Campbell's contract. Circle C notes that it was neither asked or requested to pay or supervise the payment of Wall or McPherson.

After this action was filed, Circle C asked Phase Tech to provide new payroll certifications for the years when Phase Tech's employees were not included on any certified payrolls. Phase Tech provided this information to Circle C in December 2008. Phase Tech's contemporaneous records include daily calendars with the names of Phase Tech employees and their assigned job sites as well as dates and times of their work. Phase Tech also has pay stubs, but not for Phase Tech employees on the Fort Campbell project. According to Cooper, Phase Tech's owner at the time that these certifications were completed, “I'm sure I told [John W. Cates] they weren't-they weren't complete.” (Docket Entry No. 75-8 at p. 50). Circle C never verified these 2008 certifications for completeness and accuracy, but submitted them to Fort Campbell officials.

Edison Gunter, Special Agent with the United States Department of Labor (“DOL”) reviewed Circle C's and Phase Tech's certifications for the Fort Campbell contract as well as Phase Tech's daily calendars and pay stubs. Gunter found 62 inaccurate or false payroll certifications of which 53 were Circle C's original payroll certifications from 2004 and 2005. Despite contemporaneous records of Phase Tech employees on the project, Circle C did not

700 F.Supp.2d 932
list Phase Tech's employees. Of the payroll certifications Phase Tech signed and Circle C submitted in December 2008, nine (9) certifications were inaccurate because...

To continue reading

Request your trial
14 practice notes
  • United States v. Medquest Assocs. Inc., 3:06-01169
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • August 23, 2011
    ...(6th Cir. 1998). This Court has also awarded summary judgment on FCA claims. United States ex rel Wall v. Circle Construction, LLC, 700 F. Supp. 2d 926, 930 n.2, 939-40 (M.D. Tenn. 2010). See also United States v. Macomb Contracting Co., 763 F. Supp. 272, 274 (M.D. Tenn. 1990) (Higgins, J. ......
  • United States v. Medquest Assocs., Inc., No. 3:06–01169.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • August 23, 2011
    ...296 (6th Cir.1998). This Court has also awarded summary judgment on FCA claims. United States ex rel. Wall v. Circle Construction, LLC, 700 F.Supp.2d 926, 930 n. 2, 939–40 (M.D.Tenn.2010). See also United States v. Macomb Contracting Co., 763 F.Supp. 272, 274 (M.D.Tenn.1990) (Higgins, J. af......
  • United States ex rel. Wall v. Circle C Constr., L.L.C., 10–5645.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 1, 2012
    ...amount that should have been paid to Phase Tech's electrical and other workers.United States ex rel. Wall v. Circle Constr., LLC, 700 F.Supp.2d 926, 930–32 (M.D.Tenn.2010) (hereinafter the “Wall ” decision).II. On January 25, 2007, Relator Wall filed the present action on behalf of the Unit......
  • Circle C Constr., LLC v. Nilsen, No. M2013-02330-SC-R11-CV
    • United States
    • Supreme Court of Tennessee
    • March 7, 2016
    ...alleging a violation of the False Claims Act, 31 U.S.C. § 3729(a)(1)(B) (2006). See United States ex rel. Wall v. Circle Constr., LLC, 700 F.Supp.2d 926 (M.D.Tenn.2010). The federal district court granted the government's motion for summary judgment, finding Circle C liable and awarding dam......
  • Request a trial to view additional results
14 cases
  • United States v. Medquest Assocs. Inc., 3:06-01169
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • August 23, 2011
    ...(6th Cir. 1998). This Court has also awarded summary judgment on FCA claims. United States ex rel Wall v. Circle Construction, LLC, 700 F. Supp. 2d 926, 930 n.2, 939-40 (M.D. Tenn. 2010). See also United States v. Macomb Contracting Co., 763 F. Supp. 272, 274 (M.D. Tenn. 1990) (Higgins, J. ......
  • United States v. Medquest Assocs., Inc., No. 3:06–01169.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Middle District of Tennessee
    • August 23, 2011
    ...296 (6th Cir.1998). This Court has also awarded summary judgment on FCA claims. United States ex rel. Wall v. Circle Construction, LLC, 700 F.Supp.2d 926, 930 n. 2, 939–40 (M.D.Tenn.2010). See also United States v. Macomb Contracting Co., 763 F.Supp. 272, 274 (M.D.Tenn.1990) (Higgins, J. af......
  • United States ex rel. Wall v. Circle C Constr., L.L.C., 10–5645.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 1, 2012
    ...amount that should have been paid to Phase Tech's electrical and other workers.United States ex rel. Wall v. Circle Constr., LLC, 700 F.Supp.2d 926, 930–32 (M.D.Tenn.2010) (hereinafter the “Wall ” decision).II. On January 25, 2007, Relator Wall filed the present action on behalf of the Unit......
  • Circle C Constr., LLC v. Nilsen, No. M2013-02330-SC-R11-CV
    • United States
    • Supreme Court of Tennessee
    • March 7, 2016
    ...alleging a violation of the False Claims Act, 31 U.S.C. § 3729(a)(1)(B) (2006). See United States ex rel. Wall v. Circle Constr., LLC, 700 F.Supp.2d 926 (M.D.Tenn.2010). The federal district court granted the government's motion for summary judgment, finding Circle C liable and awarding dam......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT