U.S. ex rel. Bryant v. Williams Bldg. Corp.

• Citation: 158 F.Supp.2d 1001
• Decision Date: 29 January 2001
• Docket Number: No. CIV 99-5011.,CIV 99-5011.
• Parties: UNITED STATES of America, ex rel. Jay BRYANT, Plaintiffs, v. WILLIAMS BUILDING CORPORATION, Defendant.
• Court: U.S. District Court — District of South Dakota

158 F.Supp.2d 1001

UNITED STATES of America, ex rel. Jay BRYANT, Plaintiffs, v. WILLIAMS BUILDING CORPORATION, Defendant.

No. CIV 99-5011.

United States District Court, D. South Dakota, Western Division.

January 29, 2001.

MEMORANDUM OPINION AND ORDER

BATTEY, District Judge.

PROCEDURAL HISTORY

[¶ 1] On February 17, 1999, relator Jay Bryant (relator) brought this case under the qui tam provisions of the False Claims Act (FCA), 31 U.S.C. § 3729 et seq., to recover penalties and damages arising from a series of allegedly false claims made by Williams Building Corporation (WBC) for services rendered under a contract between WBC and the United States Air Force.¹ The United States declined to intervene and relator elected to pursue this case on behalf of the United States pursuant to § 3730(b)(4)(B). Currently before the Court is WBC's motion for summary judgment. In addition to relator's response, the Court is also in receipt of the United States' amicus curiae brief presented in response to WBC's motion for summary judgment. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

FACTS

[¶ 2] The following is a summary of the relevant undisputed facts. Relator was employed by defendant WBC for a period of time beginning in March 1998, and ending with his termination on October 6, 1998. See Defendant's Statement of Material Facts (DSMF) at ¶ 1; Plaintiff's Statement of Material Facts (PSMF) at ¶ 1. During all times at issue in this case, WBC had a contract with the United States Air Force (Air Force) to remodel bathrooms in the occupied family housing units at Ellsworth Air Force Base, South Dakota. See DSMF at ¶ 2; PSMF at ¶ 2. The contract contained the following clause:

Section 02070, Part 1.7(B). Asbestos. It is not expected that asbestos will be encountered in the work. If any materials suspected of containing asbestos are encountered, do not disturb the materials. Immediately notify the contracting officer.

Defendant's Brief in Support of Summary Judgment (Defendant's Brief in Support) at 2 (Ellsworth contract). Sometime in June 1998, a fellow employee informed relator that he had found asbestos when cutting through the bottom of the bathroom walls to make a plumbing chase. See DSMF at ¶ 4; PSMF at ¶ 4; Deposition of William Tilton (Tilton Depo.) at 26. Relator claims that during the second week of July, 1998, he advised the project superintendent, William Tilton (Tilton), of the presence of asbestos. See DSMF at ¶¶ 6-7; PSMF at ¶¶ 6-7. Despite the discovery of asbestos, work on the project continued and the Air Force was not notified. See Tilton Depo. at 28-29.

[¶ 3] On October 6, 1998, relator was fired for using drugs on the job site. DSMF at ¶¶ 23-26; PSMF at ¶¶ 23-26. On this same day, relator contacted L & L Insulation (L & L) to ask about the dangers of asbestos. See DSMF at ¶ 20; PSMF at ¶ 20. While speaking with L & L, relator did not identify himself, though he admitted that he had encountered asbestos while working on a remodeling project at Ellsworth, and that he had been instructed to cut the asbestos and push it down between the walls. See Plaintiff's Brief in Opposition to Summary Judgment (Plaintiff's Opposition Brief), Attached Affidavit of Dave Goodsell at ¶ 3.

[¶ 4] Shortly after this conversation, a representative of L & L contacted the Asbestos Program Manager at Ellsworth, Dave Goodsell (Goodsell), to inform him of the phone call. See id. at ¶¶ 2-3. Goodsell immediately notified Government Inspector Bill Cudmore (Cudmore), and they agreed to visit the job site and inspect a bathroom unit currently under renovation. See id. at ¶¶ 4-6. During the inspection, Goodsell and Cudmore approached site superintendent Tilton and asked whether he had encountered asbestos on the project. See id. at ¶ 6. Tilton said he had not. See id. After examining the site, neither Goodsell nor Cudmore where able to find any signs of asbestos. See id. at ¶ 8. Before leaving the site, Goodsell asked the two laborers doing the demolition work on the bathroom if they had encountered asbestos, and they indicated they had not. See id. at ¶ 7.

[¶ 5] On November 27, 1998, Tilton changed the way he did the cutting for the plumbing chase, in order to avoid cutting through asbestos. See Tilton Depo. at 36. By this point, transite tiles containing asbestos had been cut and disturbed in at least 60 of the family housing units at Ellsworth. On February 16, 1999, relator filed the instant action which resulted in the Air Force finally being notified of the presence of asbestos—almost one year from the date the project began.

[¶ 6] Throughout the pendency of the project, superintendent Tilton submitted Construction Quality Control Daily Reports (daily reports) both to the corporate offices of WBC and to the government. See Affidavit of Tim Williams (Williams Aff.) at ¶¶ 1-2. Under the terms of WBC's contract, the submission of daily reports to the government was not mandatory. See id. The daily reports identified the location and description of work performed each day, reported verbal instructions received from government personnel, noted whether work was performed by subcontractors, identified safety violations, and listed the results of government inspections. See id. at ¶ 1. Each daily report also contained the following language above the signature line:

CERTIFICATION: I certify that this report is complete and correct and that I, or my authorized representative, have inspected all work performed this day by Williams Building Corporation and each sub-contractor and have determined that all materials, equipment, and workmanship are in strict compliance with the plans and specifications, except as may be noted herein.

Williams Aff., Exhibit A.

[¶ 7] In addition to submitting daily reports, Tilton also verbally requested that Cudmore inspect each unit as it was completed. See Tilton Depo. at 48-49. The purpose of a unit-by-unit inspection process was to permit WBC to move onto another unit, once the previous unit had been accepted. See id. at 49. In making the inspection request, Tilton admits that he was essentially saying that the bathroom was completed according to specifications. See id.

[¶ 8] Also submitted throughout the project were a series of Contract Progress Reports (progress reports) signed by the president of WBC, Tim Williams. See Williams Aff. at 5. Each progress report stated: "I hereby certify that the contractor has satisfactorily completed the indicated percentage of the contract per contract specifications." Williams Aff., Exhibit C. There appears to be no dispute that WBC technically performed all of the work described in each progress report.

[¶ 9] Finally, during the course of performing under the contract, WBC presented the government with several Request for Payment Invoices (payment invoices). See Williams Aff. at 5. It was through submission of these invoices that WBC received payment from the government. Again, there is no dispute that WBC technically performed all of the work described in these documents.

SUMMARY JUDGMENT STANDARD

[¶ 10] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.

[¶ 11] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The Supreme Court has instructed that "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts," and "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 106 S.Ct. at 1356.

[¶ 12] The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992) where the Court said, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." The Court expounded on this notion by reiterating its conclusion in Anderson that, "[s]ummary judgment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Eastman Kodak, 504 U.S. at 468 n. 14, 112 S.Ct. at 2083 n. 14 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. at 2510). To survive summary judgment there must be evidence that "reasonably tends to prove" the plaintiff's theory; the defendant meets the burden under Fed. R.Civ.P. 56(c) when it is conclusively shown that the facts upon which the...