United States ex rel. Se. Carpenters Reg'l Council v. Fulton Cnty., Ga., Soco Contracting Co.

Decision Date05 August 2016
Docket Number1:14-cv-4071-WSD
CourtU.S. District Court — Northern District of Georgia

This matter is before the Court on Defendant SoCo Contracting Company, Inc.'s ("SoCo") 12(b)(6) Motion to Dismiss Plaintiffs-Relators' Complaint [24] ("Motion to Dismiss"), SoCo's 12(b)(6) Motion to Dismiss Defendant and Crossclaim Plaintiff Custom Interiors and Acoustics, LLC's Crossclaim [25] ("Motion to Dismiss Custom Interiors' Cross-Claim"), and Plaintiffs-Relators Southeastern Carpenters Regional Council and Luis Alberto Borja, Jr.'s ("Relators") Motion for Leave to File First Amended Complaint [30] ("Motion to Amend").1

A. Facts

Defendant Fulton County, Georgia ("Fulton County") received federal funding to construct the Fulton County Aviation Community Cultural Center ("ACCC"). (Compl. ¶¶ 13-14). SoCo entered into a contract ("Contract") with Fulton County to serve as general contractor for the construction. (Compl. ¶ 16). The Contract required SoCo and any subcontractors to comply with the Davis-Bacon and Related Acts (DBRA"), 40 U.S.C. § 3141 et seq., which requires contractors to pay minimum prevailing rates to their workers, to each week provide payroll statements to the government, and to certify weekly that their payroll statements are accurate and complete and that their workers were paid at prevailing rates. (Compl. ¶¶ 17-19, 23); 29 C.F.R. § 5.5. Relators allege that each Defendant"owed a non-delegable duty to all workers on the ACCC project to ensure they were paid the prevailing wages." (Compl. ¶¶ 21-22; see [30.1] ¶¶ 21-22, 24-25).

SoCo hired Defendant Custom Interiors & Acoustics, LLC ("Custom Interiors") as a subcontractor for drywall work on the project, and Custom Interiors contracted with Defendant Saucedos Drywall, LLC ("Saucedos") to provide labor for the work. (Compl. ¶¶ 24-25). In late February 2014, Saucedos hired Plaintiff-Relator Luis Alberto Borja, Jr. ("Borja") to work on the ACCA project. (Compl. ¶ 26). In his first work week, Borja received $133.33 for fifty-six (56) hours of work, well below the prevailing hourly rate of $29.30, required by the DBRA, for drywall work. (Compl. ¶¶ 20, 27, 31). In his second week, Borja worked forty (40) hours but received no pay. (Compl. ¶ 32). When Borja inquired about his compensation, Saucedos terminated his employment "for being too slow." (Compl. ¶ 32).

Relators "believe[]" that, of the approximately ten (10) drywall workers involved in the ACCC project during Borja's two (2) week employment, none were paid at prevailing rates. (Compl. ¶ 34). Relators also allege, on information and belief, that "Defendants' scheme of paying non-prevailing wages and benefits pre- and post-dated Borja's time working on the project and extended to workers other than Borja." (Compl. ¶ 34). Relators allege further that "Saucedos made nocertifications to the government that it was paying prevailing DBRA wages and none of the certifications submitted by other contractors included any Saucedo workers." (Compl ¶ 36; see id. ¶ 29). Fulton County, SoCo, and Custom Interiors "made no efforts to ensure that DBRA requirements were being complied with by Saucedos . . . . As a result, those Defendants made false certifications to the federal government . . . that they were paying the prevailing DBRA wages to workers, including Saucedo's subcontracted workers." (Compl. ¶ 37).

B. Procedural History

On December 23, 2014, Relators filed their Complaint [1], asserting three (3) counts under the False Claims Act ("FCA"), 31 U.S.C. § 3729 et seq. In Count 1, Relators allege that, in violation of 31 U.S.C. § 3729(a)(1), Defendants knowingly presented to the government fraudulent claims for payment ("Presentment Claim"), knowingly made or used false statements to get fraudulent claims paid ("Make-or-Use Claim"), and knowingly made false statements to avoid an obligation to pay the government ("Reverse False Claim").2(Compl. ¶¶ 41-44).3 Count 2 asserts that, in violation of 31 U.S.C. § 3729 and 31 U.S.C. § 3801 et seq., Defendants "fraudulently certified its [sic] payrolls to the Government and/or failed to provide certifications at all." (Compl. ¶¶ 45-48).4 Count 3 asserts that, in violation of 31 U.S.C. § 3729(a)(1)(C), Defendants "conspired to defraud the Government by getting false or fraudulent claims allowed or paid." (Compl. ¶¶ 49-52). Relators do not assert a claim under the DBRA. ([29] at 7).

On September 14, 2015, the United States elected not to intervene in this action. ([9]). On November 25, 2015, Fulton County filed its answer to Relators' Complaint and cross-claimed against SoCo, Custom Interiors, and Saucedos. ([17]). On December 4, 2015, Custom Interiors filed its answer to Relators' Complaint and Fulton County's cross-claim, and itself cross-claimed against SoCo and Saucedos. ([18]). On December 16, 2015, SoCo filed its answer to Fulton County's cross-claim. ([23]).

On December 21, 2015, SoCo filed its Motion to Dismiss Relators'Complaint, arguing that Relators fail to plead their claims with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure ("Rule 9(b)") and that Count 2 improperly seeks an administrative remedy and is duplicative of Count 1. On December 28, 2015, SoCo filed its Motion to Dismiss Custom Interiors' Cross-Claim, seeking dismissal of Custom Interiors' cross-claim against SoCo.

On January 26, 2016, Relators filed their Motion to Amend, seeking leave to amend their Complaint and attaching their proposed First Amended Complaint ("Proposed Amended Complaint"). The Proposed Amended Complaint does not allege that Defendants violated 31 U.S.C. § 3729(a)(1)(G) or 31 U.S.C. § 3801 et seq., and asserts Count 3 only against Custom Interiors and Saucedos. ([30.1] ¶¶ 42, 48, 49-52). Also on January 26, 2016, Relators filed their Response in Opposition to Defendant SoCo Contracting Company, Inc.'s Motion to Dismiss the Complaint [29] ("Response"). In it, Relators cite to their Proposed Amended Complaint rather than the operative Complaint against which SoCo filed its Motion to Dismiss. ([29] at 5 n.2). Relators argue that their Proposed Amended Complaint, not their operative Complaint, satisfies the pleading requirements of Rule 9(b). ([29] at 5).

On February 8, 2016, Custom Interiors and SoCo filed their Joint Stipulationof Dismissal of Custom Interiors & Acoustics, LLC's Crossclaim against SoCo Contracting Company, Inc. [33], in which Custom Interiors' cross-claim against SoCo was voluntarily dismissed. On February 12, 2016, SoCo filed its Reply Brief in Support of Motion to Dismiss Relators' Complaint [34] ("Reply"). In it, SoCo argues that, because Relators base their Response on their Proposed Amended Complaint, SoCo's Motion to Dismiss should be deemed unopposed. Also on February 12, 2016, SoCo filed its Response Brief in Opposition to Relators' Motion for Leave to File First Amended Complaint [35]. In it, SoCo argues that Relators' Proposed Amended Complaint fails to satisfy the pleading requirements of Rule 9(b) and that Relators' Motion to Amend should be denied as futile. Relators did not file a reply.

The Court agrees with SoCo that, because Relators base their Response entirely on their Proposed Amendment Complaint, SoCo's Motion to Dismiss the original complaint should be deemed unopposed and, as a result, it is granted. See Gudenavichene v. Mort. Elec. Registration Sys., Inc., No. 2:12-cv-82, 2012 WL 1142868, at *2 (D. Nev. Apr. 4, 2012) (deeming unopposed a motion to dismiss where plaintiff's opposition was based on a proposed but inoperative amended complaint); cf. L.R. 7.1(B), NDGa ("Failure to file a response shall indicate that there is no opposition to the motion.").

A. Motion to Dismiss for Failure to State a Claim

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must "assume that the factual allegations in the complaint are true and give the plaintiff[] the benefit of reasonable factual inferences." Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable inferences are made in the plaintiff's favor, "'unwarranted deductions of fact' are not admitted as true." Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). The Court is not required to accept as true conclusory allegations or legal conclusions. See Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004) ("[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (internal quotation marks 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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere "labels and conclusions" are insufficient. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than the "mere possibility of misconduct." Am. Dental, 605 F.3d at 1290 (quoting Iqbal, 556...

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