United States District Court, D. Oregon
UNITED STATES OF AMERICA, ex rel., RICHARD DOUGHTY, Plaintiff-Relators,
OREGON HEALTH AND SCIENCES UNIVERSITY, Defendant.
J. WILLIAMS United States Attorney
J. EVANS ALEXIS LIEN Assistant United States Attorneys
Attorneys for Plaintiff
SHELLEY D. RUSSELL Crispin Employment Lawyers, ELIZABETH
FARRELL, Attorneys for Relator
C. WEAVER, JR. JOY ELLIS PATRICK J. CONTI, Garvey Schubert
Barer, MICHAEL J. VERNICK JESSICA L. ELLSWORTH MARTA A.
THOMPSON MORGAN L. GOODSPEED Attorneys for Defendant
OPINION AND ORDER
J. BROWN, United States District Judge
matter comes before the Court on Defendant's Motion (#54)
to Dismiss. The Court concludes the record is sufficiently
developed that oral argument on the pending Motion is not
warranted. For the reasons that follow, the Court GRANTS
Defendant's Motion and GRANTS Plaintiff-Relators leave to
file an Amended Complaint to the extent that they can allege
claims for unjust enrichment and/or payment by mistake that
do not arise from the express contracts at issue.
30, 2013, Relator Richard Doughty filed a qui tarn
action pursuant to 31 U.S.C. § 3729 against Defendant
Oregon Health and Sciences University (OHSU) alleging
Defendant violated the False Claims Act (FCA), 31 U.S.C.
§ 3729(a)(1) and (a)(2), when it applied improper
reimbursement rates to certain federally-sponsored projects.
October.18, 2016, the United States elected to intervene in
October 28, 2016, the United States filed a Complaint in,
Intervention alleging three claims for violation of the FCA,
a claim for payment by mistake, and a claim for unjust
enrichment relating to Defendant's application of
improper reimbursement rates to certain federally-sponsored
January 17, 2017, Defendant filed a Motion to Dismiss on the
grounds that OHSU is an arm of the State and, as such, is not
a "person" subject to liability under the FCA and
that Plaintiff-Relators' implied-contract claims are
barred by their express contract claims.
Court took Defendant's Motion under advisement on March
Dismissal for Lack of Jurisdiction Pursuant to Rule
has the burden to establish that the court has subject-matter
jurisdiction. Robinson v. Geithner, 359 F.App'x
726, 728 (9th cir. 2009). See-also Ass'n
of Am. Med. Coll. v. United States, 217 F.3d 770
(9th Cir. 2000).
deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court may consider
affidavits and other evidence supporting or attacking the
plaintiff's jurisdictional allegations. Rivas' v.
Napolitano, 714 F.3d 1108, 1114 n.l (9th Cir.
2013). The court may permit discovery to determine whether it
has jurisdiction. Laub v. United States Dep't of
Interior, 342 F.3d 1080, 1093 (9th Cir.
2003}. When a defendant's motion to dismiss for lack of
jurisdiction "is based on written materials rather than
an evidentiary hearing, the plaintiff need only make a
prima facie showing of jurisdictional facts to
withstand the motion to dismiss." Mavrix Photo, Inc.
v. Brand Tech. r Inc., 647 F.3d 1218, 1223
(9th Cir. 2011) (citation omitted).
Dismissal for Failure to State a Claim Pursuant to Rule 12(b)
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."
[Bell Atlantic v. Twombly, 550 U.S. 554');">550 U.S. 554, ] 570, 127
S.Ct. 1955 [(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. Id. at 556. . . . The
plausibility-standard is not akin to a "probability
requirement, " but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Ibid. Where a complaint pleads facts that are
"merely consistent with" a defendant's
liability, it "stops short of the line between
possibility and plausibility of 'entitlement to
relief.'" Id. at 557, 127 S.Ct. 1955');">127 S.Ct. 1955
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) .
See also Bell Atlantic, 550 U.S. at 555-56.
The court must accept as true the allegations in the
complaint and construe them in favor of the plaintiff.
Novak v. U.S., 795 F.3d 1012, 1017 (9th
ruling on a 12(b) (6) motion, a court may generally consider
only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice." Akhtar v. Mesa, 698 F.3d
1202, 1212 (9th Cir. 2012)(citation omitted). A
court, however, "may consider a writing referenced in a
complaint but not explicitly incorporated therein if the
complaint relies on the document and its authenticity is
unquestioned." Swartz v. KPMG LLP, 476 F.3d
756, 763 (9th Cir. 2007} (citation omitted) .