United States District Court, D. Oregon
THE UNITED STATES OF AMERICA, ex rel., MICHAEL RAY PERRY, Plaintiffs,
HOOKER CREEK ASPHALT & PAVING, LLC, at al., Defendants.
OPINION AND ORDER
Michael McShane United States District Judge
ten years ago, relator Michael Ray Perry filed this complaint
alleging defendants violated the False Claims Act, 31 U.S.C.
§ 3729, by conspiring to defraud the United States over
many years in the construction of road projects. Judge
Michael Hogan twice pointed out the deficiencies in
Perry's complaint. A Ninth Circuit panel unanimously
agreed Perry's complaint lacked the requisite
particularity needed to support a fraud claim but, over a
dissenting opinion, concluded Judge Hogan should have granted
Perry leave to amend as the allegations “could
potentially provide sufficient particularity to satisfy Rule
9(b).” United States ex rel. Perry v. Hooker Creek
Asphalt and Paving, LLC, 565 Fed.Appx. 669, 670 (9th
Cir. 2014). Defendants now move to dismiss Perry's fourth
attempt at providing sufficient facts to support his fraud
claims. Because Perry's complaint still fails to state a
claim under the False Claims Act, this action is dismissed,
survive a motion to dismiss under rule 12(b)(6), a complaint
must contain sufficient factual matter that “state[s] a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible on its face when the factual
allegations allow the court to infer the defendant's
liability based on the alleged conduct. Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). The factual allegations
must present more than “the mere possibility of
misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe them in the
light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663
(9th Cir. 2000). But the court is “not bound to accept
as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555. If the
complaint is dismissed, leave to amend should be granted
unless the court “determines that the pleading could
not possibly be cured by the allegation of other
facts.” Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
parties, and now five judges, are quite familiar with
Perry's claims. Judge Hogan's previous opinions
dismissing the case provide much more detail on both the
alleged facts and how Perry's claims are “woefully
lacking in detail.” United States ex rel. Perry v.
Hooker Creek Asphalt & Paving, LLC, 2012 WL 913229
at *2 (D. Or. March 16, 2012 Opinion) (quoting December 13,
2011 Opinion)). It is worth noting Judge Callahan's
dissenting opinion in which he suggests that the
plaintiff's ability to plead a claim is nothing more than
I cannot agree with such speculation. Plaintiff in twice
responding to motions to dismiss never asserted individual
claims with sufficient specificity. More importantly, the
majority does not identify any specific example that actually
contains sufficient particularity to support an individual
claim. Rather the majority suggests that some unspecified
examples “could potentially provide sufficient
particularity.” This seems to me to be wishful
thinking, particularly because the district court noted, and
plaintiff does not really contest, that plaintiff does not
have access to the information on billing, the records and
practices underlying the defendants' billing for work
performed, or “materials provided relating to the road
construction in issue.”
Having affirmed the district court's dismissal of the
second amended complaint without in any way disagreeing with
its reasoning, I cannot conclude that the court abused its
discretion in denying leave to amend. Indeed, insisting that
plaintiff be granted leave to file a third amended complaint
appears to be a futile exercise that unnecessarily burdens
the district court and the defendants. Accordingly, I would
not have granted the petition for rehearing and I dissent
from the order remanding the case to the district court.
565 Fed.Appx. at 671-72 (emphasis added).
am cognizant of unduly burdening these parties and their
attorneys. For that reason, and because Perry's new
complaint does not fix the fatal flaws found in each earlier
complaint, I conclude that oral argument in this matter is
unnecessary and unduly burdensome.
the past 9 years, the parties filed thousands of pages of
briefs and exhibits. Despite all those filings, Perry still
admits that he “does not have access to the
information, records and practices underlying defendants'
bills for work performed and materials provided relating to
road construction and maintenance contracts at issue in this
lawsuit. Such information is in the exclusive possession or
control of defendants and/or the United States.” Third
Am. Compl., ¶ 47. For one bringing a claim under the
False Claims Act, this admission presents a problem. See
Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys.,
Inc. 637 F.3d 1047, 1055 (9th Cir. 2011) (“It
seems to be a fairly obvious notion that a False Claims Act
suit ought to require a false claim.”) (quoting
United States ex rel. Aflatooni v. Kitsap Physicians
Serv., 314 F.3d 995, 997 (9th Cir. 2002)).
Hogan's conclusion from over five years ago-a conclusion
the Ninth Circuit unanimously affirmed-rings equally true
with respect to Perry's now fourth bite at the apple:
There are no facts concerning the alleged false vouchers and
cost schedules caused to be presented to the federal
government or when and by whom they were submitted. It is
simply not plausible that all defendants submitted falsified
billings for all projects for all work ...