FILED
NOT FOR PUBLICATION OCT 24 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL RAY PERRY, United States of No. 12-35278
America ex rel.,
D.C. No. 6:08-cv-06307 HO
Plaintiff - Appellant, District of Oregon,
Eugene
v.
HOOKER CREEK ASPHALT AND MEMORANDUM*
PAVING, LLC; OREGON MAINLINE
PAVING, LLC; J.C. COMPTON
CONTRACTOR, INC.; KNIFE RIVER
CORPORATION - NORTHWEST;
CENTRAL OREGON REDI-MIX, LLC;
HAP TAYLOR & SONS, INC.; WILDISH
STANDARD PAVING CO.; HAMILTON
CONSTRUCTION CO.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Argued and Submitted October 7, 2013
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Relator Michael Perry appeals from the district court’s order dismissing
relator’s second amended complaint with prejudice. The district court ruled that
Perry’s claims failed to satisfy the pleading requirements of Federal Rules of Civil
Procedure 8(a) and 9(b). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Relator generally alleges that defendants violated the False Claims Act, 31
U.S.C. § 3729, because, among other things, they knowingly and intentionally
submitted bills to Oregon for work and materials that did not meet state quality
assurance standards, causing Oregon to submit false claims to the federal
government for reimbursement of federal highway apportionment funds. Relator’s
complaint, however, fails to allege with sufficient particularity the “who, what,
when, where and how” of any alleged incident of fraud. See, e.g., United States ex
rel. Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1054-55 (9th
Cir. 2011) (False Claims Act complaint must satisfy Federal Rules of Civil
Procedure 8(a) and 9(b)); Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993,
998 (9th Cir.) (False Claims Act complaint must satisfy the heightened plausibility
standard of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 131 S. Ct. 801 (2010). Because
we find that the relator has failed to meet the burden of 9(b), we do not need to
address if his factual allegations are plausible under 8(a).
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Additionally, the district court did not abuse its discretion in dismissing
relator’s complaint with prejudice. The district court had previously granted
relator leave to amend after specifying the deficiencies of the first amended
complaint and identifying what relator would have to include in any amendment.
In light of relator’s failure to cure and his concession that he lacked the
information to do so, any further amendments would have been futile. See, e.g.,
United States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011),
(citing Krainski v. Nevada ex rel. Bd. of Regents of Nevada System of Higher
Education, 616 F.3d 963, 972 (9th Cir. 2010)), cert. denied, 131 S. Ct. 1678
(2011).
AFFIRMED.
FILED
Perry v. Hooker Creek Asphalt, No. 12-35278 OCT 24 2013
MOLLY C. DWYER, CLERK
W. FLETCHER, Circuit Judge, concurring in the result. U.S. COURT OF APPEALS
I concur in the majority’s disposition, but not with its conclusion that
Relator “fails to allege with sufficient particularity the ‘who, what, when, where
and how’ of any alleged incident of fraud.”
In his second amended complaint, Relator provides several specific
examples of incidents that, standing alone, are sufficiently detailed to satisfy the
requirements of Rules 8(a) and 9(b). However, while these specific instances
would state plausible claims under the False Claims Act if brought individually,
Relator offers them only as “representative examples” in support of his allegations
of a broader scheme of fraud, a scheme he alleges spans more than 200 contracts.
Depending on the nature of the case, Rule 9(b) does not require Relator to
allege in detail all of the facts supporting each and every instance of a false claim.
United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1051 (9th
Cir. 2001). Pleading by means of representative examples may, in some
circumstances, satisfy Rule 9(b)’s particularity requirement. Ebeid, 616 F.3d at
998. But Relator does not allege the type of “cookie-cutter” scheme that is
amenable to pleading by representative example. To the contrary, the
representative examples provided in his second amended complaint describe a
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wide variety of alleged violations. Because these examples do not succeed in
alleging with particularity the details of an overall scheme of fraudulent claims, the
district court did not err in dismissing Relator’s complaint.
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