US Ex Rel. Michael Perry v. Hooker Creek Asphalt & Paving

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2019
• Docket: 17-35524
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 08 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL RAY PERRY, United States of No. 17-35524 America ex rel., D.C. No. 6:08-cv-06307-MC Plaintiff-Appellant,

and MEMORANDUM*

UNITED STATES OF AMERICA,

Plaintiff,

v.

HOOKER CREEK ASPHALT AND PAVING, LLC; OREGON MAINLINE PAVING, LLC; J.C. COMPTON CONTRACTOR, INC.; KNIFE RIVER CORPORATION - NORTHWEST; CENTRAL OREGON REDI-MIX, LLC; HAP TAYLOR & SONS, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We GRANT the Motions to Take Judicial Notice, filed on February 5, 2018, and June 4, 2018 (Dkt. # 19, 43). Argued and Submitted December 5, 2018 Seattle, Washington

Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.

Relator Michael Perry appeals from the district court’s order dismissing

Perry’s third 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.

This is the second trip this case has made to us on appeal. In the first

iteration, Perry appealed the dismissal with prejudice of his second amended

complaint. Though we agreed that Perry’s second amended complaint was

deficient under Rule 9(b), we reversed and remanded because it was “not clear that

Perry’s complaint could not have been saved by any amendment[.]” On remand,

Perry filed a third amended complaint alleging that defendants violated the False

Claims Act, 31 U.S.C. § 3729, with respect to 21 specific highway projects by

knowingly billing 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.

2 Perry argues that the district court violated the law of the case doctrine by

dismissing his third amended complaint. “[T]he decision of the circuit court in a

prior appeal must be followed in all subsequent proceedings in the same case under

the law of the case doctrine.” Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400,

1404 (9th Cir. 1993). Contrary to Perry’s argument, the mandate in the previous

appeal did not require the district court to accept Perry’s third amended complaint.

We agree with the district court that Perry’s third amended complaint did not

allege with particularity the “who, what, when, where and how” of a consistent

course of fraudulent conduct. See, e.g., United States ex rel. Cafasso v. Gen.

Dynamics C4 Sys., 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) and the

heightened plausibility standard of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Ebeid ex rel. United States

v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010). Although Perry narrowed his

complaint to focus on stand-alone projects rather than representative examples, the

third amended complaint still fails to satisfy Rule 9(b). Because Perry’s third

amended complaint does not meet the burden of Rule 9(b), we do not address

whether the factual allegations are plausible under Rule 8(a).

AFFIRMED.