United States ex rel. Bonzani v. United Technologies Corp.

          RULING RE: DEFENDANTS' MOTION TO DISMISS THE FOURTH AMENDED COMPLAINT (DOC. NO. 97) AND DEFENDANT'S MOTION TO FILE RESPONSE TO PLAINTIFF'S SUR-REPLY (DOC NO. 107)

          Janet C. Hall United States District Judge.

         I. INTRODUCTION

         Plaintiff/Relator Peter J. Bonzani, Jr. (“Bonzani”) filed suit, on behalf of the United States of America, under the False Claims Act, section 3729 et seq. of title 31 of the United States Code, against defendants United Technologies Corporation (“UTC”) and Pratt and Whitney (“PW”) (collectively “defendants”). See Fourth Amended Complaint (“FAC”) (Doc. No. 96).

         The FAC pleads three counts against the defendants. In Counts I and II, Bonzani alleges that the defendants violated the FCA by (1) knowingly or recklessly presenting, or causing to be presented, false or fraudulent claims for payment to the United States; and (2) making, using, or causing to be made or used, a false record or statement in seeking payment from the government. See 31 U.S.C. § 3729(a)(1)(A)- (B); FAC ¶¶ 473, 478. In Count III of the TAC, Bonzani alleges that PW fired him in retaliation for his engaging in protected activity under the FCA. See FAC ¶ 484. This court had previously denied defendants' Motion to Dismiss as to Count III of the Third Amended Complaint (“TAC”). See Ruling (Doc. No. 95) at 11. In that Ruling, this court also granted defendants' Motion to Dismiss as to Counts I and II, but gave Bonzani leave to replead. Id. Bonzani subsequently filed his Fourth Amended Complaint.

         Pending before the court are the defendants' Motion to Dismiss the Fourth Amended Complaint (Doc. No. 97) and defendants' Motion to File a Response to Bonzani's Sur-Reply (Doc. No. 107). For the reasons stated below, the Motion to Dismiss is denied, and the Motion to File a Sur-Reply is denied as moot.

         II. FACTS^[1]

         On January 1, 2008, the United States Air Force (“USAF”) awarded Contract Award Identification Number FA861108C2896 (“the Contract”) to PW. FAC ¶ 23. The Contract is a “cost-plus” contract for the manufacture of the F119 engine, which is used in the production of the USAF's F-22 military jet. Id. ¶¶ 25. As of the filing of the FAC, PW had been paid $3.7 billion pursuant to the Contract. Id. The Contract is subject to both the Federal Acquisition Regulation (“FAR”) and the Defense Federal Acquisition Regulation Supplement (“DFARS”). Id. ¶ 23. The Contract also incorporates the Pratt & Whitney Quality Management System Manual (the “PW Manual”). Id. ¶ 29.

         Critical parts for both the F-22 and the F-35 fighter jet engines, including the Integrally Bladed Rotors (“IBRs”), are manufactured at the PW plant in Middletown, Connecticut (“Middletown Plant”). Id. ¶ 39. During the manufacturing process, IBRs are spray-coated according to detailed specifications, in order to create a “knife edge seal” when the IBR rotates. Id. ¶ 41. A proper seal is critical to proper jet engine function. Id. ¶ 42. From 2012 through November 2015, all F-22 engine cores supplied to the USAF under the Contract were assembled at the Middletown Plant. Id. ¶ 43.

         Bonzani was hired full-time by PW in 2012 “to assist in all aspects of robotic spray-coating of military jet engine parts.” Id. ¶ 21. In November 2015, Bonzani was ordered to conduct a “root cause analysis as to why suddenly all test samples for the IBRs for the F119 jet engine were failing contractually-required testing, ” when they had previously passed such testing. Id. ¶ 44. During the course of his inspection, Bonzani, along with another PW employee, determined that “the use of a wrongly sized spray gun whose spray plumes were unable to sufficiently coat the test piece” had resulted in improper coating of the representative samples of IBRs used for testing purposes.^[2] Id. ¶¶ 48, 49. When Bonzani inquired as to whether any production or testing changes had recently occurred, he was informed that a new test apparatus had recently been installed, and that samples began to fail testing after the change in test apparatus. Id. ¶¶ 53, 54. A comparison of the old and new test apparatus revealed that the old apparatus could be manipulated to move samples closer to the spray gun, while the new, contractually compliant apparatus, could not be manipulated in the same manner. Id. ¶¶ 56-59.

         When Bonzani inquired as to how previous tests had been successful, an employee at PW's Material Control Laboratory (“MCL”), the lab responsible for quality control testing of representative IBR samples, told Bonzani that employees had “cheated” in the past. Id. ¶¶ 66, 67. The employee also told Bonzani that the “cheating” involved moving the IBR sample closer to the spray gun. Id. ¶¶ 67, 301. Bonzani informed the Production Coatings Engineer at the Middletown Plant of his findings. The engineer did not deny knowledge of the fraudulent testing, but rather responded that he had “inherited the problem.” Id. ¶ 69.

         Bonzani informed two co-workers at PW's East Hartford location of his findings the next morning, on November 20, 2015. Id. ¶ 70. They responded that it was common knowledge that the Middletown Plant had been “taking short cuts on tests.” Id. ¶ 71. Bonzani also informed several members of PW management of his findings later that same morning. Id. ¶ 72. On the afternoon of the same day-November 20, 2015- Bonzani was interrogated, placed on probation, and escorted from PW's East Hartford facility. Id. ¶ 75. Ninety days later, his employment with PW was terminated. Id. ¶ 75.

         III. LEGAL STANDARD

         A. Rule 12(b)(6)

         To withstand a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (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. The plausibility standard is not a probability requirement; the pleading must show, not merely allege, that the pleader is entitled to relief. Id. Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not entitled to a presumption of truth. Id. However, when reviewing a motion to dismiss, the court must accept the factual allegations in the operative complaint as true and draw all reasonable inferences in the non-movant's favor. See Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012).

         B. Rule 9(b)

         Qui tam complaints filed under the False Claims Act (“FCA”) are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). United States ex rel. Chorches for Bankr. Estate of Fabula v. Am. Med. Response, Inc., 865 F.3d 71, 81 (2d Cir. 2017). Rule 9(b) requires that, in alleging fraud, a party must “state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). A complaint alleging fraud must ordinarily “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Chorches, 865 F.3d at 81 (citation omitted). However, allegations may be based on “information and belief when facts are peculiarly within the opposing party's knowledge.” Id. at 81-82 (quoting Wexner v. First Manhattan Co., 902 F.2d 169, 172 (2d Cir. 1990)). Where pleading is permitted on information and belief, the complaint must “adduce specific facts supporting a strong inference of fraud.” Chorches, 865 F.3d. at 82.

         As relevant to Bonzani's qui tam claim, the FCA imposes liability on any person who “knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval” or who “knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)-(B). Bonzani must therefore allege that (1) defendant submitted a claim for payment to the government, (2) the claim for payment was false or misleading, (3) the defendant acted knowingly in making that ...