United States District Court, D. Connecticut
UNITED STATES OF AMERCA EX. REL PETER J. BONZANI, JR, Plaintiff,
UNITED TECHNOLOGIES CORPORATION ET AL., Defendants.
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.
C. Hall United States District Judge.
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).
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.
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.
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.
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.
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. 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.
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.
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.
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.
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.
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