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UNITED STATES EX REL. NEWSHAM v. LOCKHEED MISSILES

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


December 9, 1991

UNITED STATES, ex rel., NEWSHAM, et al., Plaintiffs,
v.
LOCKHEED MISSILES AND SPACE, COMPANY, INC., Defendant.

The opinion of the court was delivered by: JAMES WARE

ORDER DISMISSING COUNTERCLAIMS

 Plaintiffs Margaret A. Newsham ("Newsham") and Martin Overbeek Bloem ("Bloem") are qui tam plaintiffs who have filed suit against Lockheed Missiles and Space Company ("Lockheed") for alleged fraud and misuse of public funds. Lockheed answered and asserted counterclaims against the qui tam plaintiffs. Plaintiffs move to dismiss the counterclaims on the ground that counterclaims against qui tam plaintiffs are barred as a matter of law. For reasons stated more fully below, the motion to dismiss is GRANTED.

  BACKGROUND

 Plaintiffs brought suit on behalf of the United States against Lockheed for fraud and misuse of public funds pursuant to the False Claims Act ("FCA"). 31 U.S.C. § 3729 et seq. as amended, Pub. L. No. 99-562, 199 Stat. 3152 (1986). Under the FCA, private citizens may bring a civil action on behalf of the United States. 31 U.S.C. § 3730(b). If the government elects not to proceed with the action, the person who initiated the action has the right to conduct the action. 31 U.S.C. § 3730(c)(3).

 After two unsuccessful attempts to have the complaint dismissed on other grounds, and an unsuccessful petition for interlocutory appeal, Lockheed filed its Answer to the Complaint, including Counterclaims against the qui tam plaintiffs. The counterclaims charge plaintiffs with breach of duty of loyalty and breach of fiduciary duty; breach of express contractual duties; breach of statutory duties under the California Labor Code; and breach of the implied covenant of good faith and fair dealing. Lockheed alleges that plaintiffs never formally advised Lockheed management of their concerns about the conduct of fellow Lockheed employees, in contravention of company policy and state law requirements. Lockheed prays for recovery of costs, attorneys' fees, and any other appropriate relief.

 DISCUSSION

 The defendant argues the counterclaims are proper under Rule 13 of the Federal Rules of Civil Procedure. *fn1" Plaintiffs, on the other hand, argue that Lockheed's counterclaims against the qui tam plaintiffs are barred as a matter of law. The FCA, which allows private citizens to bring actions on behalf of the United States, does not directly address the issue of counterclaims against qui tam plaintiffs. The legislative history of the FCA indicates Congress intended to enhance the government's ability to recover losses sustained as a result of fraud against the government and an intent to protect informants from reprisals. S. REP. NO. 345, 99th Cong., 2d Sess. 1 (1986) reprinted in 1986 U.S.C.C.A.N. 5266. However, the legislative history does not speak to the issue of counterclaims against qui tam plaintiffs.

 Case law interpreting the statute is similarly sparse. The most recent case dealing with counterclaims against qui tam plaintiffs is Mortgages, Inc. v. U.S. D. CT. for D. of NEV. 934 F.2d 209 (9th Cir. 1991). In Mortgages, The United States Court of Appeals for the Ninth Circuit held that neither contribution nor indemnity may be asserted as counterclaims in a qui tam action under FCA, even if the qui tam plaintiff participated in wrongdoing. The Ninth Circuit determined that "FCA is in no way intended to ameliorate the liability of wrongdoers by providing defendants with a remedy against a qui tam plaintiff with 'unclean hands.'" Mortgages, 934 F.2d at 213.

 Defendant claims this action is distinguishable from Mortgages because defendant specifically states in its counterclaim that the counterclaims are asserted with respect to independent damages, and not for purposes of indemnification or contribution. However, as plaintiffs point out, there are significant similarities between Mortgages and the present case.

 In Mortgages, a mortgage company filed an action under the FCA, offering the United States information it had obtained regarding allegedly false statements in applications for HUD-insured loans. The applicants counterclaimed for state law claims including breach of contract, breach of covenant of good faith and fair dealing, breach of fiduciary duty, fraud, negligence, negligent misrepresentation and conspiracy seeking indemnification and/or contribution. In the present case, Lockheed counterclaims for breach of duty of loyalty and breach of fiduciary duty, breach of express contractual duties, breach of statutory duties under the California Labor Code, and breach of implied covenant of good faith and fair dealing.

 While the Mortgages court denied the remedies of indemnification and contribution against qui tam plaintiffs, the language of Mortgages suggests a broader application. The court stated "the right to contribution and indemnification are no different in principle from other implied rights of action." Mortgages, 934 F.2d at 212. The plaintiffs contend, and the Court agrees, Lockheed's counterclaims are no different in principle from the counterclaims raised in Mortgages. If Lockheed were successful in its counterclaims, in effect, the qui tam plaintiffs would ultimately bear part of the costs of any judgment against Lockheed, the very result that was denied to defendants in Mortgages.

 While the defendant does not cite a single case in which counterclaims against qui tam plaintiffs were permitted by any court, other courts have barred counterclaims against qui tam plaintiffs. In Mortgages, the court cited favorably United States ex rel. Rodriquez v. Weekly Publications, 74 F. Supp. 763 (SDNY 1947). *fn2" The Rodriguez Court cited public policy concerns when it dismissed a counterclaim against a qui tam plaintiff, and reasoned that to permit such counterclaims would be a strong deterrent to genuine informer's actions, and contrary to the public policy underlying the statute.

 Although sparse, the weight of case law tips in favor of plaintiffs and against defendant. Moreover, to permit defendant to pursue a counterclaim for breach of contract and breach of loyalty for the failure to first raise its concerns with the alleged wrongdoer, would allow wrongdoers to retaliate against whistleblowers, and is contrary to legislative intent. *fn3"

 CONCLUSION

 For the reasons stated above, plaintiffs' motion to dismiss counterclaims is hereby GRANTED.

 IT IS SO ORDERED.

 DATED: December 9, 1991

 HONORABLE JAMES WARE, UNITED STATES DISTRICT JUDGE


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