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March 31, 2004.

LA VAUGHAN MOORE, individually and dba MMC DOUBLE B&L TRUCKING, Plaintiff,
STEVE NAVARRO, individually and dba S&S TRUCKING, INC., et al., Defendants

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

Before the Court is the motion to dismiss or, in the alternative, to strike various allegations and for a more definite statement, pursuant to Federal Rules of Civil Procedure 12(b)(6), (e), and (f), filed January 12, 2004 by defendants Steve Navarro, individually ("Navarre") and dba S&S Trucking ("S&S") (collectively "S&S/Navarro"). Having considered the papers filed in support of and in opposition to the motion, the Court finds the matter appropriate for decision on the papers, see Civil L.R. 7-1(b), and hereby VACATES the February 20, 2004 hearing. For the reasons set forth below, the Court GRANTS S&S/Navarro's motion to dismiss. The Court does not reach S&S/Navarro's motions to strike or for a more definite statement.


  Plaintiffs La Vaughan Moore, individually ("Moore") and dba Double B&L Trucking Page 2 ("DB&L"), filed the initial complaint in this action on September 6, 2000. Thereafter, on December 11, 2002, Moore filed an amended complaint, which she again titled "Complaint." By order filed February 12, 2003, the Court granted defendant Shank/Balfour Beatty's ("S/BB") motion to dismiss Moore's amended complaint in its entirety and afforded Moore leave to amend. On April 1, 2003, Moore filed another amended complaint, titled "First Amended Complaint." S/BB again moved to dismiss, and on July 3, 2003, the Court granted that motion with leave to amend only as to Moore's eleventh cause of action, in which she raised a claim for breach of contract. Moore filed her "Second Amended Complaint" on August 1, 2003. S/BB again moved to dismiss, and on September 12, 2003, the court granted S/BB's motion and dismissed all claims against S/BB with prejudice. Thereafter, S&S/Navarro filed a motion for judgment on the pleadings with respect to all but Moore's eighth cause of action. By order filed December 3, 2003, the Court granted S&S/Navarro's motion, and afforded Moore leave to amend her complaint only as to her ninth cause of action, for violation of the False Claims Act, 31 U.S.C. § 3729-3733, and her eighth cause of action, for violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961-1968.

  On December 24, 2003, Moore filed an amended complaint titled "Fourth Amended Complaint," in which she has amended her claims for violation of the False Claims Act and RICO.*fn1 Thereafter, S&S/Navarro filed the instant motion, by which S&S/Navarro seek to dismiss Moore's RICO claim on the grounds that it is barred by the doctrine of res judicata and by the statute of limitations, fails to state a claim, and is not alleged with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure. Additionally, S&S/Navarro seeks to dismiss Moore's claim for violation of the False Claims Act, on the ground that it is barred by the statute of limitations. In the alternative, S&S/Navarro move Page 3 to strike from the Fourth Amended Complaint all allegations that are immaterial or impertinent and to require Moore to provide a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure.


  A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

  Generally, a district court, in ruling on a Rule 12(b)(6) motion, may not consider any material beyond the pleadings. See Hal Roach Studios. Inc. v. Richard Feiner And Co., Inc., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990). Material that is property submitted as part of the complaint, however, may be considered. See id. Documents whose contents are alleged in the complaint, and whose authenticity no party questions, but which are not physically attached to the pleading, also may be considered. See Branch v. Tunnel, 14 F.3d 449, 454 (9th Cir. 1994). Finally, the Court may take judicial notice of matters of public record. See Mack v. South Bay Beer Distributors. Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).*fn2

  In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Industries. Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The Court may disregard factual allegations if such allegations are contradicted by the facts established by reference to exhibits attached to the complaint. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). Conclusory allegations, unsupported by the facts alleged, need not be accepted as true. See Holden v. Hagopian, Page 4 978 F.2d 1115, 1121 (9th Cir. 1992).


  A. Timeliness of Fourth Amended Complaint

  S&S/Navarro first object that the Court should not consider Moore's Fourth Amended Complaint because the complaint was filed after the deadline set by the Court. Pursuant to the Court's December 3, 2003 order, Moore's amended complaint was due "no later than 20 days from the date of [the] order." (See Order, filed December 3, 2003, at 21.) The Court further ordered that if Moore did not file a timely amended complaint, "the claims that have been dismissed with leave to amend will be deemed dismissed with prejudice." (See id.)

  Thus, Moore was required to file her Fourth Amended Complaint no later than December 23, 2003. Moore did not file her Fourth Amended Complaint until December 24, 2003. Her amended complaint thus was untimely.*fn3 As S&S/Navarro do not claim to have been prejudiced by the delay, however, and because the complaint was only one day late, the Court will exercise its discretion to consider Moore's untimely complaint.

  B. False Claims Act

  S&S/Navarro argue that Moore's claim for violation of the False Claims Act should be dismissed as time-barred. Moore opposes the motion, arguing that all of S&S/Navarro's alleged violations of the False Claims Act have occurred within the statutory limitations period.

  Moore alleges that on June 6, 1993, Navarro submitted an association agreement and a Human Rights Commission ("HRC") Form 4 to the City of San Francisco. HRC to obtain $600,000 for dump fees expended for the Richmond Transport Project, a federally funded project. (See id. ¶ 37.) Moore alleges that Navarro knew there were no dump fees Page 5 expended for the project, but nonetheless obtained city and federal funds by submitting false claims. (See id.) Moore also alleges that on December 1, 1993, S&S/Navarro "knowingly submitted a fraudulent purchase order" to S/BB for hauling away and disposing of materials excavated from the Richmond Transport Project. (See id, ¶ 38.) Moore alleges that on March 10, 1995, S/BB "forwarded" to S&S a letter accusing S&S of over-billing the cost of its hauling by $300,000. (See id.) Moore alleges that S&S/Navarro received the sums of $600,000 and $300,000 during the period of July 1993 through December 1995, thereby defrauding the City and County of San Francisco. and the federal government. (See 4AC ¶¶ 39-40.)

  The False Claims Act has a two-pronged statute of limitations. Under the first prong, a civil action may not be brought "more than six years after the date on which the violation . . . is committed." See 31 U.S.C. § 3731 (b)(1). The six-year limitations period begins running upon submission of the allegedly false claim, because a violation of the False Claims Act occurs upon the "knowing presentation of a claim that is either fraudulent or simply false." See United States ex re/. Hopper v. Anton, 91 F.3d 1261, 1266 (9th Cir. 1996). Under the second prong, a civil action may not be brought "more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last." See 31 U.S.C. § 3731 (b)(2). The Ninth Circuit has held that both prongs of the statute of limitations apply to qui ...

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