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United States of America Ex Rel. v. Calibre Systems

October 17, 2011


The opinion of the court was delivered by: Hon. Otis D. Wright, II United States District Judge




Currently before the Court is Defendant Calibre Systems, Inc.'s ("Defendant") Motion to Dismiss Plaintiff Katherine Knapp's ("Plaintiff" or "Relator") first, second, third and sixth claims of the First Amended Complaint ("FAC"). (Dkt. No. 22.) After careful consideration, the Court deems the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, the Court GRANTS Defendant's motion as to the second and sixth claim, and DENIES Defendant's motion as to the first and third claims.


Plaintiff's FAC alleges the following: Defendant was a contractor for the Government during all relevant times of this action. (FAC ¶ 11.) Specifically, Defendant provided environmental and archaeological services at the Ft. Irwin National Training center. (FAC ¶ 11.) Plaintiff was an employee for Defendant and worked at the Ft. Irwin site as an Analyst member of the Environment Program Management Directorate. (FAC ¶ 14.)

The contract between the Government and Defendant required Defendant to follow the regulations set forth by § 106 of the National Historic Preservation Act of 1996, 16 U.S.C. § 470f ("§ 106").*fn1 (FAC ¶ 11.) One of Plaintiff's job responsibilities included ensuring Defendant complied with § 106 by identifying and evaluating archeological sites to include in the National Registry. (FAC ¶ 14.)

During the course of Plaintiff's employment, she learned that Defendant regularly ignored § 106 regulations in an attempt to secure future contracts with the Government. (FAC ¶¶ 15, 17.) In particular, Plaintiff's supervisor, Luz Ramirez de Bryson ("de Bryson"), commonly disregarded § 106. (FAC ¶¶ 16-19.)

In March 2009, Plaintiff expressed her concerns regarding Defendant's § 106 violations to two Government agencies. (FAC ¶¶ 20-21.) First, Plaintiff wrote a letter on March 3, 2009 to Katherine Kerr at the Advisory Council on Historic Preservation. (FAC ¶ 20.) Second, Plaintiff met with Clarence Everly, Ft. Irwin's Natural and Cultural Resource Manager, on March 18, 2009. (FAC ¶ 21.)

On March 18, 2009, de Bryson told Plaintiff not to report to work because of contractual issues between Defendant and the Government. (FAC ¶ 22.) Plaintiff was then informed she would have to re-apply for her job, but that she would almost surely get it back. (FAC ¶ 24.) Despite Defendant's assurances, Plaintiff did not get her job back and was officially terminated on May 15, 2009. (FAC ¶ 31.)

Thereafter, Plaintiff instituted this action on June 17, 2010. (Dkt. No. 1.) The United States declined to intervene in the action, and the case continued with Plaintiff as a Relator. (Dkt. No. 10.) On June 22, 2011, Defendant filed a motion to dismiss Plaintiff's sixth claim of the Complaint, (Dkt. No. 13), to which the Court granted with leave to amend on July 25, 2011. (Dkt. No. 20.) Plaintiff subsequently filed her FAC on August 8, 2011 alleging: (1)violation of the Federal False Claims Act ("FCA"), 31 U.S.C. § 3729; (2) violation of the anti-retaliation provision of the FCA, 31 U.S.C. § 3730(h); (3) wrongful termination in violation of public policy; (4) violation of California Labor Code §§ 98.6 and 1102.5; (5) intentional infliction of emotional distress and (6) negligent infliction of emotional distress. (Dkt. No. 21.)


"To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)." Porter v. Jones, 319 F.3d 483, 494 (9th Cir.2003). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombley, 550 U.S. 554, 555 (2007). Mere "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Id. Rather, to overcome a 12(b)(6) motion, "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, 129 S. Ct. 1937, 1949 (2009) (internal quotation and citation omitted). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement of relief." Id. (internal quotation and citation omitted).

When considering a 12(b)(6) motion, a court is generally limited to considering materials within the pleadings and must construe "[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff]." See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001)(citing Epstein v. Washington Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996)). A court is not, however, "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Thus, the Ninth Circuit has summarized the governing standard, in light of Twombly and Iqbal, as follows: "In sum, for a complaint to survive a motion to dismiss, the nonconclusory factual content, and ...

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