The opinion of the court was delivered by: Judge Sharon Johnson Coleman
Magistrate Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Plaintiff-Relator Dale Bragg ("Plaintiff" or "Bragg") has filed this qui tam action against Defendant SCR Medical Transportation, Inc. ("Defendant" or "SCR") asserting violations of the False Claims Act ("FCA"), 31 US.C. § 3729 et seq., the Illinois False Claims Act and the Illinois Whistleblower Reward and Protection Act ("IWRPA"), 740 ILCS § 175/1. SCR's motion to dismiss Bragg's amended complaint was granted. SCR now moves to dismiss Bragg's second amended complaint with prejudice for failing to plead with particularity pursuant to FED. R. CIV. P. 9(b), and for failing to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons that follow, the Court grants SCR's motion without prejudice.
The underlying facts in this matter have not changed since this Court's previous order filed on April 8, 2011. For purposes of defendant's motion, the Court accepts as true the factual allegations of the plaintiff's complaint.
Defendant SCR is an organization that provides non-emergency medical transportation ("paratransit services") for individuals who are unable to use public transportation due to physical or health limitations. Plaintiff, Bragg worked for SCR from March 2003 until his resignation in March 2007. Prior to his resignation, Bragg held the position of Operations Manager and was responsible for budget approval, invoice review and approval and management authority over 241 employees.
On April 27, 2007, Bragg filed his original complaint alleging that
SCR knowingly presented or caused to be presented false or fraudulent
claims for payment in an attempt to defraud the federal and state
governments. Bragg also asserts claims under the whistleblower
protection provisions of the FCA and IWRPA alleging that SCR
threatened, harassed and discriminated against him because of his
lawful actions in furtherance of this qui tam claim.*fn1
SCR sought and obtained a dismissal of that complaint. In
response, Bragg has filed this second amended complaint and SCR again
alleges that Bragg has failed to sufficiently state a claim upon which
the Court can grant relief.
1. Rule 9(b) Pleading Requirement
The heightened pleading standard set forth in Rule 9(b) requires that in all allegations of fraud, "a party must state with particularity the circumstances constituting fraud." FED. R. Civ. P. 9(b). This means a party must plead "the who, what, when where, and how: the first paragraph of any newspaper story." U.S. ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849 853 (7th Cir. 2009). When a fraud scheme involves numerous transactions over time, a plaintiff need not plead specifics with respect to every instance of the fraud but must plead at least representative examples of the fraud. U.S. ex. rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 376 & 379 (7th Cir. 2003). The heightened pleading requirement in the fraud context forces the plaintiff to conduct a careful pretrial investigation and minimizes the risk of extortion that may come from a baseless fraud claim. Fidelity Nat'l Title Ins. Co. of N. Y. v. Intercountv Nat'l Title Ins. Co., 412 F.3d 748-49 (7th Cir. 2005).
2. 12(b)(6) Motion to Dismiss
Federal Rules of Civil Procedure set forth the federal pleading requirement of a short and plain statement of the claim upon which relief can be granted. Fed. R. Civ. P. 8(a). In order to survive dismissal, the complaint must allege sufficient factual content to raise the right to relief above a speculative level. Bell Atlantic Corp. v Twombly, 550 U.S. 544, 569 n. 14, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007). When considering dismissal of a complaint, the Court accepts as true all well-pleaded allegations ...