United States District Court, D. Utah
UNITED STATES OF AMERICA, ex rel., KELLY E. SORENSON, Plaintiffs,
WADSWORTH BROTHERS CONSTRUCTION COMPANY, INC., Defendant.
MEMORANDUM DECISION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO DISMISS
WADDOUPS UNITED STATES DISTRICT JUDGE.
the court is the motion to dismiss by defendant, Wadsworth
Brothers Construction Company, Inc., (ECF No. 19) which seeks
to dismiss the Complaint plaintiff, Kelly E. Sorenson, acting
as Relator and on behalf of and in the name of the United
States, has filed against it. The motion has been fully
briefed, and Defendant has submitted a request for a decision
on the same. (ECF No. 23.) Having reviewed the pleadings and
materials submitted, the court now enters this order
GRANTING IN PART and DENYING IN
PART Defendant's motion to dismiss.
was employed as a truck driver by Defendant from September 1,
2014 until November 14, 2014. (Compl. at ¶ 23, ECF No.
1.) Part of Plaintiff's employment was spent working on
the construction of a deicing pad (the “Deicing
Project”) at the Salt Lake International Airport (the
“Airport”). Id. at ¶¶ 12, 13,
24. The Deicing Project was funded through a grant that the
Airport received from the FAA. Id. at ¶¶
12-13. As a condition of Defendant's contract with the
Airport for the Deicing Project, Defendant was required to
comply with the Davis-Bacon Act. Id. at ¶¶
12-20. Plaintiff also performed work on the I-15 Core
Project, which was also federally funded and governed by the
Davis-Bacon Act. Id. at ¶ 28. Plaintiff worked
exclusively on the Deicing Project and the I-15 Core Project.
Id. at ¶ 29. Plaintiff asserts that Defendant
failed to pay him the additional $10.53 per hour he was owed
under the Davis-Bacon Act but falsely certified to the United
States Government that it was complying with that Act.
Id. at ¶¶ 24-20, 53-56. Plaintiff further
alleges that Defendant retaliated against him for complaining
about his deficient pay. Id. at ¶¶ 40-51.
previously brought a complaint before the Utah Labor
Commission alleging that Defendant did not properly pay him,
and on June 24, 2015, an administrative law judge ordered
Defendant to pay Plaintiff $2, 581.62 in non-paid Davis-Bacon
wages. (ECF No. 19-1, at ¶ 1.) Defendant petitioned for
the Third Judicial District Court of Salt Lake County, Utah,
to review this award, and on May 25, 2017, that court held a
trial on Plaintiff's claims, at which it heard testimony
from Plaintiff and at least two of Defendant's employees.
Id. at ¶¶ 3-36. On June 7, 2017, that
court issued a Memorandum Decision that denied
Plaintiff's claims and found that Defendant's
“timecards and timecard coding” and
“calculation and paying of Bacon wages” were
correct and that Defendant had paid Plaintiff “in
full.” Id. at ¶ 38-41.
brings this action on behalf of, and in the name of, the
United States pursuant to 31 USC § 3730(b). (Compl. at
¶ 1, ECF No. 1.) Plaintiff's qui tam action
alleges that Defendant violated the False Claims Act (the
“FCA”) and asserts five causes of action against
it: 1) fraudulent claim; 2) false record; 3) conspiracy to
defraud; 4) false receipt; and 5) retaliation. Defendant asks
the court to dismiss all of Plaintiff's claims against it
pursuant to the doctrine of collateral estoppel and under
Rules 12(b)(6) and 9(b) of the Federal Rules of Civil
Procedure. The United States declined to intervene in this
action but remains the real party in interest in this matter.
(ECF Nos. 13 & 21.)
argues Plaintiff's should be dismissed because: 1) the
issues it raises were already adjudicated by the Third
Judicial District Court of Salt Lake County, Utah, and are
now barred under the doctrine of collateral estoppel; 2) it
fails to state a valid claim for relief under Rule 12(b)(6)
of the Federal Rules of Civil Procedure; and 3) it does not
satisfy the level of particularity and detailed required by
Rule 9(b) of the Federal Rules of Civil
Plaintiff is not estopped from raising the issues contained
in his complaint.
argues that because the “salient issues” alleged
in Plaintiff's complaint- Defendant's alleged
underpayment of Davis-Bacon wages-were already “fully
and conclusively litigated in state court, ” Plaintiff
is barred from relitigating them here under the doctrine of
collateral estoppel. “Under collateral estoppel, once a
court has decided an issue of fact or law necessary to its
judgment, that decision may preclude relitigation of the
issue in a suit on a different cause of action involving a
party to the first case.” Allen v. McCurry,
449 U.S. 90, 94 (1980) (citing Montana v. United
States, 440 U.S. 147, 153 (1979). The Supreme Court has
recognized that “a federal court must give to a
state-court judgment the same preclusive effect as would be
given that judgment under the law of the State in which the
judgment was rendered.” Migra v. Warren City Sch.
Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see also
U.S. ex rel. Laird v. Lockheed Martin Eng'g & Sci.
Servs. Co., 336 F.3d 346, 357 (5th Cir. 2003)
(“When a federal court is asked to give claim
preclusive effect to a state court judgment, the federal
court must determine the preclusiveness of that state court
judgment according to the principles of claim preclusion of
the state from which the judgment was rendered.”
(citing Semtek Int'l Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 508-09 (2001))). Under Utah law,
the four elements of collateral estoppel are:
(i) the party against whom issue preclusion is asserted must
have been a party to or in privity with a party to the prior
adjudication; (ii) the issue decided in the prior
adjudication must be identical to the one presented in the
instant action; (iii) the issue in the first action must have
been completely, fully, and fairly litigated; and (iv) the
first suit must have resulted in a final judgment on the
Collins v. Sandy City Bd. of Adjustment, 2002 UT 77,
¶ 12, 52 P.3d 1267, 1270 (citation omitted).
the state court action involved both Mr. Sorenson and
Defendant and decided that Defendant had paid Mr. Sorenson in
full, Defendant's argument that the decision bars
Plaintiff's current action ignores one key fact-Plaintiff
brings its action not just in his own right, but also
“for the United States Government.” 31 U.S.C.
§ 3730(b)(1). And although the United States declined to
intervene in this action and is not therefore a
“party” here, it nonetheless remains as a
“real party in interest” and has “a
substantive right” in this suit. See U.S. ex rel.
Eisenstein v. City of New York, New York, 556 U.S. 928,
935-36 (2009). It cannot therefore be ignored for purposes of
the FCA, the United States has a financial interest in this
action. It is entitled to at least 70% of any civil damages
or penalty awarded to Plaintiff. 31 U.S.C. § 3730(d)(2).
It also still has the right to intervene in this action.
Id. at § 3730(c)(3). These rights and interests
were not shared by Plaintiff in the state court action.
See United States v. Mendoza, 464 U.S. 154, 159
(1984) (recognizing that “the Government is not in a
position identical to that of a private litigant”
(citing INS v. Hibi,414 U.S. 5, 8 (1973))). Because
the United States' interests and rights were not
represented in Mr. Sorenson's ...