The plaintiffs position is that the Defense Base Act does not apply because they did not have a direct employment relationship with KBR. We acknowledged, however, that the district court's judgment was not entirely error-free, because dismissal with prejudice of the one claim Carter brought within the limitations period was not called for under the first-to-file rule. {Kbr In Iraq}: You highly value a work environment built on (Id. This arrangement, Carter contends, conflicts with the Supreme Court's apparent policy preference for interpretations of the FCA that facilitate government recoveries. This policy argument offers no basis for disregarding the first-to-file rule's unambiguous statutory text. For 100 years, KBR has been part of some of the worlds most influential achievements. (Id. 11-cv-602 (E.D. Welcome to the KBR First Quarter 2023 Earnings Conference Call. Beauchamp v. Academi Training Ctr., 816 F.3d 37, 39 (4th Cir. , 744 F.3d at 348 ; Aiello , 751 F. Supp. Courts look to contract terms, Aiello , 751 F. Supp. Rule 8 "does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." United States ex rel. This site requires JavaScript to be enabled in your browser. At the time the Carter Action was brought, two allegedly related actions were already pending: United States ex rel. Connect. Co., 560 F.3d 371, 378 (5th Cir 2009))). See S. Walk at Broadlands Homeowners Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. The basis for our decision to dismiss was our view that Carter had violated the first-to-file rule by bringing the Carter Action while related FCA actions were still pending; the basis for our decision to dismiss without prejudice was our view that Carter could refile his case following the dismissals of earlier-filed, related FCA actions. This reasoning by the Supreme Court confirms that the only appropriate response for a first-to-file rule violation is dismissal. Although Carter and his counsel referenced the dismissals of the Maryland and Texas Actions in their briefing and during oral arguments, these references do not rise to the level of proposed revisions to a complaint. Branch Consultants v. Allstate Ins. The Supreme Court, therefore, agreed with this Court's conclusion that dismissal with prejudice of any timely aspect of the Carter Action was improper. The only court to apply this test in a Defense Base Act case did so on a summary judgment motion. (Docket Entry No. Carter's proposed amendments, however, did not address the dismissals of the Maryland and Texas Actions, but instead centered on elucidating his damages theories with information that was available prior to the filing of the Carter Action. WebService Employees International performed services for the U.S. Army under the Logistics Civil Augmentation Program (LOGCAP) IV contract. Wood v. Allergan, Inc., No. Id. 1-5 at 4), and owns Service Employees International. Navy. We agreed with the district court that courts must look at the facts as they existed when the claim was brought to determine whether an action is barred by the first-to-file bar. Id. Koohi v. U.S. , 976 F.2d 1328, 133637 (9th Cir.1992). Carter did not, however, contest the district court's decision to assess the first-to-file rule based on the facts as they existed at the time that the Carter Action was brought. (Id. 8:07-cv-1487 (D. Md. Co. v. J & J Maint., Inc. , 133 F. Supp. KBR is a signatory to the LOGCAP IV contract, (Docket Entry No. at 1979. Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. 3730(b)(5). 2010) ("Because the basis for many of these defenses is a respect for the interests of the Government in military matters, district courts should take care to develop and resolve such defenses at an early stage while avoiding, to the extent possible, any interference with military prerogatives. 2005); Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1279 (10th Cir. 2d at 664. The court will hear oral argument on the motion on October 27, 2021, at 10:00 a.m ., by Zoom. See McBurney v. Young, 667 F.3d 454, 465 (4th Cir. Under the employment agreement, Rogers agreed to submit any claims to arbitration in accordance with the Halliburton Dispute Resolution Program Financial Highlights for the Quarter Ended March 31, 2023. 2d at 710. To define "employer" under the Act, courts have turned to the Longshore and Harbor Workers Compensation Act's definition: "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States." See id. "); McGee , 716 F. Supp. Willingham v. Morgan , 395 U.S. 402, 407, 89 S.Ct. "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." Marcus Raymond Spagnoletti, State Bar Information, Eric Jonathan Rhine, Spagnoletti Law Firm, Houston, TX, for Plaintiffs. (Docket Entry No. The subsequent dismissals of the Maryland and Texas Actions do not alter the fact that Carter brought the Carter Action while factually related litigation remained pending, and those dismissals therefore do not cure the Carter Action's first-to-file defect. Circuit follow two different paths. The D.C. 2013) (It is well-established that parties cannot amend their complaint through briefing or oral advocacy.). 2d at 577 ("[T]he actions at issue were taken under the direct and detailed control of federal officers because [the contractor's] maintenance and power generation services at [a military base] were performed [under a contract] with the U.S. Co. , 149 F.3d 387, 398 (5th Cir. Id. See Gadbois, 809 F.3d at 46. Defendant Service Employees International, Inc. ("SEI"), is a corporation organized under the laws of the Cayman Islands with its principal place of business in Dubai, United Arab Emirates. Discovery on these defenses will close on August 27, 2021. To determine whether the combatant-activities exception preempts a state tort claim, courts apply the "command-authority" test. Applying this logic, and finding no statute of limitations issue, we ruled that the district court's dismissal of the Carter Action should have been without prejudice instead of with prejudice. WebDaily Duties at Service Employee International,Inc. If an employee's injury is covered by the Act, the employee generally cannot pursue a tort claim against his employer for the same injury. 2014). The defendant may file a motion for summary judgment no later than September 17, 2021. The plaintiffs do not describe the type of work they performed at the Al Asad base. Contact us. The district court's judgments comport with this holding, and they are therefore. at 877. (Docket Entry No. Id. Together, KBR employees are pushing industries and organizations forward, from our headquarters in Houston, Texas, to Earths orbit and beyond. Rather than address any matters potentially relevant to the first-to-file rule, such as the dismissals of the Maryland and Texas Actions, the proposed amendment simply adds detail to Carter's damages theories.6 As such, we see no reason why that proposal would have cured the first-to-file defect in the Carter Action. Circuits have adopted this test, breaking it into two prongs: (1) "whether the contractor is integrated into the military's combatant activities" and (2) "whether the contractor's actions were the result of the military's retention of command authority." "Conversely, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court." Please select your preferred language. Carter, in effect, reads the Court's statement to mean that an earlier suit bars the continuation of a later suit while the earlier suit remains undecided but ceases to bar the continuation of that suit once it is dismissed. This reading would empower courts conducting a first-to-file analysis to take into account the dismissals of an action giving rise to a relator's first-to-file problems. Reading the exception to cover actions against military contractors arising out of events involving U.S. military decisions and actions prevents "second-guessing [of] military judgment." The D.C. Courts have disagreed, however, about when state tort law has the potential to conflict with military decisions during wartime. P. 8(a)(2). Full title:KEVIN CLOYD, et al., Plaintiffs, v. KBR, INC., Defendant. at 6.3). Servs., Inc. , No. The declaration, however, does not make clear whether the plaintiffs and Service Employees International performed the same functions as KBR. The plaintiffs sued KBR in Texas state court for negligence and gross negligence, alleging that KBR was "aware of the heightened risk of a strike in the face of escalating regional violence," but "left [the] Plaintiffs and the other employees of Service Employees International at the base, in direct risk of substantial harm." Placing profits over the safety of these individuals and contractors, KBR failed to evacuate them. We note briefly that two of our sister circuits have held that a first-to-file defect bears only on the merits of a relator's action, rather than on a district court's jurisdiction over it. 2010); see also Goldenberg v. Murphy, 108 U.S. 162, 163 (1883) (A suit is brought when in law it is commenced.); Harris v. Garner, 216 F.3d 970, 974 (11th Cir. Accordingly, the appropriate reference point for a first-to-file analysis is the set of facts in existence at the time that the FCA action under review is commenced. Discovery on these defenses will end August 27, 2021. 56, 59 (E.D. Because it did not have to reach the issue, the district court reserved judgment on whether the Texas Action also precluded the Carter Action. 1955 ). See United States ex rel. But it is unclear what these defense procedures and force-protection postures were and how they applied to the plaintiffs, to Service Employees International, or to KBR. Mar. In the course of reaching this holding, however, the Court contrasted the seal requirement with the first-to-file rule, which the Court described as one of a number of [FCA] provisions that do require, in express terms, the dismissal of a relator's action. Id. The court has jurisdiction under 28 U.S.C. The plaintiffs do not allege that Iran attacked them out of "personal animosity" or for "purely personal reasons." KBR US48242W1062 KBR, INC. (KBR) Add to my list Report Summary Quotes Charts Ratings Company Financials Consensus Revisions Funds Transcript : KBR, Inc., Q1 2023 Earnings Call, May 01, 2023 05/01/2023 | 08:30am EDT Good morning, ladies and gentlemen. Thus, we reversed the district court's holding that the claims in the Carter Action were time-barred. The FCA's liability scheme is enforced through civil actions filed by the government, 31 U.S.C. 2002) (citing 28 U.S.C. 2004); United States ex rel. at 5.37, 5.38). Revenue of $1.7 billion, up 18% on an ex-OAW 1 year-over-year-basis. 10). The Third, Fourth, and D.C. 33 U.S.C. Region 16, Fort Worth, Texas. at 5.38, 5.39). Corporate Governance KBR's Rigsby, 137 S. Ct. 436, 440 (2016); 31 U.S.C. KBR Simply put, Carter was ineligible for relief on a motion for reconsideration, and thus the district court did not err in denying him such relief. 2510, 101 L.Ed.2d 442 (1988), to determine whether a Federal Tort Claims Act exception preempts state law. The email address cannot be subscribed. Branch , 924 F.3d 762, 765 (5th Cir. Adjusted free cash flows1. We conclude that it does. Duprey, No. 2002). The main 12-1497), 2013 WL 3225969. Watson v. Philip Morris Cos., Inc. , 551 U.S. 142, 154, 127 S.Ct. Satellite, Ground Systems & Space Communications, Scientific Research & Laboratory Services, Earth, Environment & Space Science Monitoring, Noise, Vibration & Fluid Dynamics Engineering, Floating Production, Storage & Offloading (FPSO) Facilities, Commercial Cloud & Mission Service Platform, Artificial Intelligence & Machine Learning. Thus, assuming for the sake of argument that Gadbois was correctly decided,8 it provides Carter no support. 33 U.S.C. 1-1 at 5.39). See United States ex rel. R. CIV. Id. KBR did not produce a copy of the LOGCAP IV contract, and no discovery has taken place. Carter appealed the dismissal of the Carter Action to this Court. , 744 F.3d at 349. Carter argues that even if the dismissals of the Maryland and Texas Actions did not automatically cure the Carter Action's first-to-file defect, his subsequent, Rule 15(a)-based proposed amendment to his Carter Action complaint would have done so. (Docket Entry No. Workers Comp. Next, Carter tries to rely on the Supreme Court's statement that it agree[s] with the Fourth Circuit that the dismissal with prejudice of [Carter's] one live claim was error. Carter III, 135 S. Ct. at 1979. United States v. Dozier, 848 F.3d 180, 188 (4th Cir. Kevin CLOYD, et al., Plaintiffs, v. KBR, INC., Defendant. Region Assigned: (Docket Entry No. This favors rejecting the Ninth and D.C. We clarified, however, that once a case is no longer pending the first-to-file bar does not stop a relator from filing a related case. Id. 2012) ("[The plaintiffs claim for intentional infliction of emotional distress] will be dismissed because it can only be viewed as a negligence claim for which the exclusive remedy for the Plaintiffs is under the [Defense Base Act]."). As such, we conclude that Carter III left the above-described holding intact. Gadbois v. PharMerica Corp., 809 F.3d 1 (1st Cir. However, the Maryland Action was dismissed in October 2011, and the Texas Action was dismissed in March 2012. at 197578. Finding no error in the district court's denial, we affirm. Franks v. Ross, 313 F.3d 184, 198 n.15 (4th Cir. 3730(b)(2). The combatant-activities exception is part of the Federal Tort Claims Act, which does not "provide immunity to nongovernmental actors." The The statement itself belies the notion that live means not in violation of the first-to-file rule: The statement expresses unqualified agreement with this Court, which had just issued a decision that both applied the first-to-file rule to the Carter Action and called for dismissal without prejudice in lieu of dismissal with prejudice. On the present record, the court is also unable to determine whether, and to what extent, KBR and Service Employees International were integrated into the military chain of command. Heath v. AT&T, Inc., 791 F.3d 112, 11921 (D.C. Cir. We hasten to add that although our holding may reduce the number of duplicative actions that can survive the FCA's limitations, this reduction should have no material effect on the Act's objective of ensuring that the government is put on notice of fraud. Finally, KBR meets the fourth prong, showing that the plaintiffs claims are "alternatively connected or associated" with "acts under color of federal office." World Airways, Inc. , 338 F.2d 319, 322 (5th Cir. 3-1 at 1 n.1). at 183. Co. , 276 F.3d 720, 723 (5th Cir. Aiello , 751 F. Supp. Latiolais , 951 F.3d at 292 (citation omitted). Despite Carter's objections, the district court on remand invoked the first-to-file rule and dismissed the Carter Action without prejudice. Id. WebBrown & Root provides engineering consulting services, including project management, operations and maintenance including: Industrial Small-Cap Construction; Installation; Maintenance; Repair; Turnaround services. While Federal Tort Claims Act exceptions do not expressly apply to private actors, 28 U.S.C. 2020). Co. , 920 F.3d 890, 900 (5th Cir. at 21 n.8a question that has divided district courts in this circuit and around the country, see United States ex rel. 2301, 168 L.Ed.2d 42 (2007) ; see also Latiolais , 951 F.3d at 291 ("[The contractor's] status as a person and its federal contract with the Navy satisfy the first and second conditions. In a qui tam action under the FCA, a relator files the complaint under seal, and serves a copy of the complaint and an evidentiary disclosure on the government. Here, the court has few, if any, facts about the relationship between the plaintiffs and KBR. The basis for the above-described holding was the relevant statutory text, which imposes a restriction on the bring[ing] of an action. 31 U.S.C. (Id. They sustained significant injuries. "To determine whether jurisdiction is present for removal," the court considers "the claims in the state court petition as they existed at the time of removal." I write separately to emphasize the narrow scope of that conclusion. Johnson v. United States , 170 F.2d 767, 770 (9th Cir. 1-1 at 5.39). Ins. 2019). Your download is being prepared. KBR's motion to dismiss, (Docket Entry No. The Supreme Court in Carter III did not reject, or even comment on, this Court's holding that a court must look at the facts as they existed when the claim was brought to determine whether an action is barred by the first-to-file bar. Carter II, 710 F.3d at 183. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. The Supreme Court concluded, [w]e therefore agree with the Fourth Circuit that the dismissal with prejudice of [Carter's] one live claim was error. Id. In this case, the plaintiffs are suing the parent company of their employer; in Fisher , the plaintiffs sued their employer and other affiliated entities. The combatant-activities exception "preempt[s] state or foreign regulation of federal wartime conduct." at 180. The first-to-file rule provides that [w]hen a person brings an action under [the FCA], no person other than the Government may intervene or bring a related action based on the facts underlying the pending action. 31 U.S.C. Co. v. United States ex rel. 1. FED. 1657, 68 L.Ed.2d 58 (1981) ; Jefferson County v. Acker , 527 U.S. 423, 431, 119 S.Ct. (Docket Entry No. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION. This suggests that Congress intended to give government contractors less than the full immunity enjoyed by the government. One exception is for "[a]ny claim arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war." "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." In 2013, while the Supreme Court was still considering Carter's petition for certiorari, Carter refiled his complaint in the Eastern District of Virginia. KBR did not clarify the relationship among KBR, Service Employees International, and the LOGCAP IV contract. The Third and Fourth Circuits agree that the purpose of the combatant-activities exception is to "foreclose state regulation of the military's battlefield conduct and decisions." Carter contends that the first and third bases for reconsideration are implicated in this case. This test states that "[d]uring wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted." Med. The threshold issues are whether the claims belong in federal court and whether there are viable claims at all. WebKellogg does not maintain offices or other facilities in Indiana and does not have bank accounts in Indiana. The record reveals little other information about the work the plaintiffs performed at the Al Asad base, or about what level of discretion Service Employees International had over that work. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. FED. 3730(b)(4). 3-1 at 1, 25-1, 25-2); KBR has an insurance policy, as required under the Act, (Docket Entry No. See La. Mesa v. California , 489 U.S. 121, 136, 109 S.Ct. Carter opposed certiorari, insisting that this Court correctly decided that the district court's jurisdictional dismissal of the case should have been without prejudice. Brief in Opposition at 17, Carter III, 135 S. Ct. 1970 (No. 2000). This Court fully supports the FCA's noble goal of protecting the government's funds and property against fraud. 2012) ("We liberally construe this term."). 1990) ; Oilfield Safety & Machine Specs., Inc. v. Harman Unlimited, Inc. , 625 F.2d 1248, 1256 (5th Cir. KBR argues that either the Defense Base Act or the combatant-activities exception to the Federal Tort Claims Act preempt the plaintiffs claims. 3730(b)(5). 2017).1. 12). 1:11-cv-602, 2011 WL 6178878, at *8 (E.D. A court reviewing a motion to dismiss under Rule 12(b)(6) may consider "(1) the facts set forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial notice may be taken under Federal Rule of Evidence 201." If the contractor has significant discretion in the way it performs its duties, the military does not retain command authority. We reaffirm this holding today. United States ex rel. & Cas. WebOther than its ultimate parent (KBR, Inc.), Service Employees International, Inc. does not have any publicly traded affiliates. We therefore remanded this case to the district court for further proceedings. Ins. In this case, back before this Court for a third time, we consider whether the first-to-file rule mandates dismissal of a relator's action that was brought while related actions were pending, even after the related actions have been dismissed and the relator's complaint has been amended, albeit without mention of the related actions. 2014), which held that even when [a] District Court lacks jurisdiction over a claim at the time of its original filing, a supplemental complaint may cure the defect by alleging the subsequent fact which eliminates the jurisdictional bar. Rather than resolving those questions, the majority opinion simply holds that a proposed amendment or supplement to a complaint cannot cure a first-to-file defect when the amendment or supplement does not reference the dismissal of publicly disclosed, earlier-filed related actions. The lead-up to Carter's second-quoted statement confirms that the Court was only using the description live to mean not time-barred. See id. The plaintiffs claims are associated with acts taken under color of federal office. Carter then petitioned for certiorari, and the Supreme Court granted that petition. Saleh v. Titan Corp. , 580 F.3d 1, 7 (D.C. Cir. The court will hear oral argument on the motion on October 27, 2021, by Zoom. 2069, 144 L.Ed.2d 408 (1999). Va. 2016) (arguing that Gadbois conflicts with the first-to-file rule's purpose of foreclosing duplicative qui tam actions). The record is similarly lacking in information needed for the court to examine and determine what KBR did to manage the work Service Employees International's employees, including the plaintiffs, did at the base. In workmen's compensation statutes, the phrase "arising out of" "denote[s] any causal relationship." 1813, 23 L.Ed.2d 396 (1969) ; Arizona v. Manypenny , 451 U.S. 232, 242, 101 S.Ct. 2017) ). See Carson, 851 F.3d at 30203 (A belated relator who merely adds details to a previously exposed fraud does not help reduce fraud or return funds to the federal fisc, because once the government knows the essential facts of a fraudulent scheme, it has enough information to discover related frauds. (quoting United States ex rel.
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