Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 1 of 14 PageID 631
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION UNITED STATES OF AMERICA and THE STATE OF TEXAS ex rel' DOUG MOORE, et al., Plaintiffs, v. CITY OF DALLAS, TEXAS, et al., Defendants. § § § § § § § § § § §
Civil Action No. 3-09-CV-1452-O
CITY OF DALLAS’ ANSWER TO PLAINTIFF’S SECOND AMENDMENT COMPLAINT AND AFFIRMATIVE DEFENSES Defendant the City of Dallas, Texas (the “City”) answers the Second Amended Complaint (the “Complaint) as follows, paragraph numbers in this Answer corresponding to those in the Complaint: Answering the unnumbered preamble (First three lines of “Case Summary” at page 2 of the Complaint): The City lacks sufficient information either to admit or to deny the allegations in this paragraph and therefore denies them; and denies that the City’s conduct was “fraudulent.” Pleading further, according to the Court’s docket on the PACER system for this case, the Original Complaint and First Amended Complaint remain sealed. Pleading further, the
allegation that “the allegations set forth in the Original and First Amended Complaint are hereby re-alleged as if set forth herein,” renders the Complaint too vague, ambiguous, circular, and confusing to answer. 1. 2. The City denies the allegations in this paragraph. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O Page 1 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 2 of 14 PageID 632
3.
The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 4. required. 5. required. 6. required. 7. The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is
required. The City denies the commission of “proscribed acts” but admits that the City transacts business in material part within the Northern District of Texas. 8. 9. required. 10. The City lacks sufficient information either to admit or to deny the allegations in The City admits the allegations in this paragraph. The allegations in this paragraph assert propositions of law to which no answer is
the first sentence of this paragraph and therefore denies them. The City denies the allegations in the second sentence of this paragraph. 11. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 12. The City admits that Moore is an individual residing at 3900 Blackjack Oak Lane,
Plano, Texas and admits Moore was certified fraud examiner and was hired as an assistant city auditor for the City. The City admits Moore began his employment with the City on February
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 2 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 3 of 14 PageID 633
11, 2009 and was terminated on December 2, 2009. The City denies the remaining allegations in this paragraph. 13. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 14. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 15. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 16. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 17. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 18. The City admits it is a Texas home-rule municipal corporation with principal
administrative offices at 1500 Marilla Drive, Dallas, Texas 75201, in Dallas County, Texas, and that the City’s geographic boundaries are within several counties within the State of Texas. The City denies the remaining allegations in this paragraph. 19. The City admits the allegations in this paragraph but lacks sufficient information
either to admit or to deny the additional contents in Exhibit A and therefore deny them. 20. required. 21. required. The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 3 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 4 of 14 PageID 634
22. required. 23. required. 24. required. 25. required. 26. required. 27. required. 28. 29. required. 30. required. 31. required. 32. required. 33. required.
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The City denies the allegations in this paragraph. The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 4 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 5 of 14 PageID 635
34. required. 35. required. 36. required. 37. 38.
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The City denies the allegations in this paragraph. The City denies first sentence of this paragraph. The City admits the second
sentence of this paragraph. 39. required. 40. required. 41. required. 42. required. 43. required. 44. required. 45. required. The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 5 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 6 of 14 PageID 636
46. required. 47. required. 48. required. 49.
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The allegations in this paragraph assert propositions of law to which no answer is
The City lacks sufficient information either to admit or deny the allegations in this
paragraph and therefore denies them. 50. required. 51. required. 52. required. 53. required. 54. required. 55. The City admits that Moore was assigned to four person team to audit the City’s The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is The allegations in this paragraph assert propositions of law to which no answer is
ambulance services accounts receivable due to his prior experience. 56. 57. 58. The City admits the allegations in this paragraph. The City denies the allegations in this paragraph. The City admits the allegations in this paragraph.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 6 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 7 of 14 PageID 637
59. 60. 61. 62. 63. paragraph. 64. paragraph. 65. 66. 67.
The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City admits the allegations in this paragraph. The City admits the allegations in this paragraph. The City lacks sufficient information to admit or deny the allegations in this
The City lacks sufficient information to admit or deny the allegations in this
The City denies that allegations in this paragraph. The City denies that allegations in this paragraph. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 68. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 69. required. 70. The City lacks sufficient information either to admit or deny the allegations in this The allegations in this paragraph assert propositions of law to which no answer is
paragraph and therefore denies them. 71. 72. The City denies the allegations in this paragraph. The font in Exhibit E is too blurred and small to read. Further, there is no
indication what Exhibit E purports to represent. These facts, and the vague references in this paragraph to unspecified portions of Exhibit E, make the allegations in this paragraph too vague and ambiguous to answer. Therefore, the City is unable to admit or deny.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 7 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 8 of 14 PageID 638
73. 74. 75. 76.
The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City admits the information regarding Dallas Fire Rescue request for
proposals. The City denies all remaining allegations in this paragraph. 77. 78. 79. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City admits that Moore received a performance review on November 10, The City denies all remaining
2009, and his performance rating was “fully successful.” allegations in this paragraph. 80.
The City admits it received a copy of Moore’s original complaint on or around
November 24, 2009 and at that time learned that Moore had filed this lawsuit. The City denies the remaining allegations in this paragraph. 81. 82. The City admits the allegations in this paragraph. The City admits it informed Moore that his services were no longer needed and
Moore was provided with a termination letter. 83. 84. The City denies the allegations in this paragraph. The City admits that it informed Moore it no longer needed his services and the The City denies the remaining
City posted a job listing for an assistant auditor position. allegations in this paragraph. 85.
The City admits Moore amended his complaint on January 15, 2010, however
lacks sufficient information either to admit or to deny the remaining allegations in this paragraph due to Moore’s previous complaints being sealed.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 8 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 9 of 14 PageID 639
86.
The City admits that after Moore’s termination of employment, Moore sent a
letter to the City Attorney Tom Perkins informing him that Moore was “officially filing a grievance” and requesting that the City investigate the circumstances surrounding Moore’s termination. The City denies the remaining allegations in this paragraph. 87. required. 88. The City lacks sufficient information either to admit or to deny when Moore The allegations in this paragraph assert propositions of law to which no answer is
received correspondence. The City admits the letter from Executive Assistant City Attorney, Janice Moss denied Moore was terminated in retaliation for protected conduct and asserted that no grievance process was available to Moore. The City denies the remaining allegations in this paragraph. 89. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein. 90. 91. The City denies the allegations in this paragraph. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 92. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein. 93. 94. The City denies the allegations in this paragraph. The City lacks sufficient information either to admit or to deny the allegations in
this paragraph and therefore denies them. 95. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 9 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 10 of 14 PageID 640
96. 97. 98. 99.
The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein. 100. 101. 102. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein. 103. 104. 105. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein. 106. 107. 108. 109. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein. 110. 111. 112. 113. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City denies the allegations in this paragraph. The City incorporates its response to the allegations in paragraphs 1 to 88 as if
fully set forth herein.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 10 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 11 of 14 PageID 641
114.
The City denies the allegations in this paragraph. AFFIRMATIVE DEFENSES
The City pleads the following affirmative defenses to the extent such affirmative defenses are applicable and reserves the right to plead additional affirmative defenses, which may become apparent during discovery in this case: 1. The City affirmatively pleads that it would have taken the same action against Plaintiff
that forms the basis of this suit based solely on information, observation, or evidence that is not related to the fact that Plaintiff allegedly made a report protected by the Texas Whistleblower Act or the Texas Medicaid False Claims Act or the Federal False Claims Act.. 2. The City affirmatively pleads that at all relevant times in question, all of its employees,
agents, and representatives acted in good faith within the scope of their discretionary authority, and are entitled to official immunity from Plaintiff’s claims. 3. The City affirmatively pleads that on the occasions in question, its employees acted
without malice and without intent to deprive Plaintiff of any legally protected rights. 4. The City affirmatively pleads that it is not liable to Plaintiff to the extent that Plaintiff
failed to take adequate measures to mitigate his damages. 5. The City affirmatively pleads that to the extent Plaintiff’s claims fall outside the
applicable statute of limitations, his claims are time barred. 6. The City affirmatively invokes the defense of governmental immunity and would show
that it is a municipal corporation organized and existing as a political subdivision and a unit of government of the State of Texas and a home-rule city under the Home-Rule Amendment to the Constitution of the State of Texas and the provisions applicable to Home-Rule Municipalities as set forth in the Local Government Code of the State of Texas.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 11 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 12 of 14 PageID 642
7.
The City affirmatively pleads that on all occasions in question all its employees,
representatives, and agents did not violate any clearly established law of which a reasonable person would have known. 8. The City affirmatively pleads that no act or omission on its part proximately caused any
of Plaintiff’s alleged injuries or damages. 9. The City affirmatively pleads and contends that it had a legitimate, non-discriminatory
and non-retaliatory business reasons for any alleged adverse employment action suffered by Plaintiff. 10. All employment decisions made by the City were based on legitimate, non-discriminatory
and non-retaliatory business reasons and even if Plaintiff were able to prove that the City’s actions were based upon an impermissible motivating factor, which he cannot do, the City would have taken the same actions in the absence of any impermissible motivating factor. 11. Relator is not an eligible relator as to asserted violations under the False Claims Act, and
is not entitled to any protections under the Act, because he was not an original source of the information underlying the allegations asserting violations of the False Claims Act. 12. 13. Relator’s unlawful conduct precludes him from relief under 31 U.S.C. § 3730(h). Relator is not an eligible relator as to asserted violations under the False Claims Act, and
is not entitled to any protections under the Act, because his duties as an employee of the City obligated him to investigate the very facts that he made the basis for this qui tam lawsuit and he did not give the City sufficient notice of the allegedly fraudulent transactions and his intention to commence this litigation.
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 12 of 14
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 13 of 14 PageID 643
14.
The United States and the State of Texas were aware of the facts alleged in the Complaint
or intentionally remained ignorant of those facts. Therefore there were no fraudulent claims by the City. 15. As demonstrated by Complaint, Relator’s lack of understanding of Medicare and
Medicaid standards, regulations, and procedures provided the City with insufficient basis for the City to self-report alleged over-billings to the United States or to the State of Texas in the time between Relator’s partial disclosure to the City and the time that Relator commenced this civil action. 16. The City lacked knowledge of the falsity of any claims for ambulance service to which
the Complaint refers and reasonably relied on the expertise of co-defendant Southwest General Services of Dallas as its agent for the purpose of submitting only permissible claims in allowable amounts. The City’s reliance on Southwest General was in good faith and reasonable under the circumstances.
Respectfully submitted, DALLAS CITY ATTORNEY’S OFFICE Dallas City Hall, Room 7BN 1500 Marilla Dallas TX 75201 BY: s/ Amy I Messer Amy I. Messer TXBN 00790705 Assistant City Attorney
[email protected] (E-mail) Peter B. Haskel TXBN 09198900 Assistant City Attorney
Page 13 of 14
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Case 3:09-cv-01452-O Document 38
Filed 11/01/10
Page 14 of 14 PageID 644
214-670-3038 (direct line) 214-670-0622 (FAX)
[email protected] (E-mail) Janice S. Moss TXBN 14586050 Assistant City Attorney
[email protected] (E-mail)
CERTIFICATE OF SERVICE I hereby certify that on November 1, 2010, I electronically filed the foregoing document with the clerk of the court of the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. The electronic filing system sent a “Notice of Electronic Filing” to the following attorneys of record who have consented in writing to accept this notice as service of this document by electronic means: Kayla Cole Charles S. Siegel Loren Jacobson Waters & Kraus LLP Counsel for Plaintiff Davis Heron Frank Heron Weiner & Navarro Counsel for Plaintiff D. Paul Dalton Cowles & Thompson PC Counsel for Co-Defendant Southwest General Services William McMurrey Joshua Bock Bracewell & Giuliani Counsel for Co-Defendant Southwest General Services
s/ Amy I Messer
City of Dallas’ Answer To Plaintiff’s Second Amended Complaint Moore v. City of Dallas et al.; 3:09-CV-1452-O
Page 14 of 14