Dr. Massood Jallali v. Nova Southeastern University, Inc. , 486 F. App'x 765 ( 2012 )

Case: 12-10148 Date Filed: 08/09/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10148
Non-Argument Calendar
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D.C. Docket No. 0:11-cv-60342-WPD
DR. MASSOOD JALLALI,
Plaintiff-Appellant,
versus
NOVA SOUTHEASTERN UNIVERSITY, INC.,
DOES, 1 through 500,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(August 9, 2012)
Before TJOFLAT, KRAVITCH and COX, Circuit Judges.
PER CURIAM:
Relator Massood Jallali appeals the dismissal with prejudice of his Third
Amended Complaint for failure to state a claim under the False Claims Act (“FCA”).
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He also challenges the denial of his Fed. R. Civ. P. 59(e) motion to alter or amend the
district court’s judgment. No reversible error has been shown. We affirm.
Jallali attended Nova Southeastern University’s School of Osteopathic
Medicine from 1998 to 2005, but never obtained a degree. In 2011, Jallali sued Nova
Southeastern University, Inc. under the FCA, 31 U.S.C. § 3729(a)(1) & (2) (1994),
amended by the Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21,
§ 4(a)(1), 123 Stat. 1621. After several months of litigation, Jallali filed his Third
Amended Complaint.
Jallali’s Third Amended Complaint alleges that Nova Southeastern submitted
payment requests for federal student aid that falsely asserted compliance with certain
federal regulations. The complaint identifies two regulations, 34 C.F.R. §§ 602.22and 668.14, that Nova Southeastern allegedly violated between 1999 and 2009. The
complaint also explains that, to receive federal student aid payments, Nova
Southeastern must submit claims for them to the federal government. Federal
regulations require each claim for payment to certify an institution’s compliance with
applicable federal laws and regulations. Therefore, the complaint theorizes, Nova
Southeastern must have submitted claims for federal student aid which falsely
asserted compliance with 34 C.F.R. §§ 602.22 and 668.14.
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Nova Southeastern moved to dismiss, claiming, among other things, that the
complaint failed to meet the particularity requirements of Fed. R. Civ. P. 9(b). The
district court agreed with Nova Southeastern and dismissed the Third Amended
Complaint with prejudice.
Jallali then moved to alter or amend the judgment under Rule 59(e). The
motion asserts that the district court erred when it refused to consider documents
attached to his response to Nova Southeastern’s motion to dismiss. The district court
denied Jallali’s Rule 59(e) motion. Jallali now appeals the court’s judgment
dismissing his case and its order denying his Rule 59(e) motion.
We review a motion to dismiss de novo. See Corsello v. Lincare, Inc., 428
F.3d 1008, 1012 (11th Cir. 2005) (citation omitted). We review a Rule 59(e) motion
to alter or amend a judgment for an abuse of discretion. See Shuford v. Fid. Nat’l
Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007) (citation omitted).
Jallali first contends the district court erred in dismissing his Third Amended
Complaint for failure to comply with Rule 9(b). A complaint alleging a violation of
the FCA must meet the particularity requirements of Rule 9(b). See Corsello, 428
F.3d at 1012. To satisfy this requirement, “the complaint must allege facts as to time,
place, and substance of the defendant’s alleged fraud, and the details of the
defendants’ allegedly fraudulent acts, when they occurred, and who engaged in
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them.” Id. (quoting United States ex rel. Clausen v. Lab. Corp. of Am., Inc., 290 F.3d
1301, 1310 (11th Cir. 2002)) (internal quotation marks and alterations omitted).
Additionally, the complaint must contain “some indicia of reliability” that a
fraudulent claim was actually submitted to the government. Id. at 1012, 1014.
“Liability under the False Claims Act arises from the submission of a fraudulent claim
to the government, not the disregard of government regulations or failure to maintain
proper internal policies.” Id. at 1012 (citation omitted).
Klusmeier v. Bell Constructors, Inc., 2012 WL 555736 (11th Cir. Feb. 21,
2012), is a case similar to this one. In that case, a government contract required the
defendant to build certain facilities according to the contract’s specifications. The
contract also required the defendant to request payment under certain federal
regulations. These regulations required the defendant to certify compliance with the
contract’s specifications each time he requested payment. The complaint in
Klusmeier alleged that the defendant failed to build the facilities to specifications, and
that the defendant submitted invoices under that contract. The relator then theorized
that “false claims must have been submitted, were likely submitted or should have
been submitted.” Id. at *3 (quoting Clausen, 290 F.3d at 1311) (internal quotation
marks omitted).
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We held that the complaint failed to comply with the particularity requirements
of Rule 9(b). Id. at *3. We declined to assume that the defendant actually billed for
any noncompliant work and described the relator’s claim as mere speculation. Id.
Furthermore, we noted that the relator lacked “the type of knowledge that normally
will support an FCA complaint.” Id. Though the relator had personal knowledge that
the defendant violated the contract, the relator lacked any knowledge of the
defendant’s billing practices. Id.
In this case, Jallali alleges that Nova Southeastern failed to comply with 34
C.F.R. §§ 602.22 and 668.14.1 He further alleges that federal regulations required
Nova Southeastern to certify compliance with §§ 602.22 and 668.14 each time it
requests federal student aid payments. Finally, he alleges that Nova Southeastern did
request federal student aid payments. But, these allegations do not satisfy Rule 9(b)
under our precedent. Jallali’s complaint does not allege facts identifying the time,
place, or substance of the allegedly fraudulent claims for payment. The complaint
does not allege facts showing that Nova Southeastern actually certified compliance
with §§ 602.22 and 668.14. Nor does the complaint allege that noncompliance with
these regulations renders Nova Southeastern ineligible to receive federal student aid
1
Nova Southeastern contends that §602.22 does not apply to it, and therefore, it has not
violated that regulation. Because we conclude that Jallali’s complaint failed to comply with Rule
9(b), we need not decide this question.
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payments. Nor does Jallali possess personal knowledge of Nova Southeastern’s
billing practices.
We see no substantive distinction between Klusmeier and this case. Of course,
Klusmeier is an unpublished opinion and not binding precedent. But, we find it
persuasive and have no reason to reach a different result here. Thus, we affirm the
dismissal with prejudice of Jallali’s Third Amended Complaint for failure to comply
with Rule 9(b).
Jallali next contends that the district court abused its discretion when it denied
his Rule 59(e) motion. In that motion, Jallali asked the court to consider certain
documents not attached to his Third Amended Complaint. But, as the district court
pointed out, a party cannot amend a complaint by attaching documents to a response
to a motion to dismiss. See Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276,
1284 (11th Cir. 2007) (citation omitted). Therefore, the district court did not abuse
its discretion in denying this motion.
Finally, Jallali contends the district court erred when it dismissed his Third
Amended Complaint without the Attorney General’s consent. See 31 U.S.C.
§ 3730(b)(1). We disagree. The consent requirement in § 3730(b)(1) applies only to
voluntary dismissals. See United States ex rel. Shaver v. Lucas W. Corp., 237 F.3d
932, 934 (8th Cir. 2001); United States v. Health Possibilities, P.S.C., 207 F.3d 335,
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344 (6th Cir. 2000); Minotti v. Lensink, 895 F.2d 100, 103 (2d Cir. 1990); Richardson
v. Capital Health Care, 2008 WL 3471777, at *1 (N.D. Fla. 2008).
Jallali has not shown reversible error. Therefore, the judgment of the district
court is affirmed.
AFFIRMED.
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