United States v. Kennedy , 431 F. Supp. 877 ( 1977 )

431 F. Supp. 877 (1977)

UNITED STATES of America, Plaintiff.
v.
Nancy B. KENNEDY, an Individual and Nancy B. Kennedy d/b/a Doby Realty Company, Defendants.
Nancy B. KENNEDY, Third-Party Plaintiff,
v.
John E. McREYNOLDS, Third-Party Defendant.

No. CV 76-1708-AAH.

United States District Court, C. D. California.

May 18, 1977.

William D. Keller, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div. by Peter H. Kane, Asst. U.S. Atty., for United States.

George Whitaker, Los Angeles, Cal., for third-party plaintiffs, Nancy B. Kennedy, individually, and Nancy B. Kennedy d/b/a Doby Realty Co.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAUK, District Judge.

FINDINGS OF FACT

1. On or about October 18, 1976 defendants and third-party plaintiffs, Nancy B. Kennedy, individually, and Nancy B. Kennedy d/b/a Doby Realty Company, filed a Third Party Complaint in the above action naming John E. McReynolds as the third-party defendant therein.

2. The allegations of each cause of action of the Third Party Complaint set forth that the third-party defendant made false and fraudulent representations to the third-party plaintiffs, to wit, that he intended to move into and occupy certain real property located at 1319-1319½ West 68th Street, Los Angeles, California when, in fact, he never intended to do so. Furthermore, according to said allegations, if she were liable to the plaintiff under the False Claims Act ("Act") for having made or caused to be made these false representations to the Government, she would be entitled to indemnification from the third-party defendant.

3. The third cause of action of said Third Party Complaint seeks damages which comprehend defendants' and third-party plaintiffs' costs, including attorney's fees, incurred by their necessity to defend this lawsuit.

4. Title 31, United States Code, Section 231 states in part:

"Any person . . . who shall make or cause to be made, or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval services of the United States, any claim upon or against the Government of the United States or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry . . . shall forfeit and pay to the United States the sum of $2,000, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs of suit; and such forfeiture and damages shall be sued for in the same suit."

5. To the extent that these Findings of Fact also contain conclusions of law they shall be deemed incorporated within the Conclusions of Law.

CONCLUSIONS OF LAW

1. In order to be liable under the False Claims Act, a party must have at least knowledge of the fact he is submitting a false claim to the Government.

2. If defendants and third party plaintiffs are liable under the Act, they are not entitled to indemnification from the third party defendant, even if it can be proven that he too would have been jointly and severally liable under the False Claims Act.

3. The third cause of action sets forth a cause of action for malicious prosecution. Such an action is premature, since it cannot be brought unless and until the present action between the plaintiff and the defendants (and third party plaintiffs) is favorably determined in the latter's favor.

4. The Third Party Complaint fails to state a claim upon which relief can be granted.

5. The Court lacks jurisdiction over the subject matter of the action set forth in the third cause of action.

6. The Court should dismiss the entire third party action.

7. To the extent that these Conclusions of Law also contain findings of fact, they shall be deemed incorporated within the Findings of Fact.