United States District Court, E.D. Oklahoma
UNITED STATES OF AMERICA,  ex rel., Eric S. Montalvo and Christopher Kannady, Plaintiff/Relators,
NATIVE AMERICAN SERVICES CORP, an Idaho Corporation, Defendant, And TEUSEL HUNDEN d/b/a Sasquatch Construction, LLC,
NATIVE AMERICAN SERVICES, CORP, an Idaho Corporation, Third-Party Defendant.
HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE.
August 7, 2017, Plaintiff by and through Relators
(hereinafter “Plaintiff”) filed a Second Amended
Complaint, alleging fraud pursuant to the False Claims Act,
31 U.S.C. § 3729, et seq (hereinafter
“FCA”). Plaintiff brings the following three
claims: that Defendant: (1) knowingly presented or caused to
be presented false or fraudulent claims for payment to the
United States in violation of § 3729(a)(1)(A); (2)
knowingly made, used, or caused to be made or used, false
records or statements to get false or fraudulent claims paid
by the United States in violation of § 3729(a)(1)(B);
and (3) knowingly accepted and retained funds to which it was
not entitled in violation of § 3729(a)(1)(G).
Plaintiff's claims are based on its allegations that
Defendant knowingly directed the Third-Party Plaintiff to
pour concrete over tree roots and stems, which resulted in
slabs that cracked, and that Defendant disposed of hazardous
waste, namely asbestos, at a site that was not certified in
violation of State and Federal laws and
before the court is Defendant's motion for summary
judgment [Docket No. 74]. Defendant argues that it is
entitled to summary judgment as to the fraud claims because
Plaintiff has not brought forth evidence that Defendant
provided defective or deficient work, that Defendant made any
false representations to the government, that Defendant
improperly dumped hazardous materials, or that Defendant made
false claims for payment to the government for work
court will grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The court's function is not “to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). In applying the summary judgment
standard, the court views the evidence and draws reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Burke v. Utah Transit Auth. & Local
382, 462 F.3d 1253, 1258 (10th Cir. 2006). At this
stage, however, Plaintiffs may not rely on mere allegations,
but must have set forth, by affidavit or other evidence,
specific facts in support of their complaint. Id.
allegations that are unsubstantiated do not create an issue
of fact and are insufficient to oppose summary
judgment.” Harvey Barnett, Inc. v. Shidler,
338 F.3d 1125, 1136 (10th Cir. 2003) (citation omitted).
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by: (A) citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Additionally, while court need
consider only the cited materials, “it may consider
other materials in the record.” Fed.R.Civ.P. 56(c)(3).
must be based upon personal knowledge and set forth facts
that would be admissible in evidence; conclusory and
self-serving affidavits are not sufficient.” Hall
v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). The
court disregards “inadmissible hearsay statements
contained in affidavits, as those statements could
not be presented at trial in any form.” Argo v.
Blue Cross and Blue Shield of Kansas, Inc., 452 F.3d
1193, 1199 (10th Cir. 2006) (emphasis in original).
Similarly, “[t]estimony which is grounded on
speculation does not suffice to create a genuine issue of
material fact to withstand summary judgment.” Bones
v. Honeywell Int'l, Inc., 366 F.3d 869, 876 (10th
movant is not always required to come forward with affidavits
or other evidence to obtain summary judgment; once the movant
points out an absence of proof on an essential element of the
nonmovant's case, the burden shifts to the nonmovant to
provide evidence to the contrary.” Hall, 935
F.2d at 1111, n. 5.
/ UNDISPUTED MATERIAL FACTS
motion for summary judgment, Defendant lists 21
“undisputed material facts.” Plaintiff disputes
some of those facts and adds 8 more of its own. In disputing
Defendant's “undisputed material facts, ”
Plaintiff cites to only one piece of evidence - the Affidavit
of Wayne Kannady. Plaintiff points to no other
evidence. Plaintiff includes no citation to evidence
in support of its own “undisputed facts.” Wayne
1. I am a resident of Indianola, Oklahoma.
2. I was employed by Sasquatch as a foreman from 2011 ...