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United States ex rel. Montalvo v. Native American Services Corp.

United States District Court, E.D. Oklahoma

March 13, 2018

UNITED STATES OF AMERICA, [1] ex rel., Eric S. Montalvo and Christopher Kannady, Plaintiff/Relators,
v.
NATIVE AMERICAN SERVICES CORP, an Idaho Corporation, Defendant, And TEUSEL HUNDEN d/b/a Sasquatch Construction, LLC,
v.
NATIVE AMERICAN SERVICES, CORP, an Idaho Corporation, Third-Party Defendant.

          ORDER

          HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE.

         On 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”).[3] 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 regulations.[4]

         Now 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 completed.

         STANDARD OF REVIEW

         The 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.

         “Conclusory 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).

         “[A]ffidavits 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 Cir. 2004).

         “A 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.

         DISPUTED / UNDISPUTED MATERIAL FACTS

         In its 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.[5] Plaintiff includes no citation to evidence in support of its own “undisputed facts.” Wayne Kannady avers:

1. I am a resident of Indianola, Oklahoma.
2. I was employed by Sasquatch as a foreman from 2011 ...

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