and succeeds, the loss of consortium claim will also fail. Conversely, should the primary claim(s) be deemed sufficient by the court, the consortium claim will remain, absent the Defendant’s assertion of an independent defect. Carrigan v. K2M, Inc., 2009 U.S. Dist. LEXIS 99225. If the Defendant remembers to attack the sufficiency of the consortium claim, we can anticipate two types of criticisms: 1) insufficient facts pertaining to the consortium injury; and 2) insufficient facts linking the marital injury to the alleged wrongful conduct in the primary count. Terefore, we must alert the court to both the lack of validity of the Defendant’s assertions pertaining to factual insufficiencies, and, when warranted, the Defendant’s failure to make specific criticisms pertaining to the separate consortium claim.
Claims for Wrongful Termination Under the False Claims Act
Another scenario where we can anticipate encountering
this type of motion is in a wrongful termination claim as it pertains to the Federal False Claims Act (FCA). In these types of claims, we represent clients who have been wrongfully terminated, allegedly due to retaliation as
it
relates to an employer’s fraudulent activities involving the Government. Te courts have held that while these types of cases involve the FCA, Federal Rule 8 (and not the stricter Rule 9 pleading standard for allegations of fraud) applies
because the allegations of fraud are secondary to the wrongful termination claim. United States ex rel. Elms v. Accenture LLP, 2009 U.S. App. LEXIS 16291. In this type of FCA retaliation claim (as opposed to a violation claim) the Plaintiff need only show that there were suspicions of fraudulent activity, and that said suspicions led to his/her early termination. Ante v. Office Depot Bus. Servs., 2009 U.S. Dist. LEXIS 57054. Terefore, when the court evaluates the sufficiency of these complaints, the newly delineated standard for Federal Rule 8 is applied. In Ante v. Office Depot, the Plaintiff alleged that he was
fired because he refused to comply with his superior’s request to alter financially related business information in preparation for a city audit. Te Defendant moved for dismissal based on the fact that the Plaintiff failed to allege sufficient facts as dictated by Iqbal. Te Court held that because the Plaintiff listed the “who, what, when and where” of the injuries, his burden had been met. Te Court further elaborated that the Defendant’s reference to Iqbal did not impact its decision in favor of the Plaintiff because Iqbal “does not impose a "probability requirement," and the opposition has not demonstrated how the facts in this case are implausible, defendant's own argument has not crossed that line.” Id at 18. It behooves us as litigators to remind the court who bears the burden of demonstrating implausibility, and that (despite the Defendant’s contrary contentions); Iqbal has not raised the burden to a level of probability.
Trial Reporter / Winter 2010 13
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68