IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:20-CV-23242-BB-AMOR

UNITED STATES OF AMERICA ex rel. SEDONA 

PARTNERS LLC, 

)

)

)

 Plaintiffs, )

)

v. )

)

ABLE MOVING & STORAGE, INC., et al., )

)

 Defendants. )

)

DEFENDANT J.K. MOVING & STORAGE, INC.’S MOTION TO DISMISS

FIRST AMENDED COMPLAINT AND INCORPORATED MEMORANDUM OF LAW

Michael I. Kessler (FL Bar No. 117784)

MKessler@ohaganmeyer.com

O’HAGAN MEYER, PLLC

21550 Oxnard Street, Suite 1050

Woodland Hills, CA 91367

Telephone: (213) 306-1632

Facsimile: (213) 306-1615

Alan D. Albert (admitted pro hac vice)

Charles G. Meyer, III (admitted pro hac vice)

Charles M. Sims (admitted pro hac vice)

C. Quinn Adams (admitted pro hac vice)

O’HAGAN MEYER, PLLC

411 East Franklin Street, Suite 500

Richmond, Virginia 23219

Telephone: (804) 403-7100

Facsimile: (804) 237-0250

AAlbert@ohaganmeyer.com

CMeyer@ohaganmeyer.com

CSims@ohaganmeyer.com

CAdams@ohaganmeyer.com

Counsel for J.K. Moving & Storage, Inc.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................. ii

STATEMENT OF THE CASE............................................................................................1

SUMMARY OF THE ARGUMENT ..................................................................................3

ARGUMENT.......................................................................................................................4

 I. THE FCA’S PUBLIC DISCLOSURE PROVISION BARS 

 RELATOR’S CLAIMS ...........................................................................................4

 A. Relator Derives Its Complaint From Publicly Disclosed Information............5

 B. The Disclosed Information Forms the Bases of Relator’s Claims and 

 its Allegations Mirror That Information .........................................................7

 C. Relator is Not the Original Source of the Information in the Complaint........8

 II. RELATOR’S UNDERBIDDING CLAIM FAILS AS A MATTER OF LAW.....10

 A. J.K.’s Bids Did Not Falsely State the Rates it Charged................................11

 III. RELATOR’S FCA CLAIMS FAIL UNDER RULE 9(b).....................................14

 A. Relator Fails to Sufficiently Allege the Central Element of Falsity .............15

 1. Relator fails to allege a false bid...........................................................15

 2. Relator fails to allege facts establishing that J.K. submitted 

 a false waiver ........................................................................................16

 3. Speculative conclusions about rate increases do not save 

 Relator’s claim......................................................................................17

CONCLUSION..................................................................................................................20

CERTIFICATE OF SERVICE ..........................................................................................22

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TABLE OF AUTHORITIES

Cases

Brown v. One Beacon Ins. Co. Inc., 

 317 F. App’x 915, 917 (11th Cir. 2009) ...................................................................................... 2

Carrel v. AIDS Healthcare Found., Inc., 

 898 F.3d 1267, 1277 (11th Cir. 2018) ....................................................................................... 20

CWELT-2008 Series 1045 LLC v. PHH Corp., 

 No. 1:20-CV-20334, 2020 WL 2744191 (S.D. Fla. May 27, 2020)........................................ 2, 6

Harrison v. Westinghouse Savannah River Co., 

 176 F.3d 776, 784 (4th Cir. 1999) ............................................................................................. 13

Hill v. Morehouse Med. Associates, Inc., 

 No. 02-14429, 2003 WL 22019936 (11th Cir. Aug. 15, 2003) ................................................. 20

Hooper v. Lockheed Martin Corp., 

 688 F.3d 1037, 1049 (9th Cir. 2012) ................................................................................... 12, 13

Schindler Elevator Corp. v. United States ex rel. Kirk, 

 563 U.S. 401, 408 (2011)............................................................................................................. 7

U.S. ex rel. Aquino v. Univ. of Miami, 

 250 F. Supp. 3d 1319, 1327 (S.D. Fla. 2017) ...................................................................... 16, 17

U.S. ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., et al., 

 No. 1:99-cv-02879, ECF 52 at 10, n.7 (D.D.C. Oct. 24, 2002)..................................... 11, 13, 14

U.S. ex rel. Calilung v. Ormat Indus., Ltd., 

 No. 3:14-cv-00325, 2015 WL 1321029 (D. Nev. Mar. 24, 2015)............................................... 7

U.S. ex rel. Hopper v. Anton, 

 91 F.3d 1261, 1265–66 (9th Cir. 1996) ..................................................................................... 13

U.S. ex rel. Klusmeier v. Bell Constructors, Inc., 

 No. 08-80442, 2009 WL 10667472 (S.D. Fla. Nov. 17, 2009) ................................................. 20

U.S. ex rel. Marcus v. Hess, 

 317 U.S. 537, 543 (1943)........................................................................................................... 12

U.S. v. Farina, 

 153 F. Supp. 819, 821–22 (D.N.J. 1957)................................................................................... 11

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 3 of 30
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U.S. v. Specialist Doctors’ Group, LLC, 

 No. 8:17-cv-2647-T-24, 2020 WL 7138566 (M.D. Fla. Dec. 7, 2020)....................................... 7

U.S., ex rel. Laird v. Lockheed Martin Engineering & Science Servs. Co., 

 491 F.3d 254, 259 (5th Cir. 2007) ....................................................................................... 12, 13

U.S. ex rel. Ambrosecchia v. Paddock Laboratories, LLC, 

 855 F.3d 949, 955 (8th Cir. 2017) ............................................................................................. 10

U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 

 473 F.3d 506, 519 (3d. Cir. 2007)................................................................................................ 5

U.S. ex rel. Brown v. Bank United Trust 2005-1, 

 235 F. Supp.3d 1343, 1354 (S.D. Fla. 2017) ............................................................................... 4

U.S. ex rel. Clausen v. Laboratory Corp. of America, Inc., 

 290 F.3d 1301, 1308–09 (11th Cir. 2002) ..................................................................... 15, 18, 20

U.S. ex rel. Heater v. Holy Cross Hosp., Inc., 

 510 F. Supp. 2d 1027, 1034 (S.D. Fla. 2007) ............................................................................ 19

U.S. ex rel. Jones v. Sutter Health, 

 499 F. Supp. 3d 704, 717 (N.D. Cal. 2020)............................................................................... 10

U.S. ex rel. Lorona v. Infilaw Corp., 

 No. 3:15-cv-959-J-34PDB, 2019 WL 3778389 (M.D. Fla. Aug. 12, 2019).............................. 15

U.S. ex rel. Marsteller v. Tilton, 

 880 F.3d 1302, 1314-15 (11th Cir. 2018). ................................................................................. 15

U.S. ex rel. Mastej v. Health Mgt. Associates, Inc., 

 591 F. App’x 693, 704–05 (11th Cir. 2014) .............................................................................. 19

U.S. ex rel. Maur v. Hage-Korban, 

 981 F.3d 516, 527 (6th Cir. 2020) ............................................................................................... 9

U.S. ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 

 69 F. Supp. 3d 416, 424 (D. Del. 2014)................................................................................... 5, 9

U.S. ex rel. Oliver v. Philip Morris USA, Inc., 

 101 F. Supp.3d 111, 124 (D.D.C. 2015)...................................................................................... 7

U.S. ex rel. Phalp v. Lincare Holdings, Inc., 

 116 F. Supp. 3d 1326, 1360 (S.D. Fla. 2015), aff’d, 857 F.3d 1148 (11th Cir. 2017)............... 11

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U.S. ex rel. Saldivar v. Fresenius Med. Care Holdings, Inc., 

 841 F.3d 927, 934 (11th Cir. 2016) ............................................................................................. 8

U.S. ex rel. Sanchez v. Abuabara, 

 No. 10-61673-CIV, 2012 WL 1999527 (S.D. Fla. June 4, 2012)....................................... passim

U.S. ex rel. v. Humana, Inc., 

 776 F.3d 805, 810 (11th Cir. 2015) ..................................................................................... 5, 8, 9

U.S. ex rel. v. Mortgage Investors Corp., 

 987 F.3d 1340, 1353 (11th Cir. 2021) ................................................................................. 4, 5, 7

United States v. AseraCare, Inc., 

 938 F.3d 1278, 1284 (11th Cir. 2019) ....................................................................................... 10

United States v. FastTrain II Corp., 

 No. 12-21431, 2017 WL 606346 (S.D. Fla. Feb. 15, 2017) ...................................................... 11

Universal Health Services, Inc. v. United States, 

 -- U.S. --, 136 S.Ct. 1989, 1999 (2016). .................................................................................... 10

Ziemba v. Cascade Int’l, Inc.,

 256 F.3d 1194, 1202 (11th Cir. 2001) ....................................................................................... 16

Statutes

31 U.S.C. § 3729(a)(1)(B) ...................................................................................................... 11, 15

31 U.S.C. § 3729(a)(1)(A)................................................................................................ 10, 11, 15

31 U.S.C. § 3730 (2006)................................................................................................................. 4

31 U.S.C. § 3730(e)(4) (2006)........................................................................................................ 5

31 U.S.C. § 3730(e)(4) (2012)........................................................................................................ 5

31 U.S.C. § 3730(e)(4)(A).......................................................................................................... 4, 5

31 U.S.C. § 3730(e)(4)(A)(ii) ..................................................................................................... 6, 7

31 U.S.C. § 3730(e)(4)(B) .............................................................................................................. 9

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Defendant J.K. Moving & Storage, Inc. (“J.K.”) respectfully requests that the Court dismiss 

the First Amended Complaint filed by Sedona Partners LLC (“Relator”) (ECF 149), with 

prejudice, pursuant to Rules 8, 9(b), 12(b)(1), and 12(b)(6) of the Federal Rules of Civil Procedure. 

STATEMENT OF THE CASE

Invoking the Federal False Claims Act (“FCA”), Relator Sedona Partners, LLC sues twelve 

different shipping companies—called Transportation Service Providers (“TSPs”)—alleging that 

each engaged in the same fraudulent scheme to obtain contracts from the State Department to ship 

civilian employees’ household goods abroad. (ECF 149 ¶¶ 1-2). The TSPs, including J.K., 

participate in the Centralized Household Goods Traffic Management Program (“CHAMP”) which 

is run by the General Services Administration (“GSA”). (ECF 149 ¶¶ 30-47). 

Relator alleges that the scheme had two parts. First, the TSPs purportedly submitted “lowball” bids to win the right to ship goods on certain shipping lanes. (Id. ¶ 6). Second, the TSPs 

allegedly submitted “foreign flag waivers” falsely certifying more expensive U.S. flagged vessels 

were unavailable. (Id. ¶¶ 5-8). Relator alleges that the scheme lasted “from 2008 to 2018,” when 

several TSPs abandoned the scheme due to increased scrutiny. (Id. ¶¶ 5, 73-74). 

Relator does not allege that the TSPs ever charged the government more than the approved 

rate or sought to increase their rates after the government accepted them. Instead, Relator alleges 

that the purported scheme effectively saved the government money because the TSP Defendants

bid, and the government accepted, rates purportedly lower than the rates the TSP Defendants 

would have offered if they had based their rates on U.S. flagged vessels. (ECF 149 ¶ 39 (“use of 

U.S. flag vessels is more expensive than the use of foreign flag vessels”), and ¶ 74). Purportedly, 

as a result of the alleged scheme, “law-abiding TSPs have been locked out of shipping lanes and 

have been unable to compete with these companies[][.]” (Id. ¶ 72).

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Federal agencies arrange and pay for relocating their civilian employees in the CHAMP 

program. (Id. ¶ 2). TSPs may participate in CHAMP with GSA’s approval. Id. GSA sets forth 

“the rules and requirements for performing services as a provider in [CHAMP]” in the 

Household Goods Tender of Service (“HTOS”) manual, which is published online and cited 

extensively by Relator in the First Amended Complaint. (Id. ¶ 31); see also GSA, Household 

Goods Tender of Service (“HTOS”) at §6.5.2 (Nov. 2018 ed.), pertinent sections of which are 

attached as Exhibit 1,

1 which can be found at

https://www.gsa.gov/cdnstatic/GSA_HTOS_Effective%20Nov%201,%202018.pdf.

Two aspects of CHAMP are relevant here. First, GSA issues a Request for Offer (“RFO”) 

annually to all TSPs “approved to participate” in the program. Exh. 1 § 4.1. During this process, 

“TSPs may submit offers to provide [] Household Goods (HHG) transportation services” on certain 

lanes. Id. The RFO “solicits rates” and provides criteria for their “evaluation and acceptance.” 

Id. § 4.3. Once the Government accepts a rate, government agencies select an approved TSP and 

use one with “approved rates [already] filed” for shipment of their employees’ household goods. 

Id. § 8.2.2; (see also ECF 149, ¶¶ 31-32). 

Second, HTOS provides that TSPs “shall use vessels of United States registry for the ocean 

portion of overseas shipments.” Exh. 1 § 5.3.1. GSA provides an exception, however, “when it 

is determined that the use of a vessel of United States registry will not provide the required 

1 The Court may take judicial notice of Exhibit 1 because the contents of the HTOS manual are 

referenced in the First Amended Complaint and are central to Relator’s claim. See CWELT-2008

Series 1045 LLC v. PHH Corp., No. 1:20-CV-20334, 2020 WL 2744191, at *1 (S.D. Fla. May 27, 

2020) (“When determining a motion to dismiss, a court may consider the complaint, its 

attachments, and documents attached to the defendant’s motion to dismiss if the attached 

documents are central to the plaintiff’s claims and referred to by the plaintiff without converting 

the motion to a motion for summary judgment.”) (citing Brown v. One Beacon Ins. Co. Inc., 317 

F. App’x 915, 917 (11th Cir. 2009)).

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service.” Id. To qualify, the TSP must “request permission to use a Foreign Flag vessel prior to 

start of shipment,” certifying “in writing that US flag shipping is not available or the use of foreign 

flag shipping is necessary to meet delivery requirements.” Id. If the government approves the 

request, then the TSP can use a foreign flagged vessel. Id. Relator alleges that Defendants falsified

these requests by certifying that no U.S. flagged vessels were available when they were. (ECF 

149 ¶¶ 70-72). Although Relator alleges that the scheme lasted a decade, it does not allege a single 

incident in which a TSP obtained a waiver to use a foreign flagged vessel when a U.S. flagged 

vessel was available.. 

The First Amended Complaint offers very little information about J.K. Relator merely 

alleges that J.K. both submitted bids in response to RFOs and sought permission to use foreign 

flagged vessels between 2008 and 2018. (ECF 149 ¶¶ 5, 20, 53, 60-61, 74-75, 78). 

SUMMARY OF THE ARGUMENT

The Court should dismiss Relator’s First Amended Complaint for three reasons. First, the 

First Amended Complaint is based almost entirely upon information found in government records. 

Relator offers no direct information as an original source. At most, Relator provides mere 

background information and asks this Court to draw negative inferences from the publicly 

available information it cites. Relator’s claims are completely derived from and dependent upon 

information gleaned from government reports, and therefore, the FCA’s public disclosure bar 

defeats Relator’s claims. 

Second, Relator failsto state a claim under the FCA for J.K.’s alleged low-ball bids because 

it fails to allege that J.K. made false statements of fact. There is no allegation that J.K. colluded 

with others to inflate the amount of its bids, much less that J.K. bid at rate that it never intended to 

charge, or that it intended to increase that rate in the future. Indeed, Relator does not allege that 

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J.K. ever increased its rates above what the government accepted or ever tried to charge above 

those rates. Accordingly, there was no fraud in connection with the submission of J.K.’s bids.

Finally, Relator fails to plead facts supporting its claim that J.K. fraudulently certified 

waiver applications with the particularity required for fraud claims under Rule 9(b) of the Federal 

Rules of Civil Procedure. Relator’s First Amended Complaint is nothing more than suppositions

built upon assumptions. Despite alleging a fraudulent scheme that lasted a decade, Relator fails to 

identify a single waiver that it deems was false, much less allege the who, what, were and when of 

the falsity. Instead, Realtor merely lumps the TSPs together, obliquely references untold and 

unidentified waivers, and conjures a scheme that lasted a decade. The pleading falls well short of 

the pleading standards required by Rule 9(b) and represents the classic fishing expedition that the 

Rule prohibits. Accordingly, this Court should dismiss the First Amended Complaint without 

leave to amend. 

ARGUMENT

I. THE FCA’S PUBLIC DISCLOSURE PROVISION BARS RELATOR’S CLAIMS.

“An FCA action cannot be based on allegations that are already publicly disclosed.” U.S. 

ex rel. v. Mortgage Investors Corp., 987 F.3d 1340, 1353 (11th Cir. 2021) (citing 31 U.S.C. § 3730 

(2006)). “The reason for the public disclosure bar is fairly obvious. Without it, opportunistic 

relators – with nothing new to contribute – could exploit the FCA’s qui tam provisions for their 

personal benefit.” Id. (citations omitted). Such is the case here where Relator bases its entire claim 

on “publicly disclosed” information for which Relator is not “an original source of the 

information.” 31 U.S.C. § 3730(e)(4)(A). Relator “‘bears the burden of proving that the public 

disclosure bar does not preclude [its] FCA action.’” U.S. ex rel. Brown v. Bank United Trust 2005-

1, 235 F. Supp.3d 1343, 1354 (S.D. Fla. 2017) (citation and internal quotation marks omitted). 

Before 2010, the FCA’s public disclosure bar was jurisdictional; an amended version provides for 

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dismissal for failure to state a claim. U.S. ex rel. v. Humana, Inc., 776 F.3d 805, 810 (11th Cir. 

2015) (citing 31 U.S.C. § 3730(e)(4) (2006) and 31 U.S.C. § 3730(e)(4) (2012)). 

In considering whether the prior version of the public disclosure bar divests the court of 

subject matter jurisdiction, the Eleventh Circuit frames the inquiry as a three-part test: “(1) have 

the allegations made by the plaintiff been publicly disclosed; (2) if so, is the disclosed information 

the basis of the plaintiff’s suit; (3) if yes, is the plaintiff an ‘original source’ of that information.” 

U.S. ex rel. v. Mortg. Inv’rs Corp., 987 F.3d 1340, 1353 (11th Cir. 2021). Under the amended 

version of the FCA, and regarding the second part of the inquiry above, the question is whether 

the allegations in the complaint are “substantially the same” as the allegations or transactions 

contained in the public disclosures. Humana, 776 F.3d at 812. Because Relator’s claims fail both 

tests, and no amount of repleading can cure this fact, Relator’s claims fail as a matter of law and

the Court should dismiss them with prejudice. 

A. Relator Derives Its First Amended Complaint From Publicly Disclosed 

Information. 

To determine whether the public disclosure bar applies, the Court first assesses whether 

Relator’s claim is based on publicly disclosed allegations or transactions. That is, whether the 

information was disclosed via one of the sources listed in 31 U.S.C. § 3730(e)(4)(A). U.S. ex rel.

Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 69 F. Supp. 3d 416, 424 (D. Del. 2014)(citing 

U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 519 (3d. Cir. 2007)). The prior and 

amended versions of the FCA list government “reports” as public sources.

Relator’s scant allegations about J.K. have all been publicly disclosed in government 

reports. Indeed, Relator supplies rate information that it extracted from “GSA’s TMSS HHG” 

system, (ECF 149 at ¶ 53), a system that lists TSP rates to assist agencies “in making the TSP 

selection.” Ex. 1 § 6.5.2. TMSS “is a cloud-based online platform that supports [CHAMP]” and 

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“allows users to manage the entire transportation process easily and efficiently” by “grant[ing] 

agencies access to [TSPs], their customers satisfaction indices, and route-specific rate offers.” 

TMSS User Guide, attached as Exhibit 2.

2

 Both the government and TSPs can access the system. 

Indeed, the TMSS User Guide instructs government users and TSPs on how to search to perform 

“Rate Query Search[es]” within the system. Exh. 2 at 63–65 (providing step-by-step instructions 

on how to do so). It is clear that this is how Relator obtained the information contained in the First 

Amended Complaint and which forms the basis of its claims.

The First Amended Complaint includes images of (what Relator claims) are 2019 bids from 

various TSPs on the lane from Washington D.C. to London. Compare (ECF 149 ¶¶ 53–69, 74)

with Household Goods Queries, attached as Exhibit 3 (A).

3 Relator acknowledges that the images 

and rate figures in the First Amended Complaint came from a TMSS HHG (household goods) 

query. (Id. ¶ 53). This is fatal to Relator’s claim. Because the TMSS system is accessible to all 

TSPs and is run by the government (i.e., GSA), the queries that Relator relies upon are “Federal 

report[s]” and are not actionable under the FCA. 31 U.S.C. § 3730(e)(4)(A)(ii). As this Court 

explained in U.S. ex rel. Sanchez v. Abuabara, No. 10-61673-CIV, 2012 WL 1999527, (S.D. Fla. 

June 4, 2012), the Supreme Court is clear that the term “report” in the FCA “should be given its 

2 The Court can take judicial notice of the TMSS User Manual. Relator references the TMSS 

system in the First Amended Complaint and the TMSS system—where bids are submitted—is 

central to Relator’s claims. See PHH Corp., 2020 WL 2744191 at *1, n.2. Furthermore, the 

manual is produced by GSA and qualifies as a government record and is the proper subject of 

judicial notice. See e.g., U.S. ex rel. Modglin v. DJO Global Inc., 48 F. Supp. 3d 1362, 1371–72, 

n. 26–29 (C.D. Cal. 2014); Grubbs v. Medtronic, Inc, No. 2:18-cv-01468, 2019 WL 3288263, at 

*6 n.2 (N.D. Ala. Jul. 22, 2019).

3

 The Court may take judicial notice of Exhibit 3(A) because it contains full versions of the same 

queries from the TMSS system that Relator selectively displays and relies upon in the First 

Amended Complaint (ECF 149 ¶ 53), the bid numbers they include are central to Relator’s claims, 

and the TMSS queries are a government record. See PHH Corp., 2020 WL 2744191 at *1, n. 2; 

U.S. ex rel. Modglin, 48 F. Supp. 3d at 1371–72, n. 26–29; Grubbs, 2019 WL 3288263 at *6, n. 2. 

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‘broad ordinary meaning.’” [(quoting Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S. 401, 

408 (2011)). “The Court found that a report is ‘something that gives information’ or a 

‘notification.’” Id. (quoting Schindler, 563 U.S. at 408). “The Court also found that the three 

adjectives preceding the term ‘report,’ which were ‘congressional, administrative or Government 

Accountability Office’ (and are now ‘congressional, Government Accountability Office or other 

Federal’) ‘tell us nothing more than that a ‘report’ must be governmental.’” Id. (quoting Schindler, 

563 U.S. at 410) (parenthetical added in Abuabara).

Courts have easily found that government websites, which provide information to the 

public, “fall within the plain meaning of the word ‘report.’” U.S. ex rel. Oliver v. Philip Morris 

USA, Inc., 101 F. Supp.3d 111, 124 (D.D.C. 2015) (citing other cases). Such is the case here. The 

First Amended Complaint explicitly relies upon information obtained “GSA’s TMSS HHG query 

results run in March 2019” (ECF 149 ¶ 53) to obtain the TSP Defendant’s bid rates. There can 

be no dispute that the TMSS system is one managed by the government (GSA) and the query 

results are “reports” within the meaning of § 3730(e)(4)(A)(ii). See U.S. v. Specialist Doctors’ 

Group, LLC, No. 8:17-cv-2647-T-24, 2020 WL 7138566, at *3 (M.D. Fla. Dec. 7, 2020) (billing 

records pulled from a federal database were federal reports under the FCA); see also U.S. ex rel. 

Calilung v. Ormat Indus., Ltd., No. 3:14-cv-00325, 2015 WL 1321029, at *16 (D. Nev. Mar. 24, 

2015) (filings on the SEC’s EDGAR website were federal reports under the FCA).

B. The Disclosed Information Forms the Bases of Relator’s Claims and its 

Allegations Mirror That Information.

Second, the rate information from the TMSS system plainly supplies “the basis of 

[Relator’s] suit” against J.K. Mortg. Inv’rs Corp., 987 F.3d at 1353. As proof of the alleged 

“scheme,” Relator points first to purportedly “low-ball bids,” then to purportedly “fraudulent flag 

waivers,” and finally to a “dramatic increase in . . . rates.” (ECF 149 at Parts V.A, V.B, & V.C). 

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Relator supplies no other factual allegations about the waivers, leaving the rates themselves as the 

sole “evidence of this fraudulent scheme.” (ECF 149 ¶¶ 53, 60-62). In plain terms, Relator builds 

its case on the notion that the TSP rates at issue—when compared to costs, and when tracked over 

time—reveal a fraudulent scheme. Those rates provide the basis for Relator’s claim. U.S. ex rel.

Saldivar v. Fresenius Med. Care Holdings, Inc., 841 F.3d 927, 934 (11th Cir. 2016) (noting that 

the public disclosure bar “is most naturally read to preclude suits based in any part on publicly 

disclosed information,” adding that “this second prong of the inquiry is a quick trigger to get to 

the more exacting original source inquiry”). 

Moreover, the allegations in the First Amended Complaint are not just substantially similar 

to the publicly disclosed information—they are that information. Compare (ECF 149 ¶ 53) with 

Exh. 3. Relator’s First Amended Complaint simply draws nefarious conclusions from government 

records. Like the circumstances addressed by the Court in Humana, “[b]ecause the second prong” 

of the inquiry “is a ‘quick trigger,’ the significant overlap between [Relator’s] allegations and the 

public disclosures” establishes that “the disclosed information forms the basis of this lawsuit and 

is substantially similar to the allegations in the complaint.” 776 F.3d at 814.

C. Relator is Not the Original Source of the Information in the First Amended 

Complaint.

Finally, Relator does not qualify as an “original source” of the information alleged in the 

First Amended Complaint. “Under the prior version of § 3730, [Relator’s] knowledge must have 

been direct and independent” for Relator to qualify as an original source.” Humana, 776 F.3d at 

814. This requires that Relator have “specific, direct” evidence of fraud that is more than 

“background information which enables” Relator “to understand the significance of a more general 

public disclosure.” Id. Likewise, under the amended FCA, an “original source” is someone with 

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“knowledge that is independent of and materially adds to the publicly disclosed allegations or 

transactions.” 31 U.S.C. § 3730(e)(4)(B). 

Relator has no independent knowledge of the rate information alleged in the First Amended 

Complaint. J.K. and the other TSPs derived those rates, conveyed them to the government during 

the RFO process, and then the Government promulgated them to purchasing agencies and others 

when accepted. Relator offers little other than what is already in the public record. At most, 

Relator merely provides background information that helps one to understand or contextualize 

those public disclosures. That does not make Relator an original source of that information. 

Moreover, nothing in the Relator’s First Amended Complaint “materially adds” to the barebones information that is available publicly. “[A] relator materially adds to the publicly disclosed 

allegation or transaction of fraud when it contributes information—distinct from what was publicly 

disclosed—that adds in a significant way to the essential factual background: ‘the who, what, 

when, where and how of the events at issue.’” U.S. ex rel. Moore & Co., P.A. v. Majestic Blue 

Fisheries, LLC, 812 F.3d 294, 307 (3d Cir. 2016). “In other words . . . the relator must bring 

something to the table that would add value for the government.” U.S. ex rel. Maur v. HageKorban, 981 F.3d 516, 527 (6th Cir. 2020).

Relator offers nothing but conjecture—a loose theory that the rates TSPs charged evidence 

fraud in their bids and then subsequently made false certifications in support of obtaining foreign 

flag waivers. The theory lacks any real facts—let alone “essential” ones—and utterly fails to move 

the ball toward a finding of actual fraud. As the Eleventh Circuit explained in Humana, 776 F.3d 

at 815, “background information that helps one understand or contextualize a public disclosure is 

insufficient to grant original source status.” Likewise, Relator falls well short of the “rigorous [ ]

threshold[ ] for satisfying materiality.” U.S. ex rel. Jones v. Sutter Health, 499 F. Supp. 3d 704, 

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 14 of 30
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717 (N.D. Cal. 2020) (citing Osheroff, 776 F.3d at 815); see also U.S. ex rel. Ambrosecchia v. 

Paddock Laboratories, LLC, 855 F.3d 949, 955 (8th Cir. 2017) (relator did not materially add 

anything where he “provide[d] no more than the simple, conclusory allegation that Defendants’

actions were knowing”).

Relator constructs a conclusory theory from little more than published rate information, 

drawing strained inferences based on cost assumptions and trends. But this information—

submitted in response to RFOs and available to all CHAMP participants on the TMSS system—

has already been publicly disclosed. Because Relator fails to add any allegations of substance, the 

First Amended Complaint fails to clear the FCA’s public disclosure bar and the Court should 

dismiss it with prejudice. 

II. RELATOR’S UNDERBIDDING CLAIM FAILS AS A MATTER OF LAW. 

Relator’s underbidding theory—a foundational bedrock of its FCA claims—fails as a 

matter of law because Relator fails to allege that J.K. made a false representation of fact in 

connection with its bids.

The FCA imposes liability on anyone who “knowingly presents . . . a false or fraudulent 

claim for payment,” and on anyone who “knowingly makes . . . a false record or statement material 

to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A), (a)(1)(B). “To prevail on an FCA 

claim,” then “the plaintiff must prove that the defendant (1) made a false statement, (2) with 

scienter, (3) that was material, (4) causing the Government to make a payment.” United States v. 

AseraCare, Inc., 938 F.3d 1278, 1284 (11th Cir. 2019). Thus, there can be no liability under the 

FCA without “the threshold element of falsity.” Id. at 1285. Moreover, it is well-settled that the 

term “fraudulent” in the FCA “incorporates the common-law meaning of fraud.” Universal Health 

Services, Inc. v. United States, -- U.S. --, 136 S.Ct. 1989, 1999 (2016).

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As the statute’s name suggests, “falsity” is an element “central to [] liability” under the 

FCA. United States v. FastTrain II Corp., No. 12-21431, 2017 WL 606346, at *8 (S.D. Fla. Feb. 

15, 2017). Under either provision, Relator must allege “a palpably false statement, known to be a

lie when it is made.” U.S. ex rel. Phalp v. Lincare Holdings, Inc., 116 F. Supp. 3d 1326, 1360 

(S.D. Fla. 2015), aff’d, 857 F.3d 1148 (11th Cir. 2017) (quotation omitted); see also 31 U.S.C. 

§ 3729(a)(1)(A) (“a false or fraudulent claim for payment or approval”); id. § 3729(a)(1)(B) (“a 

false record or statement material to a false or fraudulent claim”). Relator has failed to satisfy this 

most basic burden.

A. J.K.’s Bids Did Not Falsely State the Rates it Charged. 

To begin with, Relator fails to identify anything false or fraudulent about J.K.’s bids

submitted to GSA. To the contrary, Relator alleges nothing more than garden variety offer-andacceptance through a “highly competitive” bidding process. ECF 149, ¶¶ 50-51. This is not fraud.

A bid merely “connotes an offer to perform a contract for work and labor or supplying material,” 

it “create no rights in either the offeror (bidder) or the offeree until a contact comes into existence 

by acceptance.” U.S. v. Farina, 153 F. Supp. 819, 821–22 (D.N.J. 1957). And “merely . . . calling 

upon another to enter into a contract” is not “a claim” within the meaning of the False Claims Act. 

Id. at 822; see also U.S. ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., et al., No. 1:99-cv02879, ECF 52 at 10, n.7 (D.D.C. Oct. 24, 2002) (unpublished but attached as Exhibit 4).

According to Relator, J.K. submitted “rate offers” for various shipping lanes, which were 

then “evaluated” by GSA and “selected” when competitive. (ECF 149 at ¶ 36; see also id. ¶¶ 60-

61). As the HTOS guidelines confirm, these offers become the “approved rates” for a given lane 

once selected. See Ex. 1 § 6.5.2; see also (ECF 149 ¶¶ 43-46). For its services to be eligible for 

purchase, a TSP like J.K. “shall have approved rates on file with GSA.” Id. And the TSP may 

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invoice the purchasing agency “at the rate in effect on the date of initial pick-up.” Id. § 8. Agencies 

are “encouraged to use those TSPs that have approved rates filed” for a desired route. Id. § 8.2.2. 

Relator alleges the TSPs’ bids, in other words, become the going rate when accepted. Indeed, the 

First Amended Complaint itself acknowledges this dynamic in straightforward terms, noting that 

GSA “awards contracts” based on the “submitted rate offer.” (ECF 149 at ¶ 36).

By Relator’s own telling, J.K. accurately bid what it was willing to accept, and the 

government subsequently agreed to pay the same. While Relator insists that the bids were 

“fraudulent” because they were “below . . . market” and, in some instances, below cost (ECF 149

¶¶ 6, 52-53, 60-61), the underlying costs cannot make the bid false or fraudulent—even if it were 

true that J.K. lost money on certain lanes. Nothing requires TSPs to warrant anything about their 

costs or their margins. And the terms “fair market rate” and “standard cost range” come not from 

GSA or its guidance, but from Relator’s suppositions—unmoored from any facts—about what 

other companies’ costs supposedly “would be.” (Id. ¶¶ 52-53). 

While Courts have recognized a fraudulent inducement theory under the FCA for 

underbidding, they have only done so in narrow circumstances. See Hooper v. Lockheed Martin 

Corp., 688 F.3d 1037, 1049 (9th Cir. 2012) (stating that underbidding may support an FCA claim 

when the “the bid is not what the defendant actually intends to charge.”). In U.S. ex rel. Marcus 

v. Hess, the Supreme Court held that collusive bids between contractors, which caused the 

government to expend money it would not have if it knew about the collusion, supported an FCA 

claim under a fraudulent inducement theory. 317 U.S. 537, 543 (1943). This is the “archetypal 

fraud-in-the-inducement case” under the FCA. U.S., ex rel. Laird v. Lockheed Martin Engineering 

& Science Servs. Co., 491 F.3d 254, 259 (5th Cir. 2007). These schemes have a common goal: to 

charge the government more than that to which the contractor is actually entitled. And that was

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the evil that Congress countered through the FCA: “overcharges and other abuses by defense 

contractors” who submitted “inflated invoices . . . to the government.” Harrison v. Westinghouse 

Savannah River Co., 176 F.3d 776, 784 (4th Cir. 1999) (first quote); U.S. ex rel. Hopper v. Anton, 

91 F.3d 1261, 1265–66 (9th Cir. 1996) (second quote). 

“Without more, a contract underbid is not a false claim.” Laird, 491 F.3d at 260 (emphasis 

added). “For FCA liability, there must be a nexus between the underbid and a request for payment 

that the contractor would not have been entitled to absent the contract.” Id. That nexus may exist 

where a contractor submits an intentionally low bid to obtain a contract but then invoices the 

government for more than the original bid or where it causes the government to “pay more than it 

otherwise would have for the service.” See e.g., Hooper, 688 F.3d at 1049; Harrison, 176 F.3d at 

791 (quoted language). In each instance, the contractor’s subsequent “demands for payment 

perpetrate the original deceit by helping the [contractor] get more money from the government 

than he would have been entitled to had he not made the initial false statement.” Bettis, Exh. 5 at 

11 (emphasis added). 

There is no nexus where the “initial deception involved deflating, rather than inflating, the 

original contract price” and the contractor never seeks “modifications that would raise the final 

price beyond the bid price.” Id. at 11. If that second step never happens, and the contractor merely 

invoices the government for its original bid, “the government would actually benefit from the 

misrepresentation, because it would end up paying a lower price for the contract than had the 

contractor submitted a higher (and more realistic) bid at the beginning stage of the process.” Id. 

at 11–12. Thus, the necessary factor for liability in an alleged underbidding scheme is that the 

contractor later seeks payments from the government above the price of its original bid. Id. at 12.

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In this case, as in Bettis, Relator merely complains that J.K submitted an artificially low 

bid and stops there. It does not allege that J.K. subsequently invoiced the government more than 

the agreed rate. While Relator argues that Defendants intended to seek foreign flag waivers, that 

does not create a nexus between the original underbid and the subsequent request for payment if

the amount that the contractor bid and the amount it invoiced the government are the same. In 

other words, the government has not been defrauded or charged above what it agreed to pay in the 

first place. Moreover, to the extent that there was a misrepresentation at all (there was not) the 

government benefited by paying a lower price. Id. at 11–12. 

Nor can the underbidding claim proceed simply because Relator alleges that J.K. intended 

to seek foreign flag waivers. Getting the waiver would not change the price that J.K. bid and rate 

that the government accepted. The waiver would merely allow J.K. to perform the service at the 

rate it bid. Attaching FCA liability based upon Relator’s theory would not only “penalize parties 

for making claims for payment that seek less money” from the government, but would also “punish 

a contractor for having had illicit thoughts at the time of bidding, rather than doing what the text 

of the statute actually forbids: submitting demands for money to which it is not legitimately 

entitled.” Id. at 12.

In sum, even if the TSPs submitted artificially low bids, this does not create liability under 

the FCA. The underbid would only become a false claim under the FCA if the TSPs later sought 

more from the government than their original bid. Realtor does not claim that they did so. 

Accordingly, Relator’s claim fails as a matter of law. 

III. RELATOR’S FCA CLAIMS FAIL UNDER RULE 9(b).

Relator’s First Amended Complaint falls well short of the “heightened pleading standard”

set by Rule 9(b). U.S. ex rel. Sanchez v. Abuabara, No. 10-61673, 2012 WL 5193415, at *3 (S.D. 

Fla. Oct. 19, 2012) (citing U.S. ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 

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1301, 1308–09 (11th Cir. 2002)). Count I is a “presentment” claim premised on § 3729(a)(1)(A)

of the FCA. U.S. ex rel. Lorona v. Infilaw Corp., No. 3:15-cv-959-J-34PDB, 2019 WL 3778389, 

at * 16 (M.D. Fla. Aug. 12, 2019). In Count II, Relator asserts a false record claim premised on § 

3729(a)(1)(B) of the FCA. Id. The gravamen of Relator’s claims is that J.K. falsified the “foreign 

flag waivers.”. Yet its factual allegations on the core element of falsity are non-existent and vague

at best. Relator offers no “specific facts”, but instead weaves a speculative tale that is “merely . . . 

consistent with a fraud” at best. Sanchez, 2012 WL 5193415, at *4-5. This sort of ipse dixit 

pleading “flunks the test of particularity, and for that matter, Rule 8’s plausibility standard, too.” 

Id. at *5. 

A. Relator Fails to Sufficiently Allege the Central Element of Falsity.

1. Relator fails to allege a false bid.

Relator insists that bids submitted by J.K. at GSA’s invitation were “low-ball” and 

therefore “fraudulent.” (ECF 149 ¶ 6). Yet whether below cost or not, J.K’s bids accurately 

reflected what J.K. expected to receive and what the government expected to pay if accepted. 

Relator does not allege that J.K. ever charged the government more than that accepted rate. No 

fraud taints that straightforward exchange. And while the Eleventh Circuit recognizes a fraud in 

the inducement theory under the FCA,4 Relator must allege with particularity facts demonstrating 

that the alleged promise to use U.S. flagged vessels was false when made and that it was material 

to the government’s decision to pay money to J.K., including the who, what when, and where 

supporting the allegation. Relator does not even attempt to do so. Instead, relying exclusively 

upon vague and conclusory allegations, Relator offers a hindsight theory of fraud that is based on 

pure speculation and assumptions. This falls well short of the requirements of Rule 9(b). 

4 U.S. ex rel. Marsteller v. Tilton, 880 F.3d 1302, 1314-15 (11th Cir. 2018).

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2. Relator fails to allege facts establishing that J.K. submitted a false waiver. 

Relator devotes a mere three of the First Amended Complaint’s ninety-six paragraphs to 

the one of the most crucial aspect of its claim: that the TSPs submitted foreign flag waivers falsely 

certifying that no U.S. flagged ships were available. (Id. ¶ 70-72). None of those paragraphs cite 

a single example of an actual waiver that J.K. submitted (let alone a false one). Relator instead 

relies upon vague and conclusory group pleading. As a result, Relator does not come close to 

pleading falsity with the particularity required by Rule 9(b).

According to Relator, the TSPs “knowingly submitted thousands of fraudulent waivers 

claiming U.S. flag vessels were not available, when in fact they were.” (ECF 149 ¶ 72). Yet while 

Relator speculates as to why Defendants might have done so—“to profit on the low-ball bids,” (id.

¶ 70)—nothing in the First Amended Complaint answers any of the questions that Rule 9(b) 

actually requires. “In the context of the FCA,” this Court has made clear, “the complaint must set 

forth facts as to time, place, and substance of the defendant’s alleged fraud and the details of the 

. . . allegedly fraudulent acts, when they occurred, and who engaged in them.” U.S. ex rel. Aquino

v. Univ. of Miami, 250 F. Supp. 3d 1319, 1327 (S.D. Fla. 2017); see also Ziemba v. Cascade Int’l, 

Inc., 256 F.3d 1194, 1202 (11th Cir. 2001) (noting Rule 9(b) requires a relator to identify 

“precisely what statements were made in what documents” and “the time and place of each such 

statement and the person responsible for making” it). 

Rule 9(b) applies to each fraud claim against each defendant. Relator supplies none of the

required information to support its claims against J.K. (let alone the other TSPs). The First 

Amended Complaint provides no details regarding which J.K. waivers Relator contends were 

falsified, when, by whom, or which lanes J.K. supposedly lied about. In fact, though the First 

Amended Complaint gratuitously characterizes J.K. as “one of the biggest offenders in the 

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fraudulent scheme,” (Id. ¶ 78), Relator offers no information regarding the scope of J.K.’s waiver 

requests, let alone any that it contends were false.

The purpose of Rule 9(b) only underscores Relator’s deficiency. The Rule aims “to alert 

defendants to the precise misconduct with which they are charged and protect defendants against 

spurious charges.” Sanchez, 2012 WL 5193415 at *3 (quotation omitted). The particularity 

requirement is “necessary to prevent ‘[s]peculative suits against innocent actors for fraud’ and 

charges of guilt by association.” U.S. ex rel. Aquino, 250 F. Supp. 3d at 1327 

(quoting Clausen, 290 F.3d at 1308)). Otherwise, “any case where a plaintiff puts a negative spin 

on seemingly innocuous conduct defendants would be subject to costly and abusive litigation.” 

Sanchez, 2012 WL 5193415 at *3. This precise dynamic permeates Relator’s First Amended 

Complaint. Relator puts its own conclusory spin on otherwise unremarkable facts. What Relator

does not do is “earmark specific facts from which the Court can infer” that J.K. actually perpetrated 

the falsehoods Relator suspects. Id. at *4 (emphasis added). This entails identifying the specific 

waiver that Relator contends is fraudulent and the facts that make it fraudulent: the certification of 

the waiver with knowledge that a U.S. flagged vessel was available to transport the goods at the 

time and place required. Because the First Amended Complaint lacks these details, it fails under 

Rule 9(b). 

3. Speculative conclusions about rate increases do not save Relator’s claim.

Relator tries to compensate for the First Amended Complaint’s lack of particularity by 

speculating about J.K.’s 2019 rate increases. According to Relator, these increases must have 

been in response to increased enforcement, and therefore must reveal fraud during the earlier 

period. (ECF 149 ¶¶ 73-74). Yet this inferential leap is itself lacks any factual support and so it 

cannot supply the particularity required. At best, Relator has a hypothesis about TSPs and their 

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published rates. Yet nearly a year after first filing—and despite an intervening government 

investigation—this hypothesis has failed to mature beyond mere suspicion.5 

According to Relator, J.K. and others increased their bids in 2019 “amidst [a] crackdown” 

on fraudulent waivers at the State Department. (Id. ¶¶ 74-78). These increases, Relator insists, 

must have been “to incorporate the cost of using American ships” instead of foreign ones and prove 

that J.K. had “stopped carrying out the scheme.” (Id. ¶ 74). Relator then highlights the difference 

in J.K.’s 2016 and 2019 for the “Washington, D.C. to China lane” as supposed evidence. (Id. 

¶ 75). The temporal link between the supposed crackdown and J.K.’s rate hikes is utterly 

circumstantial and ignores a host of reasons why a TSP might choose to increase rates over a threeyear period—all more plausible than avoiding detection for fraud. What is more, Relator itself

undercuts this timing argument elsewhere in the First Amended Complaint. Not only do J.K.’s 

2019 rates for the D.C-to-U.K. and D.C.-to-Germany lanes reveal far more modest increases from 

2016, but Relator actually highlights the 2019 rates on those lanes as the very sort of “low-ball” 

bids that evince the fraud in the first place. See (Id. ¶¶ 60-61, 78). In other words, Relator’s 

argument goes, J.K.’s 2019 rates prove both that J.K. perpetrated and that it had abandoned the 

same fraudulent scheme for fear of detection. Nothing in the First Amended Complaint explains 

why J.K. behaved so illogically, of course, because Relator has no information about J.K. beyond

these published rates.

Relator’s stitched-together theory has none of the “indicia of reliability” that the Eleventh 

Circuit deems vital. Clausen, 290 F.3d at 1311. As that court explained in Clausen, “Rule 9(b) 

5 Relator has the facts wrong too. Realtor claims that the bid information for J.K. in Paragraph 54 

is for the D.C. to London lane and for March 2019. However, the image containing that 

information includes a tender name “SF17”, indicating that the bid was made in 2017 not 2019. 

Moreover, Exhibit 3(A) contains the full report from query that J.K. ran in the TMSS system for 

March 2019. 

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 23 of 30
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does not permit a False Claims Act plaintiff merely to describe a private scheme in detail but then 

to allege simply and without any stated reason for his belief that claims requesting illegal payments 

must have been submitted.” Id. Rather, “some indicia of reliability must be given in the complaint 

to support the allegation of an actual false claim for payment being made to the Government.” Id. 

The relator in Clausen described fraudulent schemes in detail—including “dozens of pages of 

exhibits”—but offered nothing beyond the “conclusory statement tacked on to each allegation that 

bills were submitted to the Government as a result of those schemes.” Id. at 1312. While the court 

said the complaint “raise[s] questions,” it concluded that “nowhere in the blur of facts and 

documents assembled . . . can one find any allegation, stated with particularity, of a false claim 

actually being submitted to the Government.” Id. So it is here. Relator sets forth the mechanics 

of a fraudulent scheme centered on falsified waivers, but no specific allegations about the waivers 

themselves, and no indicia of reliability to support the assertion that they “must have been 

submitted.” Id. at 1311. 

Supplying this “indicia” is no small task. In the Eleventh Circuit, the inquiry “has focused 

on the relationship between the relator and the defendant, the language of the complaint, and the 

support, if any, attached to the complaint.” U.S. ex rel. Heater v. Holy Cross Hosp., Inc., 510 F. 

Supp. 2d 1027, 1034 (S.D. Fla. 2007). “At a minimum,” a relator “must explain the basis for her 

assertion that fraudulent claims were actually submitted” and cannot “base his knowledge on 

rumors, or [] offer only conjecture.” U.S. ex rel. Mastej v. Health Mgt. Associates, Inc., 591 F. 

App’x 693, 704–05 (11th Cir. 2014). For this reason, relators who are not “corporate insiders” 

with some connection to the defendant often find it difficult to clear the Rule 9(b) threshold. To 

be sure, “an insider might have an easier time obtaining information . . . and meeting the pleading 

requirements,” but “neither the Federal Rules nor the Act offer any special leniency under these 

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particular circumstances to justify [a relator] failing to allege with the required specificity the 

circumstances of the fraudulent conduct he asserts in his action.” Clausen, 290 F.3d at 1314; see

also U.S. ex rel. Klusmeier v. Bell Constructors, Inc., No. 08-80442, 2009 WL 10667472, at *15 

(S.D. Fla. Nov. 17, 2009) (noting Relator with no access to defendant “cannot assert with reliability 

that Defendant actually submitted any fraudulent invoices” and so “guessing what Defendant 

certified would involve complete speculation”). 

Nothing about Relator or the First Amended Complaint supplies any reliability to the 

central charge here—that J.K. falsified some untold number of waivers over some untold period. 

Relator is not an insider or a former employee, nor anyone with special knowledge about J.K.’s 

practices in this area. Compare Hill v. Morehouse Med. Associates, Inc., No. 02-14429, 2003 WL 

22019936, at *4 (11th Cir. Aug. 15, 2003) (finding indicia of reliability where relator “worked in 

the very department where she alleged the fraudulent billing schemes occurred”). Rather, it seems 

to be one of J.K’s competitors. 

Relator does not state a claim, but ventures a guess—not unlike the countless other guesses 

that Rule 9(b) screens out of court. It merely “allege[s] a mosaic of circumstances that are perhaps 

consistent with [ ] accusations [of] false claims [but] fail[s] to allege with particularity that these 

background factors ever converged and produced an actual false claim.” Carrel v. AIDS 

Healthcare Found., Inc., 898 F.3d 1267, 1277 (11th Cir. 2018); see e.g. Sanchez, 2012 WL 

5193415, at *5. Relator’s theory—the bedrock of its FCA claims—requires the guesswork that 

Rule 9(b) prohibits. Accordingly, those claims fail as a matter of law. 

CONCLUSION

For the foregoing reasons, Defendant J.K. Moving & Storage, Inc. respectfully requests 

that the Court enter an Order dismissing the Relator’s First Amended Complaint with prejudice.

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 25 of 30
21

August 20, 2021 J.K. MOVING & STORAGE, INC.

/s/ Michael I. Kessler

Michael I. Kessler (FL Bar No. 117784)

MKessler@ohaganmeyer.com

O’HAGAN MEYER, PLLC

21550 Oxnard Street, Suite 1050

Woodland Hills, CA 91367

Telephone: (213) 306-1632

Facsimile: (213) 306-1615

and 

Alan D. Albert (admitted pro hac vice)

Charles G. Meyer, III (admitted pro hac vice)

Charles M. Sims (admitted pro hac vice)

C. Quinn Adams (admitted pro hac vice)

O’HAGAN MEYER, PLLC

411 East Franklin Street, Suite 500

Richmond, Virginia 23219

Telephone: (804) 403-7100

Facsimile: (804) 237-0250

AAlbert@ohaganmeyer.com

CMeyer@ohaganmeyer.com

CSims@ohaganmeyer.com

CAdams@ohaganmeyer.com

Counsel for J.K. Moving & Storage, Inc.

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 26 of 30
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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon all parties

registered for electronic notification via the Court’s electronic filing system on August 20, 2021. 

/s/ Michael I. Kessler

Michael I. Kessler (FL Bar No. 117784)

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 27 of 30
23

SERVICE LIST

James A. Weinkle

Assistant United States Attorney

Office of the United States Attorney

Southern District of Florida

99 N.E. 4th Street, Suite 300

Miami, FL 33132

James.Weinkle@usdoj.gov

Counsel for United States of America

Ghislaine Torres Bruner

Noam B. Fischman

POLSINELLI PC

1401 Lawrence Street, Suite 2300

Denver, CO 80202

gbruner@polsinelli.com

nfischman@polsinelli.com

Counsel for Cartwright International Van Lines

Ryon M. McCabe

MCCABE RABIN P.A.

1601 Forum Place, Suite 201

West Palm Beach, FL 33401

rmccabe@mccaberabin.com

Counsel for Sedona Partners, LLC

Aryeh Lev Kaplan

Ariella J. Ederi

PILLSBURY WINTHROP SHAW PITTMAN 

600 Brickell Avenue, Suite 3100

Miami, FL 33131

Aryeh.kaplan@pillsburylaw.com

Ariella.ederi@pillsburylaw.com

Counsel for Coleman American Moving Services

Sarvenaz J. Fahimi

COTCHETT, PITRE & MCCARTHY

840 Malcolm Road, Suite 200

Burlingame, CA 94010

sfahimi@cpmlegal.com

Counsel for Sedona Partners, LLC

Alexis N. Wansac

Thomas C. Hill

PILLSBURY WINTHROP SHAW PITTMAN 

1200 Seventeenth Street NW

Washington DC 20036

Alexis.wansac@pillsburylaw.com

Thomas.hill@pillsburylaw.com

Counsel for Coleman American Moving Services

Justin T. Berger

COTCHETT, PITRE & MCCARTHY

2716 Ocean Park Blvd., Suite 3088

Santa Monica, CA 90405

jberger@cpmlegal.com

Counsel for Sedona Partners LLC

Justin C. Sorel

COLE, SCOTT & KISSANE, P.A.

1645 Palm Beach Lakes Blvd., 2nd Floor

West Palm Beach, FL 33401

Justin.sorel@csklegal.com

Counsel for Hilldrup Companies, Inc.

Paul E. Pelletier

LAW OFFICES OF PAUL E. PELLETIER

3500 Morningside Drive

Fairfax, VA 22031

Pepelletier3@gmail.com

Counsel for Sedona Partners, LLC

Barry A. Postman

COLE, SCOTT & KISSANE, P.A.

222 Lakeview Avenue, Suite 120

West Palm Beach, FL 33417

Barry.postman@csklegal.com

Counsel for Hilldrup Companies, Inc.

Irene Oria 

Robert T. Wright, Jr.

FISHERBROYLES, LLP

Maura K. Monaghan 

Kristin D. Kiehn 

Melanie M. Burke 

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 28 of 30
24

199 E. Flagler Street, Suite 550

Miami, FL 33131

irene.oria@fisherbroyles.com

robert.wright@fisherbroyles.com

Counsel for Able Moving & Storage, Inc.

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, New York 10022

mkmonaghan@debevoise.com

kdkiehn@debevoise.com

mburke@debevoise.com

Counsel for Hilldrup Companies, Inc.

Andrew M. Gordon 

HINSHAW & CULBERTSON LLP

1 East Broward Blvd., Suite 1010

Fort Lauderdale, FL 33301

agordon@hinshawlaw.com

Counsel for New World Van Lines, Inc.

Matthew J. Langley

Stephen C. Lee

BENESCH, FRIEDLANDER, COPLAN & 

ARONOFF 

71 South Wacker Drive, Suite 1600

Chicago, IL 60606

mlangley@beneschlaw.com

slee@beneschlaw.com

Counsel for Dewitt Companies Limited, LLC

Brian R. Zeeck

HINSHAW & CULBERTSON LLP

151 North Franklin Street, Suite 2500

Chicago, IL 60606

bzeeck@hinshawlaw.com

Counsel for New World Van Lines, Inc.

Michael B. Silverstein

BENESCH, FRIEDLANDER, COPLAN & 

ARONOFF 

41 South High Street, Suite 2600

Columbus, OH 43215

msilverstein@beneschlaw.com

Counsel for Dewitt Companies Limited, LLC

Robert M. Borak

SPECTOR RUBIN, P.A.

3250 Mary Street, Suite 405

Miami, FL 33133

Robert.Borak@spectorrubin.com

Counsel for Paramount Transportation Systems

Robert Harris

Sammy Epelbaum

STACK FERNANDEZ & HARRIS, P.A.

1001 Brickell Bay Drive, Suite 2650

Miami, FL 33131

rharris@stackfernandez.com

sepelbaum@stackfernandez.com

Counsel for Paxton Van Lines Inc.

Craig B. Shapiro

BUCHBINDER & ELEGANT, P.A.

46 S.W. 1 Street, 4th Floor

Miami, FL 33130

cshapiro@belaw.cc

Counsel for Western Express Forwarding LLC

Stuart A. Berman

LERCH, EARLY & BREWER, CHTD.

7600 Wisconsin Avenue, Suite 700

Bethesda, MD 20814

saberman@lerchearly.com

Counsel for Paxton Van Lines, Inc.

Thomas F. Murphy

FRIEDLANDER MISLER, PLLC

5335 Wisconsin Avenue, NW, Suite 600

Washington, D.C. 20015

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 29 of 30
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tmurphy@dclawfirm.com

Counsel for Western Express Forwarding LLC

Case 1:20-cv-23242-BB Document 150 Entered on FLSD Docket 08/20/2021 Page 30 of 30