UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA,

ex rel. ROBERT V. SMITH,

Plaintiff,

v. Case No. 3:20cv3678/MCR/EMT

JAY A. ODOM and OKALOOSA COUNTY,

BOARD OF COMMISSIONERS,

Defendants.

______________________________________/

DEFENDANT JAY A. ODOM’S MEMORANDUM IN SUPPORT OF 

MOTION TO DISMISS 

COMES NOW, Defendant Jay A. Odom (“Odom”), by and through counsel, 

and moves this Court, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 

12(b)(6), for dismissal of Relator’s Amended Complaint, ECF No. 33, with 

prejudice, and respectfully requests an award of attorneys’ fees in favor of Odom. 

In support of this Motion, Odom states the following:

I. INTRODUCTION

This is Relator Robert V. Smith’s second attempt to bring a False Claims Act 

cause of action against Odom. Relator filed his first Complaint under the False 

Claims Act, 31 U.S.C. §§ 3729, et seq., (“Federal FCA”) and the Florida False 

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Claims Act, Fla. Stat. §§ 68.081, et seq., (“Florida FCA”) (collectively “FCA”)1 on 

February 26, 2020. In response, Odom filed a Motion to Dismiss the Complaint 

outlining numerous grounds as to why Relator’s claims failed. Rather than proceed 

with the first facially defective Complaint, Relator filed this Amended Complaint 

filled with many of the same irrelevant, conclusory statements that fail to correct the 

defects in his first Complaint. 

Defendant Okaloosa County (“County”) is the airport sponsor of Destin 

Executive Airport (“DTS”), a federally obligated airport. ECF No. 33, ¶¶ 2, 17. 

Like most federally obligated airports, annually, the County enters into an agreement 

with the Federal Aviation Administration (“FAA”) to receive a grant for capital 

projects at DTS. The annual grant agreement contains a series of standard conditions 

known as “grant assurances,” which comprehensively regulate how the County 

operates DTS. Among these grant assurances is a commitment that the County will 

not grant an “exclusive right” to any airport user that provides aeronautical services 

to the public, known as a fixed base operator (FBO).

2 ECF No. 33, ¶¶ 2-3, 17, 28. 

1 Because “the Florida FCA mirrors the federal FCA,” Odom will refer to them 

collectively as the “FCA” unless otherwise noted. See United States ex rel. Pepio v. 

Prometheus Lab’ys, Inc., No. 8:18-CV-2931-T-33AAS, 2020 WL 6203527, at *8 

(M.D. Fla. Oct. 22, 2020).

2 An FBO is a business at an airport that provides all the essential services required 

by private aircraft operators,such as fuel, maintenance, servicing, and other ancillary 

services. FBOs are highly regulated enterprises.

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The grant assurance prohibition on exclusive rights echoes similar language in 

federal law. 49 U.S.C. § 40103(e). Further, the Florida Department of 

Transportation (“FDOT”) Aviation Office has developed an Aviation Grant Program 

that provides state financial assistance to Florida’s airports, also requiring certain 

grant assurances. See Section 322, et seq., Florida Statutes. 

In his Amended Complaint, Relator claims that Odom and the County violated 

the prohibition on granting an exclusive right, thereby violating the FCA. Under the 

unique procedures mandated by the FCA, Relator offered the United States and the 

State of Florida (collectively “Government”) the opportunity to prosecute this 

litigation. When both declined to do so, Relator chose to proceed with this litigation 

on his own.

Relator’s Amended Complaint should be dismissed for five reasons:

1. The FCA’s public disclosure bar prohibits these claims because Relator 

relies on publicly disclosed information and is not an original source.

2. The submissions to the Government were not false or material as a 

matter of law, and the Government knew or should have known of the 

facts underlying Relator’s Amended Complaint prior to approving the 

grants.

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3. Relator failed to state a claim with particularity, including failing to 

state how the Government was misled by any alleged false claim or 

submission.

4. Relator’s claims, which are premised on events prior to February 24, 

2014, are barred by the statute of limitations.

5. Relator’s Florida FCA claim is barred by the public disclosure 

provision for the separate reason that Relator failed to disclose the 

information to the State of Florida prior to its public disclosure in the 

original Complaint.

Each of these deficiencies is fatal to Relator’s causes of action, and dismissal of all 

counts against Defendant Odom with prejudice is warranted.

II. ARGUMENT

A. DISMISSAL FOR FAILURE TO STATE A CLAIM

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege 

“enough facts to state a claim to relief that is plausible on its face” and raises “a right 

to relief above the speculative level.” Speaker v. U.S. Dep’t. of Health & Human 

Servs., 623 F.3d 1371, 1380 (11th Cir. 2020). A claim is plausible “‘when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.’” Id. (quoting Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009)). A plaintiff must allege sufficient facts to nudge 

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his “claims across the line from conceivable to plausible.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). Further, the “tenet that a court must accept as 

true all of the allegations contained in a complaint is inapplicable to legal 

conclusions.” Iqbal, 556 U.S. at 678. A pleader’s obligation to provide the grounds 

upon which the pleader is entitled to relief requires more than labels and conclusions, 

and a mere formulaic recitation of the elements is insufficient. See id.

1. The FCA’s Public Disclosure Provision Bars These Claims

The alleged “scheme” imagined by Relator – while not fraudulent in the first 

place – was well publicized at all relevant times and years before this action was 

filed. Relator’s attempts in the Amended Complaint to create the illusion that 

Relator has “unique and independent knowledge” fails to overcome the public 

disclosure bar. The FCA prohibits causes of action where the information is 

obtained through public disclosure.3

 31 U.S.C. § 3729(a)(1)(A-B); United States ex 

rel. McCullough v. Colasante, No. 1:10cv126/MCR/GRJ, 2014 WL 12873165, at 

*2 (N.D. Fla. Mar. 31, 2014); 31 U.S.C. § 3730(e)(4)(A). “The purpose of the FCA 

3 In line with the federal statute, the Florida FCA prohibits qui tam suits based on 

publicly disclosed information. Fla. Stat. § 68.087(3). The arguments for dismissal 

of the FCA claim apply equally to the Florida FCA. See United States ex rel. Schultz 

v. Naples Heart Rhythm Specialists, P.A., No. 217CV237FTM29MRM, 2020 WL 

2473456, at *3 (M.D. Fla. May 13, 2020). Therefore, Counts IV and V, under the 

Florida FCA, should be dismissed with prejudice for the same reasons as the federal 

claims.

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is to encourage private citizens who are aware of fraud against the government to 

expose the fraud, while preventing opportunistic suits by individuals who hear of 

fraud publicly but play no part in exposing it.” United States ex rel. Matheny v. 

Medco Health Solutions, Inc., 671 F.3d 1217, 1222 (11th Cir. 2012). 

A threshold question in qui tam actions is whether the Court must dismiss the 

action pursuant to the public disclosure bar in 31 U.S.C. § 3730(e). The FCA

provides:

(A) The court shall dismiss an action or claim under this section, 

unless opposed by the Government, if substantially the same

allegations or transactions as alleged in the action or claim were 

publicly disclosed—

* * *

(iii) from the news media, 

unless the action is brought by the Attorney General or the person 

bringing the action is an original source of the information. 

31 U.S.C. § 3730(e)(4)(A) (emphasis supplied). “Original source” under the statute 

“means an individual who either (1) prior to a public disclosure under subsection 

(e)(4)(a), has voluntarily disclosed to the Government the information on which 

allegations or transactions in a claim are based, or (2) who has knowledge that is 

independent of and materially adds to the publicly disclosed allegations or 

transactions, and who has voluntarily provided the information to the Government 

before filing an action under this section.” 31 U.S.C. § 3730(e)(4)(B). 

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In applying the public disclosure bar, courts consider: (1) whether the 

allegations made by the relator have been publicly disclosed; (2) if so, whether the 

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

contained in the public disclosures; and (3) if yes, whether the relator is an original 

source of that information. United States ex rel. Osheroff v. Humana Inc., 776 F.3d 

805, 812 (11th Cir. 2015). “A relator bears the burden of proving that the public 

disclosure bar does not preclude his FCA action.” United States ex rel. May v. 

Purdue Pharma L.P., 811 F.3d 636, 640 (4th Cir. 2016). The Eleventh Circuit 

continues to recognize that § 3730(e)(4) “creates grounds for dismissal for failure to 

state a claim . . . [and] it instructs courts to dismiss an action when the public 

disclosure provision applies.” Osheroff, 776 F.3d at 810. 

For purposes of Rule 12(b)(6) review in the FCA context, and particularly 

relevant to the public disclosure analysis, a district court may consider extrinsic 

documents that are central to the Relator’s claim and documents that are judicially 

noticed.4

 Osheroff, 776 F.3d at 811; see also Jacobs v. Bank of Am. Corp., No. 1:15-

CV-24585-UU, 2017 WL 2361943, at *4 (S.D. Fla. Mar. 21, 2017), on 

reconsideration, No. 1:15-CV-24585-UU, 2017 WL 2361944 (S.D. Fla. Apr. 27, 

4 Odom is filing a Request for Judicial Notice with Exhibits A through K, which 

consist of the publicly disclosed documents that form the basis of Relator’s 

allegations, for the Court’s consideration. Those exhibits are identified herein as 

“Defs.’ Ex.__.”

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2017) (noting Rule 12(b)(6) review may take “judicial notice of facts that are not 

subject to reasonable dispute”); United States ex rel. Bernier v. InfiLaw Corp., 311 

F. Supp. 3d 1288, 1291 (M.D. Fla. 2018) (Bernier I) (stating, in FCA cases, “courts 

may take judicial notice of documents such as newspaper articles and information 

on publicly available websites”).

a. Relator’s Allegations Have Been Publicly Disclosed

The public disclosure bar requires dismissal of this case. The scope of “news 

media” in §3730(e)(4) has a broad sweep and includes information found on publicly 

available websites. Osheroff, 776 F.3d at 813. Additionally, public record and 

Freedom of Information Act (“FOIA”) requests and materials obtained through 

discovery qualify as public disclosures under the FCA. United States ex rel. Brown 

v. Bank United Tr. 2005-1, 235 F. Supp. 3d 1343, 1359 (S.D. Fla. 2017).

Here, the Amended Complaint expressly relies upon publicly available 

information including newspaper articles; public emails; public documents from the 

Florida Secretary of State; publicly disclosed annual reports and financial 

statements; publicly available County agendas and grant applications; publicly 

available manuals, advisory opinions, and Q&As on the FAA website; and public 

records pursuant to Florida’s public records laws. See ECF No. 33, ¶¶ 25, 37-39, 

52, 55-57, 59, 60-61, 67-69, 74, 77, 80, 83, 86. Indeed, most of Relator’s allegations 

against Odom are derived from, and mirror, a March 2014 Northwest Florida Daily 

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News article. See Def.’s Ex. A, Turbulence at Destin Airport: County looks at 

possible ‘anti-trust violations,’ (“NWF News Article”).

5

Additionally, the transactions alleged in the Amended Complaint are

described in Okaloosa County’s public records and newspaper articles. See Defs.’ 

Exs. A, G, I, J. The County Agenda request, March 3, 2015, and accompanying 

amended lease agreements are publicly available through the Okaloosa County 

website at https://onbase.okaloosaclerk.com/. See Defs.’ Ex. D. Notably, the 

publicly available First Amendment to Amended and Restated Lease Agreement for 

Fixed Base Operator, March 3, 2015, explicitly proscribes an exclusive right, stating: 

“[n]othing contained herein shall be construed as permission to conduct any 

commercial activity or venture exclusive of other operators.” See Defs.’ Ex. H. 

b. Relator’s Allegations are Substantially the Same as the 

Public Disclosures

Relator fails to differentiate the Amended Complaint’s allegations from 

5 Curiously, in the Amended Complaint, Relator alleges that he was the source of 

the 2014 newspaper article; yet, he did not file the original lawsuit until six years 

later in 2020. ECF No. 33 at ¶ 134. This fact alone flies in the face of the purpose 

of the FCA pre-filing disclosure requirement, which is to encourage private 

individuals to come forward with their information at the earliest possible time. 

See ECF No. 33, ¶ 15; see also United States ex rel. v. CSL Behring, LLC, 158 F. 

Supp. 3d 782, 792–93 (E.D. Mo. 2016). Indeed, Relator’s Amended Complaint 

should be dismissed based on his own admission that he knew of, and publicly 

disclosed, the alleged fraud to the media years before the action was filed.

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information found in these public disclosures, which are substantially the same. As 

stated by the Eleventh Circuit, this second prong of the test is a “quick trigger” to 

get to the more exacting original source inquiry. Osheroff, 776 F.3d at 814. The 

significant overlap between Relator’s allegations and the public disclosures alone

“is sufficient to show that the disclosed information . . . is substantially similar to the 

allegations in the complaint.” Id.; see United States ex rel. Brown v. Walt Disney 

World Co., 361 F. App’x 66, 68 (11th Cir. 2010) (“Plaintiff relied on publicly 

disclosed information to support all of her allegations; thus, it follows that the 

disclosed information formed the basis of Plaintiff’s complaint.”).

Here, the allegations in Relator’s Amended Complaint rely on publicly 

disclosed information. For example:

• Paragraph 51, Am. Compl.: “Odom opened a second FBO, Destin 

Jet, in 2009.”

o NWF News Article: “Destin Jet opened in 2009 and began 

competing with Miracle Strip Aviation.”

• Paragraph 56, Am. Compl.: “Regal Capital’s acquisition of Miracle 

Strip Aviation, later operated as Regal Air Destin, combined with 

Odom’s Destin Jet, gave Odom an . . . exclusive right . . . .”

o NWF News Article: “Regal Capital bought out a struggling 

Miracle Strip Aviation in March of 2013 and opened Regal Jet.”

• Paragraph 67, Am. Compl.: “Sterling Diversified, LLC . . . became 

the owner of Regal Capital, and therefore controlled Regal Air.”

o NWF News Article: “Sterling Diversified LLC, a company 

managed by Odom and two partners, had bought out Regal Air.”

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• Paragraph 90, Am. Compl.: “Okaloosa County gave Odom the 

approval to merge Destin Jet with Regal Air.”

o March 3, 2015 County Agenda Request: “County agrees to 

authorize Destin Jet and Regal Air to operate under common 

ownership.”

• Paragraph 104, Am. Compl.: “The 2013 annual report filed with the 

Florida Secretary of State for Sterling Diversified listed Jay Odom, 

Chester Kroeger and Timothy Edwards as managers and Jay Odom 

as the Registered Agent.”

o NWF News Article: “Jay Odom was listed as [Sterling 

Diversified, LLC’s] registered agent and manager on ‘articles of 

organization’ filed with the Florida Division of Corporation. 

Chester Kroeger and Tim Edwards . . . are listed in the original 

documents as Odom’s co-managers.”

• Paragraph 113, Am. Compl.: “Odom publicly admitted that he still 

holds a one-third ownership interest in Sterling Diversified.”

o NWF News Article: “At the meeting Mr. Odom also informed 

the director and deputies, that as of Dec. 31, 2013, the Sterling 

Group LLC., of which he was a one-third equity partner, has 

acquired ownership of Regal Air Destin LLC.”

• Paragraph 118, Am. Compl.: “When Odom purchased Miracle Strip 

Aviation, which he later operated as Regal Air Destin[,] Odom had 

obtained an ‘Exclusive Right’ for FBO services. Odom’s Destin Jet 

was the only other FBO at the airport.”

o NWF News Article: “Harman said he is ‘fairly confident if 

Destin Jet does the right things the case is compelling enough to 

point to a single fixed base operator’ at the airport.”

Relator’s allegations are also based on public records requests Relator sent 

and information received by the County between April and December 2019. See

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Composite of Requests, Exhibit K. The instant case was filed, February 26, 2020,

within 60 days of his last records request and are clearly based on information 

provided from these requests. See ECF No. 33, at ¶¶ 47-53, 80-93.

The Amended Complaint is based on publicly available information, which 

defeats any attempt to assert these FCA claims.

c. Relator is not an Original Source

Because the information contained in the Amended Complaint was previously 

disclosed to the public, Relator may only proceed by demonstrating that he is an 

original source of the information to the Government (not the news media). A relator 

can meet the original source requirement in two possible ways: (1) disclosure to the 

government prior to public disclosure; or (2) disclosure to the government of 

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

information prior to filing an FCA action. 31 U.S.C. § 3730(e)(4)(B). The Amended 

Complaint fails to establish either exception. 

i. The Amended Complaint Fails to Allege or 

Establish a Disclosure to the United States or 

State of Florida Prior to the Publicly Disclosed 

Information

A relator may be an original source “by voluntarily disclosing information to 

the Government that forms the basis of an FCA claim prior to a public disclosure.”

See Bernier I, 311 F. Supp. 3d at 1297 (emphasis in original). However, the original 

source exception is inapplicable based on the face of the Amended Complaint. The

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Amended Complaint asserts a bare allegation that Relator “is an original source of 

the straw buyer scheme executed by Defendants.” In support, Relator only alleges 

that he provided, as the statute required, a written disclosure to the United States

sometime prior to filing the qui tam action, which would have been approximately 

February 2020. ECF No. 33, ¶ 15; 31 U.S.C § 3730(b)(2). Yet, the public 

disclosures expressly relied upon in the Amended Complaint date back and run from 

2012 through 2019. ECF No. 33, ¶¶ 12, 47-52, 55-59, 67-69, 74, 77, 80, 83, 86-87, 

91, 93. Relator even alleges that he himself publicly disclosed the information to 

the news media years before initiating the False Claims process with the U.S. 

Government. ECF No. 33 at ¶ 134. Thus, Relator must allege and demonstrate

(which he has not) that he disclosed this information to the Government prior to 

2012.

Relator attempts to overcome these public disclosures by claiming he was the 

original source of one of the news articles in 2014.

6 Id. at ¶ 134. This allegation 

does not support, and actually refutes, Relator being an original source under the 

statute, as he did not reveal the information to the Government prior to publicly 

disclosing it to the media. 31 U.S.C. § 3730(e)(4)(B). Similarly, Relator makes 

vague allegations that he discussed “problematic changes at DTS” with Sunil 

6Notably, the news article of which Relator suggests he is an original source contains

numerous quotes from other individuals, which further suggests the alleged facts 

were already in the public domain. See Def.’s Ex. A.

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Harman, the Airport Director for co-Defendant Okaloosa County. ECF No. 33 at ¶ 

135. Relator fails to state what was discussed, when it was discussed, or how it was 

discussed. These vague allegations fail to establish Relator as an original source to 

the Government. The vague disclosures to the news media or to county employee 

Harman cannot constitute disclosures to the Government because the news media 

and Harman were neither employees nor officials of the United States Government 

or the State of Florida. 

The Amended Complaint contains no allegation that Relator provided 

information to the Government prior to the public disclosures spanning at least eight 

years. Indeed, the few specific allegations refute any claim by Relator that he was 

the original source of the information. 

ii. The Amended Complaint Fails to Allege or 

Establish Disclosure of Independent Knowledge

that Materially Adds to Publicly Disclosed 

Information

A relator may still qualify as an original source where the relator possesses

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

allegations or transactions.” 31 U.S.C. § 3730(e)(4)(B). However, the new 

allegations presented in Relator’s Amended Complaint fail to show that Relator 

possesses this requisite independent and material knowledge.

“To establish original source status knowledge, a qui tam plaintiff must allege 

specific facts—as opposed to mere conclusions—showing exactly how and when he 

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or she obtained direct and independent knowledge of the fraudulent acts alleged in 

the complaint and support those allegations with competent proof.” Brown, 235 F. 

Supp. 3d at 1358 (emphasis supplied) (quoting United States ex rel. Hafter D.O. v. 

Spectrum Emergency Care, Inc., 190 F.3d 1156, 1162 (10th Cir. 1999)). 

“Secondhand information, speculation, background information, or collateral 

research do not satisfy a relator’s burden of establishing the requisite knowledge.” 

Id. “[B]ackground information that helps one understand or contextualize a public 

disclosure is insufficient to grant original source status.” Osheroff, 776 F.3d at 815; 

see also United States ex rel. Saldivar v. Fresenius Med. Care Holdings, 841 F.3d 

927, 936 (11th Cir. 2016) (“The phrase ‘direct and independent’ is most naturally 

read as creating an extreme limit on secondhand knowledge that is sufficient to 

qualify as an ‘original source.’”). Furthermore, knowledge based on research into 

or review of public records or materials, or some combination thereof, does not 

suffice. Brown, 235 F. Supp. 3d at 1359; see also United States ex rel. Lewis v. 

Walker, 438 Fed. App’x 885, 888 (11th Cir. 2011) (holding relator was not original 

source where compilation of information relator used was publicly available to 

anyone). 

Even with a second bite of the apple, Relator does not present a single, 

concrete allegation, let alone competent evidence, indicating his information is direct 

and independent of the public information. A generous review of the Amended 

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Complaint shows that Relator’s information is nothing more than a generic summary 

of publicly disclosed background information over the prior eight years cobbled 

together to imply a violation. Relator’s attempt to describe alleged “independent 

knowledge” relies entirely on vague references to interactions with DTS, vague

“prior business dealings” with Odom, and vague knowledge of unnamed employees

and unspecified “operations” at DTS. ECF No. 33, ¶¶ 15, 133. Tellingly, because 

Relator has no direct and independent knowledge of the airport transactions or the 

grant application process, he then tenuously concludes that he obtained such 

knowledge based on his “unique familiarity” with Defendants. Id. These allegations 

do not meet the specificity requirements mandated by the FCA. 

None of the allegations in Relator’s Amended Complaint pertaining to Odom

contain specific facts as to how or when Relator purportedly obtained any direct or 

independent knowledge of the allegedly fraudulent acts. By his own admission, 

Relator did not maintain an aircraft at DTS after the early 2000s. ECF No. 33 at ¶ 

45. Yet, in his Amended Complaint, Relator now alleges that he had regular 

interactions and communications with FBO employees at DTS without any details 

or specifics as to how such vague “communications” related to these claims. Id. at 

¶¶ 46, 47. Even if Relator continued to interact with the “airport community,” this

allegation is insufficient to meet the standard of original source. As stated above, 

secondhand information, speculation, background information, and collateral 

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research do not satisfy Relator’s burden of establishing independent knowledge. 

Brown, 235 F. Supp. 3d at 1358. The additional “facts” presented by Relator in the 

Amended Complaint amount to nothing more than gossip about an alleged “scam,” 

and “provide[] no more than a bare ‘scintilla’ of evidence in support of relator[‘s]

allegations. An FCA claim must be made of sterner stuff than this.” United States

ex rel. Davis v. Prince, No. 1:08CV1244, 2011 WL 13092084, at *5 (E.D. Va. June 

13, 2011).

Further, the Amended Complaint alleges a basis for Relator’s independent 

knowledge derives from his previously filed civil action against Odom pending in 

state court since 2017. See Bay Loop, et al., v. Odom, et al., Case No. 2017-CA002069, Okaloosa County, Florida;

7 see also ECF No. 33, FN 5. 

Discovery materials from a separate lawsuit may not form the basis of a qui tam

cause of action. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 

1244, 1252-53 (11th Cir. 2007); see also United States ex rel. Butler v. Magellan 

Health Servs., Inc., 74 F. Supp. 2d 1201, 1208 (M.D. Fla. 1999) (noting that 

discovery material constitutes publicly disclosed information). Thus, Relator’s 

purported independent knowledge is derived from his own publicly disclosed lawsuit 

and the discovery provided therein cannot be a basis for this action. 

7 Odom requests the Court take judicial notice of Bay Loop Land Company, Inc., et 

al., v. Odom, et al., Case No. 2017-CA-002069, Okaloosa County, Florida.

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In short, the purpose of the public disclosure bar is “to strike a balance 

between encouraging private persons to root out fraud and stifling parasitic 

lawsuits.” Schindler Elevator Corp., 563 U.S. 401 at 413 (quoting Graham Cnty. 

Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 295 

(2010)). Relator’s Amended Complaint is the latter. 

The public disclosure bar warrants dismissal of the Amended Complaint with 

prejudice. 

2. The Amended Complaint Fails to State a Claim 

On its face, Relator’s Amended Complaint fails to allege a violation of the 

FCA. The Supreme Court made clear that “[the] False Claims Act is not an allpurpose antifraud statute, or a vehicle for punishing garden-variety breaches of 

contract or regulatory violations.” Universal Health Servs. v. United States ex rel. 

Escobar, 136 S. Ct. 1989, 2003 (2016). Nor does it permit harassing or frivolous 

litigation. While Relator attempts in a meandering 47-page Amended Complaint to 

bootstrap his grievances against Odom into an actionable claim, he fails to properly 

state a claim under the FCA. 

While not entirely clear, the Amended Complaint appears to tie Counts I and 

II to both subsections (A) and (B) of § 3729(a)(1). ECF No. 33, ¶¶ 96, 97. To state 

a claim under § 3729(a)(1)(A), “a plaintiff must plausibly allege that a defendant: 

(1) presented a false claim; (2) with knowledge that the claim was false; and (3) that 

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the false claim was material to the Government’s decision to pay the claim.” Jacobs, 

2016 WL 11653744, at *5. “Under subsection (B) of the False Claims Act, a 

plaintiff must allege that: (1) the defendant made a false record or statement for the 

purpose of getting a false claim paid or approved by the government; and (2) the 

false record or statement was ‘material to a false or fraudulent claim.” Id. at *7 

(quoting 31 U.S.C. § 3729(a)(1)(B)). Under either prong, a requisite element is that 

the defendant “knowingly” took action. Because the Amended Complaint fails to 

allege an actual violation of federal regulations, the Amended Complaint does not 

meet the required standard for materiality with respect to the false claims. In short, 

the Amended Complaint does not sufficiently allege that Odom knew his conduct 

was false or fraudulent, particularly because the Government had knowledge of the 

underlying facts. The Amended Complaint should therefore be dismissed. 

a. The Amended Complaint Fails to Allege That the

County was Not in Compliance with Non-exclusivity 

Regulations

Relator’s Amended Complaint relies on baseless and conclusory allegations 

pertaining to the lawful acquisition of an FBO as an alleged violation of FAA nonexclusivity regulations. ECF No. 33 at ¶¶ 7-11. These allegations are premised on 

Relator’s misunderstanding of the meaning of, and an improper application of, an 

“exclusive right” in the grant assurances and federal law. 

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A violation of the prohibition on “exclusive rights” at an airport “is the denial 

by the airport or sponsor to afford other qualified parties an opportunity to be an onsite airport service provider.” Defs.’ Ex. B, FAA, Order 5190.6B, Change 1, Airport 

Compliance Manual, ¶ 8.9(b) (Nov. 22, 2021) (“FAA Order 5190.6B”).

8

 “The fact 

that a single business or enterprise may provide most or all of the on-airport 

aeronautical services is not, in itself, evidence of an exclusive rights violation.” Id. 

“A single enterprise may expand as needed, even if its growth ultimately results in 

the occupancy of all available space.” Id. at ¶ 8.9(d). An exclusive rights violation 

may occur when an airport sponsor takes action that “unreasonably excludes a 

qualified applicant from engaging in an on-airport aeronautical activity without just 

cause or fails to provide an opportunity for qualified applicants to be an aeronautical 

service provider.” Id. (emphasis added). 

Contrary to the premise of the Amended Complaint, the existence of a single 

FBO is not in itself a violation of the exclusive rights prohibition. The Airport 

Compliance Manual explicitly confirms this: “Where a sponsor has not entered into 

8 The Airport Compliance Manual is officially an internal FAA guidance document, 

meant to assist FAA staff in determining whether an airport sponsor is in compliance 

with the grant assurances, various laws and FAA regulations and policies. 

Compliance Manual at ¶ 1.1. However, the FAA regularly cites the Compliance 

Manual when adjudicating allegations of sponsors’ regulatory noncompliance, 

giving the document a quasi-regulatory status. See, e.g., Minch v. Cottonwood Mun. 

Airport, FAA Dkt. No. 16-17-05, Director’s Determination, 2019 FAA LEXIS 112 

(Jan. 18, 2019), at *8–9 (“FAA Order 5190.6B ... sets the policies and procedures 

for the FAA Airport Compliance Program.”).

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an express agreement, commitment, understanding, or an apparent intent to exclude 

other reasonably qualified enterprises, the FAA does not consider the presence of 

only one provider engaged in an aeronautical activity as a violation or the exclusive 

rights prohibition.” Id. at ¶ 8.2 (emphasis added). 

The allegations in the Amended Complaint do not, as a matter of law, allege 

a violation of the exclusive rights prohibition. Relator’s Amended Complaint, with 

no specifics or factual support, alleges that he is an aeronautical service provider and 

that (at some unspecific time) the County denied his “request” to lease an existing 

FBO or develop a new FBO. ECF No. 33, ¶ 91. Relator fails to acknowledge that 

a violation occurs only when an airport sponsor unreasonably excludes a qualified

applicant. Okaloosa County Airports, Florida, Minimum Standards for Full-Service 

Fixed Based Operations and Specialty Service Operations, May 30, 2008; see Def. 

Ex. B, FAA Order 5190.6B, at ¶ 8.7. Under the law, a qualified applicant is a 

corporation or person who has complied with the lengthy requirements of the

application process under Okaloosa County’s Minimum Standardsincluding, but not 

limited to: (1) providing a written letter to the Board’s Airport Director detailing the 

nature of the proposed activity as well as all supporting documentation detailing 

personal information, description of proposed operation, professional qualifications 

of the personnel who will manage or operate the service, description of the costs and 

proposed capital improvements, and pro forma statement for the first year’s activity; 

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(2) providing a current financial statement prepared and certified by a public 

accountant; (3) providing a written list of all assets owned, leased or being purchased 

to be used in the FBO; (4) providing a current credit report covering all areas in 

which the applicant has done business in the past ten years; and (5) providing written 

authorization from the FAA and all aviation or aeronautical commissions of all states 

in which the applicant has engaged in aviation business to release files related to the 

applicant. Okaloosa County Airports, Florida, Minimum Standards for Full-Service 

Fixed Based Operations and Specialty Service Operations, May 30, 2008; see FAA 

Order 5190.6B, at ¶ 8.7. Notably, nothing in the Amended Complaint alleges, or 

even implies, that Relator sought to satisfy or ever satisfied the County’s standards 

of what constitutes a “qualified applicant.”

As in the original Complaint, the Amended Complaint is devoid of any 

allegations establishing a violation of the prohibition on granting exclusive rights—

including that (a) another qualified applicant sought to engage in on-airport 

aeronautical activity; (b) the County took separate actions to exclude any other 

qualified applicant; or (c) any such actions as to any other qualified applicants were 

unreasonable. The County’s approval of the FBO lease, as alleged in the Amended 

Complaint, is not a violation so long as the County did not take future action to 

prevent competition at DTS. While Relator’s Amended Complaint alleges that the 

County did not accept Relator’s “request” for an FBO, the Amended Complaint fails 

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to allege any facts indicating that Relator or any “qualified applicant” submitted a 

proper application that was denied. Similarly, Odom’s alleged actions to consolidate 

the FBOs at DTS cannot cause the County to submit a false certification of 

compliance with all regulations because such actions were in compliance with the 

regulations. 

Relator fails to allege facts to plausibly show how any grant applications 

claiming that the County was in compliance with federal and state laws constitute a 

false claim. Relator does not, and cannot, present such allegations because the 

County has not submitted false statements or claims to the Government, nor has the 

Government approved its grant applications based on any false or misleading 

statements. 

b. Any Alleged Representation was not Material to a

Government Payment Decision 

“A misrepresentation about compliance with a statutory, regulatory, or 

contractual requirement must be material to the government’s payment decision in 

order to be actionable under the False Claims Act.” Escobar, 136 S. Ct. at 2002. 

The standard for showing materiality is demanding, and “[u]nder any understanding 

of the concept, materiality ‘look[s] to the effect on the likely or actual behavior of 

the recipient of the alleged misrepresentation.’” Id. (quoting 26 R. Lord, Williston 

on Contracts § 69:12, p. 549 (4th ed. 2003)). Key to the present case, the Supreme 

Court held, “if the Government regularly pays a particular type of claim in full 

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despite actual knowledge that certain requirements were violated, and has signaled 

no change in position, that is strong evidence that the [statutory or regulatory 

compliance] requirements are not material.” Id. at 2003-04 (emphasis added). An 

alleged representation to the Government cannot be material under the FCA, where 

the Government was not only aware of, but approved, such action. 

Here, on its face, the Amended Complaint establishes that, since at least 2013, 

the Government regularly approved the County’s grant applications with knowledge 

of the FBO arrangements alleged by Relator. ECF No. 33, ¶ 78-79. Thus, even if 

the representations were inaccurate when the County sought grants, the County’s

certifications regarding nonexclusive rights were immaterial to the award of grant 

funds because the Government knowingly continued paying funds. Indeed, the 

Amended Complaint concedes that the Government made payments with knowledge 

of the FBO acquisition at DTS. See ECF No. 33, ¶¶ 77, 138.

Similarly, the Amended Complaint fails to provide sufficient and specific 

detail as to how Odom caused the County to present a false claim that was material 

to the Government’s payment of the grant funds. The Amended Complaint and 

public records, incorporated therein, demonstrate Defendants’ transparency with 

respect to the acquisition and merger of the two FBOs. Indeed, the Amended 

Complaint admits that the FAA was fully aware an “exclusive right” issue could

arise in the future but continued to bestow grants even with this knowledge. ECF 

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No. 33, ¶¶ 78-79; see also Defs.’ Exs. E, F. The Government cannot be defrauded 

by that about which the Government is fully aware. See United States ex rel. Bane 

v. Breathe Easy Pulmonary Servs., Inc., No. 8:06-CV-40-T-33MAP, 2009 WL 

1148632, at *5 (M.D. Fla. Apr. 28, 2009) (noting that action may constitute 

vexatious and harassing litigation “where the government’s undisputed prior 

knowledge of information alleged to constitute fraud defeated any inference of a 

false claim”). 

c. Relator Has Not Pled Sufficient Allegations Showing 

That Odom Acted Knowingly, Particularly Where the 

Government Had Knowledge of the Conduct Alleged 

While evidence of specific intent to defraud is not required, “[with] regard to 

scienter, a relator must show that the defendant acted ‘knowingly,’ which the FCA 

defines as either ‘actual knowledge,’ ‘deliberate ignorance,’ or ‘reckless disregard.’” 

United States ex rel. Phalp v. Lincare Holdings, Inc., 857 F.3d 1148, 1155 (11th Cir. 

2017) (quoting 31 U.S.C. § 3729(b)). Where a relator alleges a defendant has falsely 

certified compliance with a government regulation, the court must “determine 

whether the defendant actually knew or should have known that its conduct violated 

a regulation in light of any ambiguity at the time of the alleged violation.” Id. at 857 

F.3d 1148, 1155. “Liability attaches to only those who act in gross negligence—

those who fail to make such inquiry as would be reasonable and prudent to conduct 

under the circumstances.” Id. Government knowledge may negate the necessary 

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scienter and, thus, require a relator’s claim to be dismissed. United States ex rel. 

Hunt v. Chochise Consultancy, Inc., 887 F.3d 1081, 1092 n. 10 (11th Cir. 2018). “If 

the Government pays a particular claim in full despite its actual knowledge that 

certain requirements were violated, that is very strong evidence that those 

requirements are not material . . . .” Id. “[E]vidence that the government knew the 

relevant facts at the time that the defendant submitted its claim may also show that 

the defendant understood its conduct to be lawful.” Id. (internal quotation and 

citation omitted).

While Relator’s latest iteration of his Complaint adds conjecture and inuendo, 

nothing in the Amended Complaint plausibly alleges that Odom submitted or caused 

to be submitted purported false certifications that the County complied with its grant 

assurances. ECF No. 33, ¶¶ 96-97. Indeed, Relator’s own allegations, as well as 

public documents, show that the County was in communication with and sought an 

opinion from the FAA – the agency tasked with interpreting and enforcing the 

relevant federal requirements with which the County certified. See ECF No. 33, ¶¶ 

78-79. Neither actual knowledge nor deliberate knowledge can be attributed to 

Odom under these circumstances. 

Further, the “reckless disregard” scienter was intended to capture the “ostrich 

type situation,” where a defendant has “buried his head in the sand and failed to 

make simple inquiries which would alert him that false claims are being submitted.” 

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Phalp, 857 F.3d at 1155 (internal quotations omitted). Clearly, no such situation 

exists here, where the Amended Complaint and documents necessarily embraced by 

the Amended Complaint show that Defendants took active steps to ensure that the 

County’s certifications to the FAA would be considered truthful. 

The Amended Complaint also establishes that the FAA continued to award 

federal grants to the County with full knowledge of the alleged exclusivity issue. 

United States ex rel. Harman v. Trinity Indus., 872 F.3d 645, 668 (5th Cir. 2017); 

ECF No. 33, ¶ 78. Relator points to a County Agenda Request from March 3, 2015,

which states that “concerns regarding compliance with the grant assurances . . . were 

all raised to the FAA, however in each instance the FAA determined that this is a 

lease administration issue and that the acquisition of an FBO provider – a prevalent 

practice, does not in itself constitute as a violation of grant assurances.” ECF No. 

33, ¶ 85; see also Defs.’ Ex. D.

This level of interaction with the FAA regarding the conduct at issue, pled in 

the Amended Complaint, eliminates the possibility of FCA liability on the part of 

Defendants. See Harman, 872 F.3d at 668 (noting record “[left] no question about 

‘what the government knew and when’” but instead demonstrated that the 

government continued to make payments despite full knowledge of the relator’s 

allegations). Based upon allegations conceding the FAA’s knowledge, the Amended 

Complaint fails to plead the requisite materiality or scienter to survive dismissal. 

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3. Failure to Plead Fraud with Particularity

Relator’s Amended Complaint also fails to satisfy the well-established 

heightened pleading requirements imposed when a plaintiff alleges fraud. “When a 

claim arises under the FCA, ‘Rule 8’s pleading standard is supplemented but not 

supplanted by Federal Rule of Civil Procedure 9(b).’” United States ex rel. Bernier 

v. Infilaw Corp., 347 F. Supp. 3d 1075, 1084 (M.D. Fla. 2018) (Bernier II)

(quoting Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1051 (11th Cir. 2015)). 

“Rule 9(b) imposes a heightened pleading standard for allegations of fraud, requiring 

a party to ‘state with particularity the circumstances constituting fraud or mistake.’” 

Id. at 1084-85 (quoting Fed. R. Civ. P. 9(b)). This heightened pleading standard 

prevents speculative suits against innocent actors, by requiring allegations of fraud 

to “include facts as to time, place, and substance of the defendant’s alleged fraud.” 

United States ex rel. Clausen v. Lab. Corp. of America, Inc., 290 F.3d 1301, 1308 

(11th Cir. 2002).

A complaint under the FCA satisfies Rule 9(b) if it sets forth:

(1) precisely what statements were made in what 

documents or oral representations or what omissions were 

made, 

(2) the time and place of each such statement and the 

person responsible for making (or, in the case of 

omissions, not making) same, 

(3) the content of such statements and the manner in which 

they misled the plaintiff, and

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(4) what the defendants obtained as a consequence of the 

fraud.

United States ex rel. Boros v. Health Mgmt. Assocs., Inc., No. 4:10-CV-10013-

KMM, 2012 WL 5304172, at *1–2 (S.D. Fla. Oct. 25, 2012). “When a plaintiff does 

not specifically plead the minimum elements of their allegation, it enables [him] to 

learn the complaint’s bare essentials through discovery and may needlessly harm a 

defendants’ goodwill and reputation by bringing a suit that is, at best, missing some 

of its core underpinnings, and, at worst, are baseless allegations used to extract 

settlements.” Clausen, 290 F.3d at 1313 n.24. 

 While the 173-paragraph Amended Complaint attempts to plead an alleged 

scheme, it does so only in the broadest terms and is completely devoid of the specific 

people, places, dates, content, and manner required for an FCA claim. See United 

States v. Health First, Inc., No. 6:14-cv-501-Orl-37DAB, 2016 WL 3959343, at *4 

(M.D. Fla. July 22, 2016), as amended (July 27, 2016) (dismissing complaint for 

failure to adequately plead fraud). The Amended Complaint merely adds rambling

statements that Relator received information about a vague alleged scheme from 

unidentified employees at DTS at undisclosed dates or times. ECF No. 33, ¶¶ 53, 

76, 105, 107, 116, 131. Relator’s attempt to provide allegations about the alleged 

scheme and how exactly it constituted fraud amount to nothing more than conclusory

(and incorrect) assumptions about the law surrounding exclusive rights at the airport 

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and how Relator believes the FAA should have reacted to its knowledge of the facts 

(rather than how it actually did). ECF No. 33, ¶¶ 30-39. Once these “[mere] legal 

conclusions” are disregarded, as is required at this stage, the Amended Complaint is 

without well-pleaded factual allegations to give rise to a plausible claim for relief. 

Iqbal, 556 U.S. at 679. 

Notably, Relator failed to allege how the United States, through the FAA, was 

misled by the alleged claims. A proper FCA complaint must describe with

particularity the “who, what, where, when, and how” of the alleged fraudulent 

scheme. United States ex rel. Paul v. Biotronik, Inc., No. 8:18-cv-396-T-36JSS, 

2020 WL 191146, at *5 (M.D. Fla. Apr. 20, 2020). Here, as alleged by Relator, the 

FAA was well-aware of the circumstances underlying Relator’s grievances. ECF 

No. 33, ¶¶ 52, 57. It is impossible for a County submission to be fraudulent when 

the FAA had earlier been apprised of the situation concerning the FBOs at DTS. 

B. THE CLAIMS ARE BARRED BY THE FCA’S STATUTE OF 

LIMITATIONS

Relator’s claims are premised on activities from as far back as 2012 and seeks 

damages for the period of 2012 to 2014. ECF No. 33, ¶¶ 138, 160. 

“The statute of limitations under the FCA is no ‘more than 6 years after the date’ on 

which violations of the statute are committed.” Burkes v. Dylewski, No. 1:14-CV22079-UU, 2016 WL 9526692, at *6–7 (S.D. Fla. May 3, 2016) (quoting 31 U.S.C. 

§ 3731(b)(1)). A party may raise failure to comply with the statute of limitations in 

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a motion to dismiss under Fed. R. Civ. P. 12(b)(6), when that failure is “plain on the 

face of the complaint.” Id.

Here, Relator intentionally attempts to avoid the statute of limitations by 

obscuring the specific dates on which he bases his claims. Yet, the allegations, when 

read in context with the documents incorporated in the Amended Complaint, clearly 

demonstrate that the claims are based on events that occurred six years prior to the 

filing date of Relator’s original qui tam Complaint of February 24, 2020, or this 

Amended Complaint. See ECF No. 33, ¶¶ 1-14, 138. Thus, the claims are barred 

by the statute of limitations and should be dismissed. 

C. FLORIDA FCA CLAIM SHOULD BE DISMISSED UNDER THE 

PUBLIC DISCLOSURE BAR

As noted in Odom’s original Motion to Dismiss, Relator failed to properly 

disclose all material evidence and information to the State of Florida before filing 

his Complaint asserting claims on behalf of the State. See Fla. Stat. § 68.083(3). 

That Complaint was unsealed and made public. Relator’s attempt to cure this glaring 

defect, after the allegations were made public, by belatedly disclosing it to the State

still requires dismissal. Under the Florida FCA, a court “shall dismiss an action 

brought under this act . . . , if substantially the same allegations or transactions as 

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alleged in the action were publicly disclosed . . . [i]n a . . . civil . . . hearing in which 

the state is a party.” Fla. Stat. § 68.087 (3)(a). That is precisely what occurred. 

Here, prior to disclosure to the State of Florida, the original Complaint, 

brought on behalf of the State of Florida as a named party, was unsealed on 

December 2, 2020 and served on Odom on December 12, 2020. Not until March of 

2021, after both Defendants moved for dismissal, did Relator seek to file an 

Amended Complaint and only then submit the information to the State. The 

proverbial cat was out of the bag and in the public arena at that point. Any attempt 

to circumvent Florida law by bringing a claim under the Florida FCA after disclosure 

is clearly prohibited by the statute. Fla. Stat. 68.087(3) (prohibiting publicly 

disclosed claims). Therefore, Relator’s Florida FCA claims against Odom should 

be dismissed. 

III. DISMISSAL WITH PREJUDICE

Dismissal with prejudice is proper because there is no realistic prospect that 

amendment will cure the deficiencies contained therein. “Although a district court 

‘should freely give leave [to amend] when justice so requires,’ Fed. R. Civ. P. 

15(a)(2), it may deny leave, sua sponte or on motion, if amendment would be futile.” 

L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1332 (11th Cir. 2020). Leave to 

amend would be futile if an amended complaint would still fail on a motion to 

dismiss. See id. Here, the underlying facts of this case cannot support any claim for 

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relief against Defendants, such that dismissal with prejudice is proper. See e.g.,

United States ex rel. Smith v. N.Y. Presbyterian Hosp., No. 06 CIV 4056 NRB, 2007 

WL 2142312, at *7 (S.D.N.Y. July 18, 2007) (dismissing FCA fraud claim with 

prejudice). 

IV. THE COURT SHOULD AWARD ATTORNEYS’ FEES 

Under 31 U.S.C. § 3730, a prevailing defendant is entitled to attorneys’ fees 

where a relator’s claim is “clearly frivolous, clearly vexatious, [and] brought 

primarily for purposes of harassment.” 31 U.S.C. § 3730(d)(4); see United States ex 

rel. Vuyyuru v. Jadhav, 555 F.3d 337, 356–57 (4th Cir. 2009).

V. CONCLUSION

For the reasons set forth above, Defendant Odom respectfully requests the 

Court dismiss Relator’s Amended Complaint, with prejudice, and for such other 

relief as the Court may deem appropriate, including an award of attorney’s fees. 

Dated: September 28, 2022.

Respectfully Submitted,

Counsel for Jay A. Odom

A. Benjamin Gordon

A. Benjamin Gordon, III

Florida Bar No. 528617

AnchorsGordon, P.A.

2113 Lewis Turner Blvd., Suite 100

Fort Walton Beach, Florida 32547

Phone: (850) 863-1974

Fax: (850) 863-1591

bgordon@anchorsgordon.com

cyndi@anchorsgordon.com

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and 

By: /s/ Nathaniel Hunt

Peter J. Kirsch

Nathaniel Hunt

Sarah Wilbanks

KAPLAN KIRSCH & ROCKWELL LLP

1675 Broadway, Suite 2300

Denver, CO 80202

Phone: (303) 825-7000

Fax: (303) 825-7005 

pkirsch@kaplankirsch.com

swilbanks@kaplankirsch.com

nhunt@kaplankirsch.com

Co-counsel for Defendant Jay Odom

Appearing Pro Hac Vice

LOCAL RULE 7.1(F) CERTIFICATION

Pursuant to Local Rule 7.1(F), the instant Memorandum contains 7,768

words.

CERTIFICATE OF SERVICE 

I CERTIFY that a that a true and correct copy of the foregoing has been 

electronically filed on the CM/ECF system for the Northern District of Florida, 

which will send notification of such filing to the following attorneys of record: Mark 

Davis, Clark Partington, 125 East Intendencia Street, Pensacola, Florida 32591-

3010, and Elizabeth Billhimer, Clark Partington, 4100 Legendary Drive, Suite 200, 

Destin, Florida 32541, attorneys for Relator; and to Lynn Hoshihara, Nabors Giblin 

& Nickerson, P.A., 1500 Mahan Drive, Suite 200, Tallahassee, Florida 32308, 

attorneys for Okaloosa County, and to David M. Sobotkin, U.S. Department of 

Justice, Commercial Litigation Branch, 175 N. Street, NE, Washington, DC 20002, 

attorney for the United States of America, this 28th day of September, 2022.

A. Benjamin Gordon

A. Benjamin Gordon, III

Florida Bar No. 528617

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AnchorsGordon, P.A.

2113 Lewis Turner Blvd., Suite 100

Fort Walton Beach, Florida 32547

Phone: (850) 863-1974

Fax: (850) 863-1591

bgordon@anchorsgordon.com

cyndi@anchorsgordon.com

and 

By: /s/ Nathaniel Hunt

Peter J. Kirsch

Nathaniel Hunt

Sarah Wilbanks

KAPLAN KIRSCH & ROCKWELL LLP

1675 Broadway, Suite 2300

Denver, CO 80202

Phone: (303) 825-7000

Fax: (303) 825-7005

pkirsch@kaplankirsch.com

swilbanks@kaplankirsch.com

nhunt@kaplankirsch.com

Co-counsel for Defendant Jay Odom

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