3137195.1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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DR. JUDY WOOD on behalf of the

UNITED STATES OF AMERICA,

Plaintiff / Relator,

- against -

APPLIED RESEARCH ASSOCIATES, INC.;

SCIENCE APPLICATIONS INTERNATIONAL

CORP.; BOEING; NuSTATS; COMPUTER

AIDED ENGINEERING ASSOCIATES, INC.;

DATASOURCE, INC.; GEOSTAATS, INC.;

GILSANZ MURRAY STEFICEK LLP;

HUGHES ASSOCIATES, INC.; AJMAL

ARBASI; EDUARDO KAUSEL; DAVID

PARKS; DAVID SHARP; DANIELE

VENEZANO; JOSEF VAN DYCK; KASPAR

WILLIAM; ROLF JENSEN & ASSOCIATES,

INC.; ROSENWASSER/GROSSMAN

CONSULTING ENGINEERS, P.C.; SIMPSON

GUMPERTZ & HEGER, INC.; S.K. GHOSH

ASSOCIATES, INC.; SKIDMORE, OWINGS &

MERRILL, LLP; TENG & ASSOCIATES, INC.;

UNDERWRITERS LABORATORIES, INC.;

WILL, JANNEY, ELSTNER ASSOCIATES,

INC.; AMERICAN AIRLINES; SILVERSTEIN

PROPERTIES; and UNITED AIRLINES,

Defendants.

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Index No.:

07-CV-3314 (GBD)

DECLARATION OF JASON

HARRINGTON IN SUPPORT OF

MOTION TO DISMISS ON

BEHALF OF GILSANZ

MURRAY STEFICEK LLP

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JASON HARRINGTON, an attorney duly admitted to practice law before the Courts of

the State of New York and the Southern District of New York, declares pursuant to 28 U.S.C. §

1746 and under penalty of perjury, that the following statements are true and accurate:

1. I am associated with the law firm of Wilson, Elser, Moskowitz, Edelman &

Dicker LLP, attorneys for defendant GILSANZ MURRAY STEFICEK LLP (“Gilsanz”), and

based upon my analysis of our file in this matter I am familiar with the facts set forth herein.

Case 1:07-cv-03314-GBD Document 56 Filed 02/28/2008 Page 1 of 4
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3137195.1

2. I respectfully submit this declaration in support of Gilsanz’s pre-answer motion

to dismiss the Complaint of Plaintiff/Relator Dr. Judy Wood (“Wood”), pursuant to Fed. R.

Civ. P. 9(b), 12(b)(1), 12(b)(6) and 12(h)(3), by joining, adopting and incorporating the

motion to dismiss, and relying upon the memorandum of law and supporting facts,

submitted by co-defendants Simpson Gumpertz & Heger, Inc. (“SGH”) and Computer Aided

Engineering Associates, Inc. (“CAE”), filed with this Court on February 28, 2008, and

docketed as item numbers 52-54 under this Court’s CM/ECF docket.

3. Gilsanz is a limited liability partnership organized and existing under the laws

of the State of New York, with its principal place of business located at 129 West 27

th

Street,

5

th

Floor, New York, New York 10001. Gilsanz engages in the practice of providing

professional engineering design and consulting services.

4. On December 28, 2007, this action was commenced, under the False Claims

Act, 31 U.S.C. §§ 3729-33, against Defendants. Wood’s Complaint alleges three causes of

action against all Defendants: (1) False Claims Act, 31 U.S.C. § 3729(a)(1) (Presentation of

False Claims); (2) False Claims Act, 31 U.S.C. § 3729(a)(2) (Making or Using False Record

or Statement); (3) False Claims Act, 31 U.S.C. § 3729(a)(7) (Reverse False Claims).

5. Defendants have responded, including Gilsanz, by moving and/or joining,

adopting and incorporating the motions of co-Defendants, to dismiss Wood’s Complaint,

pursuant to Fed. R. Civ. P. 9(b), 12(b)(1), 12(b)(6) and/or 12(h)(3).

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6. On February 28, 2008, SGH and CAE submitted their motion to dismiss, and

propounded that Wood’s claims should be dismissed pursuant to: (i) Rules 12(b)(1) and

(h)(3) for lack of subject matter jurisdiction under the False Claims Acts’s Original Source

Rule, 31 U.S.C. § 3730(e)(4)(A), as Wood provided no factual basis establishing that she

meets the statutory requirement that she is the original source of the information forming the

basis for his False Claims Act causes of action; (ii) Rule 12(b)(1) and (h)(3), because

Wood’s Complaint is based upon the same information that she provided to the National

Institute of Standards and Technology (“NIST”), which denied her claim, and that NIST

took full responsibility for the information upon which Wood’s allegations are based; (iii)

Rule 12(b)(6) because Wood failed to provide the requisite particularity to maintain a claim

under the False Claims Act and the heightened pleading requirement of Rule 9(b), which

applies to False Claims Act actions; and (iv) 15 U.S.C.S. § 281(a) again because NIST takes

full responsibility for the report, NCSTAR1, upon which Wood’s claims are based.

7. Gilsanz joins, adopts and incorporates SGH and CAE’s motion on the same

grounds as contained therein, and further submits that the Complaint lacks sufficient

specificity attributable to Gilsanz, as required by Rule 9(b).

8. For the reasons set forth herein, and within the motion to dismiss of SGH and

CAE, Gilsanz moves to dismiss Wood’s Complaint, in its entirety and with prejudice, as

against Gilsanz.

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WHEREFORE, Gilsanz Murray Steficek, LLC respectfully requests that this Court

grant its motion to dismiss, together with such other and further relief as this Court deems

just and appropriate.

Dated: New York, New York

February 28, 2008

Yours etc.,

WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP

By: /s/ Jason Harrington

Jason Harrington (JH7273)

Attorneys for Defendant

Gilsanz Murray Steficek

150 East 42

nd

Street

New York, NY 10017

(212) 490-3000 (p)

(212) 490-3038 (f)

To:

JERRY V. LEAPHART & ASSOCIATES, P.C.

Attn: Jerry V. Leaphart, Esq.

Attorneys for Plaintiff/Relator

8 West Street, Suite 203

Danbury, CT 06810

and

All appearing parties via CM/ECF

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