FILED

NOT FOR PUBLICATION OCT 24 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL RAY PERRY, United States of No. 12-35278 America ex rel., D.C. No. 6:08-cv-06307 HO Plaintiff - Appellant, District of Oregon, Eugene v.

HOOKER CREEK ASPHALT AND MEMORANDUM*

PAVING, LLC; OREGON MAINLINE

PAVING, LLC; J.C. COMPTON

CONTRACTOR, INC.; KNIFE RIVER

CORPORATION - NORTHWEST;

CENTRAL OREGON REDI-MIX, LLC;

HAP TAYLOR & SONS, INC.; WILDISH

STANDARD PAVING CO.; HAMILTON

CONSTRUCTION CO.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Oregon Michael R. Hogan, District Judge, Presiding

Argued and Submitted October 7, 2013 Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Relator Michael Perry appeals from the district court’s order dismissing

relator’s second amended complaint with prejudice. The district court ruled that

Perry’s claims failed to satisfy the pleading requirements of Federal Rules of Civil

Procedure 8(a) and 9(b). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Relator generally alleges that defendants violated the False Claims Act, 31

U.S.C. § 3729, because, among other things, they knowingly and intentionally

submitted bills to Oregon for work and materials that did not meet state quality

assurance standards, causing Oregon to submit false claims to the federal

government for reimbursement of federal highway apportionment funds. Relator’s

complaint, however, fails to allege with sufficient particularity the “who, what,

when, where and how” of any alleged incident of fraud. See, e.g., United States ex

rel. Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1054-55 (9th

Cir. 2011) (False Claims Act complaint must satisfy Federal Rules of Civil

Procedure 8(a) and 9(b)); Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993,

998 (9th Cir.) (False Claims Act complaint must satisfy the heightened plausibility

standard of Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) and Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)), cert. denied, 131 S. Ct. 801 (2010). Because

we find that the relator has failed to meet the burden of 9(b), we do not need to

address if his factual allegations are plausible under 8(a). -3-

Additionally, the district court did not abuse its discretion in dismissing

relator’s complaint with prejudice. The district court had previously granted

relator leave to amend after specifying the deficiencies of the first amended

complaint and identifying what relator would have to include in any amendment.

In light of relator’s failure to cure and his concession that he lacked the

information to do so, any further amendments would have been futile. See, e.g.,

United States ex rel. Lee v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011),

(citing Krainski v. Nevada ex rel. Bd. of Regents of Nevada System of Higher

Education, 616 F.3d 963, 972 (9th Cir. 2010)), cert. denied, 131 S. Ct. 1678

(2011).

AFFIRMED.

FILED

Perry v. Hooker Creek Asphalt, No. 12-35278 OCT 24 2013

MOLLY C. DWYER, CLERK

W. FLETCHER, Circuit Judge, concurring in the result. U.S. COURT OF APPEALS

I concur in the majority’s disposition, but not with its conclusion that

Relator “fails to allege with sufficient particularity the ‘who, what, when, where

and how’ of any alleged incident of fraud.”

In his second amended complaint, Relator provides several specific

examples of incidents that, standing alone, are sufficiently detailed to satisfy the

requirements of Rules 8(a) and 9(b). However, while these specific instances

would state plausible claims under the False Claims Act if brought individually,

Relator offers them only as “representative examples” in support of his allegations

of a broader scheme of fraud, a scheme he alleges spans more than 200 contracts.

Depending on the nature of the case, Rule 9(b) does not require Relator to

allege in detail all of the facts supporting each and every instance of a false claim.

United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1051 (9th

Cir. 2001). Pleading by means of representative examples may, in some

circumstances, satisfy Rule 9(b)’s particularity requirement. Ebeid, 616 F.3d at

998. But Relator does not allege the type of “cookie-cutter” scheme that is

amenable to pleading by representative example. To the contrary, the

representative examples provided in his second amended complaint describe a

-1- wide variety of alleged violations. Because these examples do not succeed in

alleging with particularity the details of an overall scheme of fraudulent claims, the

district court did not err in dismissing Relator’s complaint.

-2-