Charles Jajdelski v. Kaplan. Inc.

dissenting:

I concur in Part II of the majority’s memorandum disposition, but I respectfully dissent from Part I.

Claims brought pursuant to the False Claims Act are subject to -heightened pleading requirements. Fed.R.Civ.P. 9(b); Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054-55 (9th Cir.2011). Rule 9(b) “requires a party to state with particularity the circumstances constituting fraud or mistake, including *537 the who, what, when, where, and how of the misconduct charged.” Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998 (9th Cir.2010) (internal quotation marks omitted). While a plaintiff need not provide “representative examples of false claims to support every allegation,” he must at least allege “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” Id. at 998-99 (quotation marks omitted); see also United States ex rel. Lee v. SmithKline Beeeham, Inc., 245 F.3d 1048, 1051-52 (9th Cir.2001) (explaining that Rule 9(b) requires that a complaint be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute…

MEMORANDUM **

Charles Jajdelski alleges that his former employer, a for-profit college owned by Kaplan, violated the False Claims Act, 81 U.S.C. §§ 3729-8733 , by submitting financial aid claims to the U.S. Department of Education for students not genuinely in attendance and by making false representations to secure re-accreditation.

Kaplan filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6), which the district court granted with prejudice. We affirm on the accreditation claim but reverse and remand on the claim based upon student enrollment.

I

A

Jajdelski was an Admissions Representative with experience doing the same job at another Kaplan-owned college. Compl. ¶ 7-8. He attended an October 25, 2003 Heritage graduation ceremony at which five boxes of diplomas were never distributed. Compl. ¶ 9. Suspicious about the widespread student absences, he made inquires with a Department Chairperson who first secured an assurance from Jaj-delski that he could be trusted, and then who brought the Director of Education into the conversation “to tell [him] what was going on at Kaplan Heritage College.” Compl. ¶ 11. The Director explained that the…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT FEB 13 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 11-16651

Plaintiff, D.C. No. 2:05-cv-01054-KJD-

GWF

and

CHARLES JAJDELSKI, ex rel., MEMORANDUM*

Plaintiff - Appellant,

v.

KAPLAN. INC.,

Defendant - Appellee.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Argued and Submitted December 7, 2012 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: O’SCANNLAIN and CALLAHAN, Circuit Judges, and EZRA, District Judge.**

Charles Jajdelski alleges that his former employer, a for-profit college

owned by Kaplan, violated the False Claims Act, 31 U.S.C. §§ 3729-3733, by

submitting financial aid claims to the U.S. Department of Education for students

not genuinely in attendance and by making false representations to secure re-

accreditation.

Kaplan filed a motion to dismiss…