1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 UNITED STATES OF AMERICA ex rel. No. 2:15-cv-02245 WBS AC

BRIAN MARKUS,

13 Relator, 14 MEMORANDUM AND ORDER RE: v. RELATOR’S MOTION FOR 15 RECONSIDERATION

AEROJET ROCKETDYNE HOLDINGS,

16 INC., a corporation and AEROJET ROCKETDYNE, INC., a corporation, 17 Defendants. 18

19 ----oo0oo---- 20 Before the court is relator Brian Markus’ (“relator”) 21 motion for reconsideration (Docket No. 157). On February 1, 22 2022, the court issued its order on the parties’ cross-motions 23 for summary judgment (Docket No. 155). The court ruled that 24 among the 18 contracts relator specified in his second amended 25 complaint, those awarded after the litigation commenced would not 26 be at issue, including contract no. NNM16AA02C. (Id. at 6 n.2.) 27 Relator argues the alleged false statements or 28 1 fraudulent course of conduct leading to the award of contract no. 2 NNM16AA02C occurred prior to relator filing this lawsuit, and 3 therefore, the contract should still be at issue at trial and the 4 court should reconsider its order ruling to the contrary. (Mot. 5 for Recons. at 2.) 6 Generally, “a motion for reconsideration should not be 7 granted, absent highly unusual circumstances, unless the district 8 court is presented with newly discovered evidence, committed 9 clear error, or if there is an intervening change in the 10 controlling law.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th 11 Cir. 2003). 12 The evidence relator relies on in this motion is not 13 “newly discovered.” See id. Relator’s counsel has had the 14 relevant evidence, specifically emails between employees at 15 Aerojet regarding the contract proposal at issue, in his 16 possession since 2019. (See Decl. of Tammy A. Tsoumas at ¶ 2 17 (Docket No. 169-1).) Relator’s counsel simply “did not realize” 18 the documents in his possession were regarding contract no. 19 NNM16AA02C, as they included the name for the larger project 20 under which the contract was granted. (Mot. for Recons. at 7.) 21 Relator’s counsel’s oversight as to evidence that was in his 22 possession is not a sufficient ground for the court to alter its 23 prior ruling. 24 Further, relator waived his argument by not addressing 25 it on the parties’ cross-motions for summary judgment. Relator’s 26 motion for reconsideration “may not be used to raise arguments or 27 present evidence for the first time when they could reasonably 28 have been raised” at an earlier time. See Carroll, 342 F.3d at 1 945. Defendants clearly contended in their motion for summary 2 judgment that contract no. NNM16AA02C should be excluded as it 3 was awarded after relator commenced this litigation. (Defs.’ Mot. 4 for Summ. J. at 5-6 (Docket No. 116).) Relator did not address 5 this argument in his moving papers. (See Relator’s Opp’n to 6 Defs.’ Mot. for Summ. J. at 11-13 (Docket No. 132)); (Relator’s 7 Reply to Defs.’ Opp’n to Relator’s Mot. at 7-9 (Docket No. 139).) 8 Relator was put on notice of defendants’ contention and chose to 9 waive his argument. 10 Finally, the court’s decision to exclude contract no. 11 NNM16AA02C from the contracts at issue in this case was correct 12 on its merits. Relator may not recover in this action based upon 13 contracts that were awarded after the initiation of this lawsuit, 14 regardless of when the allegedly false statements or fraudulent 15 course of conduct leading to the award of such contracts were 16 made. For his promissory fraud claim under the False Claims Act, 17 relator must prove that the false statement or fraudulent course 18 of conduct caused “the government to pay out money or forfeit 19 moneys due.” United States ex rel. Hendow v. Univ. of Phoenix, 20 461 F.3d 1166, 1174 (9th Cir. 2006). Thus, relator does not have 21 a cause of action based upon any contract until such time as the 22 award of such contract actually causes the government to pay out 23 or forfeit money. 24 The government has understood and acknowledged that 25 contracts awarded after the commencement of litigation are not at 26 issue in this case at least since it filed its statement of 27 interest. (See Statement of Int. at 3 (Docket No. 135).) 28 Although relator has been aware of the court’s ruling since May ene nnn meen nnn non nen ne nnn nn nnn neo nn

1] 8, 2019, and the government’s acquiescence in it since October 2 20, 2021, relator has yet to provide any precedent to demonstrate 3 | that the court’s ruling excluding contract no. NNM16AA02C from 4 those at issue in this case constituted clear error. 5 IT IS THEREFORE ORDERED that Relator’s motion for 6 | reconsideration (Docket No. 157) be, and the same hereby is, 7 DENIED. ‘ ak. a bho, (hi. 8 Dated: March 17, 2022 WILLIAMB.SHUBB 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28