United States District Court, District of Colorado
UNITED STATES OF AMERICA, ex rel. DALE TODD, Plaintiffs,
FIDELITY NATIONAL FINANCIAL, INC., et al., Defendants.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Robert E. Blackburn Judge
This matter is before me on the Defendants’ Motion for Summary Judgment [#163] filed December 1, 2014. The plaintiff filed a response [#169], and the defendants filed a reply [#172]. I deny the motion.
I have jurisdiction over this case under 28 U.S.C. § 1331 (federal question).
II. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.
A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Id. at 1517.
Defendants Fidelity National Financial, Inc. and Fidelity National Title Insurance Company (Fidelity) provide title insurance and closing services in real estate transactions. Affiliates of Fidelity entered into contracts with the Federal Home Loan Mortgage Corporation (Freddie Mac) to provide title services in connection with the sale of properties by Freddie Mac. At the times relevant to this case and continuing to the present, the plaintiff, Dale Todd, was and is an employee of Fidelity.
In his complaint [#109], Mr. Todd alleges that Fidelity defrauded Freddie Mac by charging Freddie Mac for full and reasonable title searches while providing only worthless title searches. Mr. Todd asserts four claims under the False Claims Act (FCA) 31 U.S.C. §§ 3729 - 3733. The FCA prohibits any person from making false or fraudulent claims for payment to the United States and provides for substantial damages and civil penalties for making such claims. 31 U.S.C. § 3729. Under the FCA, private individuals, such as Mr. Todd, may bring qui tam actions in the name of the government based on violations of § 3729. 31 U.S.C. § 3730(b)(1). Three of the claims asserted by Mr. Todd are claims asserting violations of § 3729. Mr. Todd’s fourth claim is a claim that Fidelity retaliated against Mr. Todd by imposing negative employment actions against Mr. Todd in retaliation for his investigation and initiation of his claims under the FCA. 31 U.S.C. § 3730(h).
The only claim still pending is Mr. Todd’s retaliation claim. His other claims under the FCA were dismissed for failure to state a claim on which relief can be granted. Order [#146]. In my order [#146] dismissing the underlying FCA claims, I adopted the detailed and thorough recommendation [#141] of the magistrate judge, which recommendation addressed the issues raised in the motion to dismiss. The magistrate judge concluded, inter alia, that Freddie Mac was not a government entity at the relevant times for the purposes of the FCA. Therefore, any actions which may have defrauded Freddie Mac may not be the basis of a claim under § 3729 of the FCA.
IV. VIABILITY OF RETALIATION CLAIM FOLLOWING DISMISSAL UNDERLYING FCA CLAIMS
31 U.S.C. § 3730(h) provides a cause of action for any employee who is
discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under [the ...