Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA, ex rel.

ELIZABETH KOEHLER, THE STATES OF

CALIFORNIA, FLORIDA, MASSACHUSETTS,

and NEW YORK, ex rel. ELIZABETH KOEHLER,

and ELIZABETH KOEHLER, individually,

MEMORANDUM AND ORDER

Plaintiffs,

17-CV-07083-LDH-LKE

v.

UNITED SITE SERVICES, INC.,

Defendant.

LASHANN DEARCY HALL, United States District Judge:

Elizabeth Koehler (“Relator”) brings this qui tam action against United Site Services, Inc.

(“Defendant”), individually and on behalf of the United States of America and the States of

California, Florida, Massachusetts, and New York (the “States”), alleging claims under the False

Claims Act (“FCA”) and analogous state laws (“State FCA Laws”).1 Defendant moves, pursuant

to Rules 9(b), 12(b)(2),2 and 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss

Relator’s non-intervened federal FCA and state FCA claims.

1 Pursuant to 31 U.S.C. § 3730(b)(4)(B), the United States declined to intervene as to the counts brought under the

FCA. The States also declined to intervene as to the counts brought pursuant to State FCA Laws.

2 Although Defendant only expressly moves to dismiss on Rules 9(b) and 12(b)(6) of the Federal Rules of Civil

Procedure, Defendant also advances arguments with respect to personal jurisdiction over it in the instant matter.

The Court, therefore, construes Defendant’s motion as also brought pursuant to Rule 12(b)(2) of the Federal Rules

of Civil Procedure.

BACKGROUND3

I. The Multiple Award Schedule

Defendant leases and services portable restrooms, restroom trailers, shower trailers, roll

off trash containers, and temporary fences. (Corrected Am. Compl. (“Am. Compl.”) ¶ 2, ECF

No. 42.) In addition, Defendant provides waste-pumping and temporary electric power services.

(Id.) According to the Corrected Amended Complaint (the “Amended Complaint”), Defendant

provides its services in all states, the District of Columbia, and United States territories.4 (Id. ¶

42; see also id. ¶¶ 5-6.)

On August 1, 2007, Defendant entered a Multiple Award Schedule (the “Schedule”) with

the Government Services Administration (the “GSA”), which acted on behalf of the United

States. (Id. ¶ 38.) Pursuant to the Schedule, Defendant contracted with “Government agencies,”

to act as a general or prime contractor, to transport, set up, and service portable restrooms,

restroom trailers, shower trailers, and hand-washing units in all states, the District of Columbia,

and United States territories through 2012. (Id. ¶¶ 39-40, 42, 44; see also id. ¶ 49 n. 3

(“Defendant contracted with agencies of the federal government . . . . ”).) In 2012, the United

States extended Defendant’s contract for an additional five-year period. (Id. ¶ 41.) Pursuant to

Sections 52.222-6 and 52.222-41 of the Schedule, Defendant and any subcontractor were

required to comply with the prevailing wage and the “minimum labor standards,” as established

under the Davis-Bacon Act and the Service Contract Act, respectively. (Id. ¶¶ 30, 35, 45-46.)

3 The following facts are taken from the Corrected Amended Complaint (the “Amended Complaint”), (Corrected

Am. Compl. (“Am. Compl.”), ECF No. 42), and, unless otherwise indicated, are assumed to be true for the purposes

of this memorandum and order

4 The Amended Complaint contains inconsistent allegations as to the areas that Defendant services. In one instance,

Relator alleges that Defendant provides services in the forty-eight contiguous states and the District of Columbia.

(Id. ¶¶ 5-6.) In another, Relator alleges that Defendant provides services in all states, the District of Columbia, and

the United States territories. For the purposes of this memorandum, the Court accepts the latter allegation as true.

(Id. ¶ 42.)

Moreover, pursuant to the Schedule, wage determinations were to be made by the Department of

Labor, representing the prevailing wage that Defendant and any subcontractor were required to

pay each classification of workers. (Id. ¶¶ 47-48.)

Additionally, while the Amended Complaint fails to identify when, at some point,

Defendant contracted with the States of Texas, Florida, Massachusetts, Washington, Colorado,

New York, and California to transport, set up, and service portable restrooms, restroom trailers,

shower trailers, and hand-washing units. (Id. ¶ 49.) According to the Amended Complaint, these

contracts contained provisions “similar to those contained within” the contracts that Defendant

entered with federal agencies. (Id. ¶ 50.)

Defendant’s National Government Account Manager, as well as other members of its

senior management team, were responsible for negotiating and managing the “[g]overnment

contracts”5 awarded to Defendant. (Id. ¶ 53.) Relator was employed by Defendant from

November 2011 to June 2016 as the Regional Sales Manager for Defendant’s South Central

Region, including the States of Texas, Louisianna, Mississippi, and Alabama. (Id. ¶ 59.) In that

capacity, Relator worked closely and frequently with Defendant’s senior management team, to

ensure that government contracts were adequately serviced. (Id. ¶¶ 54, 59; see id. ¶ 55.) In her

role, Relator oversaw all revenue generated by United Site Service in the South Central region

and resolved complaints lodged by customers, including complaints that Defendant

automatically billed them for missed service calls and “lack of service verification.” (Id. ¶¶ 60,

62.) Relator, however, did not approve government contracts; rather, only members of

Defendant’s senior management and legal teams were authorized to do so. (Id. ¶¶ 56-58.)

5 In certain instances, the Amended Complaint fails to distinguish between contracts entered by Defendant with

federal agencies and those entered with the states, referring instead only to “[g]overnment contracts.” (See, e.g., id.

¶ 52.)

A. Missed Service Calls

Defendant employed approximately one hundred delivery drivers, whose duties included

the pickup and delivery of portable restrooms, restroom trailers, shower trailers, and hand-

washing units that Defendant provided to worksites, pursuant to its government contracts. (Id. ¶

64.) Defendant also employed nearly five hundred tanker-truck and pump-truck drivers, whose

primary responsibility was to pump, maintain, and service the portable restrooms, restroom

trailers, and hand-washing units at each worksite. (Id. ¶ 66.) Additionally, Defendant scheduled

up to 1,800 services per day, in any given market. (Id. ¶ 67.) Prior to servicing the worksites,

each pump-truck and tanker-truck driver was assigned a service route via a service sheet, which

provided the schedule for the customers being serviced that day. (See id. ¶ 79.) Drivers that

missed a scheduled service were required to physically mark the missed service on their service

sheet and state the reason for the missed service. (Id. ¶ 80.) At the end of each day, the drivers

submitted their route sheets to a dispatcher, who in turn sent the sheets to Defendant’s Field

Operations Support (the “FOS”) office in California. (Id. ¶¶ 82-83.) The FOS office analyzed

the drivers’ route sheets and, in instances of missed service calls, was responsible for

rescheduling services for the following day. (Id. ¶¶ 86-87.) Defendant’s clients, including “the

[g]overnment,” were automatically billed for a set number of services per week, as set forth in

each client’s contract. (Id. ¶¶ 70, 77-78.) In cases where the services could not be performed as

scheduled, the FOS office was to credit the customer for any unperformed service and manually

adjust its bill to reflect this credit. (Id. ¶¶ 86, 89, 91.)

According to the Amended Complaint, Defendant’s pump-truck and tanker-truck drivers

frequently missed scheduled services due to illness, out-of-service trucks, traffic, and an inability

to locate units for service. (Id. ¶¶ 72, 81.) In addition, in some instances, drivers were recalled

by Defendant to avoid overtime work. (Id.) Additionally, Defendant frequently re-routed

drivers from their scheduled routes, sometimes weeks at a time, to service larger events, like

Austin City Limits, Mardi Gras, and events at Circuit of Americas. (Id. ¶ 73.) Relator alleges

that, as a result, in some markets, Defendant missed approximately 100 to 150 scheduled

services per day, including services on government contracts. (Id. ¶ 75.) However, the bills

presented to Defendant’s clients, including the government, were not manually adjusted by the

FOS office for these missing services. (Id. ¶ 92.) According to the Amended Complaint, manual

adjustments to bills were time-consuming and, thus, routinely skipped. (See id. ¶¶ 90, 92, 96-

97.) Moreover, Defendant’s senior management discouraged the FOS office from making

manual adjustments to customers’ bills to account for missed services, unless the client

complained and provided proof of the missing service. (Id. ¶¶ 93-95, 97, 105.) Accordingly,

since at least 2011, Defendant billed the government at least $30,000 per day for unperformed

services. (Id. ¶¶ 7, 61-63, 100-01, 106.)

During her employment, Relator raised concerns regarding Defendant’s failure to

manually adjust bills for missed service calls. (Id. ¶¶ 103-04.) After each complaint, senior

management directed Relator to disregard the discrepancies because she was not responsible for

overseeing government contracts. (Id. ¶ 104.) Moreover, Defendant’s senior management

informed Relator that her “bottom line” would be negatively impacted should bills be manually

adjusted to credit clients for missed service calls. (Id.)

B. Prevailing Wage

Defendant subcontracted some of the services that were to be provided under its

government contracts. (Id. ¶ 109.) Relator alleges, upon information and belief, that Defendant

entered agreements with approximately 250 subcontractors nationwide, and that approximately

ten of these subcontractors operated in the South Central Region. (Id. ¶¶ 59, 110-12.)

According to the Amended Complaint, Defendant did not implement or follow a bidding process

when selecting subcontractors to perform services under government contracts. (Id. ¶ 116.)

Moreover, Defendant did not maintain written contracts with its subcontractors, nor did it inform

subcontractors of the terms regarding drivers’ prevailing wages under the Schedule. (Id. ¶¶ 113,

118.) Relator alleges that, as a result, in some instances, Defendant’s subcontractors paid drivers

$4.00 to $5.00 less per hour than the prevailing wage for work performed under the Schedule.

(Id. ¶¶ 114-15.) And, Defendant improperly “pocketed” the monetary difference between the

wages paid to drivers by its subcontractors and the prevailing wages established under the

Schedule. (Id. ¶ 117.) Relator complained to Defendant’s senior management and leadership

teams about the issue of its subcontractor’s failure to pay drivers the prevailing wage. (Id.

¶¶ 119, 121, 123, 125-26, 128-32.) In response to at least one complaint, Defendant instructed

Relator to disregard the issues concerning the payment of the prevailing wage because Relator

did not oversee government contracts. (Id. ¶ 122.) Defendant took no further action to address

Relator’s concerns. (Id. ¶ 127.)

C. Specific Instances of Alleged Fraud

Relator alleges, upon information and belief, that Defendant contracted to provide and

service portable toilets at Camp Edwards, located in Massachusetts. (Id. ¶ 134.) According to

the Amended Complaint, Defendant admitted that the billing for services completed at Camp

Edward was “imprecise.” (Id. ¶¶ 134-35.) Relator further alleges that there are thousands of

route sheets associated with the Camp Edward contract, which, along with invoices, would

indicate missed services, unauthorized services, and a failure to reduce the client’s bill to reflect

missed services. (Id. ¶¶ 136-37.) Additionally, Relator alleges that Defendant had other

contracts with the State of Massachusetts, under which it billed the state for unperformed

services. (Id. ¶ 138-39, 142.)

Next, Relator alleges improprieties for services billed by Defendant to the United States

and individual states impacted by Hurricane Harvey, including Texas and Louisianna. (Id. ¶¶

143-44.) Specifically, under certain of the contracts, Defendant was required to deliver and set

up toilets and hand-washing units. (Id. ¶¶ 65, 145.) Relator alleges, upon information and

belief, that, from October to December 2017, Defendant billed for services that were not

performed and continued to bill for these services even after the units had been retrieved. (Id. ¶¶

148-49.) Moreover, according to the Amended Complaint, upon information and belief,

Defendant overcharged the United States government and states for the use of its shower trailers.

(Id. ¶¶ 150-52.) Relator further alleges, upon information and belief, that Defendant similarly

overcharged for restrooms, toilets, and hand-washing units provided under a separate contract

with the Federal Emergency Management Agency. (Id. ¶¶ 153-54.)

STANDARD OF REVIEW

On a motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the

Federal Rules of Civil Procedure, the plaintiff bears the burden of showing that the court has

jurisdiction over the defendant. Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158,

165 (2d Cir. 2005) (quoting Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d

779, 784 (2d Cir. 1999)); In re Magnetic Audiotape Antitrust Litigation, 334 F.3d 204, 206 (2d

Cir. 2003). To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff “need

only make a prima facie showing of personal jurisdiction over the defendant,” and the court will

“construe the pleadings and affidavits in the light most favorable to plaintiff[ ], resolving all

doubts in their favor.” Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir.

2010). “‘[A plaintiff's] prima facie showing, necessary to defeat a jurisdiction testing motion,

must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to

establish jurisdiction over the defendant.’” Id. (quoting Metro Life Ins. Co. v. Robinson-Ceco

Corp., 84 F.3d 560, 567 (2d Cir. 1996)) (internal brackets omitted).

DISCUSSION

I. Personal Jurisdiction

Defendant argues that the Amended Complaint should be dismissed, pursuant to: (1)

Rule 9(b) of the Federal Rules of Civil Procedure, for failure to plead with sufficient

particularity; (2) Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal

jurisdiction, and (3) Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a

claim. (Def.’s Mem. L. Supp. Mot. Dismiss (“Def,’s Mem.”) at 2-22, ECF No. 48-1.) Because

the question of jurisdiction is gating, the Court necessarily begins its analysis there. See Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998) (“The requirement that jurisdiction

be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of

the United States’ and is ‘inflexible and without exception.’” (quoting Mansfield, C. & L.M.R.

Co. v. Swan, 111 U.S. 379, 382 (1884))). For a court:

[t]o exercise personal jurisdiction lawfully, three requirements must be met. []“First, the

[relator’s] service of process upon the defendant must have been procedurally proper.

[]Second, there must be a statutory basis for personal jurisdiction that renders such

service of process effective . . . . []Third, the exercise of personal jurisdiction must

comport with constitutional due process principles.”

Waldman v. Palestine Liberation Org., 835 F.3d 317, 327 (2d Cir. 2016) (ellipses in original)

(quoting Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59-60 (2d Cir. 2012)).

Here, Defendant does not dispute that service was proper or that there was a statutory basis

rendering such service of process effective. (See Def.’s Mem.) Defendant, instead, argues that

Relator fails to sufficiently allege that the Court has authority to exercise personal jurisdiction

over Defendant, consistent with the Constitution. (Def.’s Mem. at 21-22.) The Court agrees.

“Pursuant to the due process clauses of the Fifth and Fourteenth Amendments, there are

two parts to the due process test for personal jurisdiction . . . : []the ‘minimum contacts’ inquiry

and the ‘reasonableness’ inquiry.” Waldman, 835 F.3d at 331 (first citing Int’l Shoe Co. v. State

of Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310 (1945); and then citing Bank

Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 127 (2d Cir. 2002)). With

respect to the minimum contacts inquiry, a court must “determine whether a defendant has

sufficient minimum contacts with the forum to justify the court’s exercise of personal

jurisdiction over the defendant.” Id. (first citing Daimler AG v. Bauman, 571 U.S. 117, 126

(2014); then citing Calder v. Jones, 465 U.S. 783, 788 (1984); then citing Int’l Shoe, 326 U.S. at

316; and then citing Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 567–68 (2d Cir.

1996)). “The assessment of minimum contacts is fact-specific and must necessarily be tailored

to the circumstances of each case.” Metro. Life Ins. Co., 84 F.3d at 570. Central to the minimum

contacts inquiry, nonetheless, is the question of whether, in totality, the defendant has

“purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus

invoking the benefits and protections of its laws,” such that the defendant “should reasonably

anticipate being haled into court there.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 242 (2d

Cir. 2007) (alteration in original) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-

75 (1985)); Charles Schwab Corp. v. Bank of Am. Corp., 883 F.3d 68, 82 (2d Cir. 2018) (“First,

courts evaluate the quality and nature of the defendant’s contacts with the forum state under a

totality of the circumstances test.” (citation and internal quotation marks omitted)).

The second prong of the due process inquiry—that is, the reasonableness inquiry— asks

whether the exercise of personable jurisdiction “is reasonable under the circumstances of the

particular case.” Metro. Life Ins. Co., 84 F.3d at 568. This inquiry “requires the court to

determine whether the assertion of personal jurisdiction over the defendant comports with

‘“traditional notions of fair play and substantial justice”’ under the circumstances of the

particular case.” Waldman, 835 F.3d at 331 (quoting Daimler, 571 U.S. at 126). When

evaluating reasonableness, a court must assess the following factors: “(1) the burden that the

exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in

adjudicating the case; (3) the plaintiff's interest in obtaining convenient and effective relief; (4)

the interstate judicial system’s interest in obtaining the most efficient resolution of the

controversy; and (5) the shared interest of the states in furthering substantive social policies.”

Metro. Life Ins. Co., 84 F.3d at 568 (citing Asahi Metal Indus. Co. v. Superior Ct. of California,

Solano Cnty., 480 U.S. 102, 113-14 (1987)).

“[T]he exercise of [personal] jurisdiction is favored where the plaintiff has made a

threshold showing of minimum contacts.” Id. Jurisdiction may, nonetheless, be “defeated where

the defendant presents a compelling case that the presence of some other considerations would

render jurisdiction unreasonable.” Id. (internal quotation marks omitted) (quoting Burger King,

471 U.S. at 477). Consequently, “[i]n assessing whether it may exercise jurisdiction over a

particular defendant, a court must weigh the relative strengths and weaknesses of each

requirement—that is, depending upon the strength of the defendant’s contacts with the forum

state, the reasonableness component of the constitutional test may have a greater or lesser effect

on the outcome of the due process inquiry.” Id. However, if a defendant’s contacts with the

forum “do not exist in sufficient abundance, that is, if the constitutionally necessary first-tier

minimum is lacking, the inquiry ends [there].” Id. (Donatelli v. Nat’l Hockey League, 893 F.2d

459 (1st Cir. 1990)). Against this backdrop, the Court undertakes the due process inquiry.

A. Minimum Contacts

“For purposes of [satisfying the minimal contacts] inquiry,” courts distinguish between

two kinds of personal jurisdiction: (1) “‘general’ jurisdiction” and (2) “‘specific’ jurisdiction.”

Metro. Life Ins. Co., 84 F.3d at 567-68 (citation omitted); see also Ford Motor Co. v. Montana

Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021) (concluding that there are “two kinds of personal

jurisdiction: general (sometimes called all-purpose) jurisdiction and specific (sometimes called

case-linked) jurisdiction”). A court’s general jurisdiction arises when “the defendant’s

affiliations with the State in which suit is brought ‘are so constant and pervasive ‘as to render it

essentially at home in the forum state.’” Waldman, 835 F.3d at 331 (alterations omitted) (quoting

Daimler, 571 U.S. at 121). Stated differently, general jurisdiction “is based on the defendant’s

general business contacts with the forum state and permits a court to exercise its power in a case

where the subject matter of the suit is unrelated to those contacts.” Metro. Life Ins. Co., 84 F.3d

at 567-68 (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-16, nn.

8-9 (1984)). When determining whether it has general jurisdiction, a “court[] impose[s] a more

stringent minimum contacts test, requiring the [relator] to demonstrate the defendant’s

‘continuous and systematic general business contacts.’” Id. (quoting Helicopteros, 466 U.S. at

416). It is well settled that where, as here, the defendant is a corporation, “aside from the truly

exceptional case, [the defendant] is at home and subject to general jurisdiction only in its place

of incorporation or principal place of business.” SPV Osus Ltd. v. UBS AG, 882 F.3d 333, 343

(2d Cir. 2018) (quoting Brown v. Lockheed Martin Corp., 814 F.3d 619, 629 (2d Cir. 2016)); see

Daimler, 571 U.S. at 137 (“With respect to a corporation, the place of incorporation and

principal place of business are paradig[m] . . . bases for general jurisdiction.” (alterations in

original)). In addition, where a plaintiff “has not alleged that [the defendant-corporation] is

headquartered or incorporated in [the forum state], nor . . . alleged facts sufficient to show that

[the defendant-corporation] is otherwise at home in [the forum state],” a court may not exercise

general jurisdiction over the defendant-corporation. See Justiniano v. First Student Mgmt. LLC,

No. 16CV02729, 2017 WL 1592564, at *4 (E.D.N.Y. Apr. 26, 2017) (internal quotations and

citation omitted); Id. (“From Daimler, the proposition emerged that it ‘would be inconsistent

with due process’ to exercise general jurisdiction where a plaintiff ‘has not alleged that [the

defendant] is headquartered or incorporated in New York, nor has it alleged facts sufficient to

show that [the defendant] is otherwise “at home” in New York.’” (alterations in original)

(emphasis in original) (quoting Cont’l Indus. Group v. Equate Petrochemical Co., 586

Fed.App’x. 768, 769-70 (2d Cir. 2014))).

In the instant matter, Relator concedes that Defendant’s principal place of business is

Massachusetts. (Am. Compl. ¶¶ 3, 22.) Critically, too, Relator fails to allege that Defendant is

incorporated in New York. (See Am. Compl..) Indeed, the Amended Complaint does not

include any allegation regarding the state in which Defendant is incorporated. (See Am. Compl.)

Nor has Relator alleged a single fact from which the Court can infer that Defendant is otherwise

“at home” in New York. (See Am. Compl.) It is, therefore, plain to the Court that it cannot

exercise general jurisdiction over Defendant. See Daimler, 571 U.S. at 137; SPV, 882 F.3d at

343; Justiniano, No. 16CV02729, 2017 WL 1592564, at *4.

Nor are the contacts alleged here sufficient to support the exercise of specific jurisdiction

over Defendant. “Specific jurisdiction exists when ‘a State exercises personal jurisdiction over a

defendant in a suit arising out of or related to the defendant’s contacts with the forum.’” Metro.

Life Ins. Co., 84 F.3d at 567-68 (citation omitted). That is, a court exercises specific jurisdiction

where “the defendant has ‘purposefully directed’ his activities at residents of the forum, and the

litigation results from alleged injuries that arise out of or relate to” those activities. Burger King,

471 U.S. at 477 (first quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984); and

then quoting Helicopteros, 466 U.S. at 414). “The inquiry of whether a forum State may assert

specific jurisdiction over a nonresident defendant focuses on the relationship among the

defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 283-84 (2014)

(citations and internal quotation marks omitted). Stated differently, “specific jurisdiction is

confined to adjudication of issues deriving from, or connected with, the very controversy that

establishes jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919

(2011) (citation and internal quotation marks omitted). As such, the forum state, as well as the

defendant’s activities there, must have a “substantial connection” to a relator’s claims. SPV, 882

F.3d at 344 (“The defendant’s suit-related conduct must create a substantial connection with the

forum State.” (alteration accepted) (internal quotation marks omitted) (quoting Walden, 571 U.S.

at 284)). Notably, with respect to each claim, there must be “suit-related conduct [that] create[s]

a substantial connection with the forum State.” Walden, 571 U.S. at 284; see Charles Schwab

Corp., 883 F.3d at 83-84 (“A [relator] ‘must establish the court’s jurisdiction with respect to each

claim asserted.’” (quoting Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004))).

Here, Relator’s federal claims arise under §§ 3729(a)(1)(A), (B), and (C) of the FCA. To

establish a claim under §§ 3729(a)(1)(A) and (B) of the FCA, a relator must show that the

defendant: “(1) made a claim, (2) to the United States government, (3) that is false or fraudulent,

(4) knowing of its falsity, and (5) seeking payment from the federal treasury.” Mikes v. Straus,

274 F.3d 687, 695 (2d Cir. 2001). Moreover, for a relator to state a claim pursuant to

§ 3729(a)(1)(C) of the FCA, she must plead sufficient facts showing that: (1) the defendant

conspired with at least two persons for the purpose of getting a false or fraudulent claim allowed

or paid by the United States; and (2) at least one of the conspirators performed an act “to effect

the object of the conspiracy.” United States ex rel. Piacentile v. Amgen, Inc., 336 F. Supp. 3d

119, 136 (E.D.N.Y. 2018) (internal quotation marks omitted) (citing United States ex rel. Wood

v. Allergan, Inc., 246 F. Supp. 3d 772 (S.D.N.Y. 2017), rev’d and remanded on other grounds,

899 F.3d 163 (2d Cir. 2018)). The issue, here, as to specific jurisdiction is, therefore, whether

Defendant’s contacts in connection with its alleged submission of false claims and alleged

conspiracy to submit false claims to the United States for payment created a substantial

connection with New York. See Walden, 571 U.S. at 284 (“For a [s]tate to exercise jurisdiction

consistent with due process, the defendant's suit-related conduct must create a substantial

connection with the forum [s]tate.”). They did not.

Defendant’s alleged conduct can be summarized as follows: (1) Defendant contracted

with federal entities to perform pre-scheduled services throughout the forty-eight contiguous

states, Washington D.C., and United States territories, (Am. Compl. ¶¶ 39, 42, 77); (2) missed

pre-scheduled service calls for clients, including for its “government contracts,” (see id. ¶¶ 70-

72, 75, 81); (3) failed to adjust the amount billed to “the government” to account for these

unperformed services, (id. ¶¶ 61, 92, 97, 100-01, 106); and (4) entered agreements with

subcontractors who, in contravention of the Schedule, failed to pay drivers the proscribed

prevailing wage, (id. ¶¶ 30-31, 45, 48, 109, 114-15). Fatally, however, the Amended Complaint

fails to include a single allegation connecting the conduct underlying the instant claims to New

York, the forum state. (See Am. Compl.) For example, Relator fails to allege that Defendant

missed any service call scheduled to occur in New York or failed to adjust bills for any

unperformed services that occurred in New York. (See id.) Likewise, the Amended Complaint

fails to allege that any driver who was not paid the prevailing wage was assigned to work in New

York.6 Indeed, although Relator enumerates specific instances of fraud alleged to have occurred

in Massachusetts, Texas, and Louisianna, conspicuously absent is any example of specific fraud

committed in New York. (See Am. Compl. ¶¶ 134-54.) Rather, New York is only included in

the Amended Complaint as a place, among other states, where the contracts were performed.

(See e.g. Id. ¶¶ 6, 42, 49.) However, such a “general connection[] with the forum [is] not enough

to support the exercise of specific jurisdiction.” SPV, 882 F.3d at 344 (internal quotation marks

omitted) (quoting Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty.,

582 U.S. 255, 264 (2017)). As such, Relator plainly fails to provide the Court with a basis on

which to exercise specific jurisdiction over Defendant.

Nonetheless, in an effort to convince the Court otherwise, Relator also contends that,

under the “effects test,” the Court may exercise personal jurisdiction over Defendant. (Relator’s

Mem. L. Supp. Opp’n Mot. Dismiss (“Relator’s Mem.”) at 10-11, ECF No. 48-2.) Not so. In

this Circuit, “where . . . the conduct that forms the basis for the controversy occurs entirely out-

of-forum, and the only relevant jurisdictional contacts with the forum are therefore in-forum

6 In her opposition, Relator newly alleges, in conclusory fashion, that Defendant “committed fraudulent acts within

th[e Eastern District of New York]” by “knowingly submitting false claims to the government entities operating in

th[e Eastern District of New York].” (Relator’s Mem. L. Supp. Opp’n Mot. Dismiss (“Relator’s Mem.”) at 10, ECF

No. 48-2.) Even assuming that this allegation was not conclusory, “a party may not assert new facts or legal theories

for the first time in opposition papers, as a party may not use motion papers to amend the allegations in its

complaint.” United States v. Westchester Fire Ins. Co., No. 22 CV 15, 2025 WL 2916630, at *6 (S.D.N.Y. Oct. 10,

2025) (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998); see also Shah v. Helen Hayes Hosp.,

252 F. App’x 364, 366 (2d Cir. 2007) (“A party may not use his or her opposition to a dispositive motion as a means

to amend the complaint.”). As such, the Court disregards these new allegations. See United States ex rel. Foreman

v. AECOM, 19 F.4th 85, 107 (2d Cir. 2021) (“A district court . . . ‘errs when it consider[s] . . . or relies on factual

allegations contained in legal briefs or memoranda in ruling on a 12(b)(6) motion to dismiss.’” (quoting Friedl v.

City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000))). For similar reasons, the Court disregards the allegations that

“Defendant maintains business operations within New York and has derived substantial revenue from government

contracts executed within this jurisdiction,” which also appear for the first time in Relator’s opposition brief. See

Westchester Fire Ins. Co., No. 22 CV 15, 2025 WL 2916630, at *6; United States ex rel. Foreman, 19 F.4th at 107.

effects harmful to the [relator],” a court is to employ an “effects test.” Licci ex rel. Licci v.

Lebanese Canadian Bank, SAL, 732 F.3d 161, 173 (2d Cir. 2013). Under this test, “the exercise

of personal jurisdiction may be constitutionally permissible if the defendant expressly aimed its

[out-of-forum] conduct at the forum.” Id. Harmful effects, alone, however, are insufficient to

establish jurisdiction: “[T]he fact that harm in the forum is foreseeable . . . is insufficient for the

purpose of establishing specific personal jurisdiction over a defendant.” In re Platinum &

Palladium Antitrust Litig., No. 1:14-CV-9391-GHW, 2017 WL 1169626, at *42 (S.D.N.Y. Mar.

28, 2017) (quoting Waldman, 835 F.3d at 339 (quoting In re Terrorist Attacks on Sept. 11, 2001,

714 F.3d 659, 674 (2d Cir. 2013))), on reconsideration, 449 F. Supp. 3d 290 (S.D.N.Y. 2020),

aff'd in part, vacated in part on other grounds, rev'd in part on other grounds, 61 F.4th 242 (2d

Cir. 2023))).

As an initial matter, in her opposition, Relator advances conflicting arguments

concerning the appropriateness of the effects test. Specifically, despite arguing for the

application of the effects test, which is typically invoked “where . . . the conduct that forms the

basis for the controversy occurs entirely out-of-forum,” Licci, 732 F.3d at 173 (emphasis added),

Relator also contends that, because Defendant “committed fraudulent acts within this [forum],”

the Court may exercise personal jurisdiction. (Relator’s Mem. at 10 (emphasis added).)

However, critically, Relator fails to allege a single fact from which the Court could plausibly

infer that Defendant engaged in out-of-forum activity directed at New York or that any such out-

of-state activity caused Relator harm in New York. As such, even under the effects test, the

Court lacks personal jurisdiction over Defendant. See Licci, 732 F.3d at 173; In re Platinum &

Palladium Antitrust Litig., No. 1:14-CV-9391-GHW, 2017 WL 1169626, at *42. The Courts

inquiry, therefore, ends here. See Metro. Life Ins. Co., 84 F.3d at 568 (“If the [defendant’s

contacts] do not exist in sufficient abundance, that is, if the constitutionally necessary first-tier

minimum is lacking, the inquiry ends.” (citation and internal quotation marks omitted)).7

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss is GRANTED, and Relator’s

Amended Complaint is DISMISSED.

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

March 30, 2026 LASHANN DEARCY HALL

United States District Judge

7 Having dismissed the federal claims in this action, the Court declines to exercise supplemental jurisdiction over

Plaintiff's state law claims. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“[A]

district court ‘may decline to exercise supplemental jurisdiction’ if it ‘has dismissed all claims over which it has

original jurisdiction.’” (quoting 28 U.S.C.A. § 1367(c)(3))).