United States District Court, W.D. Washington, Seattle
UNITED STATES OF AMERICA, ex rel. RAJU A.T. DAHLSTROM, STATE OF WASHINGTON, ex rel. RAJU A.T. DAHLSTROM, Plaintiffs,
SAUK-SUIATTLE INDIAN TRIBE OF WASHINGTON, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANTS' MOTIONS IN LIMINE AS
L. ROBART United States District Judge.
the court are: (1) Defendants Christine Marie Jody Morlock,
Robert Larry Morlock, and Ronda Kay Metcalf's
(collectively, “Individual Defendants”) motion
for summary judgment (MSJ (Dkt. # 64)), and (2) Individual
Defendants' motions in limine (MIL (Dkt. # 77)). The
court has reviewed the summary judgment motion, the
parties' submissions in support of and in opposition to
the motion, the relevant portions of the record, and the
applicable law. Being fully advised,  the court GRANTS Individual
Defendants' summary judgment motion and DISMISSES this
action WITH PREJUDICE. In light of this ruling, the court
DENIES Individual Defendants' motions in limine as MOOT.
Mr. Dahlstrom's Employment with the Tribe
Dahlstrom was initially hired as a social worker for
Defendant Sauk-Suiattle Indian Tribe of Washington's
(“the Tribe”) Indian Child Welfare Department in
2010. (6/6/19 Nedderman Decl. (Dkt. # 67) ¶ 2, Ex. 1.)
Mr. Dahlstrom became the Director of the Department in 2011.
(Id. ¶ 3, Ex. 2.) On April 30, 2015, the Tribe
appointed Mr. Dahlstrom interim Health and Social Services
(“HSS”) Director. (Id. ¶ 4, Ex. 3.)
In July 2015, the Tribe appointed him HSS Director.
(Id. ¶ 5, Ex. 4.) As an at-will employee, Mr.
Dahlstrom acknowledged that the Tribe “may terminate
[his] employment at any time, with or without cause.”
(Id. ¶ 6, Ex. 5.) The Tribe placed Mr.
Dahlstrom on administrative leave with pay in October 2015.
(Id. ¶ 7, Ex. 6.) The Tribal Counsel terminated
his employment without cause on December 4, 2015.
(Id. ¶ 8, Ex. 7; see also Metcalf
Decl. (Dkt. # 66) ¶ 2.) Mr. Dahlstrom received a letter
confirming his termination on December 8, 2015. (6/6/19
Nedderman Decl. ¶ 9, Ex. 8.)
United States of America, ex rel. Raju A.T.
Dahlstrom and State of Washington, ex rel. Raju A.T.
Dahlstrom (collectively, “Mr. Dahlstrom”) filed
this qui tam lawsuit on January 12, 2016,
approximately one month after he was terminated.
(See Compl. (Dkt. # 1).) Mr. Dahlstrom asserts
claims under the federal False Claims Act
(“FCA”), 31 U.S.C. § 3729, et seq.,
and the Washington Medicaid Fraud False Claims Act
(“the Washington Medicaid Fraud FCA”), RCW ch.
74.66. (See Compl. ¶¶ 71-82.) He also
brings claims for FCA retaliation and Washington Medicaid
Fraud FCA retaliation. (See id. ¶¶ 92-95.) On
September 26, 2016, both the United States and the State of
Washington opted not to intervene in this suit. (Not.
Declining Intervention (Dkt. # 8).) On September 28, 2016,
the court unsealed the pleadings. (9/28/16 Order (Dkt. # 9).)
The court later dismissed Mr. Dahlstrom's claims against
the Tribe on grounds of sovereign immunity but permitted Mr.
Dahlstrom's claims against Individual Defendants to
proceed. (See generally 3/21/17 Order.)
Alleged False Claims
Mr. Dahlstrom's complaint and other filings are often
confusing and difficult to follow, the parties implicitly
agree that he raises seven alleged false claims in this
lawsuit. (See MSJ at 4 (“[D]efendants believe
that there are only seven alleged false claims in this
lawsuit.”); Resp. at 10-16 (responding to the seven
alleged false claims in Defendants' motion for summary
judgment and failing to identify any additional alleged false
claims).) The court recounts the relevant facts with
respect to each such claim in the analysis section below. The
court now considers Individual Defendants' motion for
summary judgment on all of Mr. Dahlstrom's claims.
Summary Judgment Standard
judgment is proper when the pleadings, discovery, and other
materials on file, including any affidavits or declarations,
show that “there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a); see also Miranda v.
City of Cornelius, 429 F.3d 858, 860 n.1 (9th Cir.
2005). To satisfy its burden at summary judgment, a moving
party with the burden of persuasion “must establish
beyond controversy every essential element of its . . .
claim.” S. Cal. Gas Co. v. City of Santa Ana,
336 F.3d 885, 888 (9th Cir. 2003) (internal quotation marks
and citation omitted). By contrast, a moving party without
the burden of persuasion “must either produce evidence
negating an essential element of the nonmoving party's
claim or defense or show that the nonmoving party does not
have enough evidence of an essential element to carry its
ultimate burden of persuasion at trial.” Nissan
Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc.,
210 F.3d 1099, 1102 (9th Cir. 2000) (citing High Tech
Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563,
574 (9th Cir. 1990)). “If the party moving for summary
judgment meets its initial burden of identifying for the
court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material
fact, the nonmoving party may not rely on the mere
allegations in the pleadings in order to preclude summary
judgment[, but instead] must set forth, by affidavit or as
otherwise provided in Rule 56, specific facts
showing that there is a genuine issue for trial.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (internal
citations and quotation marks omitted) (citing, among other
cases, Celotex Corp. v. Catrett, 477 U.S. 317, 106
non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand
summary judgment.” FTC v. Stefanchik, 559 F.3d
924, 929 (9th Cir. 2009). In addition, the evidence presented
by the parties must be admissible. See Fed. R. Civ.
P. 56(e); see also Pelletier v. Fed. Home Loan Bank of
S.F., 968 F.2d 865, 872 (9th Cir. 1992) (to survive
summary judgment, the non-moving party “ordinarily must
furnish affidavits containing admissible evidence tending to
show the existence of a genuine dispute of material
fact”). Conclusory, speculative testimony in affidavits
and moving papers is insufficient to raise genuine issues of
fact and defeat summary judgment. See Thornhill
Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738
(9th Cir. 1979). With that said, courts do not make
credibility determinations or weigh conflicting evidence at
the summary judgment stage and must view all evidence and
draw all inferences in the light most favorable to the
non-moving party. See T.W. Elec., 809 F.2d at 630-31
(citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)); see also Motley v.
Parks, 432 F.3d 1072, 1075, n.1 (9th Cir. 2005) (en
presently represented by counsel, Mr. Dahlstrom's 43-page
qui tam complaint was initially filed pro
se. (See Compl.) His complaint
contains a maze of disjointed factual allegations, numerous
related and unrelated legal and factual tangents, and many
pages of legal citations and explanations. (See
generally id.) Once he obtained representation, Mr.
Dahlstrom's filings did not significantly improve.
(See generally Dkt.) For example, his responsive
memorandum is nearly as difficult to follow as his complaint.
(Compare Resp. with Compl.) Further, his
responsive memorandum violates the court's rules
concerning formatting, and accordingly, it also violates the
court's rules governing the length of briefs. See
infra n.12, n.16; see also Local Rules W.D.
Wash. LCR 7(e), 10(a). More significantly, Mr.
Dahlstrom's citations to the record are often in error or
simply refer the court to conclusory allegations made in his
own declaration or to other irrelevant or inadmissible
evidence. See infra § III.C.4-5; n.12; (see
generally Resp.) Indeed, Mr. Dahlstrom filed over 1, 700
pages of declarations and accompanying exhibits in opposition
to Individual Defendants' motion. (See Waszak
Decl.; Pope Decl.; Dahlstrom Decl.) Yet, he cites to only a
small portion of any of these documents in his responsive
memorandum, and as noted above, many of these citations are
in error. (See generally Resp.); see also
infra § III.C.4-5; n.12.
is not . . . [the] task . . . of the district court . . . to
scour the record in search of a genuine issue of triable
fact.” Keenan v. Allan, 91 F.3d 1275, 1279
(9th Cir. 1996) (quoting Richards v. Combined Ins.
Co., 55 F.3d 247, 251 (7th Cir.1995)); see also
Greenwood, 28 F.3d at 977 (citing United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))
(“Judges are not like pigs, hunting for truffles buried
in briefs.”). The court “rel[ies] on the
nonmoving party to identify with reasonable particularity the
evidence that precludes summary judgment.”
Keenan, 91 F.3d at 1279; see also Californians
for Renewable Energy v. Cal. Pub. Utilities Comm'n,
922 F.3d 929, 936 (9th Cir. 2019). Factual citations in a
party's brief should identify the evidence that will
create a triable issue. Instead, as noted above, many of Mr.
Dahlstrom's citations direct the court to a portion or
page of the record that provides little or no support for the
cited proposition in his memorandum. In this respect, his
responsive memorandum “obfuscate[s] rather than
promote[s] an understanding of the facts” and
undermines rather than supports the proposition that there
are genuine, triable, material factual disputes.
Keenan, 91 F.3d at 251. To the extent that Mr.
Dahlstrom's responsive memorandum fails to cite evidence
in his voluminous and meandering factual filings that
demonstrates a material factual dispute for trial, the court
will not search for such a dispute here.
makes liable anyone who “knowingly presents, or causes
to be presented, a false or fraudulent claim for payment or
approval, ” or “knowingly makes, uses, or causes
to be made or used, a false record or statement material to a
false or fraudulent claim.” 31 U.S.C. §
3729(a)(1)(A), (B). A “claim” includes a direct
request for government payment as well as a reimbursement
request made to the recipients of federal funds under a
federal benefits program. 31 U.S.C. § 3729(b)(2)(A);
Universal Health Servs., Inc. v. United States
(Escobar), ___U.S.___, 136 S.Ct. 1989, 1996 (2016).
“A claim under the [FCA] requires a showing of
‘(1) a false statement or fraudulent course of conduct,
(2) made with the scienter, (3) that was material, causing
(4) the government to pay out money or forfeit moneys
due.'” United States ex rel. Campie v. Gilead
Scis., Inc., 862 F.3d 890, 899 (9th Cir. 2017) (quoting
United States ex rel. Hendow v. Univ. of Phx., 461
F.3d 1166, 1174 (9th Cir. 2006)).
it is not enough to allege regulatory violations,
id. (citing United States ex rel. Hopper v.
Anton, 91 F.3d 1261, 1266 (9th Cir. 1996)); nor “a
private scheme, ” without evidence of a claim
requesting illegal payments, United States v. Kitsap
Physicians Serv., 314 F.3d 995, 1002 (9th Cir. 2002).
Rather, the plaintiff “must establish that a false
claim was submitted to the government.” Id.
Indeed, “the false claim or statement must be the
‘sine qua non of receipt of state
funding.'” Campie, 862 F.3d at 898-99
(quoting Ebeid ex rel. United States v. Lungwitz,
616 F.3d 993, 998 (9th Cir. 2010)).
the knowledge element, a defendant acts knowingly if it has
actual knowledge, deliberate ignorance of the statement, or
reckless disregard as to the truth of the statement. 31
U.S.C. § 3729(b)(1). “Innocent mistakes, mere
negligent misrepresentations and differences in
interpretations” do not constitute knowingly false
statements. United States ex rel. Hopper v. Anton,
91 F.3d 1261, 1267 (9th Cir. 1996).
failure to raise a triable issue of fact as to any of these .
. . elements justifies the summary judgment dismissal of [the
relator's] claims.” Kitsap Physicians
Serv., 314 F.3d at 1000 (citing Hagood v. Sonoma
Cty. Water Agency, 81 F.3d 1465, 1477-79 (9th Cir.
1996)). Although his claims and arguments are at times
confusing and difficult to follow, the court endeavors to
understand and then address each of Mr. Dahlstrom's
asserted FCA claims.
False Claim 1-Alleged Transfer of Properties
Dahlstrom alleges that the Tribe “purchased properties,
in excess of $500, 000[.00], ” and “transferred
real properties to various persons or agents of the . . .
Tribe in contravention of the IRA-process approved for
bringing fee-land into trust-land.” (Compl. ¶
16(a) (footnote added); see also Id. ¶¶
75-82.) In his deposition, Mr. Dahlstrom testified that this
claim applies to Ms. Metcalf but not to Dr. Morlock or Mr.
Morlock. (6/6/19 Nedderman Decl. (Dkt. # 67) ¶ 14, Ex.
13 (“Dahlstrom Dep.”) at 133:25-134:2,
479:20-480:4.) When asked to describe Ms. Metcalf's
involvement, Mr. Dahlstrom stated that it was his
understanding that she was “the spokesperson and the
signer on behalf of the council [for] . . . these
transactions.” (Id. at 480:8-10.) When pressed
for specific evidence of wrongdoing by Ms. Metcalf, Mr.
Dahlstrom stated in his deposition that she “served as
both general manager . . . [and] was also a voting member on
the council” so that she could “either halt the
fraud or . . . perpetuate it.” (Id. at
480:18-22.) Mr. Dahlstrom offers no other material evidence.
gravamen of Mr. Dahlstrom's claim is that the tribe
“was involved in purchasing properties under false
reasons - specifically, to use federal dollars to leverage
purchases of the properties without intending to use those
purchased properties for advertised or expressed use.”
(6/6/19 Nedderman Decl. ¶ 17, Ex. 15 at 41.) Mr.
Dahlstrom states that the Tribe advertised using the
properties for children's therapeutic programs and other
services, and that he was “invited . . . to assist in
the development of effective strategies for securing these
properties, ” but “was completed [sic] shut out
of this process and left in the dark as to the real
intentions for the foregoing properties.” (Id.
during his deposition, Mr. Dahlstrom admitted that-as far has
he knows-the Tribe never went forward with its application to
the State of Washington concerning these properties.
Specifically, he testified:
Yeah, there were two different properties. I was told that it
was for the use of children - for children and for therapy
and for all sorts of programs. . . . [A]nd that was initially
what I was told was going to happen. Now, whether or not its
full implementation ever occurred, I don't know because
I'm no longer there, so I don't know. All I know is
that there was some pretense that this is what it was about,
but as far as I know, the program, at least while I was still
there, was never allowed to get off the ground. There were
representations made to the State of Washington, through my
office, that I had been directed by the council to produce a
program. We provided application for consideration and
everything. And then . . . The - only then for all of that to
come crumbling to the ground because Ms. Metcalf told me we
weren't going forward with it.
(Dahlstrom Dep. at 122:9-123:3.) Indeed, Mr. Dahlstrom
acknowledged that he knows very little about the transaction
Q: . . . Do you have any personal knowledge what specific
funds were used . . . for the purchase of these properties?
A: The only thing I know is what [a Council member] described
to me. He said the tribe gave him cash and he was supposed to
go and approach the purchasing of all this. So how that - how
that happened in terms of whether he was a front person for
providing the cash to buy property on moneys that belonged to
the tribe, whether it was through federal contracts or moneys
from the State or from a private enterprise or from tribal
resources, a casino, receipts, I don't know, all I know
is that [the council member] said the monies were pulled out
of the bank and handed to him, and in the form of a payment
that he was supposed to handle privately.
Q: But do you know who purchased [the properties], whether it
was a tribe or a private individual, do you know?
A: I never saw the documents.
Q: Okay. But you don't know if, specifically, whether any
federal funds were used to purchase this property; is that
A: I know that [a Council member] told me that they removed
money from the bank where our contracts and grants were kept.
Q: [M]y question to you is: Do you have any evidence that a
single federal dollar was used to purchase that property?
A: The only evidence that I have is that [a Council member]
indicated to me that the moneys were coming from the Coastal
Bank where the federal dollars and grant moneys are, and
that's the only reference point I have.
Q: . . . [O]ther than what [the Council member] told you,
that he purchased those properties from some source, you have
no evidence that any federal funds were used to purchase
those properties; is that correct? It's a yes or no
A: Well, it's not that simple because I don't have
discovery, but based on - based on what I know at the time,
his representations were that he was given money to purchase
property and it came out of Coastal Bank where the tribal
grants and contract money is stored.
Q: That's the only information you have?
A: That - for right now, yes.
(Id. at 126:24-127:13, 127:21-23, 129:11-16,