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UNITED STATES v. DIBONA

November 9, 1984

UNITED STATES OF AMERICA
v.
JOSEPH G. DiBONA, ET AL.


Kelly, J.


The opinion of the court was delivered by: KELLY

KELLY, J.

Defendants Joseph DiBona and David Rights were employed as the President and Secretary-Treasurer respectively of RDL, Inc. RDL, Inc. is also a named party to this action. They have been charged with, inter alia, violations of 31 U.S.C. § 3729 prohibiting the making of false claims for payment by the United States government.

 Defendants have filed a motion for reconsideration of our Order granting partial summary judgment in favor of plaintiff.

 Prior to the commencement of this civil action, DiBona and Rights were indicted and charged with three counts of making false statements to the government in violation of 18 U.S.C. § 1001. The two defendants entered guilty pleas on these charges.

 RDL, Inc. is engaged in defense contract work as a subcontractor. Among the many requirements the government imposes upon defense contractors is the obligation to file certificates which certify that the cost and pricing data submitted with the proposal was accurate, complete and current. *fn1" If this certificate was not filed, RDL would have been statutorily barred from receiving payment on its work. The evidence showed that the defendants inflated the actual number of hours worked. *fn2" After pleading guilty to making false statements, this action was brought under the False Claims Act, 31 U.S.C. § 3729 based upon the same operative facts to which defendants pled guilty to in the criminal action.

 Section 3729 reads in part,

 
. . . [A] person not a member of an armed forces of the United States is liable . . . if the person
 
(1) knowingly presents or causes to be presented to an officer or employee of the government or a member of an armed force a false or fraudulent claim for payment or approval; . . . .

 The government moved for partial summary judgment against the defendants arguing that they were estopped from denying their liability under the False Claims Act because of their guilty pleas in the antecedent criminal proceeding.

 The court granted the motion as to DiBona and Rights only. It excluded RDL, Inc. holding that it had not been found guilty in the antecedent proceeding. *fn3" RDL was free to deny its liability in the civil proceeding.

 The government asks us to reconsider the legal grounds upon which the decision was made. It is their position that RDL is liable, not on the theory of collateral estoppel, but rather on the principal of respondeat superior.

 DiBona and Rights continue to contend that the doctrine of collateral estoppel is inapplicable since the elements of the antecedent criminal action are different from the present civil action.

 Part I of the discussion will address DiBona and Rights' claim, Part II will discuss the doctrine of respondeat superior as applied to RDL. Part III deals with the government's motion to strike defendants' affidavit.

 PART I - Partial Summary Judgment Against DiBona and Rights.

 Collateral estoppel is the principal which bars relitigation between the same parties issues actually determined at a previous trial. When an ultimate issue of fact has once been determined by a valid and final judgment, that issue is precluded from again being litigated between the same parties in any future lawsuit. Ashe v. Swenson, 397 U.S. 436, 443, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970). Furthermore, it is well established that prior criminal convictions may work an estoppel in favor of the government in a ...


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