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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA and §

THE STATE OF TEXAS ex rel' §
DOUG MOORE, et al., §
§
Plaintiffs, § Civil Action No. 3-09-CV-1452-O
§
v. §
§
CITY OF DALLAS, TEXAS, et al., §
§
Defendants. §

CITY OF DALLAS’ ANSWER TO PLAINTIFF’S SECOND AMENDMENT

COMPLAINT AND AFFIRMATIVE DEFENSES

Defendant the City of Dallas, Texas (the “City”) answers the Second Amended

Complaint (the “Complaint) as follows, paragraph numbers in this Answer corresponding to

those in the Complaint:

Answering the unnumbered preamble (First three lines of “Case Summary” at page 2 of

the Complaint): The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them; and denies that the City’s conduct was “fraudulent.”

Pleading further, according to the Court’s docket on the PACER system for this case, the

Original Complaint and First Amended Complaint remain sealed. Pleading further, the

allegation that “the allegations set forth in the Original and First Amended Complaint are hereby

re-alleged as if set forth herein,” renders the Complaint too vague, ambiguous, circular, and

confusing to answer.

1. The City denies the allegations in this paragraph.

2. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

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3. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

4. The allegations in this paragraph assert propositions of law to which no answer is

required.

5. The allegations in this paragraph assert propositions of law to which no answer is

required.

6. The allegations in this paragraph assert propositions of law to which no answer is

required.

7. The allegations in this paragraph assert propositions of law to which no answer is

required. The City denies the commission of “proscribed acts” but admits that the City transacts

business in material part within the Northern District of Texas.

8. The City admits the allegations in this paragraph.

9. The allegations in this paragraph assert propositions of law to which no answer is

required.

10. The City lacks sufficient information either to admit or to deny the allegations in

the first sentence of this paragraph and therefore denies them. The City denies the allegations in

the second sentence of this paragraph.

11. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

12. The City admits that Moore is an individual residing at 3900 Blackjack Oak Lane,

Plano, Texas and admits Moore was certified fraud examiner and was hired as an assistant city

auditor for the City. The City admits Moore began his employment with the City on February

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11, 2009 and was terminated on December 2, 2009. The City denies the remaining allegations

in this paragraph.

13. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

14. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

15. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

16. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

17. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

18. The City admits it is a Texas home-rule municipal corporation with principal

administrative offices at 1500 Marilla Drive, Dallas, Texas 75201, in Dallas County, Texas, and

that the City’s geographic boundaries are within several counties within the State of Texas. The

City denies the remaining allegations in this paragraph.

19. The City admits the allegations in this paragraph but lacks sufficient information

either to admit or to deny the additional contents in Exhibit A and therefore deny them.

20. The allegations in this paragraph assert propositions of law to which no answer is

required.

21. The allegations in this paragraph assert propositions of law to which no answer is

required.

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22. The allegations in this paragraph assert propositions of law to which no answer is

required.

23. The allegations in this paragraph assert propositions of law to which no answer is

required.

24. The allegations in this paragraph assert propositions of law to which no answer is

required.

25. The allegations in this paragraph assert propositions of law to which no answer is

required.

26. The allegations in this paragraph assert propositions of law to which no answer is

required.

27. The allegations in this paragraph assert propositions of law to which no answer is

required.

28. The City denies the allegations in this paragraph.

29. The allegations in this paragraph assert propositions of law to which no answer is

required.

30. The allegations in this paragraph assert propositions of law to which no answer is

required.

31. The allegations in this paragraph assert propositions of law to which no answer is

required.

32. The allegations in this paragraph assert propositions of law to which no answer is

required.

33. The allegations in this paragraph assert propositions of law to which no answer is

required.

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34. The allegations in this paragraph assert propositions of law to which no answer is

required.

35. The allegations in this paragraph assert propositions of law to which no answer is

required.

36. The allegations in this paragraph assert propositions of law to which no answer is

required.

37. The City denies the allegations in this paragraph.

38. The City denies first sentence of this paragraph. The City admits the second

sentence of this paragraph.

39. The allegations in this paragraph assert propositions of law to which no answer is

required.

40. The allegations in this paragraph assert propositions of law to which no answer is

required.

41. The allegations in this paragraph assert propositions of law to which no answer is

required.

42. The allegations in this paragraph assert propositions of law to which no answer is

required.

43. The allegations in this paragraph assert propositions of law to which no answer is

required.

44. The allegations in this paragraph assert propositions of law to which no answer is

required.

45. The allegations in this paragraph assert propositions of law to which no answer is

required.

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46. The allegations in this paragraph assert propositions of law to which no answer is

required.

47. The allegations in this paragraph assert propositions of law to which no answer is

required.

48. The allegations in this paragraph assert propositions of law to which no answer is

required.

49. The City lacks sufficient information either to admit or deny the allegations in this

paragraph and therefore denies them.

50. The allegations in this paragraph assert propositions of law to which no answer is

required.

51. The allegations in this paragraph assert propositions of law to which no answer is

required.

52. The allegations in this paragraph assert propositions of law to which no answer is

required.

53. The allegations in this paragraph assert propositions of law to which no answer is

required.

54. The allegations in this paragraph assert propositions of law to which no answer is

required.

55. The City admits that Moore was assigned to four person team to audit the City’s

ambulance services accounts receivable due to his prior experience.

56. The City admits the allegations in this paragraph.

57. The City denies the allegations in this paragraph.

58. The City admits the allegations in this paragraph.

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59. The City denies the allegations in this paragraph.

60. The City denies the allegations in this paragraph.

61. The City admits the allegations in this paragraph.

62. The City admits the allegations in this paragraph.

63. The City lacks sufficient information to admit or deny the allegations in this

paragraph.

64. The City lacks sufficient information to admit or deny the allegations in this

paragraph.

65. The City denies that allegations in this paragraph.

66. The City denies that allegations in this paragraph.

67. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

68. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

69. The allegations in this paragraph assert propositions of law to which no answer is

required.

70. The City lacks sufficient information either to admit or deny the allegations in this

paragraph and therefore denies them.

71. The City denies the allegations in this paragraph.

72. The font in Exhibit E is too blurred and small to read. Further, there is no

indication what Exhibit E purports to represent. These facts, and the vague references in this

paragraph to unspecified portions of Exhibit E, make the allegations in this paragraph too vague

and ambiguous to answer. Therefore, the City is unable to admit or deny.

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73. The City denies the allegations in this paragraph.

74. The City denies the allegations in this paragraph.

75. The City denies the allegations in this paragraph.

76. The City admits the information regarding Dallas Fire Rescue request for

proposals. The City denies all remaining allegations in this paragraph.

77. The City denies the allegations in this paragraph.

78. The City denies the allegations in this paragraph.

79. The City admits that Moore received a performance review on November 10,

2009, and his performance rating was “fully successful.” The City denies all remaining

allegations in this paragraph.

80. The City admits it received a copy of Moore’s original complaint on or around

November 24, 2009 and at that time learned that Moore had filed this lawsuit. The City denies

the remaining allegations in this paragraph.

81. The City admits the allegations in this paragraph.

82. The City admits it informed Moore that his services were no longer needed and

Moore was provided with a termination letter.

83. The City denies the allegations in this paragraph.

84. The City admits that it informed Moore it no longer needed his services and the

City posted a job listing for an assistant auditor position. The City denies the remaining

allegations in this paragraph.

85. The City admits Moore amended his complaint on January 15, 2010, however

lacks sufficient information either to admit or to deny the remaining allegations in this paragraph

due to Moore’s previous complaints being sealed.

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86. The City admits that after Moore’s termination of employment, Moore sent a

letter to the City Attorney Tom Perkins informing him that Moore was “officially filing a

grievance” and requesting that the City investigate the circumstances surrounding Moore’s

termination. The City denies the remaining allegations in this paragraph.

87. The allegations in this paragraph assert propositions of law to which no answer is

required.

88. The City lacks sufficient information either to admit or to deny when Moore

received correspondence. The City admits the letter from Executive Assistant City Attorney,

Janice Moss denied Moore was terminated in retaliation for protected conduct and asserted that

no grievance process was available to Moore. The City denies the remaining allegations in this

paragraph.

89. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

90. The City denies the allegations in this paragraph.

91. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

92. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

93. The City denies the allegations in this paragraph.

94. The City lacks sufficient information either to admit or to deny the allegations in

this paragraph and therefore denies them.

95. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

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96. The City denies the allegations in this paragraph.

97. The City denies the allegations in this paragraph.

98. The City denies the allegations in this paragraph.

99. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

100. The City denies the allegations in this paragraph.

101. The City denies the allegations in this paragraph.

102. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

103. The City denies the allegations in this paragraph.

104. The City denies the allegations in this paragraph.

105. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

106. The City denies the allegations in this paragraph.

107. The City denies the allegations in this paragraph.

108. The City denies the allegations in this paragraph.

109. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

110. The City denies the allegations in this paragraph.

111. The City denies the allegations in this paragraph.

112. The City denies the allegations in this paragraph.

113. The City incorporates its response to the allegations in paragraphs 1 to 88 as if

fully set forth herein.

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114. The City denies the allegations in this paragraph.

AFFIRMATIVE DEFENSES

The City pleads the following affirmative defenses to the extent such affirmative defenses

are applicable and reserves the right to plead additional affirmative defenses, which may become

apparent during discovery in this case:

1. The City affirmatively pleads that it would have taken the same action against Plaintiff

that forms the basis of this suit based solely on information, observation, or evidence that is not

related to the fact that Plaintiff allegedly made a report protected by the Texas Whistleblower

Act or the Texas Medicaid False Claims Act or the Federal False Claims Act..

2. The City affirmatively pleads that at all relevant times in question, all of its employees,

agents, and representatives acted in good faith within the scope of their discretionary authority,

and are entitled to official immunity from Plaintiff’s claims.

3. The City affirmatively pleads that on the occasions in question, its employees acted

without malice and without intent to deprive Plaintiff of any legally protected rights.

4. The City affirmatively pleads that it is not liable to Plaintiff to the extent that Plaintiff

failed to take adequate measures to mitigate his damages.

5. The City affirmatively pleads that to the extent Plaintiff’s claims fall outside the

applicable statute of limitations, his claims are time barred.

6. The City affirmatively invokes the defense of governmental immunity and would show

that it is a municipal corporation organized and existing as a political subdivision and a unit of

government of the State of Texas and a home-rule city under the Home-Rule Amendment to the

Constitution of the State of Texas and the provisions applicable to Home-Rule Municipalities as

set forth in the Local Government Code of the State of Texas.

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7. The City affirmatively pleads that on all occasions in question all its employees,

representatives, and agents did not violate any clearly established law of which a reasonable

person would have known.

8. The City affirmatively pleads that no act or omission on its part proximately caused any

of Plaintiff’s alleged injuries or damages.

9. The City affirmatively pleads and contends that it had a legitimate, non-discriminatory

and non-retaliatory business reasons for any alleged adverse employment action suffered by

Plaintiff.

10. All employment decisions made by the City were based on legitimate, non-discriminatory

and non-retaliatory business reasons and even if Plaintiff were able to prove that the City’s

actions were based upon an impermissible motivating factor, which he cannot do, the City would

have taken the same actions in the absence of any impermissible motivating factor.

11. Relator is not an eligible relator as to asserted violations under the False Claims Act, and

is not entitled to any protections under the Act, because he was not an original source of the

information underlying the allegations asserting violations of the False Claims Act.

12. Relator’s unlawful conduct precludes him from relief under 31 U.S.C. § 3730(h).

13. Relator is not an eligible relator as to asserted violations under the False Claims Act, and

is not entitled to any protections under the Act, because his duties as an employee of the City

obligated him to investigate the very facts that he made the basis for this qui tam lawsuit and he

did not give the City sufficient notice of the allegedly fraudulent transactions and his intention to

commence this litigation.

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14. The United States and the State of Texas were aware of the facts alleged in the Complaint

or intentionally remained ignorant of those facts. Therefore there were no fraudulent claims by

the City.

15. As demonstrated by Complaint, Relator’s lack of understanding of Medicare and

Medicaid standards, regulations, and procedures provided the City with insufficient basis for the

City to self-report alleged over-billings to the United States or to the State of Texas in the time

between Relator’s partial disclosure to the City and the time that Relator commenced this civil

action.

16. The City lacked knowledge of the falsity of any claims for ambulance service to which

the Complaint refers and reasonably relied on the expertise of co-defendant Southwest General

Services of Dallas as its agent for the purpose of submitting only permissible claims in allowable

amounts. The City’s reliance on Southwest General was in good faith and reasonable under the

circumstances.

Respectfully submitted,

DALLAS CITY ATTORNEY’S OFFICE

Dallas City Hall, Room 7BN

1500 Marilla
Dallas TX 75201

BY: s/ Amy I Messer

Amy I. Messer
TXBN 00790705
Assistant City Attorney
amy.messer@dallascityhall.com (E-mail)
Peter B. Haskel
TXBN 09198900
Assistant City Attorney

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214-670-3038 (direct line)

214-670-0622 (FAX)
peter.haskel@dallascityhall.com (E-mail)
Janice S. Moss
TXBN 14586050
Assistant City Attorney
janice.moss@dallascityhall.com (E-mail)

CERTIFICATE OF SERVICE

I hereby certify that on November 1, 2010, I electronically filed the foregoing document
with the clerk of the court of the U.S. District Court, Northern District of Texas, using the
electronic case filing system of the court. The electronic filing system sent a “Notice of
Electronic Filing” to the following attorneys of record who have consented in writing to accept
this notice as service of this document by electronic means:

Kayla Cole
Charles S. Siegel
Loren Jacobson
Waters & Kraus LLP
Counsel for Plaintiff

Davis Heron
Frank Heron Weiner & Navarro
Counsel for Plaintiff

D. Paul Dalton
Cowles & Thompson PC
Counsel for Co-Defendant Southwest General Services

William McMurrey
Joshua Bock
Bracewell & Giuliani
Counsel for Co-Defendant Southwest General Services

s/ Amy I Messer

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