                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
___________________________________
UNITED STATES OF AMERICA,           :
EX REL. STEPHEN M. SHEA             :
                                    :
-and-                               :
                                    :
STEPHEN M. SHEA,                    :
                                    :
     Plaintiffs,                    :
                                    :
     v.                             :    No. 1:09-cv-1050 (GK)
                                    :
VERIZON BUSINESS NETWORK SERVICES :
INC.; VERIZON FEDERAL INC.;         :
MCI COMMUNICATIONS SERVICES, INC. :
d/b/a VERIZON BUSINESS SERVICES;    :
and CELLO PARTNERSHIP d/b/a         :
VERIZON WIRELESS,                   :
                                    :
     Defendants.                    :
___________________________________:

                              MEMORANDUM OPINION

     Relator Stephen M. Shea (“Plaintiff” or “Relator”) brings

this qui tam action against Verizon Business Network Services,

Inc., Verizon Federal Inc., MCI Communications Services, Inc.

d/b/a   Verizon    Business    Services,    and   Cello   Partnership     d/b/a

Verizon   Wireless    (“Defendants”    or    “Verizon”)     pursuant    to    the

Federal False Claims Act (“FCA”), 31 U.S.C. §§ 3729 et seq.

     This matter is before the Court on Defendants’ Motion to

Dismiss   the     Second   Amended    Complaint     [Dkt.    No.   51].      Upon

consideration of the Motion, Opposition, Reply, and the entire

record herein, and for the reasons set forth below, Defendants’




§
Motion to Dismiss is granted for lack of jurisdiction as to

Relator and granted without prejudice as to the United States.

I.     BACKGROUND 1

       Plaintiff filed his first qui tam complaint against Verizon

on January 17, 2007. Civ. No. 1:07-cv-0111 (GK) (“Verizon I”)

[Verizon I Dkt. No. 1, “2007 Complaint”]. The 2007 Complaint

explained that the “action concern[ed] the knowing submission to

the    United     States      of    certain      prohibited     surcharges       under

contracts       to    provide       telecommunications          services     between

defendant Verizon Communications Inc. (and its division Verizon

Business)       and   the     General       Services    Administration.”          2007

Complaint ¶ 2. The United States intervened in the 2007 lawsuit,

and in February 2011 the parties reached a settlement agreement

in    which   Verizon    paid      the    United   States     $93.5   million.     The

settlement agreement did not include any admission of liability.

The case was dismissed on February 28, 2011. [Verizon I Dkt. No.

41].

       Plaintiff      filed     the      current   case,    a    second    qui     tam

complaint against Verizon on June 5, 2009. Civ. No. 1:09-cv-

01050 (GK) (“Verizon II”) [Dkt. No. 1, “2009 Complaint”]. On

1
  For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253
(D.C. Cir. 1979). Therefore, unless otherwise noted, the facts
set forth herein are taken from the Second Amended Complaint.

                                           -2-
November 30, 2011, the United States informed the Court that it

was “not intervening at this time” in the 2009 lawsuit. [Dkt.

No. 26]. On July 26, 2012, Plaintiff filed his First Amended

Complaint. [Dkt. No. 37]. On September 12, 2012 Plaintiff filed

his   Second    Amended    Complaint       (“SAC”),     which    is    the    current

complaint in Verizon II and the subject of the Motion to Dismiss

presently before the Court.

      The Second Amended Complaint explains that “[t]his lawsuit

is based on a scheme by [] [Verizon] to defraud the United

States   by    knowingly   billing      the   government    for       non-allowable

surcharges . . . .” SAC ¶ 1. Plaintiff claims that his knowledge

of the fraud is “[b]ased on his experience consulting with large

commercial      telecommunications          customers”     and        that,     as   a

consultant,     he   “learned    that      most   telecommunication       carriers,

including      Worldcom,     later    named       MCI   Communications          Corp.,

acquired by Verizon in 2006 (collectively ‘MCI/Verizon’), had a

custom   and      practice      of    charging       [Non-Allowable           Tax-Like

Charges].” SAC ¶ 3. The Second Amended Complaint then alleges

that “MCI/Verizon overcharged the United States, just like its

commercial customers.” SAC ¶ 4.

      The Second Amended Complaint describes the following as the

source of Plaintiff’s insider knowledge: “In 2004, Shea received

an MCI document indicating that the company was charging the

government     for   regulatory      fee    surcharges,    and    various       state

                                        -3-
taxes, including utility taxes, ad valorem/property taxes, and

business,          occupational,           and    franchise          taxes.”       SAC    ¶    4.    The

Complaint further claims that “[a] former Verizon employee, who

worked       at    the    company         for    over     30     years      and     retired         as   a

manager, senior staff consultant, confirmed that Verizon did not

have     a    separate          billing         system     for       federal       customers         and

commercial customers, and that Verizon’s billing system did not

have   the         capability        to     turn    off        the    surcharges         that       were

generally          charged      to    all       customers.”          SAC    ¶    27.     The    Second

Amended       Complaint         then       alleges        that       “[b]ased       on     Verizon’s

practice of improperly billing Non-Allowable Tax-Like Charges to

commercial         customers         and    the     government,            on    information         and

belief,       Verizon      improperly            billed    for       Non-Allowable            Tax-Like

Charges       on    the    following            federal    telecommunication              contracts

[listing          20     contracts          between        Defendants             and     the        U.S.

government].” SAC ¶ 28.

       On September 12, 2012, Defendants filed their Motion to

Dismiss the Second Amended Complaint (“MTD”). [Dkt. No. 51]. On

September          27,     2012,          Plaintiff        filed           his     Opposition            to

Defendants’            Motion    to       Dismiss    the        Second       Amended       Complaint

(“Opposition”). [Dkt. No. 54]. On October 9, 2012, Defendants

filed their Reply in Support of their Motion to Dismiss the

Second       Amended       Complaint         (“Reply”).          [Dkt.       No.    55].       And       on




                                                   -4-
October      25,   2012,    the   United   States    filed      its    Statement    of

Interest. [Dkt. No. 56]. 2

II.    STANDARD OF REVIEW

       To    survive   a    motion   to    dismiss   under      Rule    12(b)(6),    a

plaintiff need only plead “enough facts to state a claim to

relief that is plausible on its face” and to “nudge[ ] [his or

her] claims across the line from conceivable to plausible.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[O]nce a

claim has been stated adequately, it may be supported by showing

any    set    of    facts    consistent     with     the    allegations     in     the

complaint.” Id. at 563.

       Under the Twombly standard, a “court deciding a motion to

dismiss must not make any judgment about the probability of the

plaintiffs’ success . . . [,] must assume all the allegations in

the complaint are true (even if doubtful in fact) . . . [, and]

must give the plaintiff the benefit of all reasonable inferences

derived from the facts alleged.” Aktieselskabet AF 21. November

2001   v.    Fame    Jeans   Inc.,   525     F.3d    8,    17   (D.C.   Cir.     2008)


2
   The United States takes no position as to the merits of
Defendants’ Motion to Dismiss. It simply states that because the
United States “had no part in preparing the pleadings it should
not be prejudiced if [Relator] has failed to plead his
allegations sufficiently to meet the requirements of Rules 8 and
9(b), or if [] [R]elator is barred or disqualified from pursuing
the allegations under 31 U.S.C. § 3730(b)(5) or 31 U.S.C. §
3730(e)(4).” Statement of Interest at 4. The United States then
requests that “if the Court dismisses this action, that such
dismissal be without prejudice to the United States.” Id.

                                          -5-
(citations       omitted)       (internal     quotation        marks    omitted).     A

complaint    will    not     suffice,     however,     if      it    “tenders   ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft

v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S.

at 557) (alteration in Iqbal).

      Where a defendant moves to dismiss under Rule 12(b)(1) for

lack of subject matter jurisdiction, plaintiff bears the burden

of proving by a preponderance of the evidence that the Court has

subject matter jurisdiction. See Shuler v. U.S., 531 F.3d 930,

932 (D.C. Cir. 2008). In reviewing a motion to dismiss for lack

of subject matter jurisdiction, the Court must accept as true

all   of   the    factual       allegations     set   forth     in    the   complaint;

however,     such        allegations    “will      bear     closer      scrutiny     in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion

for failure to state a claim.” Wilbur v. CIA, 273 F. Supp. 2d

119, 122 (D.D.C. 2003) (internal quotation marks omitted). The

Court may consider matters outside the pleadings and may rest

its   decision      on    its    own   resolution     of    disputed        facts.   See

Herbert v. Nat’l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir.

1992).

III. ANALYSIS

      The history of the FCA’s qui tam provisions “demonstrates

repeated    congressional         efforts     to   walk    a    fine    line    between

encouraging       whistle-blowing         and      discouraging        opportunistic

                                         -6-
behavior.”     U.S.    ex     rel.    Hampton     v.   Columbia/HCA        Healthcare

Corp., 318 F.3d 214, 217 (D.C. Cir. 2003) (quoting U.S. ex rel.

Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 651 (D.C. Cir.

1994)). As part of that effort, Congress enacted the “first-to-

file” bar. 31 U.S.C. § 3730(b)(5); see Hampton, 318 F.3d at 217.

       The first-to-file bar provides that “[w]hen a person brings

an    action   under   this        subsection,    no   person      other    than    the

Government may intervene or bring a related action based on the

facts underlying the pending action.” § 3730(b)(5).

       Our Court of Appeals has explained that this bar “furthers

the    statute’s      ‘twin     goals     of     rejecting        suits    which    the

government is capable of pursuing itself, while promoting those

which the government is not equipped to bring on its own.’” U.S.

ex rel. Batiste v. SLM Corp., 659 F.3d 1204, 1209 (D.C. Cir.

2011) (quoting Hampton, 318 F.3d at 217); see also U.S. ex rel.

Chovanec v. Apria Healthcare Group Inc., 606 F.3d 361, 364 (7th

Cir.   2010)   (explaining         that   §   3730(b)(5)     is    intended   to    bar

“secondary suits that do no more than remind the United States

of what it has learned from the initial suit,” because “[t]he

author of the fraud won’t escape when the first suit (or the

ensuing federal investigation) tells the agency everything it

needs to know”); U.S. ex rel. Poteet v. Medtronic, Inc., 552

F.3d 503, 516 (6th Cir. 2009) (noting that the interpretation of

the    first-to-file        rule     should     comport    with     the    policy   of

                                          -7-
“ensuring that the government has notice of the essential facts

of    an   allegedly      fraudulent     scheme”)     (internal   citations

omitted); Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276,

1279 (10th Cir. 2004) (“Once the government is put on notice of

its potential fraud claim, the purpose behind allowing qui tam

litigation is satisfied.”).

      Defendants argue that the Second Amended Complaint should

be dismissed for lack of subject matter jurisdiction 3 under the

FCA’s first-to-file bar. 4 Defendants contend that “[b]ecause the

present action [Verizon II] is ‘related’ to, and based on the

facts underlying [] the 2007 Lawsuit [Verizon I], it could be

brought only by the Government, not a private relator.” MTD at

20.

      Plaintiff responds that the first-to-file rule does not bar

the Second Amended Complaint because: “(1) Relator Shea filed

both actions at issue – [and therefore] Verizon I only bars

someone    other   than   Shea   from    filing   a   related   action;   (2)
3
  The first-to-file bar is jurisdictional. See, e.g., U.S. ex
rel. Ortega v. Columbia Healthcare, Inc., 240 F. Supp. 2d 8, 11
(D.D.C. 2003) (“If an action ‘based on the facts underlying’ a
pending case comes before a court, it must dismiss the later-
filed case for lack of jurisdiction.”); Batiste, 659 F.3d at
1206-07 (affirming dismissal for “lack of subject matter
jurisdiction”).
4
  Defendants also argue that the Second Amended Complaint should
be dismissed for other, independent reasons. Given the Court’s
conclusion, infra, that this action is barred by the FCA’s
first-to-file bar, it is not necessary to address the merits of
Defendants’ additional arguments.


                                       -8-
Verizon I was not pending when the Second Amended Complaint was

filed; and (3) Verizon I and Verizon II are not related actions

because     the       Second     Amended      Complaint    alleges       that   Verizon

committed fraud on contracts and U.S. agencies not at issue in

Verizon I.” Opposition at 9.

     A.     The First-to-File Bar Applies to Successive                         Related
            Actions Brought by the Same Relator

     Plaintiff         contends        that    Defendants’    Motion      to    Dismiss

“completely ignores the threshold issue of whether the first-to-

file rule applies to the same relator who later files a second

related action” and that “[e]very circuit opinion addressing the

issue   .   .     .    say[s]    that    it    does   not.”   Id.    Plaintiff       then

discusses at length Bailey v. Shell W. E&P Inc., 609 F.3d 710

(5th Cir. 2010) and U.S. ex rel. Precision Companies v. Koch

Industries,       31    F.3d     1015    (10th      Cir.   1994)    to    support     his

argument. Id. at 9-14. 5

     In determining whether § 3730(b)(5) applies to the same

relator who later files a second related qui tam action, the

Court   must      always       begin    its    analysis    with    the   text   of    the

statute itself. See Murphy Exploration and Production Co. v.

U.S. Dept. of the Interior, 252 F.3d 473, 480 (D.C. Cir. 2001)

5
  Plaintiff also cites in footnote U.S. ex rel. Taxpayers Against
Fraud v. GE, 41 F.3d 1032 (6th Cir. 1994) and Walburn v.
Lockheed Martin Corp., 431 F.3d 966 (6th Cir. 2005) to support
his position. These cases do not even purport to address the
issue presented here.


                                              -9-
(“As always, in interpreting a statute, we begin with the text

of the statute itself.”). “[I]n interpreting a statute a court

should always turn first to one [] cardinal canon before all

others,” that when Congress writes a statute, it “says . . .

what it means and means . . . what it says there.” Conn. Nat’l

Bank v. Germain, 503 U.S. 249, 253-54 (1992).

     The plain language of § 3730(b)(5) is clear: once “a person

brings an action under this subsection, no person other than the

Government may intervene or bring a related action based on the

facts   underlying   the    pending    action.”      §    3730(b)(5)    (emphasis

added). This provision states without ambiguity or qualification

that “no person” other than the Government may bring successive

related   actions.   “The   statute     does   not       say   ‘no   other   person

except the Government may bring an action,’ it simply says ‘no

person’ which would apply equally to the original relator as any

other person.” U.S. ex rel. Smith v. Yale-New Haven Hospital,

Inc., 411 F. Supp. 2d 64, 74-75 (D. Conn. 2005) (emphasis in the

original); see also U.S. ex rel. LaCorte v. Wagner, 185 F.3d

188, 191 (4th Cir. 1999) (holding that “no person other than the

Government” is “unequivocal language” and that because “Wagner

and Dehner are persons other than the government . . . the

statute on its face precludes them from intervening.”).

     Moreover, contrary to Plaintiff’s contention, Bailey does

not support the general proposition that the first-to-file bar

                                      -10-
is inapplicable as “to the same relator who later files a second

related action.” Opposition at 9. The issue in Bailey was not

whether    it    was   permissible       for    the    same     relator      to    bring

successive      related   FCA     claims,      but    rather,     whether      it    was

permissible for the same relator to make the same qui tam claim

in a different jurisdiction, i.e., to engage in forum shopping. 6

     Plaintiff’s       position    also     finds     no    support     in   Precision

Companies.       In that case, the question before the court was

whether    §    3730(b)(5)’s    intervention          bar    prevents      joinder    of

closely related parties under Federal Rule of Civil Procedure 15

or forbids only intervention by unrelated parties under Federal

Rule of Civil Procedure 24. The court held that the intervention

prong of the first-to-file bar does not extend to joinder. The

court did not, however, address whether the same relator could

bring   successive      related    qui    tam    actions.       Plaintiff’s         cited

cases are simply not on point.

     Accordingly, the Court concludes that the first-to-file bar

applies    to    successive     related     actions         brought   by     the    same

relator.




6
  The Fifth Circuit concluded that “[relators’] attempts at forum
shopping constitute the opportunistic and parasitic behavior the
FCA seeks to preclude” and thus permitted the relators to pursue
only one FCA action. Bailey, 609 F.3d at 721 n. 3.

                                      -11-
      B.       The 2007 Lawsuit Was Pending when Relator Brought this
               Action

      Plaintiff next argues that, “[e]ven if this Court concludes

that the first-to-file bar applies to the same relator, the bar

still does not apply because Verizon I was not ‘pending’ when

the   Second      Amended   Complaint     was    filed.”    Opposition   at   9.

Plaintiff contends that “[t]he plain language of the first-to-

file bar should control here” and that “[t]here is no doubt that

Verizon I was no longer pending when Shea filed his amended

complaints.” Id. at 16 (emphasis added).

      Turning again to the plain language of the statute, it is

clear      that   the    first-to-file     bar     refers      specifically   to

jurisdictional facts that exist when an “action” is brought.

Section 3730(b)(5) provides that a qui tam plaintiff may not

“bring     a   related   action   based    on    the   facts    underlying    the

pending action.” § 3730(b)(5) (emphasis added). As the Seventh

Circuit noted when analyzing the text of the first-to-file bar,

“[o]ne ‘brings’ an action by commencing suit.” Chovanec, 606

F.3d at 362 (emphasis added); see also Black’s Law Dictionary

(9th ed. 2009) (defining “bring an action” as “[t]o sue” or

“institute legal proceedings”) (emphasis added).

      This interpretation of the statute is consistent with the

fundamental rule that “the jurisdiction of the court depends

upon the state of things at the time of the action brought.”


                                    -12-
Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570

(2004) (internal quotation marks omitted). The amendment process

“cannot be used to create jurisdiction retroactively where it

did   not   previously       exist.”       U.S.    ex    rel.    Jamison       v.   McKesson

Corp., 649 F.3d 322, 328 (5th                     Cir. 2011) (internal quotation

marks omitted). Accordingly, the relevant inquiry turns on when

a    successive     action    is     commenced,          not    when    a   complaint       is

amended.     See    U.S.     ex     rel.    Branch        Consultants,         L.L.C.,      v.

Allstate Ins. Co., 782 F. Supp. 2d 248, 259 (E.D. La. 2011)

(“The use of the term ‘action’ in [§§ 3730(b)(5) and (e)(4)(b)]

indicates that the Court should look to the jurisdictional facts

that existed at the time the action was filed, as opposed to

facts    that     existed    when    the     relator       later       filed   an    amended

complaint.”).

       Plaintiff commenced Verizon II on June 5, 2009. [Dkt. No.

1]. At that time, Verizon I was an active lawsuit, and was not

dismissed until February 28, 2011. See [Verizon I Dkt. No. 41].

Therefore, Verizon I was pending when Plaintiff brought this

current action.

       C.    This Action Is Related to the 2007 Lawsuit

       The only question left is whether Verizon I and Verizon II

are related actions. Plaintiff argues that Verizon I and Verizon

II    are   not    related    because       Verizon       II    alleges     that     Verizon

committed       fraud   on   contracts       and        agencies   not      at      issue   in

                                           -13-
Verizon   I.    Opposition     at    17.    Plaintiff       contends    that   “[t]he

different      contracts,     different      U.S.        agencies,    and   different

surcharges make Verizon II materially distinct from Verizon I.”

Id. at 19. 7

      Section    3730(b)(5)        serves    to    bar    “‘actions    alleging     the

same material elements of fraud’ as an earlier suit, even if the

allegations [of the later-filed complaint] ‘incorporate somewhat

different details.’” Hampton, 318 F.3d at 217 (quoting U.S. ex

rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir.

2001)) (emphasis added). In adopting this “material elements”

standard, our Court of Appeals rejected “another possible test,

one barring claims based on ‘identical facts.’” Hampton, 318

F.3d at 218. “Acknowledging that there is no bright line rule

for   determining       whether      differences         between     complaints     are

‘material,’     the   D.C.    Circuit       held    that    §   3730(b)(5)     bars   a

subsequent     action    if   it    contains       ‘merely      variations’    of   the

fraudulent scheme described in the first action.” U.S. ex rel.




7
  Plaintiff contends that the United States supports its position
on this relatedness issue, citing to a Statement of Interest
that the United States filed on May 24, 2010 in a different
case. Opposition at 24-25. This contention has no merit. As
noted, supra, on October 25, 2012, the United States filed a
Statement of Interest in this case, taking no position as to the
merits of the issues presented here. See Statement of Interest
[Dkt. No. 56]. The United States simply requested that “if the
Court dismisses this action, that such dismissal be without
prejudice to the United States.” Id. at 4.

                                        -14-
Folliard v. CDW Tech. Services Inc., 722 F. Supp. 2d 37, 39-40

(D.D.C. 2010) (quoting Hampton, 318 F.3d at 218).

     In    this      Circuit,       the       relevant          inquiry      is   “whether         the

[later-filed]         [c]omplaint         alleges           a     fraudulent         scheme        the

government already would be equipped to investigate based on the

[earlier-filed]           [c]omplaint.”          Batiste,           659      F.3d     at      1209.

Accordingly,         complaints      are       related          where     the     earlier-filed

complaint gives the government sufficient notice to discover the

fraud in the later-filed complaint. See U.S. ex rel. Folliard v.

Synnex Corp., 798 F. Supp. 2d 66, 73 (D.D.C. 2011); CDW, 722 F.

Supp. 2d at 43.

     When       evaluating      a   §     3730(b)(5)            first-to-file         motion       to

dismiss,       “‘[t]he      only     evidence          needed       to       determine        if    a

complaint       is   barred     .   .     .     is    the       complaints        themselves.’”

Synnex, 798 F. Supp. 2d at 72 (quoting U.S. ex rel. Ortega v.

Columbia Healthcare, Inc., 240 F. Supp. 2d 8, 15 (D.D.C. 2003)).

“Hampton    .    .    .   counsels        that       this       Court     must    compare       [the

complaints] at a sufficiently high level of generality[.]” CDW,

722 F. Supp. 2d at 41.

     In this litigation, a comparison of the 2007 Complaint in

Verizon    I    with      the   Second        Amended           Complaint       in   Verizon       II

clearly    demonstrates         that      the    allegations            in    Verizon      II      are

based on the same material facts alleged in Verizon I. Both

complaints allege: (1) that Relator discovered that Verizon had

                                               -15-
a custom and practice of billing clients for certain surcharges

based      on    his    experience        as       a    private        telecommunications

consultant, see 2007 Complaint ¶ 12 and SAC ¶ 3; (2) that in

2004 Relator received an MCI document indicating that Verizon

was charging the U.S. government for certain surcharges, see

2007 Complaint ¶ 70 and SAC ¶ 4; (3) that Verizon did not have a

separate billing system for the U.S. government and commercial

customers,       see    2007   Complaint       ¶       81    and    SAC    ¶     27;    (4)   that

Verizon was prohibited from charging the U.S. government for

these      particular        surcharges        under         the    Federal           Acquisition

Regulations (“FAR”) and the provisions of the contracts, see

2007 Complaint ¶¶ 4, 20 and SAC ¶¶ 17-26, 29; and (5) that

Verizon did bill the U.S. government for certain non-allowable

surcharges on telecommunications contracts. See 2007 Complaint

¶¶ 2, 4 and SAC ¶ 1.

      Plaintiff’s argument that his two lawsuits are not related

because they involve different contracts with different agencies

has   no    merit.      In   fact,   Plaintiff              concedes      that    “[t]wo      D.C.

district courts have held that complaints which allege similar

fraudulent schemes on different contracts with different federal

agencies do not materially differ under the first-to-file rule.”

Id. at 20; see Synnex, 798 F. Supp. 2d at 73 (“[T]he fact that

[Relator] alleges that defendants made false claims to different

agencies        under   different     contracts              does   not        mean    that   the

                                          -16-
complaints incorporate different material elements.”); CDW, 722

F. Supp. 2d at 41 (rejecting the argument that “the different

procurement contracts and contracting agencies are relevant” to

a determination of similarity “as the text of § 3730 and the

statute’s underlying policies do not support the creation of a

distinction between the two complaints on this basis.”).

      The side-by-side comparison of the complaints has persuaded

the   Court   that,    although     the       complaints     allege    “somewhat

different details” (which is not surprising), Plaintiff’s 2007

Complaint in Verizon I “suffices to put the U.S. government on

notice” as to Verizon’s allegedly fraudulent billing practices

with respect to surcharges on government contracts, and that the

Second   Amended     Complaint    in    Verizon        II   “alleges   the   same

material elements of the same fraud.” Batiste, 659 F.3d at 1208-

09.

      Accordingly,    Plaintiff’s       action    is    “based   on    the   facts

underlying” his previously filed qui tam action in 2007, and it

is therefore barred under § 3730(b)(5).

IV.   CONCLUSION
      Upon consideration of the Motion, Opposition, Reply, and

the entire record herein, and for the reasons set forth in this

Memorandum Opinion, Defendants’ Motion to Dismiss is granted for




                                       -17-
lack of jurisdiction as to Relator and granted without prejudice

as to the United States.




                                      /s/________________________
November 15, 2012                    Gladys Kessler
                                     United States District Judge




Copies to: attorneys on record via ECF




                              -18-
