     Case: 18-50294      Document: 00514811113         Page: 1    Date Filed: 01/28/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 18-50294                             FILED
                                  Summary Calendar                    January 28, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA, ex rel, GEORGE GAGE,

              Plaintiff - Appellant

v.

ROLLS-ROYCE NORTH AMERICA, INCORPORATED; ROLLS-ROYCE
DEUTSCHLAND LTD. & COMPANY KG,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:16-CV-803


Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM:*
       George Gage brings this qui tam action as relator on behalf of the United
States.    He alleges that Rolls-Royce North America, Inc. and Rolls-Royce
Deutschland LTD & Co. KG (collectively “Rolls-Royce”) violated the False
Claims Act (“FCA”) by submitting false claims relating to sales of aviation
equipment. But this case is not Gage’s first bite at the apple. In a previous


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 18-50294
suit, he brought identical claims against other defendants. Those claims were
dismissed with prejudice. Noting that prior decision, the district court here
held that issue preclusion barred Gage’s claims. He appeals. We affirm.
                                            I.
       Gage brings this FCA case against Rolls-Royce as a relator on behalf of
the United States. Gage alleges that Rolls-Royce submitted false claims for
payment relating to aviation equipment supplied to the U.S. Air Force.
According to Gage, Rolls-Royce supplied “non-conforming and non-airworthy”
aircraft parts pulled from a crashed civilian aircraft.             In connection with
supplying these parts, Gage alleges that Rolls-Royce submitted false
documents and invoices and, therefore, violated the False Claims Act. But this
case is not Gage’s first. In fact, this case is the third one in which Gage has
participated.
      Gage initially participated in litigation related to the same subject
matter in 2010, when Davis S.R. Aviation, LLC sued Rolls-Royce over
statements about allegedly defective aviation parts Davis Aviation was
selling. 1 See Davis SR Aviation, LLC v. Rolls-Royce N. Am., Inc., A-10-CV-367-
LY (W.D. Tex. 2010) (“Davis I”). Gage served as an expert witness for Rolls-
Royce in Davis I.
       A few months after the parties in Davis I settled, Gage filed a FCA claim
against numerous aviation companies, including Davis Aviation, alleging that
they submitted false claims for payment. 2 See United States ex rel. Gage v.
Davis SR Aviation, et al., A-12-CV-904-SS, 2014 WL 3007201 (W.D. Tex. July
2, 2014) (“Davis II”). The claims were false, according to Gage, because the


       As discussed below, these parts were pulled from an aircraft that crashed in Canada.
       1

These parts form the basis of the second case and the case here.

       2Gage amended his complaint twice in Davis II. The operative complaint was his
third amended complaint.
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                                  No. 18-50294
companies supplied and installed defective replacement aircraft parts, which
did not comply with various regulatory and contractual requirements. Davis
II Compl. at 18. More specifically, Gage alleged that the prior defendants
contracted with the U.S. Air Force to support aircraft used in Afghanistan. Id.
at 7, 14, 18. The defendants, however, ran into a problem. The Air Force
aircraft needed a steady stream of replacement parts, but the manufacturer
could not assemble parts quickly enough. Id. at 2, 15. Around the same time,
a civilian aircraft crashed in Nova Scotia. Id. at 13, 17. Ironically, the crashed
aircraft had many of the parts that the defendants were required to supply
under their contracts. Id. at 17. So, the defendants conspired to take the parts,
and then supply and install them without properly inspecting them or
disclosing that they were taken from the crashed aircraft. Id. Gage further
alleged that the parts did not meet Federal Aviation Administration and
Federal Acquisition Regulations. Id. They also did not meet various contract
terms. Id. at 18, 22. Based on these facts, Gage alleged that the defendants
knowingly or recklessly violated federal regulations and contract provisions by
supplying unapproved, non-conforming, and non-airworthy parts. Id. at 2-3.
As a result, the defendants submitted false claims to the U.S. Air Force. Id. at
43.
       The district court dismissed Gage’s claims for, among other things,
failing to allege the fraudulent scheme with particularity. Davis II, 2014 WL
3007201, at *8. Gage failed to allege any specific information about who
purchased, repaired, sold, and installed the defective parts. Id. at *6. He also
failed to allege what federal regulations and contractual provisions the
defendants violated. Id. at *6-7. Nor did he allege how the parts failed to
comply with those regulations and provisions. Id. The Fifth Circuit affirmed.
See Davis II, 2014 WL 3007201, aff’d sub nom. United States ex rel. Gage v.
Davis S.R. Aviation, LLC, 623 F. App’x 622 (5th Cir. 2015) (unpublished).
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      Gage then filed this case. The complaint here, which Gage amended
once, is based on nearly identical factual allegations as Davis II. The only
meaningful difference is that Gage substitutes Rolls-Royce as the defendant.
The complaint alleges that Rolls-Royce conspired with other parties to submit
false claims based on the same government contract as Davis II. It also alleges
that Rolls-Royce played a role in supplying defective parts to the Air Force from
the same crashed plane as Davis II.
      The district court dismissed the complaint, holding that issue preclusion
barred Gage from relitigating the same issues as in Davis II. The district court
also denied Gage’s request to amend his complaint a second time. Gage now
appeals.
                                       II.
      The issue of whether to apply defensive issue preclusion—formerly
called collateral estoppel—is a question of law, making our review de novo.
Bradberry v. Jefferson Cty., Tex., 732 F.3d 540, 549 (5th Cir. 2013) (citing
United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997)).
      Filing the same suit against different defendants in a piecemeal fashion
is inefficient. It “wastes litigants’ resources and adjudicators’ time,” B & B
Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1298 (2015); it
“encourages parties who lose before one tribunal to shop around for another,”
id. at 1299; and it increases the chances for conflicting judgments, see Montana
v. United States, 440 U.S. 147, 154 (1979). To prevent these inefficiencies,
courts apply the doctrine of issue preclusion. Issue preclusion prevents a
plaintiff from relitigating identical issues by “merely switching adversaries,”
thereby encouraging the plaintiff to “join all potential defendants in the first
action if possible.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329-30 (1979).
      Issue preclusion applies when three elements are met:


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                                        No. 18-50294
       (1) the issue at stake must be identical to the one involved in the
       prior action; (2) the issue must have been actually litigated in the
       prior action; and (3) the determination of the issue in the prior
       action must have been a part of the judgment in that earlier action.
In re Southmark Corp., 163 F.3d 925, 932 (5th Cir. 1999). Issue preclusion,
however, does not prevent parties from relitigating an issue unless the facts
and the legal standard used to assess them are the same in both proceedings. 3
RecoverEdge L.P. v. Pentecost, 44 F.3d 1284, 1291 (5th Cir. 1995).
       This case is the perfect candidate for issue preclusion. First, the facts
are identical. Davis II involved a FCA claim based on the same parts, same
aircraft, and same alleged scheme as here. See Davis II Compl. at 8-10. Nearly
every single paragraph in the complaint was copied and pasted from the Davis
II complaint. The only substantive change Gage made was to substitute Rolls-
Royce as the defendant. 4 But Gage cannot avoid issue preclusion by simply
changing parties. Indeed, issue preclusion is designed to prevent plaintiffs
from asserting the same factual allegations against different defendants in
successive actions. 5 Parklane Hosiery, 439 U.S. at 329 (noting that issue
preclusion is designed to prevent a plaintiff from relitigating identical issues
by “merely switching adversaries”).




       3 Where, as here, a federal court “is considering the collateral estoppel effect of a prior
federal judgment, this Circuit applies federal common law.” Reimer v. Smith, 663 F.2d 1316,
1325 n.9 (5th Cir. 1981).

       4Gage mentioned Rolls-Royce several times in his Davis II complaint, erasing any
doubt about his ability to join Rolls-Royce as a defendant in that action. See, e.g., Davis II
Compl. at 11, 20, 43.

       5 For issue preclusion purposes, the parties need not be completely identical, “so long
as the party against whom estoppel applies had the full and fair opportunity to litigate the
issue in the previous lawsuit.” Rabo Agrifinance, Inc. v. Terra XXI, Ltd., 583 F.3d 348, 353
(5th Cir. 2009) (internal citation omitted). Gage does not argue—nor do any facts suggest—
that he did not receive a full and fair opportunity to litigate this issue.
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                                  No. 18-50294
      Second, the issue—whether Gage’s allegations met the requirements of
Rule 9(b)—was actually litigated in Davis II. A court’s decision to grant a
motion to dismiss qualifies as actual litigation because dismissal with
prejudice is “a final judgment on the merits.” Brooks v. Raymond Dugat Co.
LC, 336 F.3d 360, 362 (5th Cir. 2003) (citation omitted); see also 18 Charles
Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 4419 (3d ed.
2018) (“Nor can preclusion be defeated . . . by arguing that the first court should
not have decided the issue on motion to dismiss.”). The district court in Davis
II concluded that Gage’s complaint did not satisfy Federal Rule of Civil
Procedure 9(b). Davis II, 2014 WL 3007201, at *8. In reaching its decision,
the district court gave Gage every opportunity to show why his complaint met
the requirements of Rule 9(b). This court did the same on appeal. The issue
was fully briefed in the district court; the district court issued a lengthy
opinion, dismissing Gage’s complaint with prejudice; the Fifth Circuit
affirmed; and after the appeal, the district court issued another opinion on the
same subject matter denying Gage’s motion to vacate.
      Third, the district court’s determination of the issue was necessary to the
judgment and actually decided. The district court determined that Gage’s
complaint did not satisfy Rule 9(b), and then dismissed the complaint on those
grounds. Davis II, 2014 WL 3007201, at *8.
      Gage tries to distinguish the two cases by arguing that Davis II dealt
with the sale of the banned parts, while this case deals with their installation
and billing. This argument is factually incorrect. The Davis II complaint dealt
with more than part sales. But even if the argument was factually correct,
Gage gives no reason why the distinction between selling and supplying parts
matters.




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                                      No. 18-50294
       Accordingly, we affirm the district court’s decision to grant Rolls-Royce’s
motion to dismiss. 6
                                            III.
       Rule 15(a) allows a plaintiff to amend his pleadings once as a matter of
right. Fed. R. Civ. P. 15(a). If the plaintiff wants to amend his complaint a
second time, he must get consent from the other party or ask the court for leave
to amend. Id. While Rule 15(a) requires a district court to grant leave to
amend “freely,” id., we recognize that decisions concerning motions to amend
are “entrusted to the sound discretion of the district court.” Quintanilla v. Tex.
Television, Inc., 139 F.3d 494, 499 (5th Cir. 1998). Our review of this decision
is limited to determining whether the trial court abused its discretion. Test
Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 576 n.8 (5th Cir. 2005)
(internal citation omitted).
       The trial court did not abuse its discretion here. A district court may
deny a motion for leave to amend for a variety of reasons, including undue
delay, bad faith, dilatory motive, undue prejudice, or futility of the amendment.
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981). While the
court here did not label its reason for denying Gage’s motion, it provided more
than enough factual information to support its decision.
       As the district court noted, Gage did not request leave to amend his
complaint a second time until after Rolls-Royce filed its motion to dismiss,
giving him over twenty months to address any shortcomings in his complaint.
And the specific shortcomings here were the same shortcomings as in Davis II.
Gage also fails to point out how he would amend his complaint. Nor does he
identify any newly discovered information.



       6Because we affirm the district court’s ruling on issue preclusion grounds, we do not
address Gage’s argument that he met Rule 9(b)’s requirements in this case.
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                                No. 18-50294
     Accordingly, we affirm the district court’s decision to deny Gage’s motion
for leave to amend his complaint a second time.
                                     IV.
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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