Yuhasz v. Brush Wellman, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Yuhasz v. Brush Wellman, Inc. No. 02-3087 ELECTRONIC CITATION: 2003 FED App. 0297P (6th Cir.) File Name: 03a0297p.06 MURRAY & MURRAY, Sandusky, Ohio, for Appellant. Geoffrey J. Ritts, Dennis M. Kelly, JONES DAY, Cleveland, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________ RICHARD M. YUHASZ , X - JULIA SMITH GIBBONS, Circuit Judge. Relator Richard Plaintiff-Appellant, M. Yuhasz brought a qui tam action against defendant- - - No. 02-3087 appellant Brush Wellman, Inc. (Brush), claiming that Brush v. - violated the False Claims Act (FCA), 31 U.S.C. § 3729 et > seq., and wrongfully terminated him in retaliation for his , allegations of wrongdoing. After the United States declined BRUSH WELLMAN , INC., - Defendant-Appellee. - to intervene, Brush moved to dismiss the case pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil - Procedure, and the district court granted the motion. For the - reasons set forth below, we affirm the judgment of the district N court. Appeal from the United States District Court for the Northern District of Ohio at Toledo. I. No. 00-07237—James G. Carr, District Judge. Relator Yuhasz was employed as a laboratory manager for Argued: August 1, 2003 Brush at Brush’s bronze alloy manufacturing facility in Lorain, Ohio, between September 1996 and January 2000. At Decided and Filed: August 20, 2003 this facility, Brush produces “‘super’ alloys, spinodal alloys, and other specialty alloys” that are supplied to the United Before: KENNEDY, GILMAN and GIBBONS, Circuit States both directly and through intermediaries, including Judges. distributors, for use in aerospace and military aviation. Some of the alloys, supplied under requirements of and pursuant to _________________ contracts with the United States, are subjected to further processing and manufacturing before being delivered to the COUNSEL United States.

ARGUED: Dennis E. Murray, Jr., MURRAY & MURRAY, Yuhasz was hired to design and establish, and then operate Sandusky, Ohio, for Appellant. Geoffrey J. Ritts, JONES as manager, a testing laboratory for its Lorain facility. The DAY, Cleveland, Ohio, for Appellee. ON BRIEF: Dennis laboratory was established to conduct chemical, mechanical, E. Murray, Jr., Charles M. Murray, Barbara Quinn Smith, and physical testing of Brush’s alloys. At the laboratory,

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Yuhasz established the specifications for the laboratory no set of facts in support of its claims that would entitle it to equipment and both conducted and supervised testing relief[.]’” Id. (citing Kostrzewa v. City of Troy, 247 F.3d 633, procedures. 638 (6th Cir. 2001)); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In order to claim or receive payments under government contracts, Brush must submit “certifications of compliance III. with technical specifications stating, representing, and warranting that the alloys were in strict conformity with According to the FCA: specifications and that [Brush] was, thereby, legally entitled to claim and receive payment.” These certifications include Any person who (1) knowingly presents, or causes to be certification pursuant to Aerospace Materials Specifications, presented, to an officer or employee of the United States certification as to compliance with “QQC” specifications (a Government or a member of the Armed Forces of the government standard), and certification pursuant to the United States a false or fraudulent claim for payment or specifications of the American Society for Testing and approval; (2) knowingly makes, uses, or causes to be Materials. made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government . . . On April 14, 2000, Yuhasz filed this qui tam action, is liable to the United States Government for a civil alleging that Brush violated the FCA by making false penalty of not less than $5,000 and not more than certifications by itself or through intermediaries and that $10,000, plus 3 times the amount of damages which the Brush wrongfully terminated him in retaliation for his Government sustains because of the act of that person. allegations of improper conduct. After investigating Yuhasz’s allegations, the United States declined to intervene 31 U.S.C. § 3729. The purpose of the FCA is “to encourage on July 11, 2001. On September 7, 2001, Brush moved to any individual knowing of Government fraud to bring that dismiss the case for failure to state a claim pursuant to Federal information forward.” United States ex rel. McKenzie v. Rule of Civil Procedure 12(b)(6). The district court granted BellSouth Telecomm., Inc., 123 F.3d 935, 938 (6th Cir. 1997) Brush’s motion to dismiss on December 14, 2001. On (McKenzie I) (quoting S. Rep. No. 99-345 (1986), reprinted January 8, 2002, Yuhasz filed his notice of appeal. in 1986 U.S.C.C.A.N. 5266); see also United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2d Cir. II. 1990) (“‘[T]he purpose of the qui tam provisions of the False Claims Act is to encourage private individuals who are aware A district court’s grant of a motion to dismiss pursuant to of fraud being perpetrated against the Government to bring Rule 12(b)(6) of the Federal Rules of Civil Procedure is such information forward.’”) (quoting H.R. Rep. No. 99-660, reviewed de novo. Goad v. Mitchell, 297 F.3d 497, 500 (6th at 22 (1986)). If, as in this case, the government does not Cir. 2002). Pursuant to Rule 12(b)(6), an action may be assert its statutory right to take over the case, the relator can dismissed if the complaint fails to state a claim upon which recover between twenty-five and thirty percent of any monies relief can be granted. When considering a motion to dismiss, recovered from a settlement or judgment, in addition to all well-pleaded allegations in the complaint are treated as reasonable expenses and attorneys’ fees and costs. 31 U.S.C. true, and the dismissal of the complaint is deemed proper § 3730(d)(2). “only ‘if it appears beyond doubt that the plaintiff can prove

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Yuhasz claims that Brush, by itself or through Morrison-Knudsen Co., 68 F.3d 1475, 1476 (2d Cir. 1995); intermediaries, submitted fraudulent certifications and claims United States ex rel. Cooper v. Blue Cross & Blue Shield of for payment to the United States and received payment from Florida, Inc., 19 F.3d 562, 568 (11th Cir. 1994). The the United States for alloys not meeting government requirement that fraud be plead with particularity need not be specifications, in violation of the FCA. Specifically, Yuhasz relaxed in FCA cases in order to protect the public because alleges that Brush the government’s ability to intervene on the basis of information brought to its attention vindicates the public had actual knowledge and/or acted in deliberate disregard interest. The Sixth Circuit interprets Rule 9(b) as requiring or ignorance of the truth or falsity of: (i) alloy product plaintiffs to “allege the time, place, and content of the alleged that was off-specification due to defects such as cracks; misrepresentation on which he or she relied; the fraudulent (ii) false and fraudulent certifications of compliance with scheme; the fraudulent intent of the defendants; and the injury technical specifications; (iii) improper traceability and resulting from the fraud.” Coffey v. Foamex L.P., 2 F.3d 157, identifibility controls with respect to lots of alloy bar 161-162 (6th Cir. 1993) (quotation omitted). stock; (iv) beryllium contamination in alloys, rendering such alloys off-specification; (v) [Brush’s] failure to The district court correctly found that Yuhasz had failed to perform requisite tests on the alloys, such as the allege an FCA claim with sufficient particularity as required mercurious nitrate testing; and, (vi) the fact that requisite by Rule 9(b). Yuhasz’s complaint is short on specifics. For internal controls were not in place, rendering alloy example, the complaint notes only that “certain testing that products untraceable and unidentifiable. was outsourced according to a particular EAB number did not match-up to any heat number for alloy bar stock” and that The district court granted Brush’s motion to dismiss, “certain alloys of [Brush] may have been mismarked.” concluding that since the complaint “did not state a specific (emphasis added). However, the complaint contains no false claim submitted to the government,” Yuhasz “did not particularized allegations of wrongdoing. The failure to allege a FCA claim with sufficient particularity as required identify specific parties, contracts, or fraudulent acts requires under Rule 9(b).” Yuhasz v. Brush Wellman, Inc., 181 dismissal. See United States ex rel. Clausen v. Lab. Corp. of F.Supp.2d 785, 794 (N.D.Ohio 2001). Am., Inc., 290 F.3d 1301, 1312 (11th Cir. 2002) (“failure to allege with any specificity if – or when – any actual improper Pursuant to Federal Rule of Civil Procedure 9(b), in any claims were submitted to the Government is indeed fatal”); complaint averring fraud or mistake, “the circumstances U.S. ex rel. Walsh v. Eastman Kodak Co., 98 F.Supp.2d 141, constituting fraud or mistake shall be stated with 147 (D. Mass. 2000) (“Relator’s First Amended Complaint, particularity.” The heightened pleading standard set forth in in essence, sets out a methodology by which the vendors Rule 9(b) applies to complaints brought under the FCA. might have produced false invoices, which in turn could have “[C]omplaints brought under the FCA must fulfill the led to false claims. Without citing a single false claim arising requirements of Rule 9(b) – defendants accused of defrauding from an allegedly false invoice, Relator has not met even a the federal government have the same protections as bare-bones Rule 9(b) test.”); United States ex rel. Butler v. defendants sued for fraud in other contexts.” Bly-Magee v. Magellan Health Serv., Inc., 101 F.Supp.2d 1365, 1369 (M.D. California, 236 F.3d 1014, 1018 (9th Cir. 2001); see also Fla. 2000) (“Plaintiff does plead a fraudulent scheme of United States ex rel. Thompson v. Columbia/HCA Healthcare conduct which may well be prohibited by law. However, Corp., 125 F.3d 899, 903 (5th Cir. 1997); Gold v. Plaintiff pleads no specific occurrences of a false claim. . . .

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[T]he absence of specific allegations of fraudulent false Yuhasz argues that the “facts of the instant case are claims is determinative.”). strikingly similar to those before the court in Roby.” This is not correct. In the instant case, Yuhasz asserts in its brief Yuhasz concedes that he “is unable to identify a specific only that “virtually every certification” was fraudulent and claim submitted directly to the United States by a prime that “virtually every alloy certified by [Brush] during the time contractor who incorporated [Brush’s] metal alloys into the specified in the Complaint was non-compliant.” (emphasis finished product sold to the government,” but argues that he added). The language of the complaint itself is even less “is entitled to a relaxed standard of pleading due to the length specific, stating only that “certain testing that was outsourced and complexity of [Brush’s] fraud.” Yuhasz notes that the according to a particular EAB number did not match-up to complaint “alleges fraudulent acts occurring over a period any heat number for alloy bar stock,” that “certain alloys may exceeding two years, and affecting virtually every alloy have been mismarked,” that “Yuhasz, upon accessing the manufactured by [Brush] during that period.” As the district original certifications, often discovered that the requisite court observed, however, a plaintiff should not be able to mercurious nitrate testing had not been performed,” that avoid the specificity requirements of Rule 9(b) by “relying “approximately 5% of the product, and particularly smaller upon the complexity of the edifice which he created.” United diameter product, failed to meet the requisite tensile States ex rel. Clausen v. Lab. Corp. of Am., 198 F.R.D. 560, strength,” that “drums were often not labeled,” and that “many 563 (N.D. Ga. 2000), aff’d, 290 F.3d 1301 (11th Cir. 2002). of the certifications of compliance indicated the wrong alloy.” Moreover, none of the cases upon which Yuhasz principally (emphasis added). Furthermore, in Roby the plaintiff relies, United States ex rel. Roby v. Boeing Co., 184 F.R.D. identified the specific contract at issue (the CH47(D) 107 (S.D. Ohio 1998), United States v. United Technologies, helicopter contract) and stated when, where, and how false No. C-3-99-093, 2000 WL 988238 (S.D. Ohio March 20, statements were made to the government (on Forms DD-250 2000), and United States v. Pogue, 977 F. Supp. 1329 (M.D. presented to the government). 184 F.R.D. at 110. In the Tenn. 1997), supports his position. instant case, Yuhasz provides no such information. Roby thus is easily distinguishable. In Roby, the plaintiff alleged that defendant The Boeing Corporation (Boeing) and its supplier violated the FCA “by In United Technologies, the government alleged that Pratt manufacturing and selling defective transmission gears to the and Whitney (Pratt), a division of defendant United United States via Boeing’s CH-47(D) Chinook Army Technologies Corporation (UTC), fraudulently submitted a helicopters.” 184 F.R.D. at 108. Boeing filed a motion to contract bid that “knowingly overstated” the prices to be dismiss, arguing that “because of the breadth of the charged by Pratt’s subcontractors. 2000 WL 988238 at *1. accusation against it, [defendant] can only speculate as to The government further alleged that each bill, invoice, and which of the 300 . . . gears in service today are alleged to be price later presented by Pratt to the government reflected nonconforming.” Id. at 110. The district court denied these inflations. Id. Pratt filed a motion to dismiss, arguing Boeing’s motion and noted that the complaint alleged that that the government failed to specify which of its invoices Boeing “acted with the knowledge of falsity or reckless were false claims. Id. at *5. The district court denied Pratt’s disregard for the truth with respect to every CH-47(D) motion, noting that the complaint alleged that “all of the helicopter it delivered to the United States.” Id. (emphasis invoices, bills, and prices submitted by Pratt to the Air Force added). were based on that initial ‘inflation,’” and as a result “UTC should be able to identify the invoices, bills, and prices at

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issue.” Id. at *8 (emphasis in original). In the instant case, In his briefs to this court, Yuhasz also argues that he should however, not only has Yuhasz not identified any invoices not be required to plead the specifics of information “within submitted by Brush to the government based on the alleged [Brush’s] control.” By failing to state specifically that fraud, the indefinite nature of his allegations does not provide Brush’s control is exclusive, the position taken by Yuhasz on Brush with any way of identifying those invoices. Moreover, appeal differs from that taken in the complaint, which stated: in United Technologies the plaintiff identified the document presented to the government that contained the false With respect to the alloy products produced or processed information (Pratt’s “best and final offer”) and identified both by [Brush] for the requirements of the government the parties and the specific contract that was entered into pursuant to government contracts, [Brush] is in a position based upon that false information (a contract between the of superior knowledge, and possessed exclusive control government and United Technologies to provide the Air over the means of access to information, as to the Force with high-performance jet engines). Id. at *1. That specific nature of such requirements or contracts. level of specificity is completely absent here. (emphasis added). In its response to Brush’s motion to Finally, in Pogue, the plaintiff alleged that defendants West dismiss, Yuhasz also claimed that “an exception exists when Paces Medical Center (West Paces), Diabetes Treatment certain information is within the exclusive possession of the Centers of America (DTCA), and a group of Atlanta defendant.” (emphasis added). The district court rejected this physicians engaged in a scheme to defraud the government of argument, explaining that Yuhasz “is not entitled to a relaxed Medicare and Medicaid funds. 977 F. Supp. at 1331. The standard because the information he seeks is not exclusively defendants filed a motion to dismiss, arguing that the in the possession of Brush.” Yuhasz, 181 F.Supp.2d at 793. complaint failed “to specify ‘when, where, or how Plaintiff contends that West Paces learned of this alleged fraud, or the Although Yuhasz now argues that he should not be required identity of, or position held by, the person or persons who had to plead information over which Brush has “constructive such knowledge, and whose knowledge should be attributed control,” nowhere in his briefs to this court does he state that to West Paces.’” Id. at 1332. The district court denied Brush’s control is exclusive. Thus, Yuhasz apparently has defendants’ motion and stated that “[a]lthough no specific now conceded that third parties possess information dates or West Paces employees are identified, the complaint concerning the specific contracts at issue and the claims alleges that the hospital participated in a systematic, submitted for payment. As the district court correctly fraudulent scheme, spanning the course of twelve years; thus, determined, “[c]ourts have held that [Rule 9(b)] may be reference to a time frame and to ‘West Paces’ generally is relaxed where information is only within the opposing party’s sufficient.” Id. at 1333. Yuhasz argues that in this case, as in knowledge.” Michaels Bldg. Co. v. Ameritrust Co., N.A., 848 Pogue, the court should not require “the specific dates on F.2d 674, 680 (6th Cir. 1988) (emphasis added). which the invoices were submitted.” However, Yuhasz fails Furthermore, although Yuhasz argues that he “cannot obtain to recognize that in Pogue the lack of specificity with regard the information demanded by the trial court absent to the invoices was balanced against the fact that the plaintiff discovery,” there is no general right to discovery upon filing identified the specific parties and contracts at issue (between of the complaint. The very purpose of Fed. R. Civ. P. West Paces and DTCA and between DTCA and the Atlanta 12(b)(6) “is to enable defendants to challenge the legal physicians). Here, the only party that Yuhasz identifies is sufficiency of complaints without subjecting themselves to Brush. discovery.” Rutman Wine Co. v. E. & J. Gallo Winery, 829

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F.2d 729, 738 (9th Cir. 1987). For all of these reasons, 1996). Yuhasz claims that he “specifically informed and dismissal of Yuhasz’s FCA claim is appropriate. advised [Brush] of the unlawful and illegal nature of its certifications of compliance” and “specifically raised with IV. [Brush], through Feldhouse, that other companies had incurred liabilities under the False Claims Act for submission The FCA protects employees who pursue, investigate, or of false and fraudulent claims.” However, these allegations otherwise contribute to an action exposing fraud against the are insufficient to show that Brush knew Yuhasz was government. Section 3730(h) of the FCA states: pursuing an FCA case when it discharged him. Any employee who is discharged, demoted, suspended, In Ramseyer, the Tenth Circuit dismissed a retaliatory threatened, harassed, or in any other manner discharge action brought pursuant to the FCA, noting that discriminated against in the terms or conditions of “the monitoring and reporting activities described in employment by his or her employer because of lawful plaintiff’s complaint were exactly those activities plaintiff acts done by the employee on behalf of the employee or was required to undertake in fulfillment of her job duties.” 90 others in furtherance of an action under this section, F.3d at 1523. The court added that the plaintiff “took no steps including investigation for, initiation of, testimony for, or to put defendants on notice . . . that she was furthering or assistance in an action filed or to be filed under this intending to further an FCA action rather than merely section, shall be entitled to all relief necessary to make warning the defendants of the consequences of their conduct.” the employee whole. Id. (emphasis added). Similarly, the concerns about potential liability under the FCA raised by Yuhasz in this case were 31 U.S.C. § 3730(h). In order to establish a claim for entirely within the scope of his duties, and thus did not put retaliatory discharge, a plaintiff must show: (1) he engaged in Brush on notice that he was engaging in protected activity. a protected activity; (2) his employer knew that he engaged in The complaint describes Yuhasz’s duties as follows: the protected activity; and (3) his employer discharged or otherwise discriminated against the employee as a result of [Brush] hired Yuhasz to design and establish, and then the protected activity. McKenzie v. BellSouth Telecomm., operate as a manager, a testing laboratory for its Lorain Inc., 219 F.3d 508, 513-514 (6th Cir. 2000) (McKenzie II). facility. . . . The laboratory was established to conduct The district court properly dismissed Yuhasz’s retaliatory certain chemical, mechanical and physical testing. discharge claim, finding that Yuhasz had failed to allege that Yuhasz also established the specifications for the Brush had the required notice of Yuhasz’s participation in laboratory equipment. protected activity. *** “When seeking legal redress for retaliatory discharge under the FCA, plaintiff has the burden of pleading facts which Yuhasz conducted and or supervised testing procedures would demonstrate that defendants had been put on notice for [Brush’s] Lorain facility. that plaintiff was either taking action in furtherance of a private qui tam action or assisting in an FCA action brought *** by the government.” United States ex. rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir.

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On or about August, 1998, Yuhasz was appointed as the in order to overcome the presumption that they are merely [Brush] employee charged with submitting the required acting in accordance with their employment obligations.” Id. certifications of compliance with the technical specifications of the alloys. V.

By informing Brush that its certifications were illegal and that Yuhasz argues that the district court erred in dismissing his other companies had incurred liability under the FCA for false claim for wrongful discharge in violation of Ohio common claims, Yuhasz was simply performing his ordinary duties as law and public policy. In his complaint, Yuhasz asserts: a supervisor of laboratory testing. Brush cannot be charged with notice on this basis. See Robertson v. Bell Helicopter It is the public policy of Ohio that an employee shall not Textron, Inc., 32 F.3d 948, 952 (5th Cir. 1994) (employer did be discharged, or otherwise subjected to a hostile work not have notice where plaintiff’s actions “were consistent environment, for refusing his employer’s directives to with the performance of his duty”).1 The mere fact that violate applicable laws and regulations. That public Yuhasz told Brush that its certifications of compliance were policy is manifested in the FCA, 31 U.S.C. § 3730(h), as “unlawful and illegal” does not establish notice. As the Sixth well as in [Federal Acquisition Regulations] by reason of Circuit noted in McKenzie II, “a plaintiff still must show that the strict certifications of compliance that are required. his employer was aware of his protected activity. Merely grumbling to the employer about . . . regulatory violations The district court dismissed this claim, concluding that does not satisfy the requirement.” 219 F.3d at 518 (quoting because the complaint failed to show a violation of the FCA, United States ex rel. Yesudian v. Howard Univ., 153 F.3d the complaint also failed to state a claim that Brush 731, 743 (D.C. Cir. 1998)). wrongfully discharged him in violation of Ohio public policy. This decision was correct. Yuhasz argues that this interpretation of the notice requirement “grants immunity to an employer who terminates In order to prevail on a wrongful discharge claim in the employee most likely to have information relevant to a qui violation of public policy under Ohio law, a plaintiff must tam action.” This is not the case. As the court noted in show: Ramseyer, employees charged with investigating potential fraud are not automatically precluded from bringing a Section (1) a ‘clear public policy existed and was manifested in 3730(h) action. 90 F.3d at 1523 n. 7. In light of their a state or federal constitution, statute or administrative ordinary responsibilities, however, such persons “must make regulation, or in the common law;’ (2) that ‘dismissing clear their intentions of bringing or assisting in an FCA action employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy;’ (3) ‘[t]he plaintiff’s dismissal was motivated by conduct 1 related to the public policy;’ and (4) ‘[t]he employer Yuhasz’s reliance on McKenzie I is misplaced. In M cKenzie I, lacked overriding legitimate business justification for the although the court found that by “show[ing] her supervisors a newspaper dismissal.’ article about a similar fraud being perp etrated” against another com pany, plaintiff had placed the employer on notice, the court specifically noted that the plaintiff’s “activities were not within the scope of her Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 311 emp loyment.” 123 F.3d at 945. In the instant case, Yuhasz’s activities (6th Cir. 2000) (quoting Painter v. Graley, 70 Ohio St.3d 377, fit squarely within the scope of his em ploym ent.

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384 n. 8 (Ohio 1994)). In Parry, the Sixth Circuit held that a The district court declined to grant Yuhasz leave to amend, plaintiff could not maintain a wrongful discharge claim in but it failed to specify the reasons for its decision. Pursuant violation of Ohio public policy when the public policy was to Fed. R. Civ. P. 15(a), a court should freely give leave to derived from an Ohio statute “substantially similar to the amend a complaint “when justice so requires.” However, ADA” and the ADA claim had been dismissed. Id. at 312. leave to amend may be denied where the amendment would The court explained that “[p]laintiff, having failed to show a be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). When viable claim under the ADA, is necessarily precluded from a district court denies a plaintiff’s motion for leave to amend claiming that his termination violated public policy.” Id. his complaint, this court generally reviews the decision for an Similarly, since Yuhasz has failed either to state an FCA abuse of discretion. Begala v. PNC Bank, Ohio, Nat’l Ass’n, claim or to identify the specific provision of the Federal 214 F.3d 776, 783 (6th Cir. 2000). When the district court Acquisition Regulations manifesting the alleged “clear public bases its decision to deny leave to amend on a legal policy,” Ohio public policy cannot serve as a basis for his conclusion that amendment would be futile, however, this wrongful discharge action. court reviews the decision de novo. Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). Since the district court did Yuhasz concedes that “if he is unable to demonstrate a not specify its reasons for denying leave to amend, the panel violation of the FCA, he may not bring a claim for discharge should conduct a de novo review. See McKethan-Jones v. in violation of the public policy therein,” but argues that Ohio Dept. of Health, 7 Fed. Appx. 475, 482, 2001 WL dismissal is not appropriate because “this public policy is also 345782, at *6 (6th Cir. 2001) (finding that “[t]he district independently and more broadly embodied in the common court, by refusing to grant leave to amend the original law of Ohio.” Under Ohio law, however, “when the complaint . . . , must implicitly have decided that such a claim employee’s discharge is not actionable under the law that was futile,” and conducting de novo review). establishes the ‘clear public policy,’ the companion common- law claim for relief likewise fails as a matter of law.” According to Fed. R. Civ. P. 15(a), “[a] party may amend Arsham-Brenner v. Grande Point Health Care Cmty., No. the party’s pleading once as a matter of course at any time 74835, 2000 WL 968790, at *7 (Ohio App. July 13, 2000). before a responsive pleading is served.” The term Since the only “applicable laws and regulations” that Yuhasz “responsive pleading” is defined by reference to Fed. R. Civ. alleges he was directed to violate are the FCA and the Federal P. 7(a), which distinguishes between pleadings and motions, Acquisition Regulations, and the complaint fails to state a and provides an exclusive list of pleadings: a complaint claim with respect to either of these authorities, his common (including a third party complaint), an answer to a complaint law public policy claim also must be dismissed. or a cross-claim, and a reply to a counterclaim. In this case, Brush never filed an answer. Consequently, Yuhasz was free VI. to file an amended complaint at any time prior to the district court’s entry of judgment. Yuhasz did not do so, but instead Yuhasz requested leave to amend his complaint in his claimed in his response to Brush’s motion to dismiss that he October 5, 1999, response to Brush’s motion to dismiss, and “has pled all the facts that he knows.” In light of Yuhasz’s he contends that the district court abused its discretion by admission, amendment would be futile. See Old Republic Ins. failing to grant his request. This argument lacks merit. Co. v. Hansa World Cargo Service, Inc., 170 F.R.D. 361, 383-384 (S.D.N.Y. 1997). (“[B]ecause [plaintiff] has conceded that it possesses no further facts to plead . . . , this

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Court finds that leave to replead [plaintiff’s] . . . claims should be denied as futile.”) Because Yuhasz did not amend as a matter of right under Rule 15(a) and because amendment would have been futile in any event, the district court’s denial of Yuhasz’s request for leave to amend was proper. Yuhasz also directly requests leave to amend from this court. This request is procedurally defaulted. The district court entered a final judgment dismissing the case on December 14, 2001. “Following entry of final judgment, a party may not seek leave to amend their complaint without first moving to alter, set aside or vacate the judgment pursuant to either Rule 59 or Rule 60 of the Federal Rules of Civil Procedure.” Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002). Since Yuhasz never filed a Rule 59 or 60 motion following the district court’s entry of judgment, he cannot now seek leave to amend. VII. For all of the foregoing reasons, we affirm the judgment of the district court.