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Cimorelli v. General Electric, 1st Cir. (1994)
Cimorelli v. General Electric, 1st Cir. (1994)
February 4, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1549
SALVATORE A. CIMORELLI,
Plaintiff, Appellant,
v.
GENERAL ELECTRIC COMPANY,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Per Curiam.
___________
Salvatore Cimorelli,
a long-time
former
under the
The gist
engine
of Cimorelli's
operations in
charges
alterations
by GE
that at
GE aircraft
Lynn, Massachusetts, GE
pencilled
labor
contracts
3729-33.
complaint was
altered
government
31 U.S.C.
that
records in
were
order
employees had
to
budget.
shift labor
budget to
Similar
in Lynn.
alterations had
the
federal
statement
to
government
or
obtain payment
fraudulent claim.
Id.
___
or
3729(a).
using
false
approval
of
record
or
false
or
government
litigation
if the
Here, after
declined
conducted
attorneys
government so
may
take
chooses.
charge
Id.
___
Id.
___
the
3730(b).
to participate.
Accordingly,
by Cimorelli who,
the
if any recovery
suit has
been
were obtained,
of
Claims
3730(c).
-2-2-
deadline for
Cimorelli, that
it produced
a vast
other records.
On the
ended,
filed
motions
Cimorelli
hindering
discovery.
magistrate
judge
district
various
The
who
motions
denied them
GE says, without
were
in
number of
GE
of
referred
to
1992,
and the
June
magistrate judge in
July 1992.
1992 were
July 1992
among other
claim
a
GE moved
for
summary judgment,
was no evidence of
arguing
any false
suit under
the False
McNinch,
_______
356
seeking
further
judgment,
Christy
relying
595,
598-600 (1958).
discovery,
centrally
Cimorelli
on
In
addition to
opposed
deposition
summary
testimony
of
facility.
described
U.S.
Claims Act.
Chipouras
below,
and
had
given
deposition
was apparently
promised
testimony,
a
share of
issued a memorandum
the
court's
The
reasons.
-3-
district
court
setting forth
found
that
-3-
Chipouras' testimony
identify specific
can
be linked
was "largely
incidents of
to
false
claims
conclusory, and
fails to
voucher falsification
against
the
which
government."
the
tentatively adopted,
prove his
case only by
opposed to
clear and
appeals
a jury even on
the grant
of
that
the premise,
Cimorelli need
a preponderance of the
convincing evidence).
summary
judgment
evidence (as
Cimorelli
and
the
now
district
of
summary judgment
turns
on whether
the
Cimorelli
to the
engine
federal government
or
relating
turbine operations.
477 U.S.
See
___
to the
Lynn
Anderson v.
________
Appellate
Sarit v.
_____
(1993).
13 (1st
Cir.),
judgment.
Id.
___
at
249-50.
-4-4-
In this
that
GE
contracts
government
said,
and
systematically charged
when
the
contracts.
labor
labor
had
This was
been
costs
general terms
to government
expended
accomplished
on
other
in part,
he
Chipouras.
He could
contract--a case
altered by other
personnel, including
specific mischarged
in which
time on
private contract
was
offered various
labor
vouchers
alterations.
benign
initially
We agree
in
explanations for
pencil
with Cimorelli
and
preparing
making
that, if
later
this issue
for a
jury.
However, we
whatever the
whatever
presented
agree with
GE and
explanation for
alterations, there is
or fraudulent claims
the government.
false
or
fraudulent
claim was
pencilled
no evidence
were actually
Although Cimorelli
the
charged
Cimorelli
presented
to the
federal government.
Perhaps where a
unambiguously
is
-5-5-
But in this
ambiguous,
offered by Chipouras.
record, we
despite
Under
the
pencilled
conclusory
epithets
evidence for
jury as to at least
submission of false
or fraudulent claims to
We
do not
reach
GE's further
convincing evidence
that
Chipouras'
was the
testimony
contentions
the government.
that clear
required standard
should be
of proof
disregarded
and
or
entirely
it
engaged
discovery,
court
"suppression"
and Cimorelli
abused its
discovery
and
contested
of
further argues
discretion in
failing
issues
misconduct.
claims
in
to hold
concerning
Cimorelli's
failing
an
evidence
that the
district
to permit
further
evidentiary
GE's
alleged
opening brief
during
included
hearing on
discovery
specific
sought by Cimorelli
from boxes of
materials actually
produced.
We
detail.
its answering
brief, GE
-6-6-
offered an
extremely
detailed
one.
to other allegations by
GE responded in
Cimorelli concerning
the GE
ignored
explanations.
GE's
Instead, the
detailed
answers
discussing the
standard
of
admissibility
of
testimony.
answering
that task
the
If Cimorelli
brief by
discovery issues,
proof on
Chipouras'
if not all,
reply brief
confined
the
itself
to
and
the
merits
allegedly
simply
purchased
is not
prepared
to dispute
pointing out
where it
is wrong
we are
ourselves.
and
Cf.
___
certainly not
going to
United States v.
_____________
at
GE's
on the
undertake
Innamorati, 996
__________
F.2d 456, 468 (1st Cir. 1993) (issues not briefed will not be
addressed).
Two further facts reinforce our sense that Cimorelli has
not been unjustly
that
there
is
indication
that
Cimorelli
One is
sought
any
-7-7-
extension
of the discovery
discovery period
present
expired.
claim that an
is that
despite the
have been
held
that
that
the
In
district court
its
considerable
-8-8-