VAKIL v. GREENWALD CATERERS, INC et al

OCR transcription for search; preserved printed pages are authoritative

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# NOT FOR PUBLICATION

# UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA ex rel.
KALPESH VAKIL,

Plaintiff,

Civil Action No. 24-7077 (MAS) (RLS)
MEMORANDUM OPINION

V.

GREENWALD CATERERS, INC., et al.,

Defendants.

## SHIPP, District Judge

This matter comes before the Court upon Defendants Greenwald Caterers, Inc. (the
"Company") and Isaac Greenwald's ("Greenwald," and collectively with the Company,
"Defendants") Motion to Dismiss (ECF No. 34) Plaintiff-Relator Kalpesh Vakil's ("Relator") qui
tam Amended Complaint (ECF No. 29) filed on behalf of the United States of America ("United
States" or the "Government"). Relator opposed (ECF No. 40), and Defendants replied (ECF No.
41). The Court has carefully considered the parties' submissions and reaches its decision without
oral argument under Local Civil Rule 78.1(b). For the reasons below, Defendants' Motion to
Dismiss is granted.

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### I. BACKGROUND1

#### A. The Parties

Relator, an individual, brings this action in his private capacity under the False Claims Act
(the "FCA"), 31 U.S.C. § 3729, et seq. (Am. Compl. 111, 5, ECF No. 29.) The Company is a New
Jersey catering company located in Lakewood, New Jersey. (See id. 13.) Greenwald has at all
times exercised "sole and exclusive control" over the Company. (Id. [4.) This action arises out of
Relator's assertion that Defendants engaged in "a brazen scheme . . . to defraud the United States
of over $4.7 million [dollars]." (Id. 12.)

#### B. The Restaurant Revitalization Fund

The American Rescue Plan Act (the "ARPA") established the Restaurant Revitalization
Fund (the "RRF") "as a source of grant funds for restaurants, bars, and similar establishments" in
response to the COVID-19 pandemic. (Id. 112 (citing 15 U.S.C. § 9001, et seq.).) The ARPA
authorizes recipients to use RRF grant funds to cover certain business expenses incurred during
the COVID-19 pandemic "for payroll, mortgage ... and/or rent payments ... , utility costs,
expenses incurred maintaining outdoor dining areas, supplies, certain food and beverage costs,
supplier costs, operational expenses, paid sick leave, and any other expense the [Small Business

" For the purpose of considering the instant motion, the Court accepts all factual allegations in the
Amended Complaint as true and considers the factual allegations in the Amended Complaint,
exhibits attached to the Amended Complaint, and public documents cited throughout the Amended
Complaint. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008); see also Guidotti
v. Legal Helpers Debt Resol., L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (noting that the court can
"consider only the complaint, exhibits attached to the complaint, matters of public record, as well
as undisputedly authentic documents if the complainant's claims are based upon [those]
documents" on a Rule 12(b)(6) motion (citation omitted)).

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Administration (the 'SBA')] deems essential to sustaining the grant recipient's business
operations." (Id. 1 18 (citing 15 U.S.C. § 9009c(c)(5)).)

In establishing the RRF, Congress provided for the "prioritiz[ation] of awarding grants to
eligible entities that are small business concerns owned and controlled by women." (Id.
121 (quoting 15 U.S.C. § 9009c(c)(3)(A)).) To be considered a privately-owned small business
concern that is "owned and controlled by women," the following conditions must be satisfied:
(1) there must be at least 51% ownership by one or more women; and (2) "the management and
daily business operations of the business [must be] controlled by one or more women." (Id.
1 24 (quoting 15 U.S.C. § 632(n)).) "[T]he governing SBA regulation provided that a catering
business was 'small' if it had less than $8 million in annual receipts." (Id. 123 (citing 13 C.F.R.
§ 121.201).)

The RRF application window opened on May 3, 2021. (Id. 179.) For the initial 21-day
application window, grants would only be awarded to those applicants who "self-certified" that
they met the criteria of being a "small business concern at least 51 percent owned and controlled
by women." (Id. "[80.) "Absent being given priority, grants were awarded on a first come, first
serve basis." (Id. 1 80 n.28 (citing 15 U.S.C. § 9009c(c)(1)).)

#### C. Defendants' RRF Grant

As the "individual with sole and exclusive control over [the Company]," Greenwald filed
or caused someone to file an application for an RRF grant "almost immediately after the
application window opened," which was approved in the amount of $4,740,740 on May 27, 2021.
(Id. 11 28, 81-82, 101.) "To qualify for an RRF grant on any basis, let alone a priority basis," the
Company was required to: (1) "designate itself as a 'small business concern at least 51 percent
owned and controlled by one or more women' by checking a box"; (2) "certify that designation by

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separate initialing"; and (3) "certify by separate initialing that any false statements or certifications
in that regard could result in criminal prosecution." (Id. 11 25, 135.) With its application, the
Company was required to submit "documentation of gross receipts for 2019 and 2020." (Ex. 3 to
Am. Compl. 16, ECF No. 29-1 (emphasis omitted).) Additionally, the Company "was statutorily
required" to certify that it "had [a] pandemic-related financial need for the grant and that grant
funds would only be used for eligible purposes under [the] ARPA. (Am. Compl. 139 (citing
15 U.S.C. § 9009c(c)(2)(A)(i)).)

The SBA noted-in publicly-available material regarding the Company's RRF grant-that
the Company was a "small business concern owned and controlled by women." (Id. 177.) As such,
according to Relator, "it appears [the Company's] grant application was given special priority."
(Id. 178 (citation omitted).) Both Greenwald and his wife, however, are on record testifying that
Greenwald has always controlled the Company and that his wife has no knowledge of or
involvement with running the Company. (See id. [1] 93-96.) Greenwald has also testified on the
record that the Company's gross receipts were $9,239,744 in 2017 and $11,398,259 in 2018. (See
id. 11 86-87.) Greenwald's testimony further stated that in 2019, the Company's gross receipts
were $11,873,099, and in 2020, the Company's "ordinary business income alone was $5.834
million." (Id. 11 88-89.) According to Relator, the 2020 ordinary business income figure "mean[s]
that [the Company's] gross receipts had to have been at least $5.834 million." (Id. 1 89.)

Relator alleges that, after the Company received the grant, Greenwald "redirected millions
in RRF grant funds to finance the acquisition of real estate through two special purpose entities
that [Greenwald] owns." (Id. [47.) Relator's allegations are based on Greenwald's prior testimony
about: (1) his ownership of two commercial real estate companies; and (2) the fact that the
Company loaned approximately $3 million to those commercial real estate companies in 2021.

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(Id. 11 48-50.) Relator further alleges that "while [the Company] was in dire financial condition at
the time it received an RRF grant (albeit, a condition that had nothing to do with the pandemic), it
somehow generated enough liquidity in the immediate aftermath of receiving the $4.7+ million
RRF grant to finance $3+ million in loans to . . . Greenwald's real estate investment
companies." (Id. [ 52.) According to Relator, because Greenwald "has been in exclusive control
of [the Company] since it was organized, [Greenwald's] implausible inability (or refusal) to
explain how his business . . . was suddenly able to generate" its liquidity "is compelling evidence
of, and leads to the more than plausible conclusion that, [the Company] generated the liquidity
from only one source: RRF grant funds." (Id. 155.)

Based on these facts, Relator alleges that Defendants submitted a "fraudulent RRF
application and subsequent[ly] misappropriated] ... RRF grant funds." (Id. [36.) Specifically,
Relator contends that:

at . .. Greenwald's direction and under his supervision, [the
Company]: induced the SBA into awarding the $4.7+ million RRF
grant by falsely certifying: [(1)] it "needed an RRF grant to support
catering operations"[; (2)] it would only use RRF grant funds for
eligible uses under ARPA [; (3)] it was a "small business concern"
[; (4)] it was "owned and controlled by women" [; and (5)] that the
information in its RRF grant application was truthful and accurate
in all material respects.

(Id. [ 32.)

#### D. Procedural Background

On June 18, 2024, Relator filed the initial Complaint under seal, which alleges two causes
of action: (1) violation of the FCA, 31 U.S.C. § 3729(a)(1)(A), (B) for making a false claim
asserted against both Defendants ("Count One"); and (2) violation of the FCA, 31 U.S.C.
§ 3729(a)(1)(C) for conspiracy asserted against Greenwald ("Count Two"). (See Compl.
11 68-104, ECF No. 1.) On May 2, 2025, the Government filed a Notice of Election to Decline

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Intervention. (Gov't's Notice, ECF No. 5.) On August 26, 2025, Defendants moved to dismiss the
initial Complaint. (Defs.' Mot. to Dismiss, ECF No. 23.) On March 3, 2026, this Court dismissed
the Complaint in its entirety and provided Plaintiff forty-five days to file an amended complaint.
(Mar. 2026, Mem. Op., ECF No. 27; Mar. 2026, Order, ECF No. 28.) On April 17, 2026, Relator
filed an Amended Complaint, reasserting the two causes of action in the initial Complaint. (Am.
Compl., ECF No. 29.) On June 15, 2026, Defendants moved to dismiss. (Defs.' Moving Br., ECF
No. 34-1.) Relator opposed on August 7, 2026 (Relator's Opp'n to Mot. to Dismiss, ECF No. 40),
and Defendants replied on August 28, 2026 (Defs.' Reply Br. To Mot. to Dismiss, ECF No. 41).

#### II. LEGAL STANDARD

Federal Rule of Civil Procedure2 8(a)(2) "requires only 'a short and plain statement of the
claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests."" Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

A district court conducts a three-part analysis when considering a motion to dismiss under
Rule 12(b)(6). See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). First, the court must
identify "the elements a plaintiff must plead to state a claim." Ashcroft v. Iqbal, 556 U.S.
662, 675 (2009). Second, the court must identify all of the plaintiff's well-pleaded factual
allegations, accept them as true, and "construe the complaint in the light most favorable to the
plaintiff." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). The
court can discard bare legal conclusions or factually unsupported accusations that merely state the
defendant unlawfully harmed the plaintiff. See Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.

2 All references to "Rule" or "Rules" hereafter refer to the Federal Rules of Civil Procedure.

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at 555). Third, the court must determine whether "the [well-pleaded] facts alleged in the complaint
are sufficient to show that the plaintiff has a 'plausible claim for relief."" Fowler, 578 F.3d at
211 (quoting Iqbal, 556 U.S. at 679). A facially plausible claim "allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Id. at 210 (quoting
Iqbal, 556 U.S. at 678). On a Rule 12(b)(6) motion, the "defendant bears the burden of showing
that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005)
(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

#### III. DISCUSSION

Defendants again move to dismiss both counts of Relator's qui tam action, asserting that
"the Amended Complaint suffers from the same flaws as the original [Complaint]: it does not
sufficiently allege falsity or materiality and fails to meet the stringent pleading requirements of
Rule 9(b)." (Defs.' Moving Br. 3.) "Without a substantive FCA claim [in Count One]," Defendants
assert that "[Relator's] FCA conspiracy claim [in Count Two] must also fail." (Id. at 8.) The Court
addresses each Count in turn.

##### A. Count One

Individuals are liable under the FCA if they "knowingly present[], or cause[] to be
presented, a false or fraudulent claim for payment or approval" or "knowingly make[], use[], or
cause[] to be made or used, a false record or statement material to a false or fraudulent claim."
31 U.S.C. § 3729(a)(1)(A)-(B). To state a claim under the FCA, four elements are necessary:
(1) falsity; (2) causation; (3) knowledge; and (4) materiality. United States ex rel. Schieber v. Holy
Redeemer Healthcare Sys., Inc., No. 19-12675, 2024 WL 1928357, at *4 (D.N.J. Apr. 30, 2024)
(citing United States ex rel. Petratos v. Genentech Inc., 855 F.3d 481, 487 (3d Cir. 2017)). "An
actionable claim can be factually or legally false[.]" United States ex rel. Bennett v. Bayer Corp.,

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No. 17-4188, 2022 WL 970219, at *6 (D.N.J. Mar. 31, 2022) (citation omitted). A factual falsity
occurs when a claimant makes a factual misrepresentation related to its goods or services and a
legal falsity occurs when a claimant makes an express or implied certification of its compliance
with regulations that are prerequisites to receiving payment from the Government. Id.

Defendants argue, in part, that Relator's Amended Complaint fails to state claim because
Relator "has not sufficiently alleged that Defendants knowingly falsely stated that [the Company]:
(1) would use the RRF funds for proper purposes; (2) needed the funds; and (3) was a small
business concern." (Defs.' Moving Br. 8.) Relator counters that "falsity is a given in this case"
(Relator's Opp'n Br. 14 (citation modified)), namely because in addition to the false statements
regarding fund use, need, and business size, Defendants also falsely represented that the Company
"was a woman 'owned and controlled' business entitled to priority under 15 U.S.C. § 9009c(c)(3)"
and that its "statements in the RRF application were true and accurate in all respects." (Id. at
14-15.) Because the parties' arguments implicate falsity and materiality, the Court addresses those
elements in turn.

###### 1. Falsity

Allegations related to any fraudulent or false statements in an FCA complaint must meet
Rule 9(b)'s heightened pleading standard. United States v. Neary, No. 20-14167, 2021 WL
3732910, at *6 (D.N.J. Aug. 24, 2021). As explained below, the Amended Complaint reasserts
and repackages many of the speculative and conclusory allegations regarding falsity that this Court
previously rejected. (See generally, Am. Compl.) To the extent that the Amended Complaint

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includes "new" falsity allegations, the Court finds these allegations suffer from the same
deficiencies observed in the March Memorandum Opinion.3 (See generally Mar. 2026, Mem. Op.)

Relator alleges that Defendants falsely certified that the Company needed RRF funds "to
sustain its catering operations" and would use the funds for "purchasing food, supporting
operations, making payroll, paying rent, purchasing supplies, and paying utilities." (Am Compl.
T1 45, 47.) As before, Relator alleges that the certifications' falsity is supported by:
(1) Greenwald's testimony that the Company lent over three million dollars to Greenwald's two
real estate companies (id. 11 47, 49); and (2) the fact that the Company generated liquidity
immediately after receiving the RRF funds (id. [ 52); and as before, this Court finds that these
allegations are "no more than mere conjecture that [are] not tied to any underlying factual
allegations" (Mar. 2026, Mem. Op. 9-10).

Relator also alleges that Defendants falsely certified that the Company was a "small
business concern," falling "below the $8 million annual receipt threshold that was in effect under
13 C.F.R. § 121.201 when [the Company] applied for its RRF grant." (Am. Compl. 1 84.) This
allegation is insufficient. As the Amended Complaint states, businesses that submitted
certifications to the SBA prior to 2022 were permitted "to calculate annual receipts of affiliates
using either the total receipts of the concern or affiliate or its most recently completed 5 fiscal
years divided by 5, or the total receipts of the concern or affiliate over its most recently completed

3 The Court notes that Defendants argue that Relator's Amended Complaint is improperly based
on information from a separate, unrelated case that was subject to a confidentiality order. (See
Defs.' Moving Br. 5-7.) The Court finds this potential misuse of information troubling but need
not decide the Motion to Dismiss on that basis.

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3 fiscal years divided by 3." (Id. 1 85 (citing 13 C.F.R. § 121.104(c)(1).)4 Though the Amended
Complaint alleges the Company's annual gross receipt amounts between 2017 and 2019 based on
Greenwald's testimony (id. (1 86-88), to sufficiently plead that the Company was not "small" at
the time it certified otherwise, the calculated three-year average of the Company's receipts must
include the Company's 2020 annual receipt. The Amended Complaint, however, does not allege a
figure for the 2020 annual receipt. (See generally Am. Compl.) Instead, it relies on Greenwald's
testimony that the Company's "ordinary business income alone was $5.834" to speculate that "its
gross receipts had to have been at least $5.834 million" (id. "[ 89), and that it "would have been
impossible for [the Company] to qualify as a 'small business concern" (id. 190).

The Court again finds that Relator has failed to satisfy the heightened Rule 9(b) standard
in alleging falsity of the statements made by the Company in its RRF grant application. See
Bennett, 2022 WL 970219, at *8 (noting that to satisfy Rule 9(b), "a relator . . . must support its
allegations with all of the essential factual background that would accompany the first paragraph
of any newspaper story-that is, the who, what, when, where, and how of the events at issue"
(citation modified)); United States ex rel. Zwirn v. ADT Sec. Servs., Inc., No. 10-2639, 2014 WL
2932846, at *11 (D.N.J. June 30, 2014) (finding relator failed to adequately plead facts regarding

4 Defendants argue that the proper metric is a three-year and a five-year average. (See Defs.'
Moving Br. 17-19.) Regardless of whether the appropriate measure is a three-year or five-year
average, the Court finds that Relator's Amended Complaint fails to adequately allege facts
regarding the purported falsity that the Company is a "small business concern" because Relator's
allegation is founded only on: (1) testimony related to annual receipts between 2017 and 2019; and
(2) speculation regarding the 2020 receipt. (See Compl. [1 86-89.)

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the falsity of statements "with the particularity required by [Rule] 9(b)" where "the allegations
[were] not sufficiently supported by pleaded facts to be plausible").5

### 2. Materiality

Even if Relator had adequately pled that the Company made false certifications in its RRF
application, the Court finds that Relator failed to adequately plead materiality. A false claim or
representation is "material" under the FCA when it has "a natural tendency to influence, or be
capable of influencing, the payment or receipt of money or property." 31 U.S.C. § 3729(b)(4).
"The FCA's materiality requirement is demanding" and, as such, "[m]ateriality ... cannot be
found where noncompliance is minor or insubstantial." Univ. Health Servs., Inc. v. United States
ex rel. Escobar, 579 U.S. 176, 178, 194 (2016). A complaint, therefore, does not meet the "high
standard" of adequately pleading materiality of false statements where "there are no factual
allegations showing that [the Government] would not have" awarded the grant money "had the[]
.. . deficiencies been cured." Petratos, 855 F.3d at 490.

The Amended Complaint adds a new section titled "Truthful Factual Representations in
RRF Applications About the Need and Intended Use for Grant Funds Were Material to the SBA's

5 The Court notes that Relator's Opposition Brief only makes more conclusory arguments in
response to Defendants' assertion that the Amended Complaint's falsity allegations fail to meet
9(b)'s heightened pleading standard. (See, e.g., Relator's Opp'n Br. 16 (broadly stating that "there
is little question the Defendants lied about [the Company] needing RRF funds to weather the
pandemic" and "about [the Company] being a small business," and "there is no question [that] the
Defendants lied about [the Company] being owned and controlled by women" and about the truth
and accuracy of information in the RRF application); see also id. at 18 (asserting the Amended
Complaint provides, as necessary to establish falsity, the who ("[t]he Defendants"), the what
("[f]ive separate lies-pandemic-related need, intended use, small business status, women-
controlled business status, and false certification of overall truthfulness"); the when ("May of
2021"), the where ("Defendants' RRF application"); and the how ("[s]ubmission to the SBA on a
priority basis" of Defendants' alleged misrepresentations (citing United States ex rel. Bookwalter
v. UPMC, 946 F.3d 162, 176 (3d Cir. 2019))).)

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Decisions," in which Relator cites the SBA's previous enforcement actions resulting from false
RRF certifications in unrelated cases. (Am. Compl. 15 11 58-76; see also Exs. 4-5 to Am. Compl.
16, ECF No. 29-1.) Relator alleges that the prior enforcement actions: (1) evidence "the critical
reliance that the SBA placed on each applicant making truthful certifications in its RRF application
about its pandemic-related need for RRF grant funds and its intended use for RRF grant funds"
(Am. Compl. 1 70); (2) "establish[] that each applicant's certifications in those respects were
material to the SBA's funding decisions" (id.); and (3) "confirm[] that, had [the Company] made
accurate certifications and statements about its intended use for the RRF funds, the SBA would
not have approved the application" (id. [ 76).

Beyond the facts that the cited enforcement actions are unrelated to the instant case and
occurred years after the Company submitted its RRF certifications to the SBA (see Exs. 4-5 to
Am. Compl. 16, ECF No. 29-1), they are not indicative of whether in this case, Defendants'
statements were material such that, as Relator alleges, SBA "would not have awarded the grant"
or "approved the application" had it known the statements were false (id. 11 33, 76, 100). Once
again, Relator has alleged nothing that would plausibly indicate that "the Government would not
have awarded the grant money at all but for the purported misrepresentation that the Company was
a 'small business concern at least 51 percent owned and controlled by one or more women"" or
that the Company would have used the funds for "eligible purposes." (Mar. 2026 Mem. Op. 11-12.)
Relator attempts to do so by alleging that "[a]bsent those false certifications, [the Company] would
not have received any grant-let alone a $4.7+ million priority grant within days after filing its

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RRF application." (Am. Compl. 1136.)6 This allegation, however, does not "allow the [C]ourt to
draw the reasonable inference that [Defendants] [are] liable" for making false, material statements.
Iqbal, 556 U.S. at 678. Instead, it merely rephrases the same allegations that this Court previously
deemed to be insufficient. (See Mar. 2026 Mem. Op. 11-12 (citing Compl. 164 (alleging that "had
[Greenwald] not caused [the Company] to repeatedly certify it would use all grant funds for
eligible purposes .. . [the Company] would not have received a penny"; id. 1 84 (alleging that
"[a]bsent those false certifications, [the Company] would not have received a penny - let alone a
$4.7+ million priority grant within 24 days after filing its RRF application")).) The assertion that
the Company would not have received funds under the non-priority, first come, first serve basis is,
once again, conclusory.

In any event, as this Court previously explained, "[a] misrepresentation cannot be deemed
material merely because the Government designates compliance with a particular statutory,
regulatory, or contractual requirement as a condition of payment." (See Mar. 2026 Mem. Op.
12 (quoting Escobar, 579 U.S. at 194).) "Nor is it sufficient for a finding of materiality that the
Government would have the option to decline to pay if it knew of the defendant's noncompliance."
(Id.) The Amended Complaint, therefore, plainly fails to meet the FCA's "demanding" materiality
requirement. Escobar, 589 U.S. at 178.

6 The Amended Complaint also alleges that "it is inconceivable that, had the SBA known
Greenwald Caterers provided false and misleading information in its RRF application and that
Greenwald Caterers would use millions in RRF grant funds to finance real estate investments, the
SBA would have awarded Greenwald Caterers a penny." (Id. [ 100.) This, too, is conclusory.

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The Court, accordingly, finds that Relator has failed to adequately plead falsity and/or
materiality of the purportedly false statements.7 Count One of Relator's Amended Complaint is
dismissed.

## B. Count Two

As to Relator's conspiracy claim, Defendants contend that the Amended Complaint fails
to state a claim for conspiracy to make false statements against Greenwald because: (1) there is no
underlying FCA violation; and (2) the Amended Complaint fails to allege an "agreement between
[] Greenwald and anyone other than the company he controls[,]" which is required to plead a
conspiracy claim. (Defs.' Moving Br. 30-36.) The Court agrees.

"To state a conspiracy claim under the FCA, a relator must allege[:] (1) 'a conspiracy to
get a false or fraudulent claim allowed or paid'[;] and (2) 'an act in furtherance of the conspiracy."
Schieber, 2024 WL 1928357, at *7 (quoting United States ex rel. Greenfield v. Medco Health Sys.,
Inc., No. 12-522, 2014 WL 4798637, at *11 (D.N.J. Sep. 26, 2014)). "Importantly, an agreement
between two or more persons is the 'essence' of a conspiracy under the FCA." United States ex
rel. Laporte v. Premier Educ. Grp., L.P., No. 11-3523, 2016 WL 2747195, at *19 (D.N.J. May
11, 2016).

Relator has again failed to allege the existence of any agreement between Greenwald and
another individual or entity to defraud the Government. (See generally Am. Compl.) Rather,
Relator broadly alleges that "Mr. Greenwald, as an individual, agreed and conspired with [the
Company] to submit a false and fraudulent RRF application." (Id. | 145.) The Court cannot infer
an agreement-let alone an act in furtherance of said agreement-from such a boilerplate

7 Because the Court finds that Relator has failed to adequately allege falsity and/or materiality, it
need not reach the causation or knowledge elements of the FCA claim or Defendants' other
arguments in favor of dismissal.

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allegation, particularly considering there are no facts alleged in the Amended Complaint regarding
the agreement.8 See Laporte, 2016 WL 2747195, at *19 (dismissing conspiracy claim where the
complaint failed to allege an agreement and "the facts [did] not allow the [c]ourt to infer an
agreement between the two because [r]elators have effectively pled that [the companies] are the
same entity for all intents and purposes"); see also Twombly, 550 U.S. at 555 ("[A] plaintiff's
obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do." (citation
omitted)).

The Court, accordingly, dismisses Count Two.

## IV. CONCLUSION

For the reasons set forth above, Defendants' Motion to Dismiss is granted. Relator's
Complaint is dismissed without prejudice. The Court will issue an Order consistent with this
Memorandum Opinion.

Mashing

MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

Dated: October 8, 2026

8 Without any allegations of the existence of an agreement, the Court need not reach the parties'
arguments regarding whether Greenwald, as the sole agent of the Company, can conspire with the
Company under the intracorporate conspiracy doctrine. See Gen Refractories Co. v. Fireman's
Fund Ins. Co., 337 F.3d 297, 313 (3d Cir. 2003) (Under the intracorporate conspiracy theory, “an
entity cannot conspire with one who acts as its agent." (citation omitted)).