2019 New Mexico Statutes
Chapter 44 - Miscellaneous Civil Law Matters
Article 9 - Fraud Against Taxpayers Act
Section 44-9-5 - Civil action by qui tam plaintiff; state or political subdivision may intervene.
A. A person may bring a civil action for a violation of Section 44-9-3 NMSA 1978 on behalf of the person and the state or political subdivision. The action shall be brought in the name of the state or political subdivision. The person bringing the action shall be referred to as the qui tam plaintiff. Once filed, the action may be dismissed only with the written consent of the court, taking into account the best interest of the parties involved and the public purposes behind the Fraud Against Taxpayers Act.
B. A complaint filed by a qui tam plaintiff shall be filed in camera in district court and shall remain under seal for at least sixty days. No service shall be made on a defendant and no response is required from a defendant until the seal has been lifted and the complaint served pursuant to the rules of civil procedure.
C. On the same day as the complaint is filed, the qui tam plaintiff shall serve the attorney general, and the political subdivision, if applicable, with a copy of the complaint and written disclosure of substantially all material evidence and information the qui tam plaintiff possesses. The attorney general on behalf of the state or the political subdivision, or the political subdivision on its own behalf, may intervene and proceed with the action within sixty days after receiving the complaint and the material evidence and information. Upon a showing of good cause and reasonable diligence in the state's or political subdivision's investigation, the state or political subdivision may move the court for an extension of time during which the complaint shall remain under seal.
D. Before the expiration of the sixty-day period or any extensions of time granted by the court, the attorney general or political subdivision shall notify the court that the state or the political subdivision:
(1) intends to intervene and proceed with the action; in which case, the seal shall be lifted and the action shall be conducted by the attorney general on behalf of the state or the political subdivision, or the political subdivision shall conduct the action on its own behalf; or
(2) declines to take over the action; in which case the seal shall be lifted and the qui tam plaintiff may proceed with the action.
E. When a person brings an action pursuant to this section, no person other than the attorney general on behalf of the state or a political subdivision, or a political subdivision on its own behalf, may intervene or bring a related action based on the facts underlying the pending action.
History: Laws 2007, ch. 40, § 5; 2015, ch. 128, § 4.
ANNOTATIONSCross references. — For the rules of civil procedure for district courts, see 1-001 NMRA.
For a history of qui tam prosecutions, see Guiterrez v. Gober, 43 N.M. 146, 87 P.3d 437 (1939).
The 2015 amendment, effective June 19, 2015, authorized qui tam plaintiffs to bring civil actions for violations of the Fraud Against Taxpayers Act on behalf of political subdivisions and authorized political subdivisions to intervene in such actions; in the catchline, added "or political subdivision"; in Subsection A, after "Section", deleted "3 of the Fraud Against Taxpayers Act" and added "44-9-3 NMSA 1978", after "person and the state", added "or political subdivision", and after "the name of the state", added "or political subdivision"; in Subsection C, after "attorney general,", added "and the political subdivision, if applicable", after "behalf of the state", added "or the political subdivision, or the political subdivision on its own behalf", after "diligence in the state's", added "or political subdivision's", and after "investigation, the state", added "or political subdivision"; in the introductory sentence of Subsection D, after "attorney general", added "or political subdivision", and after "that the state", added "or the political subdivision"; in Paragraph (1) of Subsection D, after "behalf of the state", added "or the political subdivision, or the political subdivision shall conduct the action on its own behalf"; and in Subsection E, after "behalf of the state", added "or a political subdivision, or a political subdivision on its own behalf".
Claims preclusion. — Where plaintiff was an inmate of a correctional facility; defendant had a service contract with the corrections department to provide meals for inmates in the facility which required defendant to provide food for religious diets for inmates who were approved to receive a religious diet; in 2008, plaintiff sued defendant for damages on the ground that although defendant had been approved to receive a religious vegetarian diet, defendant had refused to provide plaintiff with an adequate vegetarian diet which prohibited plaintiff from freely exercising plaintiff's religion; and in 2010, plaintiff sued defendant for violation of the Fraud Against Taxpayers Act to recoup money paid to defendant by the corrections department on the ground that defendant refused to provide food of the nutritional content and quality specified in the service contract, the doctrine of claims preclusion did not bar plaintiff's 2010 lawsuit because in the 2008 lawsuit plaintiff, as an individual on plaintiff's own behalf, sought to recover damages for wrongful acts perpetrated by defendant on plaintiff personally and in the 2010 lawsuit, plaintiff, on behalf of and in the name of the state, sought to recover damages sustained by the state as a result of defendants false claims for compensation for non-conforming goods and services. State ex rel. Peterson v. Aramark Corr. Servs., LLC, 2014-NMCA-036.
Issue preclusion. — Where plaintiff was an inmate of a correctional facility; defendant had a service contract with the corrections department to provide meals for inmates in the facility which required defendant to provide food for religious diets for inmates who were approved to receive a religious diet; in 2008, plaintiff sued defendant for damages on the ground that although defendant had been approved to receive a religious vegetarian diet, defendant had refused to provide plaintiff with an adequate vegetarian diet which prohibited plaintiff from freely exercising plaintiff's religion; and in 2010, plaintiff sued defendant for violation of the Fraud Against Taxpayers Act to recoup money paid to defendant by the corrections department on the ground that defendant refused to provide food of the nutritional content and quality specified in the service contract; the doctrine of issue preclusion did not bar plaintiff's 2010 lawsuit because the relevant issue in the 2008 lawsuit was whether plaintiff had been defrauded and the district court focused on the adequacy of plaintiff's vegetarian meals and the relevant issue in the 2010 lawsuit was whether defendant knowingly presented fraudulent claims for payment to the state and the district court focused on the adequacy of meals provided to all inmates in the facility. State ex rel. Peterson v. Aramark Corr. Servs., LLC, 2014-NMCA-036.
