Reporting Fraud Under the New Mexico False Claims Act
The New Mexico False Claims Act states that if the government declines to take over a qui tam action, the party bringing the action shall have the right to conduct the action if the New Mexico Department of Human Services determines that there is substantial evidence that the violation has occurred. N.M. Stat.§27-14-7(E)(2) (2004).
New Mexico Qui Tam Action
Again here, in cases where the government declines to intervene, defendants may argue on a motion to dismiss that the whistleblower’s claim has not met the prerequisites to pursue a qui tam case under the New Mexico False Claims Act because New Mexico has not issued a written “substantial evidence determination” allowing him/her to proceed on behalf of the state. However, the whistleblower and New Mexico qui tam lawyers can argue in response, that dismissal under Rule 12(b)(6) on this basis is inappropriate. See United States ex rel. King, 2011 U.S. Dist. LEXIS 117590 at *126-9 (denying defendant’s motion to dismiss claims under the New Mexico False Claims Act on the substantial evidence determination basis). The whistleblower and/or his/her respective New Mexico qui tam lawyer could argue that the New Mexico False Claims Act does not state that New Mexico must notify the court of its determination regarding substantial evidence, and the whistleblower is not required on a Rule 12(b)(6) motion to come forward with such evidence. Id. at *128.
Qui Tam Lawsuit in New Mexico
Also similar to the Delaware False Claims Act, the New Mexico False Claim Act only permits an “affected person” to bring a suit. However, the New Mexico False Claim Act does not define “affected person.” In Albuquerque Bernalillo Co. Water Util. Auth. v. NMPRC, 229 P.3d 494, 519 (N.M. 2010) the court found that the term “affected person” in the New Mexico False Claim Act statute must be given its “common and ordinary meaning.” New Mexico whistleblower lawyers and attorneys should take note of this specific provision prior to filing a qui tam case under the New Mexico False Claims Act.
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