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Schell v. Bluebird Media, LLC

United States Court of Appeals, Eighth Circuit

May 29, 2015

Martin Schell, Relator - Appellant
v.
Bluebird Media, LLC; Bluebird Network, LLC, Defendants - Appellees United States of America, ex rel Martin Schell, Plaintiff

Submitted January 14, 2015.

Page 1180

Appeal from United States District Court for the Western District of Missouri - Jefferson City.

For Martin Schell, Relator - Appellant: George Swearingen Smith, Ph. D., Johnston & Smith, Columbia, MO.

For United States of America, ex rel. Martin Schell, Plaintiff: Thomas M. Larson, U.S. Attorney's Office, Kansas City, MO.

For Bluebird Media, LLC, Defendant - Appellee: Bradley Alan Winters, Sher & Corwin, Saint Louis, MO.

For Bluebird Network, LLC, Defendant - Appellee: Nathan F. Garrett, Whitney Paige Strack, Graves & Garrett, Kansas City, MO; David Louis Marcus, Bartle & Marcus, Kansas City, MO.

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

OPINION

Page 1181

SHEPHERD, Circuit Judge.

Martin Schell filed a qui tam suit against Bluebird Media and Bluebird Network under the False Claims Act, 31 U.S.C. § § 3729-3733, alleging Bluebird[1] made false statements to the government to secure a grant and retaliated against Schell, a former Bluebird employee, for reporting fraudulent or illegal conduct. The district court[2] granted summary judgment in Bluebird's favor on all of Schell's claims. Schell now appeals, challenging the court's grant of summary judgment and two earlier orders denying Schell's motion to modify the scheduling order and motion for an extension of time to respond to Bluebird's motion for summary judgment. We lack

Page 1182

jurisdiction to address Schell's challenges to the two earlier orders because he did not indicate his intent to appeal those decisions in his notice of appeal. We affirm the district court's grant of summary judgment on all other claims.

I. Background

In March 2010, Bluebird Media submitted an application for a three-year grant from the National Telecommunications and Information Administration (" NTIA" ) of the United States Department of Commerce for the purpose of increasing broadband accessibility in northern Missouri. NTIA awarded Bluebird Media the grant in July 2010. In January 2011, Bluebird Media informed NTIA of its intent to enter a joint venture with Missouri Network Alliance (" MNA" ). The two companies created and co-owned a new company, Bluebird Network,[3] which NTIA approved as a sub-recipient for the grant's continued administration through the end of the grant period. Bluebird Network was managed by a Board consisting of five individuals selected by Bluebird Media and five individuals selected by MNA.

The grant required Bluebird to provide matching funds for more than $19 million in project-related costs, which could be in the form of cash or in-kind contributions from non-federal sources. In its grant application, Bluebird provided a project budget that identified a number of potential sources for the matching funds, including $10 million from Advantage Capital Partners, $9.158 million from Boone County National Bank, and a $10.5 million in-kind contribution from the State of Missouri (" the State" ). Bluebird ultimately met its match requirements through the in-kind contribution and cash and financing obtained from the joint venture with MNA. The application noted the State would provide discounted rights-of-way along state properties and convey parcels of land so Bluebird could lay fiber optic cables and operate facilities, and the State would receive heavily discounted bandwidth rates in exchange. All three potential funding sources provided letters in support of Bluebird's application. The application stated the project would serve underserved areas of northern Missouri, including a number of " community anchor institutions," such as schools, libraries, and healthcare providers. The application did not name specific institutions that would be served. Bluebird's due diligence documents included a letter stating Bluebird ...


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