Full opinion text
MEMORANDUM OPINION ROBERT L. WILKINS, United States Circuit Judge (Sitting by designation in the United States District Court for the District of Columbia) This is a civil action brought by the United States (“the government”) and relator Floyd Landis under the False Claims Act (“FCA”) against Lance Armstrong and several other defendants to recover damages and penalties because of alleged fraudulent claims and statements made by the defendants in connection with two sponsorship agreements between the United States Postal Service (“USPS” or “Postal Service”) and the companies that owned and managed the professional cycling team on which Lance Armstrong was the lead rider. Both the government and the relator assert claims against Defendants Lance Armstrong, Johan Bruyneel, Tailwind Sports Corporation (“TS Corp”) and Tailwind Sports, LLC (“TS LLC”) (collectively, the “intervened defendants”). The relator also asserts claims against Defendants Thomas W. Weisel, Capital Sports and Entertainment Holdings, Inc. (“CSE”), William J. Stapleton, Barton B. Knaggs, Ross Investments, Inc. (“Ross Investments”), and Montgomery Sports, Inc. (“Montgomery Sports”) (collectively, the “non-intervened defendants”). Pending before the Court are motions to dismiss by each defendant. For the reasons set forth below, the Court grants in part and denies in part the defendants’ motions to dismiss. I. BACKGROUND From 1995 to 2004, the USPS sponsored a professional cycling team owned by Montgomery Sports and its successor, TS LLC. United States’ Compl. (“Gov’t Compl.”) ¶ 2; Relator’s Second Am. Compl. (“Relator SAC”) ¶¶6, 7, 22-23. The team was called the USPS cycling team, and Lance Armstrong was the lead rider of the team from 1999 to 2004. Gov’t Compl. ¶¶ 2, 10; Relator SAC ¶¶ 6, 7, 22-23. Relator Floyd Landis also was a member of this cycling team from 2002 to 2004. Gov’t Compl. ¶ 7; Relator SAC ¶¶ 5', 80. The cycling team, which was managed by Defendant Johan Bruyneel from approximately 1998 to 2004, Gov’t Compl. ¶ 2; Relator SAC ¶ 13, achieved great success. Most notably, Mr. Armstrong won the Tour de France every year from 1999 to 2004, Relator SAC ¶ 110, and the Tour de France is widely considered professional cycling’s most prestigious race. Pursuant to two agreements — in 1995 and in 2000— the USPS paid Montgomery Sports and its successor companies approximately $42 million for sponsorships. Gov’t Compl. ¶ 26; Relator SAC ¶ 208. The plaintiffs contend that the defendants breached these agreements and submitted false claims for payment pursuant to these agreements. A. The 1995 Sponsorship Agreement In 1995, the USPS entered into an agreement with Montgomery Sports and, under this agreement, the USPS agreed to pay Montgomery Sports “in exchange for certain promotional rights, including the prominent placement of the USPS logo on the cycling team’s uniform and the provision of hospitality services in connection with team events.” Gov’t Compl. ¶ 15; Relator SAC ¶¶ 23-24. This agreement expired on December 31, 1996, but was “subject to automatic renewal on a year-to-year basis unless the Postal Service elected not to renew.” Gov’t Compl. ¶ 15; Relator SAC ¶¶ 23-24. The USPS allowed the agreement to renew each year through 2000. Gov’t Compl. ¶ 15; Relator SAC ¶ 29. The agreement required the USPS to pay Montgomery Sports “a net sponsorship fee of $1 million in 1996, $1.5 million in 1997, and $2 million in 1998.” Relator SAC ¶24. The parties made additional financial modifications to the agreement in subsequent years, and by the end of the first sponsorship agreement in 2000, the USPS had paid approximately $11 million to Montgomery Sports and its successor companies. Relator SAC ¶ 35. Under the terms of the 1995 agreement, [t]he performance of the obligations of the parties under this Agreement shall at all times and in all events be subject to “compliance with all applicable rules of the Union Cycliste Internationale [UCI], the Federation Internationale du Cyclisme Professional [FICP]; the United States Professional Cycling Federation, Inc. [USPCF], the International Olympic Committee [IOC], the United States Olympic Committee [USOC], the International Amateur Cycling Federation [IACF], the United States Cycling Federation [USCF] and all other governing organizations.” 1995 Agreement ¶ 13. Throughout the duration of both sponsorship agreements, the UCI and IOC prohibited “the use of certain performance enhancing drugs and prohibited other practices known to enhance rider performance.” Gov’t Compl. ¶ 17; Relator SAC ¶ 36. B. The 2000 Sponsorship Agreement In December 2000, the USPS and TS LLC (then known as DFP Cycling) entered into a four-year sponsorship agreement, which commenced on January 1, 2001 and continued through December 31, 2004, unless terminated earlier by the parties. Gov’t Compl. ¶ 18; Relator SAC ¶ 29. Prior to entering into the 2000 sponsorship agreement, in November ’ 2000 “various media outlets reported that French authorities had begun an investigation into allegations that Armstrong and the USPS cycling team used banned substances in winning [that year’s] Tour de France.” Gov’t Compl. ¶ 19. Despite the defendants’ “vehement[ ] deni[al] [of] the allegations,” the USPS was “concerned” about the allegations and “consequently inserted into the [2000] sponsorship agreement several additional provisions relating to the use of banned substances and methods.” Gov’t Compl. ¶ 19. Specifically, the following clauses were included in the 2000 agreement as events of default: “The Company fails to take immediate action without notification by the Sponsor in a case of a rider or Team offense related to a morals or drug clause violation”; and/or “[t]here is negative publicity associated with an individual rider or team support personnel, either permanent or temporary, due to misconduct such as, but not limited to, failed drug or medical tests, alleged possession, use or sale of banned substances, or conviction of a crime.” 2000 Agreement ¶ 8(a). The 2000 agreement also included a clause stating: The Company represents that each rider on the Team has a morals and drug clause that allows the Company to suspend or terminate the rider for cause which shall include items such as (1) conviction of a felony; (2) acts that require the Team to suspend or terminate a rider under the applicable rules of the [UCI, FICP, USPCF, IOC, IACF, and USCF] and all other applicable governing organizations; (3) failure to pass drug or medical tests; (4) inappropriate drug conduct prejudicial to the Team, or the Postal Service, which is in violation of Team rules or commonly accepted standards of morality; and (5) gross neglect of the rider’s duty. If any rider on the Team is found guilty of such offense, the Company agrees to take appropriate action within thirty (30) days. 2000 Agreement ¶ 9(a). The 2000 sponsorship agreement also retained the requirement from the 1995 agreement that “the team adhere to the rules of the UCI, IOC, and the other bodies that govern international cycling.” 2000 Agreement ¶ 12. The USPS’s payments to TS LLC increased significantly under the 2000 agreement, by more than $20 million. The 2000 agreement required the USPS to pay TS LLC approximately $31 million over its four-year term. Gov’t Compl. ¶ 25; Relator SAC ¶¶ 30, 33. The USPS ended its sponsorship of the cycling team by not renewing the 2000 sponsorship agreement beyond the December 31, 2004 termination date. Gov’t Compl. ¶ 18; Relator SAC ¶¶29, 32. C. Performance Enhancing Drugs and Blood Doping The plaintiffs allege that members of the cycling team, including Defendant Armstrong and the relator, used performance enhancing drugs and techniques that were banned by the governing cycling organizations. These performance enhancing drugs and techniques included “blood doping,” as well as using human growth hormones (“HGH”), anabolic steroids, and corticosteroids. Blood doping refers to extracting one’s own blood, storing the blood for a certain period of time until the red blood cell count has been restored, and then re-injecting the blood back into the body just before or during competition. Gov’t Compl. ¶ 28E; Relator SAC ¶ 61. This artificial means of increasing one’s red blood cell count increases the oxygen carrying capacity of an individual’s blood and thus enhances his endurance. Gov’t Compl. ¶ 28E; Relator SAC ¶ 61. Blood doping may also involve the use of Eryth-ropoietin (“EPO”). Gov’t Compl. ¶ 28A; Relator SAC ¶ 61-62. EPO is a hormone that stimulates the production of red blood cells in the human body. Gov’t Compl. ¶ 28E; Relator SAC ¶¶ 61-62. Although EPO is a naturally occurring hormone that is produced by the kidneys, it can also be produced in a lab and later ingested. Relator SAC ¶¶ 61-62. D. Allegations of the Use of Banned Performance Enhancing Drugs and Blood Doping The plaintiffs’ complaints include numerous allegations of specific instances of doping by Defendant Armstrong and other members of the cycling team. Plaintiffs allege further that Defendant Bruyneel (the team’s manager) and the non-intervened defendants either directly facilitated the doping by members of the cycling team, or at the very least knew or should have known of the doping. 1. Allegations Against Intervened Defendants Plaintiffs allege that Defendant Armstrong doped throughout his tenure on the cycling team, including doping in connection with each Tour de France from 1999 through 2005. Gov’t Compl. ¶ 35; Relator SAC ¶¶ 84-112. Specifically, for example, during the 1998 Vuelta a España race, Mr. Armstrong injected himself with EPO. Gov’t Compl. ¶ 37. In May 1999, Mr. Armstrong gave EPO he had stored in his home to another rider on the team. Gov’t Compl. ¶ 38. Later, during the 1999 Tour de France, Mr. Armstrong and other riders of the team “arrange[d] for an associate to follow the team on a motorcycle that contained their supply of EPO,” and from “time to time throughout that year’s Tour, the associate would deliver” the EPO to team personnel who would provide it to Mr. Armstrong and other riders. Gov’t Compl. ¶ 40. Further, with the assistance and advice of sports doctor Michele Ferrari, members of the team often used a “mixture that consisted of testosterone dissolved in olive oil” — which some team members referred to as “the oil” — and Mr. Armstrong provided the oil to another member of the team in connection with the 1999 Tour de France. Gov’t Compl. ¶ 41. The following year, several weeks prior to the 2000 Tour de France, Mr. Armstrong and some other riders on the team traveled to Valencia, Spain to “have blood extracted for the purpose of having it transfused back into their bodies during the 2000 Tour de France.” Gov’t Compl. ¶44. In 2002, Mr. Landis traveled with Mr. Armstrong to Mr. Armstrong’s apartment in St. Moritz, Switzerland, and upon arriving at his apartment, he gave Mr. Landis a 2.5 ml package of testosterone patches. Gov’t Compl. ¶ 50; Relator SAC ¶ 84. About one week later, Mr. Landis met with Dr. Ferrari at Mr. Armstrong’s apartment, at which time'Dr. Ferrari extracted blood from Mr. Landis for later reinjection during that year’s Tour de France. Gov’t Compl. ¶ 51; Relator SAC ¶¶ 85-86, 88. In or around May 2003, Mr. Landis traveled to Mr. Armstrong’s apartment in Ge-rona, Spain, where Dr. Ferrari extracted “half a liter of blood and placed it in a refrigerator hidden in the closet of the master bedroom” that also contained “several other bags of blood.” Relator SAC ¶ 92. Shortly thereafter, because Mr. Armstrong was going to leave his apartment for a few weeks to train, he asked Mr. Landis to stay at the apartment to “check the temperature of the blood each day and make sure there were no problems with the electricity or the refrigerator,” which Mr. Landis agreed to do. Relator SAC ¶ 93. Later during that year’s Tour de France, Mr. Landis received transfusions of previously extracted blood and witnessed other members of the team receiving transfusions. Relator SAC ¶¶ 96-99. Prior to the 2004 Tour de France, Mr. Armstrong had his blood extracted by Dr. Dag Van Eslande in a hotel in Kortrijk, Belgium for later reinjection during that year’s Tour de France. Gov’t Compl. ¶ 59; Relator SAC ¶ 106. And on different occasions during the 2004 Tour de France, Mr. Armstrong and Mr. Landis received blood transfusions together. Gov’t Compl. ¶ 60; Relator SAC ¶¶ 108-09. Plaintiffs also allege that Defendant Bruyneel, the directeur sportif (i.e., manager) of the cycling team from approximately 1998 to 2004, was knowledgeable of the team’s doping and facilitated the doping. Gov’t Compl. ¶ 36; Relator SAC ¶ 81. For example, on one occasion in 1999, Mr. Bruyneel provided HGH directly to a rider on the team. Gov’t Compl. ¶ 39. Also, during the 2000 Tour de France at a hotel near Mont Ventoux, France, Mr. Bruyneel witnessed Mr. Armstrong and other riders having refrigerated blood reinjected into their bodies. Gov’t" Compl. ¶ 45. And it was Mr. Bruyneel that instructed Mr. Landis to travel with Mr. Armstrong to Armstrong’s apartment in St. Moritz, Switzerland to obtain the 2.5 ml package of testosterone patches. Gov’t Compl. ¶¶ 49-50; Relator SAC ¶¶ 82-83. Specifically, Mr. Bruyneel told Mr. Landis that the testosterone patches “should be worn two out of three days after hard training for eight to ten hours at night, which would be relatively free of risk of detection.” Relator SAC ¶ 83. Later, around May or June of 2003, Mr. Bruyneel instructed Mr. Landis to go to Mr. Armstrong’s apartment in Girona, Spain to have a half-liter his blood extracted by Dr. Ferrari. Gov’t Compl. ¶ 55. Then, a few months after the 2003 Tour de France, Mr. Bruyneel asked Mr. Landis to ride in the Vuelta a España cycle race in September 2003; and, in preparation for the race, he asked Mr. Landis to have his blood drawn so that it could be reinjected during the race. Relator SAC ¶ 100. Mr. Landis agreed to do so. Id. And in 2004, team personnel “performed two separate blood extractions and two transfusions on Mr. Landis under the direction of defendant Bruyneel.” Relator SAC ¶ 105. 2. Allegations Against Non-Intervened Defendants In addition to the intervened defendants (Lance Armstrong, Johan Bruyneel, TS Corp, and TS LLC), the relator separately raises allegations against Thomas W. Weisel, William J. Stapleton, Barton B. Knaggs, and certain companies that these individuals either owned, managed, or worked for as high-level officers. During the time period relevant to the relator’s complaint, Defendants Stapleton and Knaggs “owned and controlled, directly or indirectly” Capital Sports and Entertainment Holdings, Inc. (“CSE”). Relator SAC ¶ 11. And around May 2004, CSE became a part owner of TS LLC and TS Corp with “approximately a 12 percent stake in the company.” Id. Relator alleges that around October 2002, he met with Mr. Stapleton at his office near the Four Seasons hotel in Austin, Texas to “discuss a renewal of his contract for the next two years.” Id. ¶ 90. During this meeting, “Mr. Stapleton specifically referenced the fact that he was aware of the extent to which Mr. Landis had been doping, and commented on the fact that the Team could help him with further doping to help improve his performance further.” Id. With respect to Mr. Knaggs, the relator alleges that around April 2004, after the Paris-Roubaix race, the relator, Mr. Knaggs, Geert Dueffler (Mr. Bruyneel’s assistant), and others had dinner at a restaurant in France. Id. ¶ 113. During dinner, “Mr. Landis expressed concern about a shortage of equipment that was resulting from 'team management selling the bikes that were being provided by sponsors for the riders.” Id. A “heated” conversation ensued, during which “Mr. Landis commented to the effect that, while Mr. Armstrong was flying around in his own jet, the other riders should not be facing problems just obtaining the proper bike.” Id. Responding to Mr. Landis’ complaint, Mr. Dueffler “explained that the team management needed to sell bikes to finance the doping program, as they needed cash for the doping program, and the team could not just list doping as a cost item on standard expense reports.” Relator SAC ¶ 114. Relator alleges that Mr. Knaggs was present during the conversation and “indicated his agreement with what was being expressed by Mr. [Dueffler].” Id. ¶ 115. Further, “to defuse the situation, Mr. Knaggs thereafter indicated that he would talk to defendant Bill Stapleton about the situation and try to get a replacement bike for Mr. Landis.” Id. ¶ 115. Mr. Weisel, a former cyclist, was a “founder of both [TS LLC and TS Corp,] chairman of the board, and the largest shareholder,” as well as the President of its predecessor, Montgomery Sports. Id. ¶¶ 10, 131-32. Mr. Weisel also owned defendant Ross Investments during the period relevant to the relator’s complaint. Id. ¶ 16. Relator alleges that Mr. Weisel was aware of the doping allegations against Mr. Armstrong, but failed to “take concrete steps to investigate and prevent any doping by the USPS Team consistent with the team’s obligations under its contract with the Postal Service.” Id. ¶ 149. E. Denials of the Use of Performance Enhancing Drugs The plaintiffs’ complaints include repeated instances of Mr. Armstrong, Mr. Bruyneel, and other members of the cycling team publicly and privately denying any use or involvement in doping. Gov’t Compl. ¶¶ 62-73; Relator SAC ¶¶ 121-30. Defendant Armstrong was never caught doping, and he never failed any drug tests. Gov’t Compl. ¶ 67D; Relator SAC ¶ 149. But in January 2013, during an interview with Oprah Winfrey, Defendant Armstrong admitted that he used banned substances and methods, starting in the mid-1990s up until his retirement in 2005. Gov’t’s Compl. ¶ 61; Relator SAC ¶ 225. In particular, he admitted having engaged in banned practices during each of the seven Tour de France races in which he competed from 1999 to 2005, including the six in which he competed and won as a USPS rider. Gov’t Compl. ¶ 61; Relator SAC ¶ 225. F. FCA and Common Law Claims On June 10, 2010, the relator filed his initial complaint, alleging violations of the FCA on behalf of himself and the United States Government pursuant to the qui tam provisions of the FCA, 31 U.S.C. § 3730(b)(1). Relator amended his complaint on December 23, 2010, and again on February 22, 2013. Dkt. Nos. 10, 42. After completing its preliminary investigation, the government filed its complaint on April 23, 2013, intervening against Defendants Lance Armstrong, Johan Bruyneel, TS Corp and TS LLC. Dkt. No. 44. The crux of the relator and government complaints is that the cycling team’s doping and use of banned enhanced performance techniques breached the terms of two the sponsorship agreements. They contend that the defendants defrauded the government by either encouraging, allowing or participating in the doping, making false statements about the doping, failing to inform the USPS of the doping, and/or continuing to collect payments under the sponsorship agreement even while knowing of the breaches of contract. The plaintiffs’ complaints include four Counts under the FCA: (1) Presentation of False Claims; (2) Presentation of False Records or Statements; (3) Conspiracy to Present False Claims, Records, or Statements; and (4) “Reverse” False Claims. Gov’t Compl. ¶¶ 74-85; Relator SAC ¶¶ 239-277. The claims asserted by the plaintiffs are brought under the versions of the FCA prior and subsequent to the May 2009 Fraud Enforcement and Recovery Act (“FERA”) amendments, Pub. L. No. 111-21,123 Stat. 1617 (2009). The government additionally asserts common law fraud claims against each intervened defendant, breach of contract against TS LLC and its predecessors, and an unjust enrichment claim against Defendants Armstrong and Bruyneel. Gov’t Compl. ¶¶ 86-93. II. LEGAL ANALYSIS OF JURISDICTIONAL AND PROCEDURAL ARGUMENTS All of the defendants raise several jurisdictional and procedural challenges to the plaintiffs’ actions. In addition, Defendants Stapleton, Knaggs, and CSE ask that the court take judicial notice of certain allegations in the government’s complaint against TS Corp, TS LLC, Lance Armstrong, and Johan Bruyneel. Finally, the relator objects to extrinsic evidence found in the Motion to Dismiss and supporting exhibits filed by Defendants Wiesel and Ross Investments. The Court will separately address each issue. A. Request for Judicial Notice of the Government’s Complaint As part of their motion to dismiss the relator’s second amended complaint, Defendants Stapleton, Knaggs, and CSE ask that the court take judicial notice of the government’s complaint against Defendants TS Corp, TS LLC, Lance Armstrong, and Johan Bruyneel. CSE Request for Judicial Notice in Support of Mot. to Dismiss. Relator’s SAC at 1-2 (Dkt. No. 94 at ECF p. 36.) Under Federal Rule of Evidence 201(b), courts may judicially notice facts that are not subject to reasonable dispute, and under subsection (c)(2), courts “must take judicial notice [of such facts] if a party requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(b), (c)(2). The government’s complaint is part of the public record, and therefore the Court may judicially notice the undisputed factual allegations in the government’s complaint. See Covad Comc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C.Cir.2005) (holding that courts may take “ ‘judicial notice of facts on the public record’ ”) (citing Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1228 (D.C.Cir.1993)). The defendants’ request is granted. B. Relator’s Objection to Extrinsic Evidence Relator objects to several statements and supporting exhibits found in a declaration by Robert Sacks that was filed by Defendants Weisel and Ross Investments. See Relator’s Objection to Extrinsic Evidence in the Mot. to Dismiss by Thomas Weisel and Ross Investments and in the Deck of Robert A. Sacks in Supp. Thereof (“Relator’s Obj.”) at 2-5 (Dkt. No. 107-1). These statements and exhibits primarily concern the relator’s doping, Mr. Weisel and his business affairs, and the government’s investigation prior to filing its complaint. See id. The relator first challenges this information as extrinsic evidence because it was not referenced in his complaint. See id. Next, the relator points out that some of these statements come from press releases, though the sources of other statements have not been cited. The relator argues that the Court is not authorized to take judicial notice of information from sources such as press releases, but in any event he asserts that the defendants have not requested that the Court take judicial notice. See id. Accordingly, pursuant to Federal Rule of Civil Procedure (“FRCP”)- 12(d), the relator asks the Court to exclude this information. Alternatively, if the Court is inclined to consider this information, the relator argues that the defendants’ motion to dismiss should be converted to a motion for summary judgment, and the relator requests an opportunity for discovery pursuant to FRCP 56(d). See id. at 2. Defendants respond that “[m]uch of the information is readily verifiable,” but note that the “information also is far from essential to the motion.” Weisel and Ross Investments’ Reply to Realtor’s Opp’n (“Weisel Reply”) at 5 n.4. Defendants state that the Court can “exercise its discretion not to consider it, and need not convert the motion to dismiss into a motion for summary judgment.” Id. (citing Feld Entm’t Inc. v. Am. Soc’y for the Prevention of Cruelty to Animals, 873 F.Supp.2d 288, 323 (D.D.C.2012)). The challenged information constitutes extrinsic evidence, and the defendants have not requested that the Court take judicial notice of such information. Furthermore, the defendants do not wish for them motions to be converted to motions for summary judgment. Therefore, the Court will not consider this extrinsic information. C. Relator Standing & Undue Burden Defendants make two challenges to the relator’s participation in this litigation. First, Defendants argue that the government’s intervention has stripped the relator of his Article III standing. This argument, however, is not consistent with the text of the FCA, which makes clear that relator continues to have standing after the government intervenes. The FCA states that “[a] person may bring a civil action for a violation of section 3729 for the person and for the United States government.” 31 U.S.C. § 3730(b)(1). Thus, the statute explicitly gives a person—i.e., a relator—a right to proceed as a real party in interest. Nothing in the text of section 3730 indicates that a relator no longer has standing following intervention by the Attorney General. To the contrary, section 3730(c)(1) states: “If the Government proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action .... ” 31 U.S.C. 3730(c)(1) (emphasis added). Indeed, after surveying this statutory landscape, the D.C Circuit stated (albeit in dictum) that “[t]he relator appears to remain a party whether or not the United States intervenes.” United States ex rel. Long v. SCS Business & Technical Institute, Inc., 173 F.3d 870, 885 (D.C.Cir. 1999). Even if all of this were not sufficient, concluding that the relator continues to have standing even after the United States intervenes is consistent with the Supreme Court’s observation that “the statute [section 3730(b) ] gives the relator himself an interest in the lawsuit, and not merely the right to retain a fee out of the recovery.” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 772 (2000) (emphasis added, other emphasis omitted). Accord, Long, 173 F.3d at 884-85 (noting that the FCA gives the relator a “right” to enforce to statute). In sum, there is no merit in this contention of the Defendants. Defendants next assert that the relator’s “unrestricted participation during the course of the litigation ... would cause the defendant undue burden or unnecessary expense.” Armstrong Mot. to Dismiss Relator SAC at 5 (Dkt. No. 92) (quoting 31 U.S.C. § 3730(c)(2)(D)). Thus, argue Defendants, as provided for in the FCA the- Court should “limit the participation by the [relator] in th[is] litigation.” Id. (citing 31 U.S.C. § 3730(c)(2)(D)). This argument is unpersuasive. Because the FCA permits the government and a relator to simultaneously prosecute the action, there is no presumption under the statute against allowing both complaints to proceed. Instead, the Court must give meaning to the adjectives “undue” and “unnecessary,” as they modify “burden” and “expense.” And here, the similarity of the legal theories advanced by the government and the relator—as well as the similarity of the underlying factual allegations — alleviates the potential burden caused by the relator’s continued prosecution of this action. Perhaps as the parties delve deeper into discovery or reach trial the defendants may be able to make the required showing . under section 3730(c)(2)(D), but at the present stage of this litigation, the defendants cannot show an “undue” burden or an “unnecessary” expense. D. Jurisdiction over the Tailwind Defendants 1. Dissolution & Timeliness TS LLC and TS Corp (or “Tailwind defendants”) argue that they cannot be sued because they no longer exist. Tailwind Mot. to Dismiss the United States’ Compl. and Relator’s SAC (“Tailwind Mot. to Dismiss”) at 4-9 (Dkt. No. 91). a. TS LLC With respect to TS LLC, the Tailwind defendants state that it “merged with and into Tailwind Sports Corporation on July 16, 2002,” pursuant to 8 Del. C. § 259(a), and therefore ceased to exist on that date. Tailwind Mot. to Dismiss at 5. The plaintiffs agree that TS LLC can be dismissed from this matter if the Tailwind defendants concede that TS Corp assumed TS LLC’s liabilities. The Court finds that the Tailwind defendants have effectively conceded that TS LLC can be dismissed with prejudice from this action because TS Corp absorbed all of TS LLC’s rights and liabilities. Consistent with the parties’ representations, the Court dismisses with prejudice all claims against TS LLC. b. TS Corp. With respect to TS Corp., the Tailwind defendants raise timeliness defenses against the complaints filed by both the relator and the government. As to the relator’s complaint, the Tailwind defendants argue that they did not have timely notice of his complaint, as required by state law. The Tailwind defendants note that TS Corp'. dissolved on December 31, 2007. Id. Pursuant to Delaware’s corporate winding-up statute, they contend that TS Corp. “permanently ceased to exist for any purpose three years later,” on December 31, 2010. Id. at 5 (citing 8 Del. C. § 278). The Tailwind defendants recognize that the relator filed his initial complaint on June 10, 2010 — before the three-year winding-up period ended on December 31, 2010 — but they argue that the relator’s lawsuit did not commence until they were served, which occurred, if at all, “approximately three years later.” Id. at 4. Though acknowledging that “an action is often said to have ‘begun’ on the date it is filed,” the Tailwind defendants claim that Delaware’s winding-up statute requires that the “defendant receives relatively prompt notice of the claims, or at least the basic allegations, advanced against it.” Id. at 7 (citing Russell v. Olmedo, 275 A.2d 249, 250 (Del.1971)). The Tailwind defendants assert that although “Landis may have technically filed his complaint within the windup period ... he did not notify Tailwind of the action for years; Tailwind did not have any notice whatsoever until long after the corporation was dissolved and wound up.” Id. at 7. With respect to the government’s complaint, the Tailwind defendants point out that it was filed long after the Landis complaint, and they argue that the government may not claim the date Landis filed his original Complaint as the date on which the government’s action was “begun.” Id. at 8. The Tailwind defendants argue that “§ 278 is not a statute of limitations — it is, rather, a corporate winding up statute — and, consequently, relation-back principles do not apply.” Id. They add that section 3731(c) of the FCA “permits relation-back only ‘[f]or statute of limitations purposes.’ ” Id. at 8 (emphasis in original) (quoting 31 U.S.C. 3731(c)). “As a result,” the Tailwind defendants contend, “even if this court were to find Landis’s complaint not barred by section 278, the government could not save its own untimely complaint through the relation-back provision of the False Claims Act, 31 U.S.C. § 3731(c).” Id. at 8. The Court finds these arguments unavailing, because ultimately federal law, not Delaware law, controls when the actions by the relator and government “commenced.” And the relevant federal rule does not support the arguments of the Tailwind defendants. c. The Relator’s Action Began Upon Filing the Complaint Whether a corporation can be sued is determined by the law of the state of its incorporation. See FRCP 17(b)(2); Keeter Trading Co. v. United States, 79 Fed.Cl. 243, 250 (Fed.Cl.2007) (“There is no question that in all federal courts, including this one, a corporation’s capacity to sue or be sued is to be determined by the law of the state of its incorporation.” (citing FRCP 17(b)); Carol A. Jones, 9 Fletcher Cyclopedia of the Law of Corporations § 4223, p. 30 (2008) [hereinafter Fletcher Cyclopedia]. But, as with a natural person as a defendant, questions regarding how to initiate a civil action against a corporation, or when a civil action against a corporation begins, are answered by reference to the relevant forum’s rules of civil procedure. “Civil procedure in federal courts is governed by the Federal Rules of Civil Procedure and applicable federal statutes, except where governing federal statutes or the Federal Rules of Civil Procedure otherwise provide for conformity to state practice.” Fletcher Cyclopedia § 4223, p. 31; see generally FRCP 1. In federal court, if a procedural question is answered by a federal rule of civil procedure, then that federal rule of procedure governs “unless it exceeds statutory authorization or Congress’s rulemaking power.” Shady Grove Orthopedic As- socs. v. Allstate Ins. Co., 559 U.S. 393, 398, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). Rule 3 of the federal rules explicitly answers the question of how and when a lawsuit “begins” in federal court, as it provides that “[a] civil action is commenced by filing a complaint with the court,” FRCP 3, and of course, “commence” and “begin” are synonymous. Webster’s Third New International Dictionary, Unabridged, s.v. “begin,” (last accessed June 11, 2014, http://unabridged.merriam-webster.com). Accordingly, Rule 3 of the federal rules governs whether the relator had “begun” his action under Delaware’s winding-up statute, 8 Del. C. § 278, unless Rule 3 is not a valid exercise of Congress’s rule-making power. The defendants have not suggested that Rule 3 exceeds Congress’s rulemaking power, and there is no basis for the Court to reach that conclusion. See 19 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4509, p. 271 (2d ed. 1996) (hereinafter WRIGHT & MILLER) (“In the vast majority of cases, diversity cases included, questions concerning the validity of the Civil Rules safely can be assumed to have been resolved favorably.”); Cf. Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 407, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) (‘We have found to be in compliance with § 2072(b) [of the Rules Enabling Act those] rules prescribing methods for serving process.... ”). Rule 3 requires only the filing of a complaint to commence a civil action. The rule does not provide that either notice to the defendant or service of process must be accomplished before a lawsuit can be said to have “begun.” Thus, the Tailwind Defendants’ reliance on Rule 3(a) of Delaware Superior Court rules of civil procedure and precedent construing the state rule is unavailing. See, e.g., Russell v. Olmedo, 275 A.2d 249, 250 (Del.1971). Instead, International Pulp Equipment Co. v. St. Regis Kraft Co., 54 F.Supp. 745 (D.Del.1944) (Int’l Pulp Equip. Co. I) and International Pulp Equipment Co. v. St. Regis Kraft Co., 55 F.Supp. 860 (D.Del.1944) (Int’l Pulp Equip. Co. II) are the cases that are most directly on point. Both decisions involved a prior version of the Delaware winding-up statute that was similar to the modern version, including having a three-year winding-up period. Int’l Pulp Equip. Co. I, 54 F.Supp. at 747. The defendant corporation was dissolved on September 30, 1940 and the plaintiff brought suit just short of the three year limitations period on September 23, 1943. The defendant corporation moved to dismiss the plaintiffs suit, arguing that the plaintiffs attempt to serve it through a resident agent after it filed for dissolution was ineffective. Thus, the issue was whether “service of process on a resident agent of a dissolved Delaware Corporation” is “invalid for the reason that the resident agent’s power to accept such service is terminated by the dissolution.” Id. at 746. The court held that the plaintiffs attempt to serve the defendant was inadequate, but also concluded that the defendant may be served through the Delaware Secretary of State. Id. at 747-49. Perhaps anticipating that after the plaintiff served the Delaware Secretary of State, the defendants would argue that the plaintiffs suit still could not be maintained because service (and notice) would have occurred well beyond the three-year winding up period, the court preemptively addressed the issue of whether the plaintiff would be permitted to maintain its action after serving the Delaware Secretary of State. Citing Rule 3 of the federal rules, the court stated that [t]he view that the Secretary of State may now be served in the case at bar (even though subsequent to the filing of the complaint more than three years from the date of dissolution have expired) is bottomed on the rule that the instant action commenced by the filing of the complaint. Id. at 749 (emphasis added). Accord, Int’l Pulp Equip. Co. II, 55 F.Supp. 860-61. Thus, the relator’s action commenced when he filed his complaint on June 10, 2010, six months before the running of the three-year winding-up period, d. The Government Complaint Relates Back to the Relator’s Complaint The issue remains whether the government’s complaint was timely filed because it relates back to relator’s complaint. The Tailwind defendants contend that “[a]llowing the government’s complaint filed years later to relate back to the relator’s complaint would defeat Section 278’s fundamental purpose,” which is to “provide stockholders repose and certainty with respect to litigation following the defined winding-up period.” Tailwind Reply at 3. They argue that “[t]his is especially true in the instant case where the government’s complaint asserts new common law claims that the relator did not and could not allege.” Id. The Tailwind defendants also assert that the FCA permits relation back only for statute of limitations purposes, and that Delaware’s winding-up statute is not a statute of limitations. The defendants argue further that, in any event, “courts have found relation back principles inapplicable to Section 278 and have been reluctant to find exceptions to the three-year winding-up period.” Id. at 4. This contention of the Tailwind defendants also fails to persuade. The cases cited concerning the Delaware statute are inapposite, and the relevant federal authority explicitly support relation back. The operative federal rule provides that “[a]n amendment to a pleading relates back to the date of the original pleading when ... the law that provides the applicable statute of limitations allows relation back....” FRCP 15(c)(1)(A). Thus, the question becomes whether the FCA statute of limitations applicable to the government allows relation back, and it does. The FCA was amended in May 2009 by the Fraud Enforcement and Recovery Act (“FERA”), Pub. L. No. 111-21, 123 Stat. 1617. Prior to FERA, the FCA was silent as to whether the government’s complaint relates back to the relator’s complaint, so courts had to make a judicial determination as to whether the FCA permitted relation back. FERA, however, specifically amended the FCA to provide that the government’s complaint can relate back to the relator’s complaint: If the Government elects to intervene and proceed with an action brought under 3730(b), the Government may file its own complaint or amend the complaint of a person who has brought an action under section 3730(b) to clarify or add detail to the claims in which the Government is intervening and to add any additional claims with respect to which the Government contends it is entitled to relief. For statute of limitations purposes, any such Government pleading shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the Government arises out of the conduct, transactions, or occurrences set forth, or attempted to be set fqrth, in the prior complaint of that person. FERA, Pub. L. No. 111-21, § 4(b)(3), 123 Stat. 1617, 1623 (2009) (emphasis added) (codified at 31 U.S.C. § 3731(c)). Our Gourt of Appeals has explained that “fu]n-der the new [FERA] provision, the Government’s complaint can relate back to the original complaint only ‘to the extent that the claim of the Government arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint.’ ” U.S. ex rel. Miller v. Bill Harbert Intern. Const., Inc., 608 F.3d 871, 879-880 (D.C.Cir.2010). The FERA amendment to section 3731(b) applies to all cases pending at the time of its enactment and to cases filed thereafter, id. at 878 (citing Pub. L. No. 111-21, § 4(f)(2)), so it applies to the government’s complaint in this case. Here, there is no question that all of the government’s FCA and common law claims are based on the same transactions and occurrences as the relator’s complaint-the alleged doping by the cycling team during the period in which the USPS sponsored the team, and the associated false statements, false claims and breaches of contract. Because the FCA and the relevant federal rules of civil procedure govern and are clearly applicable here, the Court is unpersuaded by the Tailwind defendants’ hyper-technical attempts to distinguish the FERA amendments and rely upon the Delaware winding-up statute. One final note: The government asserts that its complaint has superseded the relator’s complaint with respect to its claims against the Tailwind defendants, and therefore, it asserts, the Court may deny Tailwind’s motion to dismiss the relator’s complaint as moot. Gov’t Opp’n to Tailwind Mot. to Dismiss at 4 n.3. The government has not cited any legal authority for this assertion nor has it explained why its complaint in intervention renders inoperative only the relator’s claims against the Tailwind defendants. The FCA states that the government has the ability to seek dismissal of a relator’s action but the government must file a motion with the court seeking such relief, which has not occurred in this instance. See, e.g. Hoyte v. American Nat’l Red Cross, 518 F.3d 61 (D.C.Cir.2008). If the government seeks to dismiss one or more counts of the relator’s complaint, it can file the appropriate motion. Until then, the relator’s complaint has not been “superseded” by the government’s. 2. Service of Process The Tailwind defendants also challenge service of process as ineffective. First, in their view, service of process was ineffective because a “dissolved corporation may not be served through former agents, officers, or directors of the dissolved corporation.” Tailwind Mot. to Dismiss at 9. Moreover, argue the defendants, plaintiffs did not serve the Delaware Secretary of State and, therefore, service was never effectuated. Id. at 9-10. The Court concludes that the plaintiffs have properly served the Tailwind defendants. The government properly served the Delaware Secretary of State. See Dkt. No. 102. In addition, both the government and the relator properly served the corporate defendants through individuals authorized to accept service on behalf of the Tailwind defendants. See Gov’t Opp’n to Tailwind Mot. to Dismiss at 15-18; Relator Opp’n to Tailwind Mot. to Dismiss at 4-8. As the plaintiffs correctly observed, Rule 4(h)(1), in conjunction with Rule 4(e)(1), provide for several ways to serve process on a domestic corporation in the United States: (1) “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made”; (2) “delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized” to accept service of process; and (3) by mailing a copy to an agent that is authorized to accept service of process. FRCP 4(h)(1); FRCP 4(e)(1). These requirements were met here. E. Statute of Limitations The parties dispute whether, and to what extent, the tolling provision of the FCA Statute of Limitations (“SOL”) at 31 U.S.C. § 3731(b)(2) applies to relators. The parties also dispute whether the plaintiffs’ FCA claims should be tolled under section 3731(b)(2), to the extent that it is. applicable, and whether the government’s common law claims should be tolled under the tolling provision generally applicable to government actions founded on tort or contracts. See 28 U.S.C. § 2416(e). Finally, the relator argues that the plaintiffs’ claims are tolled by the Wartime Suspension of Limitations Act, ch. 645, 62 Stat 828 (1948) (codified as amended at 18 U.S.C. § 3287). The Court addresses separately each SOL and tolling issue. 1. The FCA Tolling Provision Does Not Apply to Relators The FCA SOL is found at 31 U.S.C. § 3731(b), and its tolling provision is found in subsection (b)(2). The FCA SOL reads: (b) A civil action under section 3730 may not be brought— (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last. 31 U.S.C. § 3731(b). The relator filed his initial complaint on June 10, 2010. If the Section 3731(b)(2) tolling provision does not apply to him, then the relator is subject to the six-year SOL in Section 3731(b)(1). As a result, the relator could not recover against any defendant on allegedly false claims for payment that were submitted by the defendants to the USPS prior to June 10, 2004. Conversely, if the Court were to conclude that the tolling provision does apply to relators, then the relator could (assuming he also satisfied the relevant requirements for tolling his claims) recover on allegedly false claims for payment that were submitted by the defendants to the USPS or reverse false claims dating back ten years, to June 10, 2000. Urging this Court to adopt what appears to be the majority approach among the federal courts of appeal, the defendants argue that section 3731(b)(2) applies only to FCA actions brought by the government. See, e.g., United, States ex rel. Sanders v. N. Am. Bus Indus., Inc., 546 F.3d 288, 296 (4th Cir.2008). Under this approach, the six-year SOL in Section 3731(b)(1) would apply to the relator’s claims against all of the defendants. Alternatively, the defendants urge this Court should adopt the Ninth Circuit’s approach in United States ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1218 (9th Cir.1996), which held not only that section 3731(b)(2) does apply to relators, but also that whether a civil action will be tolled is based on “when facts material to the -right of action are known or reasonably should have been known by” the relator — not the government. Under the Hyatt approach, the relator (Floyd Landis) would not be able to satisfy the standard for tolling under Section 3731(b)(2) because he had first-hand knowledge of the alleged fraudulent conduct as it allegedly occurred. By contrast, the relator asks this Court to adopt the approach in United States ex rel. Pogue v. Diabetes Treatment Centers of America, 474 F.Supp.2d 75, 85 (D.D.C. 2007), which held that section 3731(b)(2) applies to relators. However, in contrast to Hyatt, the court in Pogue held that whether a civil action will be tolled is based on “when facts material to the right of action are known or reasonably should have been known by” the relevant government official, rather than when such material facts were known by the relator. Id. To solve this riddle, the Court must begin with a close examination of the statute’s text. See Murphy Exploration & Prod. Co. v. U.S. Dep’t of Interior, 252 F.3d 473, 480 (D.C.Cir.2001) (citing Carter v. United States, 530 U.S. 255, 271, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000)). By its express terms, Section 3731(b)(2) is silent as to whether it applies to relators. Some of the courts that have adopted the majority approach concluded that the statutory language is unambiguous and clearly does not apply to relators because it would not make any sense to apply the statute’s language to a relator’s lawsuit. See, e.g., Sanders, 546 F.3d at 294 (“The government’s knowledge of ‘facts material to the right of action’ does not notify the relator of anything, so that knowledge cannot reasonably begin the limitations period for a relator’s claims.”). This Court agrees, and therefore joins Sanders in concluding that the statute’s express language demonstrates that Congress did not intend to apply the tolling provisions to relators. Accordingly, the Court declines to follow Pogue and Hyatt. The approach by the court in Pogue, though thoroughly reasoned, is difficult to square with the Supreme Court’s decision in Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 125 S.Ct. 2444, 162 L.Ed.2d 390 (2005). The logic of Pogue rests largely upon the premise that the Section 3731(b) reference to “[a] civil action under section 3730” unequivocally encompasses all civil actions allowed under Section 3730, including actions brought by relators pursuant to Section 3730(c). But the Supreme Court rejected an analogous premise in Graham County. There, the relator argued that “[a] civil action under section 3730” in Section 3731(b) “unambig- ■ uously applies to FCA retaliation actions” because retaliation actions arise under Section 3730(h). Graham County, 545 U.S. at 415, 125 S.Ct. 2444, 162 L.Ed.2d 390. Rejecting this argument, the Court explained that “the statute is more complex than this argument supposes,” and “§ 3731(b), read in its proper context, does not govern § 3730(h) actions for retaliation.” Id. The Court noted, for example, that “[then-section] 3731(c) provides that ‘[i]n any action brought under section 3730, the United States shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.’ ” Id. at 418. However, as the Court noted, it would make no sense to construe “any action” to include a retaliation claim brought by an employee against her local county employer; doing so would require the federal government to prove all of the essential elements of the retaliation claim even though it is not even a party to the lawsuit. Id. Accordingly, the Court concluded that then-section 3731(c) makes sense only if “‘any action brought under section 3730’ is limited to § 3730(a) actions brought by the United States and § 3730(b) actions in which-the United States intervenes as a party, as those are the types of § 3730 actions in which the United States necessarily participates.” Id. The Court explained that this “implicit limitation of the phrase ‘action under section 3730’ shows that Congress used the term ‘action under section 3730’ imprecisely in § 3731 and, in particular, that Congress sometimes used the term to refer only to a subset of § 3730 actions.” Id. Applying the reasoning in Graham County here, this Court similarly concludes that it is not reasonable to construe Section 3731(b)(2) to mean that the application of tolling to relator’s lawsuit turns on the knowledge of the responsible United States government official, when the government has in fact declined to prosecute the claims brought by the relator and the government has not intervened or become a party to the relator’s lawsuit. Just as the Supreme Court in Graham County sought to devise “a construction [of Section 3731] that avoids ... counterintuitive results,” id. at 421, so shall this Court. It defies logic to hinge the tolling question on when the responsible government official possessed sufficient knowledge to act, when in reality that governmental official has chosen not to act. The most reasonable and intuitive construction of section 3731(b)(2) is that “[a] civil action under section 3730” does not apply to all actions under section 3730, but only as to those actions in which the United States has “acted,” by seeking to participate. The text’s reference to “the official of the United States” indicates that Congress intended Section 3731(b)(2) to apply to lawsuits brought (or intervened in) by the United States. See Sanders, 546 F.3d at 293; United States ex rel. Sikkenga v. Regence BlueCross BlueShield of Utah, 472 F.3d 702, 723 (10th Cir.2006). In conclusion, the Court holds that the six-year limitations period in section 3731(b)(1) applies to the relator’s claims against all of the defendants. Accordingly, the relator’s FCA claims based on alleged fraudulent payments or reverse false claims that occurred prior to June 10, 2004 are dismissed with prejudice. 2. Tolling Under the FCA and the Statute Generally Applicable to Government Actions The Court next addresses whether the government’s FCA and common law claims should be tolled. As previously discussed, the tolling provision applicable to the government’s FCA claims is Section 3731(b)(2), which provides for up to a ten year limitations period. The government’s common law claims of fraud, unjust enrichment, and breach of contract are subject to the SOL generally applicable to government suits for money damages founded on contracts, 28 U.S.C. § 2415(a) (six-year SOL), and torts, 28 U.S.C. § 2415(b) (three-year SOL). The SOL under Section 2415 are subject to the tolling provisions in 28 U.S.C. § 2416, which allows for tolling in two instances that are relevant here: (a) the defendant or the res is outside the United States, its territories and possessions, the District of Columbia, or the Commonwealth of Puerto Rico; ... [or] (c) facts material to the right of action are not known and reasonably could not be known by an official of the United States charged with the responsibility to act in the circumstancesf.] 28 U.S.C. §§ 2416(a), (c) (2012). The tolling provisions in sections 3731(b)(2) and 2416(c) are identical, except that the former refers to “the” official of the United States, while the latter refers to “an” official of the United States. The use of “an” in section 2416(c) suggests that there could be multiple responsible United States officials with respect to the government’s tort and contract claims, but that issue need not be resolved at this juncture. Rather, the inquiry turns on identifying at least one relevant “official of the United States charged with responsibility to act,” and determining when this official knew or reasonably should have known of the “facts material” to the government’s right of action. 31 U.S.C. § 3731(b)(2); 28 U.S.C. § 2416(c). a) Legal Standard Applicable to SOL Defense at the MTD Stage “The statute of limitations is an affirmative defense, FRCP 8(c), and need not be negatived by the language of the complaint.” Jones v. Rogers Mem’l Hosp., 442 F.2d 773, 775 (D.C.Cir.1971). Thus, “[a]s [the D.C. Circuit has] repeatedly held, courts should hesitate to dismiss a complaint on statute of limitations grounds based solely on the face of the complaint.” Firestone v. Firestone, 76 F.3d 1205, 1208-09 (D.C.Cir.1996) (citing Richards v. Mileski 662 F.2d 65, 73 (D.C.Cir.1981)). However, as the Supreme Court has explained, “[i]f the allegations ... show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim....” Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). This is a tricky procedural situation, and the D.C. Circuit has observed that “[tjhere is an inherent problem in using a motion to dismiss for purposes of raising a statute of limitations defense. Although it is true .that a complaint sometimes discloses such defects on its face, it is more likely that the plaintiff can raise factual setoffs to such an affirmative defense.” Richards v. Mileski, 662 F.2d at 73. Thus, while the Richards court “d[id] not hold that the use of a motion to dismiss is always improper to raise a statute of limitations defense,” id., it cautioned that the district court should not grant such a motion without giving the plaintiff adequate opportunity to make a record and present any evidence to contradict the defense. Id. Accordingly, in order to balance these competing considerations, it would appear that a district court can certainly grant a motion to dismiss on statute of limitations grounds, but to do so, the factual allegations in the complaint must clearly demonstrate all elements of the statute of limitations defense and that the plaintiff has no viable response to the defense. See Nader v. Democratic National Committee, 567 F.3d 692, 699-702 (D.C.Cir.2009) (affirming motion to dismiss complaint where uncontested allegations clearly showed not only when cause of action arose, but also that fraudulent concealment could not apply, citing Richards). b) Defendant Bruyneel allegedly outside of the United States Invoking Section 2416(a), the government argues that its common law fraud and unjust enrichment claims against Defendant Bruyneel were tolled during the periods he was allegedly outside the United States. Gov’t Opp’n to Bruyneel Mot. to Dismiss at 2. The government alleges that “Bruyneel is a resident of the United Kingdom” and was the directeur sportif of the cycling team, which “would require his presence in Europe for the substantial majority of each year.” Id. The government asserts, therefore, that its “complaint raises factual disputes about Bruyneel’s absence from the United States that potentially provide an additional basis to toll the statute of limitations as to the Government’s common law claims against him.” Id. at 3. Based on this record, the Court concludes that it cannot determine solely from the face of the complaint whether the government’s common law claims against Defendant Bruyneel should be tolled under 28 U.S.C. § 2416(a) for the time periods he was allegedly outside the United States. See, Firestone v. Firestone, 76 F.3d at 1208-09. Further fact development through discovery is required before the Court can make this determination. Thus, Bruyneel’s motion to dismiss the government’s complaint on SOL grounds is denied. c) Knowledge of the Investigation by the French Authorities in 2000 Invoking Section 2416(c), the government argues “facts material to the right of action” were not known and reasonably could not have been known by the responsible United States official because the government did not know that members of the cycling team were doping. The defendants disagree, arguing that the government cannot rely on the tolling provision because it had knowledge of the French authorities’ investigation in 2000 into allegations that the cycling team was doping. See Armstrong Reply to Gov’t Opp’n at 4 (Dkt. No. 124) (citing Gov’t Compl. ¶¶ 19, 63). They also point to the government’s statement that back in 2000 it was “concerned” about the doping allegations. Id. While there does not appear to be any case law from this circuit defining “facts material to the right of action,” other courts have interpreted this phrase. In Phillips Petroleum Co. v. Lujan, 4 F.3d 858, 859 (10th Cir.1993), the issue before the Tenth Circuit was “at what point should the statute of limitations commence to run under section 2416(c) in an action by the government to recover underpaid royalties from an oil and gas lease.” The court stated that a “fact material to the right of action” should be interpreted to “necessarily includ[e] the fact that gave rise to the right of action.” Id. at 862 (citing United States v. Kass, 740 F.2d 1493, 1498 (11th Cir.1984)). Applying this standard, the court stated that “the deficient royalty payment constituted a breach of [the lessee’s] contractual duty to the government and it is that fact which gave rise to the government’s right of action; therefore, the deficient payment was clearly a material fact.” Id. Therefore, the court held, the SOL should “have been tolled until such time as the government could reasonably have known about [the lessee’s] breach.” Id. Similarly, in Kass, the Eleventh Circuit construed Section 2416 to mean that “the 6-year statute of limitations began to run, at the very latest, on September 4, 1974, when the Florida Medical Foundation notified Blue Shield of its finding that Kass had ‘overutilized’ Medicare [many years before] in 1970 and