Shu v. Hutt et al

Filing 17

ORDER adopting 8 Report and Recommendation; ORDER granting 12 Motion to Dismiss; Signed by Judge Richard F. Boulware, II on 1/22/2019. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID SHU,

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Plaintiff,

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Case No. 2:18-cv-00517-RFB-VCF

v.
NANCY HUTT et al.,

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ORDER ADOPTING REPORT &
RECOMMENDATION OF
MAGISTRATE JUDGE CAM
FERENBACH AND GRANTING
MOTION TO DISMISS

Defendants.

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I.

INTRODUCTION

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Before the Court for consideration are the Report and Recommendation of the Honorable

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Cam Ferenbach, United States Magistrate Judge, entered April 30, 2018, (ECF No. 8) and the

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Defendant United States Postal Service’s Motion to Dismiss (ECF No. 12). For the reasons

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discussed below, the Report and Recommendation is adopted in part as to the individual

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Defendants. The Court also grants the Motion to Dismiss (ECF No. 12).

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On March 21, 2018, Plaintiff filed his original Complaint. (ECF No. 1). This Complaint

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was screened pursuant to 28 U.S.C. § 1915(e) to determine if it alleged a plausible claim. This

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Complaint was dismissed without prejudice and Plaintiff was granted leave to amend his

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Complaint. (ECF No. 3). The Order raised various deficiencies with the Complaint, including but

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not limited to: improper venue, lack of personal jurisdiction, and violation of statute of limitations.

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On April 13, 2018, Plaintiff filed his Amended Complaint. (ECF No. 5). Plaintiff appears

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to allege a federal False Claims Act claim against all of the Defendants, a due process claim against

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some of the Defendants, and state claims against all of the Defendants. Plaintiff essentially argues

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that the Defendants conspired to falsely accuse him of being involved in an unreported traffic

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accident while working for the Post Office in Santa Maria, California. This accident allegedly

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occurred on September 21, 2013 in Santa Maria. Plaintiff alleges that the Defendants reported the

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accident on official forms of the Postal Service and submitted the claim for payment by the federal

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government.

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II.

LEGAL STANDARD

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The False Claims Act (“FCA”), 31 U.S.C. §§ 3729-33, allows private parties, called

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“relators,” to bring an action on behalf of the United States to recover for fraud. Id. The FCA

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authorizes the relator to bring a civil qui tam action “for the person and for the United States

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Government” against those who present false claims to the United States. 31 U.S.C. § 3730(b)(1).

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“The entire purpose of the FCA’s qui tam provisions is to employ the help of individuals to uncover

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fraud against the government.” United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 748 (9th Cir.

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1993). Individuals appearing pro se cannot represent the United States in FCA actions. United

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States ex rel. Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1126-27 (9th Cir. 2007).

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A district court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A party may file specific

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written objections to the findings and recommendations of a magistrate judge. Id. § 636(b)(1);

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Local Rule IB 3-2(a). When written objections have been filed, the district court is required to

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“make a de novo determination of those portions of the report or specified proposed findings or

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recommendations to which objection is made.” 28 U.S.C. § 636(b)(1).

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“Constitutional due process requires that defendants ‘have certain minimum contacts’ with

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a forum state ‘such that the maintenance of the suit does not offend traditional notions of fair play

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and substantial justice.’” Morrill v. Scott Fin. Corp., 873 F.3d 1136, 1141 (9th Cir. 2017) (quoting

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Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). “Personal jurisdiction over each

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defendant must be analyzed separately.” Harris Rutsky & Co. Ins. Servs. v. Bell & Clements Ltd.,

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328 F.3d 1122, 1130 (9th Cir. 2003).

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III.

DISCUSSION

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A. FCA Claim

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The USPS has moved to dismiss Plaintiff’s FCA claim. The Court grants this Motion as

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to USPS and all Defendants, since Plaintiff may not bring an FCA claim pro se. ex rel. Stoner,

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502 F.3d 1116, 1126-27.

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B. Due Process Claim

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The Amended Complaint also asserts a Due Process claim. The statute of limitations for a

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section 1983 claim in Nevada is two years. Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989).

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Pursuant to this Court’s screening requirement under 28 U.S.C. § 1915(e), this claim is dismissed

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as to all Defendants as it was commenced more than two years after the alleged 2013 incident

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which serves as a basis for Plaintiff’s claim.

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C. State Claims

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With the dismissal of the FCA and Due Process claims, the only claims that appear to

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remain in the Amended Complaint are purported state law claims for fraud, negligence, and

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intentional infliction of emotional distress. Upon review of these state claims under 28 U.S.C.

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§ 1915(e), the Court finds that they must also be dismissed against all Defendants for being

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commenced outside of the respective statute of limitations. See N.R.S. §§ 11.190(3)(d) and

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11.220.

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The Report recommended dismissal of the state claims against the individual Defendants

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for lack of personal jurisdiction. The Court, after reviewing Plaintiff’s Objection (ECF No. 9),

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also adopts this portion of the Report. The individual Defendants are not subject to personal

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jurisdiction in this District based upon the allegations in the Amended Complaint.

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D. Dismissal with Prejudice

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Finally, the Court finds that allowing Plaintiff to amend his complaint a second time would

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be futile. The Court therefore dismisses the matter with prejudice. Lopez v. Smith, 203 F.3d 1122,

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1130 (9th Cir. 2000) (The Ninth Circuit has “repeatedly held that a district court should grant leave

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to amend even if no request to amend the pleading was made, unless it determines that the pleading

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could not possibly be cured by the allegation of other facts.”); see also Akhtar v. Mesa, 698 F.3d

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1202, 1212 (9th Cir. 2012) (allowing for dismissal of a pro se complaint without leave to amend

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if amendment would clearly not cure the deficiencies identified in the complaint).

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IV.

CONCLUSION

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Accordingly,

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 12) is GRANTED, the

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Report and Recommendation (ECF No. 8) is ADOPTED in part and the Amended Complaint is

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DISMISSED with prejudice. The Clerk of Court is ordered to close this case.

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DATED this 22nd day of January, 2019.
___________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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