Li v. Shelhamer et al
Filing
11
MEMORANDUM-DECISION and ORDERED, that Plaintiffs Motion (Dkt. No. 5) to remand is DENIED; and it is further ORDERED, that Defendants Motion (Dkt. No. 8) to dismiss is GRANTED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1-1) is DISMISSED with prejudice. Signed by Senior Judge Lawrence E. Kahn on August 20, 2013. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
XIANG LI,
Plaintiff,
-against-
5:12-CV-1435 (LEK/DEP)
MARK SHELHAMER; and FEDERAL
BUREAU OF INVESTIGATION
IN SYRACUSE,
Defendants.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
Pro se Plaintiff Xiang Li (“Plaintiff”) filed a Complaint in New York Supreme Court
alleging various torts against Defendants Mark Shelhamer (“Shelhamer”) and the Federal Bureau of
Investigations (“FBI”) (collectively, “Defendants”). Dkt. No. 1-1 (“Complaint”). Defendants
timely removed this action to the Court under 28 U.S.C. § 1442(a)(1). Dkt. No 1. Now before the
Court are Plaintiff’s Motion to remand to New York Supreme Court and Defendants’ Motion to
dismiss. Dkt. Nos. 5 (“Motion to Remand”); 8 (“Motion to Dismiss”). For the following reasons,
the Court denies Plaintiff’s Motion to Remand and grants Defendants’ Motion to Dismiss.
II.
BACKGROUND
The parties are presumed to be familiar with the background of this case as set forth in the
Court’s prior Order dismissing Plaintiff’s claims both insofar as they had any basis in federal civil
rights law and to the extent they arose under state law. See Li v. Shelhamer, No. 10-CV-0801, 2012
WL 951550 (N.D.N.Y. Mar. 20, 2012) (Kahn, J.). In short, a jury convicted Plaintiff of eleven
counts of transmitting death threats in violation of 8 U.S.C. § 875, and he was sentenced to 114
months in prison. Id. at *1. Special Agent Shelhamer filed the criminal complaint commencing
those proceedings against Plaintiff. Id. As in the prior case, Plaintiff is suing Shelhamer for
defamation (both libel and slander), intentional infliction of emotional distress, and prima facie tort
related to the trial and is suing the FBI for negligence in hiring, retaining, and supervising
Shelhamer. Compare Compl., with Li, 2012 WL 951550, at *1, and id. Dkt. No. 1.
III.
MOTION TO REMAND
Plaintiff’s Motion to Remand argues that removal was improper because no federal question
is presented as required by 28 U.S.C. § 1441. See Mot. to Remand. Plaintiff would be correct had
Defendants attempted to invoke that removal provision; however, Defendants removed under
§ 1442, which, as relevant here, permits any agency or officer of the United States to remove any
civil or criminal action against them “for or relating to any act under color of such office” to the
local federal court. 28 U.S.C. § 1442(a)(1). This provision “allows ‘suits against federal officers
[to] be removed despite the nonfederal cast of the complaint’ and reflects a congressional policy that
‘federal officers, and indeed the Federal Government itself, require the protection of federal
forum.’” Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n.12 (2006) (quoting Jefferson County
v. Acker, 527 U.S. 423, 431 (1999); Willingham v. Morgan, 395 U.S. 402, 407 (1969)).
To remove, a federal officer must show: (1) a colorable federal defense; and (2) a causal
connection between the charged conduct and asserted official authority. Acker, 527 U.S. at 431.
Here, Defendants raise numerous colorable federal defenses, and the complained-of conduct
occurred during the performance of official duties. See Dkt. No. 8-1 (“Memorandum”);
Willingham, 395 U.S. at 409 (“The [causal] connection consists, simply enough, of the undisputed
fact that [the removing federal officers] were on duty, at their place of federal employment, at all the
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relevant times.”). Therefore, Defendants’ removal was proper, and Plaintiff’s Motion to Remand is
denied.
IV.
MOTION TO DISMISS
Defendants move to dismiss Plaintiff’s Complaint on several grounds. Mem. Because the
first ground, res judicata, is sufficient, the Court does not address the remaining grounds.
Under the doctrine of res judicata, “a valid, final judgment, rendered on the merits,
constitutes an absolute bar to a subsequent action between the same parties . . . upon the same claim
. . . .” Epperson v. Entm’t Express, Inc., 242 F.3d 100, 108 (2d Cir. 2001). “To demonstrate that a
claim is precluded based on res judicata, the moving party must show that: (1) the previous action
involved an adjudication on the merits; (2) the previous action involved the parties or those in
privity with them; and (3) the claims asserted in the subsequent action were, or could have been,
raised in the prior action.” Witchard v. Montefiore Med. Ctr., No. 05 Civ. 5957, 2006 WL
2773870, at *6 (S.D.N.Y. Sept. 26, 2006) (citing Monahan v. N.Y.C. Dep’t of Corrs., 214 F.3d 275,
285 (2d Cir. 2000)). Elements (2) and (3) are met here because Plaintiff is pressing the same claims
against the same defendants that he did in the prior action.1 Compare Compl., with Li, 2012 WL
951550, at *1, and id. Dkt. No. 1. It makes no difference that Plaintiff originally filed this action in
state court and the former action in federal court, nor that the former action also included federal
civil rights claims.
1
Plaintiff contends that his claims are not based on the Federal Tort Claims Act (“FTCA”).
Dkt. No. 11 (“Response”) at 4. If so, his claims are wholly barred by the United States’s sovereign
immunity. See, e.g., Liranzo v. United States, 690 F.3d 78, 83-84 (2d Cir. 2012). In an abundance
of caution, however, the Court construes Plaintiff’s claims as invoking the FTCA. See Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (reciting obligation of district courts
to construe pro se pleadings liberally).
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As to element (1), the Court previously dismissed Plaintiff’s action for lack of jurisdiction
because Plaintiff failed to exhaust his administrative remedies. Li, 2012 WL 951550, at *3.2 It also
determined that to establish jurisdiction, Plaintiff would have to show that he exhausted his
administrative remedies by June 2009. Id.; see also 28 U.S.C. § 2401(b) (stating that an Federal
Tort Claims Act claim is “forever barred” unless presented in writing to the appropriate federal
agency within two years of accrual). Because it is a jurisdictional decision,
a dismissal for failure to exhaust administrative remedies is not necessarily an
adjudication on the merits. Rather, such dismissals are normally without prejudice, and
do not bar instituting another suit after administrative remedies are properly exhausted.
However, a dismissal is considered to be on the merits where it is no longer possible to
properly exhaust administrative remedies.
Murtaugh v. New York, 810 F. Supp. 2d 446, 487 (N.D.N.Y. 2011) (quoting Witchard, 2006 WL
2773870, at *7) (internal quotation marks and citations omitted). As in the prior action, Plaintiff
has not alleged, and nothing in the record suggests, that he exhausted his administrative remedies by
the statutory deadline—in his case, June 2009. See Compl.; Dkt. No. 9 (“Response”). See
generally Dkt. Because that deadline is long past, it is now impossible to exhaust his administrative
remedies to cure the jurisdictional defect. Therefore, the Court concludes that res judicata factor (1)
is met because the prior action involved an adjudication on the merits despite its jurisdictional
nature. Cf. Henneberry v. Sumitomo Corp. of Am., No. 04 Civ. 2128, 2005 WL 991772, at *4
(S.D.N.Y. Apr. 27, 2005) (“If the district court decides to dismiss any claim, that dismissal is
generally considered a judgment on the merits, unless dismissed for some ‘curable defect.’”
2
Plaintiff erroneously asserts that the Court “previously declined to exercise its pendent
jurisdiction over the state claims.” Resp. at 5. That was the Court’s decision in a parallel case
Defendant filed contemporaneously against other defendants. See Duncan v. Li, No. 10-CV-0802,
2011 WL 2432915 (N.D.N.Y. Apr. 18, 2011), approved and adopted, 2011 WL 2432924 (N.D.N.Y.
June 16, 2011) (Kahn, J.).
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(quoting Criales v. Am. Airlines, Inc., 105 F.3d 93, 98 (2d Cir. 1997))). Because Defendants have
established all three res judicata factors, Plaintiff’s Complaint is dismissed with prejudice.
V.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 5) to remand is DENIED; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 8) to dismiss is GRANTED; and it is
further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1-1) is DISMISSED with prejudice; and
it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order on all parties.
IT IS SO ORDERED.
Dated:
August 20, 2013
Albany, NY
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