Lin v. Anderson et al

Filing 26

ORDER granting 15 Motion to Dismiss for Lack of Jurisdiction. For the reasons discussed herein, Plaintiff's complaint is dismissed with prejudice, pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction. This order resolves Docket Number 15. The Clerk of the Court is directed to close this action. (Signed by Judge Alison J. Nathan on 7/18/2013) (lmb)

tJSDCSDNY

DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------------------------)(
QIAN JIN LIN
Plaintiff,
-vWILLIAM ANDERSON; JOHN DOE AND
JANE DOE WHO SEIZED THE PROPERTY;
U.S. DEPARTMENT OF HOMELAND
SECURITY; U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT
Defendants.

It~cTRONICALLY

FILED,

j~ #:,-----:------"-

D~TEFILERJUl

182013"

12 Civ. 0451 (AJN)
ORDER

----------------------------------------------------------------------)(
ALISON 1. NATHAN, District Judge:
On January 18,2012, Plaintiff Qian Jin, appearing pro se, filed a complaint against
Defendants Special Agent William Anderson, the U.S. Department of Homeland Security
("DHS"), and the U.S. Immigration and Customs Enforcement ("ICE"), claiming that
Defendants wrongfully seized $5,600 in currency from her during their execution of a search
warrant at a suspected illegal gambling parlor in the Chinatown neighborhood of Manhattan,
New York ("Chinatown"). (Compi. at 3) Defendants now move to dismiss the complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject matter jurisdiction. See
Fed. R. Civ. P. 12(b)(1). For the following reasons, the Court concludes that it lacks jurisdiction
to hear Plaintiff s complaint.
I.

Background and Procedural History

Plaintiff filed this pro se complaint on January 18,2012, (Dkt. No.2), but failed to timely
effectuate service of the summons and complaint. Subsequently, on August 21, 2012, Plaintiff
sent a letter to the Court requesting an extension of time to serve the summons. (Dkt. No.8) On
September 17, 2012, the Court issued an order granting Plaintiff an additional 60 days from the

issuance of a new summons in which to complete service. (Dkt. No.9) Plaintiff timely served
Defendants on November 23,2012, and, on February 22,2013, Defendants filed this motion to
dismiss. (Dkt. Nos. 15-21) Pursuant to Rule 3.F of the Court's Individual Practices in Civil
Cases, Plaintiff was given the opportunity to file an opposition to Defendants' motion or to
amend her complaint. (Dkt. No. 24) Plaintiffs deadline for doing so was March 22, 2013, but,
to date, Plaintiff has not amended her complaint, filed an opposition, or otherwise been in contact
with the Court.
For the purposes of resolving this motion only, the Court accepts the allegations in
Plaintiff s complaint. See Chambers v. Time Warner, Inc., 282 F .3d 147, 152 (2d Cir. 2002).
Plaintiff Qian Jin Lin, a citizen of the People's Republic of China and a permanent resident of
the United States, alleges that Defendants wrongfully seized from her $5,600 in U.S. currency.
As alleged, on July 19,2011, Plaintiff was waiting for her daughter to book an airline ticket at a
travel agency in Chinatown. (Compl. 3) She alleges that Defendants arrived to the travel
agency, "announc[ed] that here is illegal gambling place," and then had "everybody sit on the
floor and they searched everybody." (ld.) Plaintiff alleges that during this search, Defendants
"took money from [her] pocket" and told her that the "money was involved in the gambling."

(ld.)
Plaintiff alleges that, pursuant to the search, Defendants seized $5,600 dollars from her.
She claims that this was money that she had been given by her daughter, which was to be used
"to buy [an] air ticket to China," and was not, in fact, involved in the illegal gambling operation.

(ld.) She alleges that, as a result of this incident, she "could not sleep day and night," that she
"felt [she] was mentally abused by the ICE [agents'] misbehaviors," and that she is a "low
income person," "eighty years old," and reliant on "prescription drug[s] to control [her] high

2

[blood] pressure and diabetes." (Id.) The only relief that Plaintiff requests is the return of the
seized currency.' (CompI. 4)
In support of her petition, Plaintiff provided a copy of her U.S. Social Security Card, her
Permanent resident card, showing that she was born in the People's Republic of China, and a
copy of her New York State Benefit Identification Card. (CompI. Exs. 1-3) She also provided a
copy of the DOH Custody Receipt for Seized Property and Evidence, noting that on July 19,
2011, Defendant William Anderson seized $5,600 from Plaintiff. (CompI. Ex. 4; Anderson
DecI. Ex. 1)

II.

Legal Standard

A motion brought under Federal Rule of Civil Procedure 12(b)(1) challenges the Court's
subject matter jurisdiction to hear the case. Fed. R. Civ. P. 12(b)(1). Pursuant to Rule 12(b)(1),
dismissal for lack of subject matter jurisdiction is appropriate if the Court determines that it lacks
the constitutional or statutory power to adjudicate the case. See id.; Makarova v. Us., 201 F.3d
110, 113 (2d Cir. 2000). To survive a Rule 12(b)(1) motion to dismiss "jurisdiction must be
shown affirmatively, and that showing is not made by drawing from the pleadings inferences
favorable to the party asserting it." Morrison v. Nat'l Austl. Bank Ltd, 547 F.3d 167, 170 (2d
Cir. 2008) (citations and internal quotation marks omitted); Gertskis v. Us. E.E. 0. c., No. 11
Civ. 5830(JMF), 2013 WL 1148924, at *4 (S.D.N.Y. Mar. 20, 2013). In resolving a motion to
dismiss for lack of subject matter jurisdiction, the Court "may refer to evidence outside the
pleadings." Makarova, 201 F .3d at 113. "A plaintiff asserting subject matter jurisdiction has the
burden of proving by a preponderance of the evidence that it exists. Id.; Aurecchione v.

Under "Relief," in her form-complaint, Plaintiff provided the following response: "I want the Court to get the
money that forfeited by the U.S. Department of Homeland Security or U.S. Immigration Customs and Enforcement
back to me."
I

3

Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). And "a facially sufficient
complaint may be dismissed for lack of subj ect matter jurisdiction if the asserted basis for
jurisdiction is not sufficient." Frisone v. Pepsico Inc., 369 F. Supp. 2d 464,469 (S.D.N.Y. 2005)
(quoting Augienello v. Fed. Deposit Ins. Corp., 310 F. Supp. 2d 582, 587 (S.D.N.Y. 2004).
Nonetheless, the Court "remain[s] obligated to construe [a] pro se complaint[] liberally,"

Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009), with "special solicitude," and so as "to raise the
strongest arguments that it suggests." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).

III.

Jurisdiction

In her form complaint, Plaintiff alleges that the Court has jurisdiction based on diversity
of citizenship. (CompI. 2) Pursuant to 28 U.S.C. § 1332(a), the requirements for diversity
jurisdiction are both diversity of citizenship and an amount in controversy in excess of $75,000.

See 28 U.S.C. § 1332(a). Even assuming diversity of citizenship, because Plaintiff has failed to
allege an amount in controversy in excess of $75,000 the Court lacks jurisdiction to hear this
case on her asserted grounds. See 28 U.S.C. § 1332(a) ("The district courts shall have original
jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of
$75,000 .... "). Liberally construed, however, the Court concludes that Plaintiffs complaint can
be read as asserting certain federal claims over which the Court may have subject matter
jurisdiction, pursuant to 28 U.S.C. § 1331. Specifically, Plaintiffs complaint can be liberally
construed as asserting a tort claim for loss of property and emotional distress, pursuant to the
Federal Tort Claims Act ("FTCA"). See 28 U.S.C. §§ 1346,2671-2678, 2680?

Because Plaintiffs suit sounds in tort, not contract, the Tucker Act, 28 U.S.C. § 1346(a)(2), does not apply ..
Additionally, because Plaintiffs funds were seized pursuant to 18 U.S.C. § 981, and Plaintiff neither alleges, nor
could allege, (see Nagel Decl.), that the she was not given proper notice of her rights relative to the potential
forfeiture, that the government failed to follow the proper procedures, or that it created "insuperable obstacle[s]" to
her right to contest the seizure and forfeiture, the Court will not construe her complaint as raising claims under
2

4

IV.

Plaintiff's FTCA Claims

Plaintiffs claim can be liberally construed as alleging common law torts for loss of
property and emotional distress against Defendants Anderson, DHS, and ICE. Pursuant to the
FTCA, however, "a suit against the United States is the exclusive remedy for a suit for damages
for injury or loss of property 'resulting from the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment. ,,,

Zandstra v. Cross, No. 10 Civ. 5143(DLC), 2012 WL 383854, at *2 (S.D.N.Y. Feb. 6,2012)
(quoting Rivera v. Us., 928 F.2d 592, 608 (2d Cir. 1991), and 28 U.S.C. § 2679(b)(1)).
Accordingly, under the FTCA, "suits against federal agencies and employees for tort claims are
precluded, and the United States must be substituted as the proper party upon certification by the
Attorney General that the defendants were acting within the scope of their office or employment
at the time the claim arose." Gertskis, 2013 WL 1148924, at * 13 (citing 28 U.S.C. § 2679(a),

(d).
In their brief, and in an affidavit of the United States Attorney for the Southern District of
New York, Preet Bharara, Defendants assert that Defendant Anderson was "acting within the
scope of his employment as an employee of the United States of America at the time of the
incidents alleged in Plaintiffs complaint." (Bharara Decl. 2) Nothing in Plaintiffs complaint or
the documents attached thereto suggests otherwise. Consequently, to the extent that Plaintiffs
complaint alleges a common law tort claim brought pursuant to the FTCA, the Court will
consider it to have been brought against the United States "as a substitute as the proper
defendant." Skyers v. Us., No. 12 Civ. 3432(RWS), 2013 WL 3340292, at *12-13 (S.D.N.Y.
July 2, 2013) (because the scope of employment was undisputed, the United States was the
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), alleging due process or other constitutional violations.
See generally, Dawson v. Drug Enforcement Admin., 927 F. Supp. 748, 752-53 (S.D.N.Y. 1996).

5

proper defendant); accord Point-Dufour v.

us.

Postal Serv., No. 02 Civ. 6840(JCF), 2003 WL

1745290, at *3 n.5 (S.D.N.Y. Mar. 31,2003); see also Bamba v.

Us.

Dep 't of Homeland Sec.,

No. 11 Civ. 7466(DLC), 2012 WL 3020034, at *4 (S.D.N.Y. July 24, 2012) (allowing a brief
submitted by the United States to serve as a petition to certify that the employees were acting
within the scope of their employment).
The Court, then, will construe Plaintiff s complaint as alleging common law loss of
property and emotional distress tort claims brought under the FTCA against the United States. It
is unnecessary, however, to formally substitute the United States as a party because Plaintiffs
claim must be nevertheless be dismissed pursuant to Rule 12(b)(1), for lack of jurisdiction. See
Gertskis, 2013 WL 1148924, at *13 (noting that formal substitution is unnecessary where
dismissal is inevitable). Specifically, the Court lacks jurisdiction because the FTCA only acts as
a limited waiver of the United States' sovereign immunity, and (1) Plaintiff has failed to exhaust
her administrative remedies prior to bringing suit, as required, and (2) the United States has not
waived sovereign immunity "for claims arising from the detention of property." See Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 228 (2008).
Plaintiffs failure to exhaust her administrative remedies prior to bringing suit deprives
the Court of jurisdiction over her FTCA claims. See 28 U.S.C. § 2401(b) ("A tort claim against
the United States shall be forever barred unless it is presented in writing to the appropriate
Federal agency .... "); Johnson v. Smithsonian lnst., 189 F.3d 180, 189 (2d Cir. 1999) ("Unless a
plaintiff complies with [the exhaustion] requirement, a district court lacks subject matter
jurisdiction over a plaintiffs FTCA claim."). Plaintiffs complaint in no way alleges that she has
exhausted her administrative remedies, and the evidence the Defendants submitted specifically
demonstrates that she has not. (Nagle Decl.

~~

3-8, Ex. 1-3) Consequently, to the extent that

6

Plaintiffs complaint can be construed as raising FTCA claims, the Court lacks subject matter
jurisdiction to hear them. See Gertskis, 2013 WL 1148924, at * 13 (dismissing pro se complaint
for failure to exhaust). If a court dismisses a complaint "for failure to exhaust administrative
remedies, dismissal without prejudice is appropriate if the time permitted for pursuant
administrative remedies has not expired." Green v. Fed. Bureau of Prisons, No. 11 Civ.
2554(DLC), 2012 WL 1694632, at *3 (S.D.N.Y. 2012) (citing Berry v. Kerik, 366 F.3d 85, 87
(2d Cir. 2004)). Time remained for Plaintiff to pursue her administrative remedies at the time
Defendants' motion to dismiss was filed, and Defendants have provided no further submissions
to demonstrate that time has since lapsed. Accordingly, but for the points discussed below,
dismissal on this basis would be without prejudice.
Dismissal with prejudice of the FTCA claims is nonetheless warranted, in this case,
because in addition to lacking subject matter jurisdiction based on Plaintiffs failure to exhaust,
the Court also lacks jurisdiction because Plaintiff s FTCA claims arise entirely out of the
"detention of property," and the United States has not waived sovereign immunity to claims of
that nature. See Ali, 552 U.S. at 228 ("Congress intended to preserve immunity for claims
arising from the detention of property, and there is no indication that Congress intended
immunity for those claims to turn on the type of law being enforced."). Pursuant to 28 U.S.C.
§ 2680(c), the FTC A does not apply to "[a]ny claim arising in respect of ... the detention of any
goods, merchandise, or other property by any officer of customs or excise or any other law
enforcement officer." See id. There is a limited exception to the general rule in that section,
which applies, under certain circumstances, to "injury or loss of ... property, while in the
possession of ... lawenforcement." 28 U.S.C. § 2680(c). Plaintiff cannot avail herself of this
exception, however, because she does not claim that the money that was seized has, since its

7

seizure, been damaged or lost. Since Plaintiffs FTCA claims are not ones for which the United
States has consented to be sued, this Court is without jurisdiction to hear them and they must be
dismissed pursuant to Rule 12(b)(I). See Lambertson v. Us., 528 F.2d 441,443 (2d Cir. 1976)
("Since the United States has not consented to be sued for these torts, federal courts are without
jurisdiction to entertain a suit based on them.").

V.

Conclusion

For the reasons discussed herein, Plaintiffs complaint is dismissed with prejudice,
pursuant to Rule 12(b)(1), for lack of subject matter jurisdiction. This order resolves Docket
Number 15. The Clerk ofthe Court is directed to close this action.
SO ORDERED.

\<t

Dated: July
,2013
New York, New York
United States District Judge

8