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Wu v. Bernhardt

United States District Court, D. New Mexico

April 16, 2019

LIMING WU, Plaintiff,
v.
David Bernhardt,[1] Secretary of the United States Department of the Interior, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK SENIOR U.S. DISTRICT JUDGE

         THIS MATTER is before the Court on Defendants' Motion to Dismiss Plaintiff's Fourth Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim and for Summary Judgment and Memorandum in Support, filed on November 13, 2018 (Doc. 83[2]), and Defendants' Motion to Dismiss Plaintiff's Complaint for Damages under the Federal Tort Claims Act, filed on December 18, 2018 (Doc. 94). Having considered the parties' arguments and the relevant law, the Court will grant in part Defendants' Motion to Dismiss Plaintiff's Fourth Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to State a Claim and for Summary Judgment and Memorandum in Support (Doc. 83), grant Defendants' Motion to Dismiss Plaintiff's Complaint for Damages under the Federal Tort Claims Act, dismiss 18cv0813 as duplicative, and allow Plaintiff time to file a Fifth Amended Complaint.

         I. Legal Standard

         Plaintiff's “pro se . . . pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers . . . .” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (internal citations omitted)). The Court may not, however, “serv[e] as the litigant[s'] attorney in constructing arguments and searching the record.” Id. (citing Hall, 935 F.2d at 1110).

         II. Background

         Before laying out the relevant facts and procedural background of the case, it is necessary for the Court to resolve the parties' disputed facts to the extent they will inform the Court's ruling on summary judgment.

         A. Relevant Local Rules

         Pursuant to Local Rule 56.1, the party moving for summary judgment “must set out a concise statement of all of the material facts as to which the movant contends no genuine issue exists.” D.N.M. LR-Civ. 56.1(b). The movant must number the facts “and must refer with particularity to those portions of the record upon which the movant relies.” Id. Defendants comply with Local Rule 56.1 in their motion. (See Doc. 83 at 8-11.)

         In return, the non-moving party must also provide “a concise statement of the material facts . . . as to which the non-movant contends a genuine issue does exist. Each fact in dispute must be numbered, must refer with particularity to those portions of the record upon which the non-movant relies, and must state the number of the movant's fact that is disputed.” D.N.M. LR-Civ. 56.1(b). “All material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.” Id. (emphasis added). “The Response may set forth additional facts other than those which respond to the Memorandum which the non-movant contends are material to the resolution of the motion.” Id. Ms. Liming Wu (Plaintiff) fails to respond to Defendants' Jurisdictional Material Facts and Undisputed Material Facts. (See Docs. 83 at 8-11; 95.)

         Plaintiff submits her own list of Undisputed Material Facts in her response brief, but the majority of her responses are comprised of conclusory and unsupported legal conclusions with either irrelevant or no citations to the record. (See Doc. 95 at 19-21.) In Fact No. 1, Plaintiff refers to the record to support her assertion that she revoked the Settlement Agreement. (Id. at 19 (citing 17cv0113, Doc. 42 (Pl.'s Mot. to Set Aside Stip. Order of Dismissal)).) This assertion, however, is a legal conclusion. Moreover, the Court has denied Plaintiff's Motions to Set Aside Settlement Agreement and Order of (sic) Granting Defendant's Motion to Enforce Settlement Agreement. (See Doc. 107.) Consequently, Plaintiff fails to support her assertion that she validly revoked the Settlement Agreement in 2015. In Fact Nos. 3 and 4, she refers to the record to support her assertion that Defendants gave her a “threatening job assignment” with “a premeditated scheme to fire” her. (See Doc. 95 at 19-20 (citing 17cv0113, Doc. 40 at 26); see also 18cv0813, Doc. 1 at 49-50 (the same document, but without the handwritten “threatening job assignment” notation).) Defendants contend that the referenced document is unauthenticated, contains typed and handwritten notes, and is irrelevant. (Doc. 100 at 4.) For purposes of these motions, the Court accepts that Plaintiff was given a job assignment when she returned to work for one day in 2015.

         In Fact No. 4, Plaintiff also refers to photographs and medical records related to her traumatic brain injury. (See Doc. 95 at 20 (citing 17cv0113, Doc. 42 at 15-24).) Defendants contend that the documents are unauthenticated and irrelevant and may not be used to support the allegations that the job assignment caused Plaintiff to fall. (Doc. 100 at 4.) The Court acknowledges the medical records but agrees that their existence is inadequate, standing alone, to support her contention that the job assignment caused her to fall and hit her head. In Fact No. 5, Plaintiff cites to a document to support that she received a text message from a supervisor with BLM while she was in the hospital. (Doc. 95 at 20 (citing 17cv0113, Doc. 58-2).) Neither Defendants nor the Court can find a document that matches the cited material.

         Plaintiff fails to support Fact Nos. 2, 6, 7, and 8 with references to the record at all.[3] Thus, the Court does not accept these facts as undisputed. As a result of Plaintiff's failure to follow Local Rule 56.1, Defendants' facts will be deemed undisputed.

         Plaintiff also fails to follow the Local Rules in filing her Supplemental Response to Defendants' Motion to Dismiss. (See Doc. 98.) As Defendants note (see Doc. 100 at 1 n.1), Plaintiff did not seek leave to file a surreply in violation of Local Rule 7.4(b), she did not tie the exhibits in the supplemental response to the undisputed facts or arguments she made in her original response in violation of Local Rule 56.1(b), and she attached 110 pages of unmarked exhibits in violation of Local Rules 10.5 and 10.6. See D.N.M. LR-Civ. 7.4(b), 56.1(b), 10.5, 10.6. Consequently, the Court will disregard Plaintiff's Supplemental Response. (Doc. 98.)

         B. Factual Background

         Plaintiff, who holds a master's degree in geology from Brigham Young University, was employed as a geologist with the Bureau of Land Management (BLM), an agency of the United States Department of the Interior (DOI). (Doc. 74 (4th Am. Compl.) ¶¶ 4, 9.) In 2014, she filed a complaint in this Court against the DOI for discrimination, retaliation, and negligence under federal and state law. (See Docs. 1; 4; 11-1.) In June 2015, Plaintiff, accompanied by her son and represented by her attorney, Ms. Katherine Ferlic, attended a mediation with the DOI. (See Doc. 45.) Ms. Karen Grohman, former Assistant United States Attorney (AUSA), represented the DOI. (See, e.g., 4th Am. Compl. ¶ 43.) Eventually, the parties settled on terms and signed a settlement agreement (the Agreement) on July 22, 2015. (Doc. 53-1.)

         Plaintiff attempted to revoke the Agreement, but her revocation was received past the deadline the parties had agreed to in the Agreement. (See Id. ¶ 8; see also Doc. 58 at 25.) Unaware that the revocation would arrive after the deadline, her attorney filed a motion to inform the Court that the parties were still negotiating settlement, and Plaintiff was ordered to return to work on August 3, 2015. (See Docs. 49; 58 at 3, 5.) Plaintiff alleges that she was suffering from Post-Traumatic Stress Disorder (PTSD) when she returned to work in August 2015, and she gave notice of her PTSD “to the BLM NM State Office management in June 2015.” (See, e.g., 17cv0113, Doc. 1 at 5; 18cv0813, Doc. 1 ¶ 17.) Under great stress due to a work assignment she received on August 3, Plaintiff lost consciousness at her home early on August 4, fell, and hit her head, suffering a traumatic brain injury. (See Docs. 58 at 5; 17cv0113, Doc. 42 at 15-24.) She thereafter went forward with the settlement, and the Court dismissed the parties' case with prejudice in August 2015. (See Docs. 54; 56; 57.)

         Pursuant to the terms of the lawsuit, the DOI paid Plaintiff $200, 000 and promised to send her a neutral letter of recommendation, and Plaintiff retired from federal service. (See Docs. 53-1 ¶¶ 7, 18; 61-1.) She also agreed to withdraw and dismiss all of her complaints and appeals then pending. (See Doc. 53-1 at 1.) Since the dismissal of her 2014 lawsuit, she has filed an additional EEOC complaint and two more lawsuits. (See 4th Am. Compl. ¶ 7; 83-C (EEOC complaint, No. DOI-BLM-15-0909); see also 17cv0113; 18cv0813.) The Court consolidated her three cases. (See Doc. 67.)

         C. Procedural Background

         Plaintiff's claims have a long and complicated background. In her original lawsuit, 14cv0150, Plaintiff filed motions to set aside both the parties' Agreement and the stipulated order of dismissal. (See Docs. 58, 65.) The Court denied these motions in February 2019; thus, the original lawsuit remains closed. (See Doc. 107.) Prior to its opinion denying Plaintiff's motions, the Court consolidated 14cv0150 with Plaintiff's two other lawsuits, because all three cases are based on common questions of law or fact. (See Doc. 67.) Shortly after consolidating the lawsuits, the Court granted Plaintiff's motion to file a Fourth Amended Complaint in her second lawsuit- 17cv0113. (See Doc. 71.) As the Court required all future filings to be filed in 14cv0150, Plaintiff filed her Fourth Amended Complaint for her second lawsuit in 14cv0150. (See Doc. 67 at 2 (requiring all future filings to be made in 14cv0150); see also Doc. 74 (4th Am. Compl.).)

         In the Fourth Amended Complaint (again, relevant to Plaintiff's second lawsuit, 17cv0113), Plaintiff brings claims against Ms. Sheila Mallory (Deputy State Director, BLM), Ms. Grohman, and Mr. David Bernhardt (Acting Secretary of the DOI). (See 4th Am. Compl.) Plaintiff alleges that: (1) Count I: Ms. Mallory violated the Trade Secrets Act, 18 U.S.C. § 1905, and conspired to defraud the United States in violation of 18 U.S.C. § 371; (2) Count II: Defendants discriminated against her on the basis of race in violation of Title VII of the Civil Rights Act; (3) Count III: Defendants discriminated against her on the basis of her PTSD in violation of the Rehabilitation Act; (4) Count IV: Ms. Mallory and Ms. Grohman discriminated against her, and Ms. Grohman obstructed justice in violation of 18 U.S.C. § 1505, concealed information from her, and coerced her into signing retirement paperwork; (5) Count V: Defendants were negligent in failing to properly train and/or supervise their employees; (6) Count VI: Defendants retaliated against her in violation of Title VII; and (7) Count VII: Defendants breached the parties' Agreement by failing to provide her with a neutral letter of recommendation. (See id.) Upon notice by Defendants, the Court substituted the United States for Ms. Mallory and Ms. Grohman in Plaintiff's negligence claims under the Federal Tort Claims Act (FTCA). (See Docs. 87; 88.)

         In her third lawsuit, 18cv0813, Plaintiff brings claims against Mr. Aden Seidlitz, Acting State Directory of BLM, only. (See 18cv0813, Doc. 1.) She alleges that: (1) Count I: Mr. Seidlitz failed to accommodate her disability (PTSD) and was negligent in giving her the job assignment and in plotting to fire her; and (2) Count II: Mr. Seidlitz negligently failed to supervise or train others, causing her injuries. (See Id. ¶¶ 25-38.) Upon notice by Mr. Seidlitz, the Court substituted the United States for Mr. Seidlitz in the third lawsuit. (See Docs. 99; 105.)

         III. Analysis

         A. The Court lacks jurisdiction to consider Plaintiff's claims for violations of criminal statutes, for negligence, and for breach of the parties' Agreement.

         1. Plaintiff does not have standing to bring claims against individuals for violations of criminal statutes.

         In Count I, Plaintiff alleges that Ms. Mallory divulged confidential government information to a private industry executive in violation of the Trade Secrets Act, 18 U.S.C. § 1905, and conspired to defraud the United States in violation of 18 U.S.C. § 371. (4th Am. Compl. ¶¶ 47- 49.) She alleges in Count IV that Ms. Grohman lied to the Court and concealed Ms. Mallory's conduct described in Count I in an effort to obstruct justice in violation of 18 U.S.C. § 1505. (Id. ¶¶ 62-77.)

         Motions to dismiss based on a lack of standing are brought pursuant to Federal Rule of Civil Procedure 12(b)(1). See Colo. Envtl. Coalition v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004). “A Rule 12(b)(1) motion to dismiss ‘must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.” Sladek v. Bank of Am., NA, 2014 ...


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