Kim v. United States of America

MOTION to Dismiss for Lack of Jurisdiction or for Failure to State a Claim

D. Neb.May 12, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELIZABETH STRANGE Acting United States Attorney District of Arizona KATHERINE V. FOSS Special Attorney to the Attorney General Arizona State Bar No. 029124 J. COLE HERNANDEZ Special Attorney to the Attorney General Arizona State Bar No. 018802 405 W. Congress Street, Suite 4800 Tucson, Arizona 85701-5040 Telephone: (520) 620-7300 Fax: (520) 620-7138 E-mail: Katherine.foss@usdoj.gov cole.hernandez@usdoj.gov Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Thomas Kim, Plaintiff, v. United States of America, Defendant. Chang Ahn, et al., Plaintiffs, v. United States of America, Defendant. 2:16-cv-00778-APG-CWH 2:17-cv-00133-APG-CWH MOTION TO DISMISS Defendant United States of America (the “United States”), specially appearing by and through its undersigned attorneys for the limited purpose of this motion, moves to dismiss the Complaint filed by Chang Ahn, Hwan Jae Lee, Mi Won Kim, and Ae Ja Kim, pursuant to Fed. R. Civ. 12(b)(1) and 12(b)(6). Each of Plaintiffs’ claims should be dismissed for either lack of Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 1 of 13 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jurisdiction or for failure to state a claim upon which relief should be granted. First, Plaintiffs’ claims are barred substantially by the statute of limitations for their failure to present their SF-95s to the agency within two years of the date that the claims accrued. Second, Plaintiffs lack standing to allege injuries to their company. Finally, Plaintiffs fail to state a claim upon which relief can be granted. Accordingly, this action should be dismissed. This Motion is supported by the attached Memorandum of Points and Authorities and all papers of record. Respectfully submitted this 12th day of May, 2017. ELIZABETH STRANGE Acting United States Attorney District of Arizona s/ Katherine V. Foss KATHERINE V. FOSS J. COLE HERNANDEZ Special Attorneys to the Attorney General Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 2 of 13 - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This is an action brought pursuant to pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80. (Complaint at ¶ 1.) Plaintiffs allege they were investors/co-owners of a popular Korean supper club in Las Vegas, Nevada known as Club Yamang. (Complaint at ¶ 12.) Plaintiff further alleges that Homeland Security Investigations (HSI) Special Agent Joohoon David Lee and the owner of a competing Korean supper club “hatched a plan” to drive Club Yamang out of business. (Complaint at ¶¶ 13-16.) This included HSI, along with other agencies, conducting a raid on Club Yamang on July 11, 2013, transporting Ae Ja Kim to an Immigration and Customs Enforcement (ICE) detention center, placing a Global Positioning System (GPS) device on her ankle and later refusing to remove it. (Complaint at ¶¶ 17-20.) Plaintiffs also allege SA Lee caused misinformation to be placed into ICE’s computer database related to Hwan Jae Lee and Mi Won Kim. (Complaint at ¶ 22.) As a result of these alleged acts, Plaintiffs sued Defendant United States for negligence and intentional infliction of emotional distress. (Complaint at ¶¶ 25-33.) Plaintiffs allege that the July 11, 2013, raid caused Club Yamang to go out of business and further allege that as a result of HSI Agent Lee’s conduct and the investigation of various federal and state agencies, Plaintiffs suffered extreme emotional distress which impacted their physical health and caused anxiety, sleeplessness, dizziness, high blood pressure, heart palpitations and other physical manifestations associated with severe tension and stress. (Complaint at ¶¶ 28 & 32.) Plaintiffs seeks a minimum of $100,000 in damages for each Plaintiff. (Complaint at ¶¶ 29 & 33.) II. STANDARD OF REVIEW A. SUBJECT MATTER JURISDICTION Federal courts are courts of limited jurisdiction and are presumed to lack jurisdiction until proven otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994); Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 3 of 13 - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The party invoking jurisdiction bears the burden of establishing the existence of subject matter jurisdiction. Kokkonen, 511 U.S. at 377. Furthermore, the United States’ sovereign immunity “is a question of the Court’s subject matter jurisdiction.” McMillan v. Dep’t of Interior, 907 F. Supp. 322, 325 (D. Nev. 1995) (citation omitted); see also Duval Ranching Co. v. Glickman, 965 F. Supp. 1427, 1444 (D. Nev. 1997) (“The absence of the United States’ consent to be sued is a ‘fundamental, jurisdictional defect’ which negates our subject matter jurisdiction.”). “Under the principle of sovereign immunity, the United States may only be sued where it has expressly consented to such suit by statute.” McMillan, 907 F. Supp. at 325 (citation omitted). The United States “may define the conditions under which it is willing to be sued.” Id. at 325 (citation omitted). “‘[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.’” Id. (citation omitted) (alteration in original). “The party suing the United States must point to an unequivocal waiver of sovereign immunity.” Id. (citation omitted). B. FAILURE TO STATE A CLAIM A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact are taken as true and construed in a light most favorable to the non-moving party. See Hicks v. Small, 69 F.3d 967, 969 (9th Cir. 1995). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Iqbal decision approved and reaffirmed the two working principles set forth in Twombly. First, the tenet that a court must accept as true all of the allegations in a complaint is inapplicable to legal conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 678. Per these principles, [a] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 4 of 13 - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. at 679. Whether a complaint states a plausible claim for relief will be “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. Dismissal is appropriate where there is no cognizable legal theory, or insufficient facts alleged to support a cognizable legal theory. Navarro, 250 F.3d at 732. III. ARGUMENT A. PLAINTIFFS MAY NOT RECOVER FOR ANY ACTIONS OCCURRING BEFORE JANUARY 14, 2014 Plaintiffs may not recover based on any actions taken before January 14, 2014, as they are barred based on the FTCA’s statute of limitations. 28 U.S.C. § 2401(b) has two requirements, both of which must be met: a claim must be presented to the agency within two years of the claim’s accrual, and the claimant must file suit within six months of the agency’s administrative denial. Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir. 1984). Presentment requires that the federal agency “receive[] from the claimant . . .an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident.” Bailey v. United States, 642 F.2d 344, 346 (9th Cir.1981) (citing 28 C.F.R. § 14.2). Plaintiffs submitted their claim to DHS on January 14, 2016.1 As a result, they may only recover for actions after that date. Unfortunately for Plaintiffs, this statute of limitations bars recovery for the bulk of their injuries: per their Complaint, the initial raid on Club Yamang took place on July 11, 2013. (Complaint ¶ 17.) This was also the date that Mr. Lee transported Ae Ja Kim to an ICE detention center and placed a GPS device on her ankle, and when Mr. Lee allegedly informed Ae Ja Kim’s fiancé, Thomas, “that the GPS would remain on Ae Ja for an indeterminate time and that he had the legal authority to monitor for as long as he liked.” (Complaint ¶ 18). Plaintiffs’ negligence claim, in summary, states that the United States owed duties of care to initiate criminal investigations 1 Should this Court wish to have additional evidence on when the claim was presented, Defendant will submit its date-stamped receipt of the claim. Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 5 of 13 - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 properly and to comply with laws and policies regarding GPS monitoring in an immigration context. (Complaint ¶ 27). Plaintiffs’ alleged injury was to their business, as Club Yamang “was a thriving commercial success” prior to Mr. Lee’s investigation and prior to the raid on July 11, 2013. (Complaint ¶ 28). Plaintiffs also complain of a November 2013 meeting with defense counsel and Mr. Lee, discussing the GPS tracking device, and about a December 2013 meeting with an unnamed employee of Club Yamang along with a Nevada Attorney General Investigator, where photographs of Plaintiffs were shown to her and she was told they were all going to jail soon. (Complaint ¶¶ 20-21). Plaintiffs lastly complain that SA Lee caused misinformation to be placed in ICE’s computer database about Hwan Jae Lee and Mi Won Kim. (Complaint ¶ 22). While Plaintiffs’ intentional infliction of emotional distress claim does not specify precisely what the extreme or outrageous conduct was, to the extent that it was anything concerning the initial investigation, raid, the placing of the GPS device on Ae Ja Kim, the later meeting discussing the removal of the GPS device in November 2013, the meeting with the employee where photographs were allegedly shown in December 2013, the alleged misinformation placed into the computer database in December 2013, or any other investigation action undertaken in 2013, they cannot recover. Plaintiffs cannot be saved by accrual rules. While they may argue that their claim did not accrue until Thomas and Ae Ja Kim purportedly became aware in 2014 that the investigation was a “complete fabrication and had no proper legal basis” (Complaint ¶ 23), this argument fails, because Plaintiffs were aware of both the injury and its cause as of July 11, 2013. See United States v. Kubrick, 444 U.S. 111, 123 (1979) (“We thus cannot hold that Congress intended that ‘accrual’ of a claim must await awareness by the plaintiff that his injury was negligently inflicted.”); Hensley v. United States, 531 F.3d 1052, 1056 (9th Cir. 2008) (“ignorance of the involvement of government employees is irrelevant to accrual of a federal tort claim”); Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986) (rejecting argument that claim only accrued once plaintiffs learned of FBI plot to burn garage when they knew of injury (destruction of property) and cause (fire) at the time of the incident); see also Wallace v. Kato, 549 U.S. 384, 397 (2007) (false arrest accrues at the moment the false arrest ends). Additionally, Plaintiffs cannot argue that this is a continuing tort, where their Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 6 of 13 - 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims depend on discrete acts that occurred outside of the limitations period. See Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002). Nor does equitable tolling apply, as Plaintiffs cannot meet their burden to establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.” Credit Suisse Sec. (USA) LLC v. Simmonds, 132 S. Ct. 1414, 1419 (2012). As the Ninth Circuit discussed in Herrera-Diaz By & Through Herrera-Diaz v. U.S. Dep't of Navy, 845 F.2d 1534, 1537 (9th Cir. 1988), in a context outside the FTCA, it declines “to defer accrual of the claim until fault, as distinguished from injury and cause, was determined.” Indeed, the Ninth Circuit in Hensley explicitly considered equitable tolling in the context of that case, and held that where the plaintiffs knew of the injury and its cause, no equitable tolling would apply where “the government did not engage in any fraudulent concealment, misconduct, or trickery that would have lulled the Hensleys into letting their rights lapse.” 531 F.3d at 1058; see also Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985) (no equitable tolling where agency did not conceal its involvement). Based on the foregoing, Plaintiffs cannot recover for anything occurring prior to January 14, 2014. B. PLAINTIFFS MAY NOT RECOVER FOR INJURIES TO THEIR CORPORATION OR TO ANY OTHER PERSON Plaintiffs do not have standing to recover for injuries to their corporation or to persons other than themselves. Plaintiffs’ Complaint is substantially based on the United States conduct as against the business they co-owned, rather than against Plaintiffs personally. Plaintiffs allege, inter alia, Mr. Lee wanted to drive Club Yamang out of business (Complaint ¶ 16); HSI raided Club Yamang (Complaint ¶ 17); several Club Yamang employees were detained and questioned (Complaint ¶ 18); Mr. Lee transported Ae Ja Kim to an ICE detention center, interrogated her, and placed a GPS device on her ankle (Id.); Mr. Lee and other law enforcement agencies conducted surveillance on Club Yamang (Complaint ¶ 19); and Mr. Lee and an investigator with the Nevada Attorney General’s Office questioned a Club Yamang employee about prostitution and drug use occurring at Club Yamang (Complaint ¶ 21). Plaintiffs also make clear that they are suing based on injuries to their business: • “The initial raid of July 2013 had a chilling and devastating effect on Plaintiff’s business causing a significant decline in the number of people patronizing the club.” (Complaint ¶ 22) Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 7 of 13 - 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • “Among the injuries sustained by each individual Plaintiff was the financial ruin of Club Yamang and their individual interests in that business. Prior to SA Lee’s investigation, Club Yamang was a thriving commercial success. After SA Lee conducted his raid, his desired effect of destroying Club Yamang was accomplished as patrons avoided socializing there instead choosing other establishments such as Club Sonagi.” (Complaint ¶ 28) These allegations have nothing to do with Plaintiffs individually. Plaintiffs’ allegation that they were investors and co-owners of Club Yamang does not save them—as the Ninth Circuit held in a § 1983 action, a “fundamental rule” is that “even though a stockholder owns all, or practically all, of the stock in a corporation, such a fact of itself does not authorize him to sue as an individual.” Erlich v. Glasner, 418 F.2d 226, 228 (9th Cir. 1969); see also United States v. Palmer, 578 F.2d 144, 145-46 (5th Cir. 1978) (“The law is clear that only a corporation and not its shareholders, not even a sole shareholder, can complain of an injury sustained by, or a wrong done to, the corporation.”); Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 439-40 (9th Cir. 1979) (no standing to bring state law claims based on injury to corporation, despite close relationship); Shell Petroleum, N.V. v. Graves, 570 F. Supp. 58, 62 (N.D. Cal.), aff'd, 709 F.2d 593 (9th Cir. 1983) (“It is clear in this circuit, as it is in others, that the shareholder of a corporation—even a sole shareholder—does not, in general, have standing to redress an injury to the corporation.”). In a similar set of facts, in Denton v. Arizona, No. CV 09-0011-PHX-JAT, 2009 WL 1154131, at *2 (D. Ariz. Apr. 29, 2009), a health services inspector and county health department officials conducted an unannounced inspection of a summer camp, found the camp to be in violation of various codes, and issued a statement of deficiencies that led to the suspension of the camp’s operating certificate and eventually the closure of the camp. The owners and operators of the camp sued under § 1983 and under state civil rights laws. The court found that these owners lacked standing to bring any claims: The Dentons claim that, as individuals, they suffered costs associated with remedying the failed inspections of RRMC; that their right to earn a livelihood was impacted; and that their reputation in the community has suffered as a result of Defendants' actions. Yet, even assuming these allegations are true, the Dentons have failed to demonstrate how these damages are separate from those suffered by RRMC. All of the enforcement actions taken in this case that form the basis of Plaintiffs' complaint were taken against RRMC, and not the Dentons individually. The damages the Dentons claim to have suffered individually are intertwined with, and directly result from, the actions taken against RRMC. Indeed, the very same damage claims made by the Dentons as individuals apply equally to RRMC. Based Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 8 of 13 - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 upon the facts averred in Plaintiffs' complaint, it is difficult to conceive of any claim for damages other than those suffered by RRMC. Id. at *2. Plaintiffs are similarly barred from bringing any claims based on the raid or investigation of Club Yamang, and may not recover for any lost business income. Likewise, Plaintiffs also lack standing to challenge the investigators’ actions as against any other employees. This Court should rule that Plaintiffs may not recover for any of these actions. C. PLAINTIFFS CANNOT STATE A CLAIM FOR NEGLIGENCE UNDER COUNT I There can be no cause of action for negligence in this context. First, Plaintiffs have not identified what the negligent action was—they make no claim about any actors other than Mr. Lee, and all of the allegations against Mr. Lee describe intentional rather than negligent actions. See, e.g., Willard v. City of Everett, No. C12-14 TSZ, 2013 WL 4759064, at *2 (W.D. Wash. Sept. 4, 2013), aff'd, 637 F. App'x 441 (9th Cir. 2016) (“A plaintiff may not base a claim of negligence on an intentional act, like the use of excessive force.”) Second, even assuming there is a true negligence claim at issue, Plaintiffs have not properly alleged any duty on behalf of the United States that is cognizable under the FTCA. The Complaint alleges that the United States had a duty to initiate a criminal investigation based only on probable cause, which is patently not the law.2 Law enforcement agencies perform criminal investigations to develop probable cause that a crime has been committed, and, based on the probable cause developed during the investigation, seek an indictment or criminal complaint. Plaintiffs cannot cite to any authority that probable cause is required to initiate a criminal investigation, because none exists. Nor does the public duty doctrine provide cover for Plaintiffs, as it “rest[s] on the principle that the duty of providing these services is one owed to the public, but not to individuals.” Frye v. Clark Cty., 97 Nev. 632, 633, 637 P.2d 1215, 1216 (1981). Plaintiffs also allege that the United States has a duty to comply with the Constitution, federal laws, and agency policy and regulations: however, those do not form the basis for an FTCA claim, which must be based on the tort law of the state, rather than deriving from federal law. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Delta 2 As discussed above, the initiation of the investigation, the placement of the GPS device, and the alleged misinformation in the HSI system are also barred on statute of limitations grounds. Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 9 of 13 - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sav. Bank v. United States, 265 F.3d 1017, 1024 (9th Cir. 2001); see also Firebaugh v. United States, No. 3:12-CV-00242-MMD, 2013 WL 4048977, at *2 (D. Nev. Aug. 9, 2013) (“Investigation into whether federal regulations are violated is a unique government function that private persons do not perform.”)3 Plaintiffs’ concession that multiple federal and state agencies were involved in this investigation itself belies his claim that this was all based on the caprice of Mr. Lee. Third, the United States was acting within its authority pursuant to 8 U.S.C. § 1226(a) and 8 U.S.C. § 1357 to interrogate any employee of Club Yamang as to potential immigration violations, to arrest any individual and to detain Ae Ja Kim while removal proceedings were pending. An alien detained pending a decision as to whether the alien is to be removed from the United States does not have a right to be released on bond. Matter of Guerra, 24 I&N Dec. 37, 39 (BIA 2006) (citing Carlson v. Landon, 342 U.S. 524, 534 (1952); Matter of D-J-, 23 I&N Dec. 572, 575 (AG 2003). The Supreme Court has concluded that detention is a normal and lawful part of removal proceedings: “Detention during removal proceedings is a constitutionally permissible part of that process.” Demore v. Kim, 538 U.S. 510, 531 (2003). The Court has a “longstanding view that the Government may constitutionally detain deportable aliens during the limited period necessary for their removal proceedings.” Id. at 526. The Supreme Court has stated that Congress has broad authority to make rules for detaining aliens during removal or deportation proceedings: For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government. Over no conceivable subject is the legislative power of Congress more complete. Thus, in the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens . . . . Congress has the authority to detain aliens suspected of entering the country illegally pending their deportation hearings. And . . . Congress [has] eliminated any presumption of release pending deportation, committing that determination to the discretion of the Attorney General. Reno v. Flores, 507 U.S. 292, 305-06 (1993) (internal punctuation and citations omitted) (upholding INS policy on release of detained juveniles). 3 Should this Court decline to dismiss Plaintiffs’ claim on this Motion, the United States reserves the right to bring a jurisdictional motion on the discretionary function exception, as courts have overwhelmingly ruled that investigation decisions and purported negligent supervision claims fall into this exception, and thus cannot be reviewed. See, e.g., Gonzalez v. United States, 814 F.3d 1022, 1028-29 (9th Cir. 2016). Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 10 of 13 - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The GPS tracking device placed on Ae Ja Kim during her administrative detention does not require court order, as Plaintiffs claim, but is an alternative to detention under the powers of the ICE agents under the above statutes. As the court in Nguyen v. B.I. Inc., 435 F. Supp. 2d 1109, 1112 (D. Or. 2006) explains, ISAP (the alternative to detention program) operates for “aliens who are in removal proceedings but have not yet been issued final orders of removal and may be at risk to flee,” as well as two other categories of aliens. After concluding placement in ISAP is not detention, despite the GPS tracking, the court noted, “Even if ISAP were considered detention, it is certainly less restrictive on participants than living in a federal detention center.” Id. at 1114. Even if, as Plaintiffs allege, this was undertaken for some ulterior motive, because ICE agents objectively have this rightful power, Plaintiffs do not have a claim. Whren v. United States, 517 U.S. 806, 812- 13, (1996); Marquart v. C.I.R., 221 F.3d 1348 (9th Cir. 2000). Finally, there is no negligence claim based on the alleged misinformation placed in ICE’s computer database, as it is barred by the misrepresentation exception to the FTCA. 28 U.S.C.A. § 2680(h); see also United States v. Neustadt, 366 U.S. 696, 706-07 (1961). Accordingly, Count I should be dismissed in its entirety. D. THERE WAS NO OUTRAGEOUS CONDUCT SUFFICIENT TO ALLEGE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS UNDER COUNT II Plaintiffs’ claims are also barred by the exceptions to the FTCA, as the United States has not waived sovereign immunity. In order to support a claim for intentional infliction of emotional distress under Nevada law, “(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and (3) actual or proximate causation.” Jackson v. United States, 33 F. App'x 293, 295 (9th Cir. 2002) (internal citations omitted). Plaintiffs cannot meet this standard. First, Plaintiffs fail to provide what the “extreme and outrageous conduct” was. “Liability is only found in extreme cases where actions of the defendants go beyond all possible bounds of decency, is atrocious and utterly intolerable.” Martin v. Papillon, 810 F. Supp. 2d 1160 (2011) (internal citations omitted). As explained in detail above, federal and state agencies were acting Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 11 of 13 - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 within their rights in undertaking an investigation; most of the statements Plaintiffs complain of were to persons other than Plaintiffs; ICE agents were within their rights to place Ae Ja Kim in administrative detention; and most of the conduct is outside the statute of limitations. Nothing said or done to Plaintiffs could be construed as extreme or outrageous conduct. See, e.g., Jackson, 33 F. App'x at 296 (finding no extreme or outrageous conduct where an officer informed Plaintiff after her release from a jail facility that “she could still be in jail were she outside the Reservation.”) Moreover, Plaintiffs may not recover for any “outrageous” action based on misrepresentations, including the alleged misinformation in the ICE computer database. See Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1207 (9th Cir. 1988) (barring claim for negligent infliction of emotional distress that was predicated on the same facts as a slander claim). Second, Plaintiff also does not give any factual basis to support his conclusory statement that Mr. Lee did anything “with the specific intent, or at a minimum with reckless disregard, of causing extreme emotional distress in each Plaintiff.” (Complaint, ¶ 32). Plaintiffs allege a motive toward the business, but not toward Plaintiffs personally. This does not suffice under Iqbal, 556 U.S. at 678. This element is particularly lacking given that Plaintiffs’ claims depend almost entirely on statements made to other persons, and that by Plaintiffs’ admission, the actions were undertaken by multiple state and federal agencies and with the approval of Mr. Lee’s supervisors. (See Complaint ¶¶ 18-21). Even assuming Plaintiffs’ claims of physical injury satisfy the element, this claim must be dismissed. IV. CONCLUSION For the foregoing reasons, this Court should dismiss this case in its entirety. Respectfully submitted this 12th day of May, 2017. ELIZABETH STRANGE Acting United States Attorney District of Arizona Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 12 of 13 - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Katherine V. Foss KATHERINE V. FOSS J. COLE HERNANDEZ Assistant United States Attorneys Copy of the foregoing served electronically or by other means this 12th day of May, 2017, to: Paul S. Padda, Esq. PAUL PADDA LAW, PLLC 4240 West Flamingo Road, Suite 220 Las Vegas, Nevada 89103 Kathleen Bliss, Esq. Jason K. Hicks, Esq. KATHLEEN BLISS LAW GROUP, PLLC 400 South 4th Street, Suite 500 Las Vegas, Nevada 89101 s/ Pamela Vavra Case 2:16-cv-00778-APG-CWH Document 32 Filed 05/12/17 Page 13 of 13