Viray v. Saba, No. 5:2018cv04634 - Document 14 (N.D. Cal. 2018)

Court Description: ORDER GRANTING 7 MOTION TO DISMISS WITH LEAVE TO AMEND. Signed by Judge Beth Labson Freeman on 8/27/2018.(blflc2S, COURT STAFF) (Filed on 8/27/2018)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 WILLIAM CASTANARES VIRAY, 8 Plaintiff, 9 10 United States District Court Northern District of California 11 12 v. AFTIM AMIN SABA, et al., Case No. 18-cv-04634-BLF ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITH LEAVE TO AMEND [Re: ECF 7] Defendants. Plaintiff William Viray (“Plaintiff”), proceeding pro se, filed an action in Small Claims 13 Court in Santa Clara County Superior Court against Defendant Aftim Amin Saba (“Defendant” or 14 “Saba”). See ECF 1-1 (“Compl.”). The United States then removed the action to federal court 15 under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2679(d)(1) and 28 U.S.C. § 1442(a)(1) 16 because this is a tort action against an officer or employee of a federal agency (namely, the United 17 States Postal Service). See Not. of Removal, ECF 1, ¶ 5. The United States also substituted itself 18 as Defendant under 28 U.S.C. § 2679(d)(1). Id. ¶ 6. 19 Presently before the Court is Defendant’s motion to dismiss the Complaint. See Mot., ECF 20 7. Plaintiff filed a letter in response, stating that he wished to oppose the motion to dismiss. See 21 ECF 12. The Court construes this letter to be Plaintiff’s opposition. Pursuant to Civil L.R. 7-1(b), 22 the Court finds Defendant’s motion to dismiss suitable for submission without oral argument and 23 hereby VACATES the hearing scheduled for November 29, 2018. The Case Management 24 Conference scheduled for November 29, 2018 is also VACATED, and the Court will separately 25 issue a scheduling order. 26 27 28 For the reasons set forth herein, the Court GRANTS Defendant’s motion to dismiss the Complaint WITH LEAVE TO AMEND. United States District Court Northern District of California 1 I. LEGAL STANDARD 2 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 3 claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation 4 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 5 729, 732 (9th Cir. 2001)). When determining whether a claim has been stated, the Court accepts 6 as true all well-pled factual allegations and construes them in the light most favorable to the 7 plaintiff. Reese v. BP Exploration (Alaska) Inc., 643 F.3d 681, 690 (9th Cir. 2011). While a 8 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 9 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 10 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is 11 facially plausible when it “allows the court to draw the reasonable inference that the defendant is 12 liable for the misconduct alleged.” Id. 13 “The doctrine of res judicata provides that ‘a final judgment on the merits bars further 14 claims by parties or their privies based on the same cause of action.’” In re Schimmels, 127 F.3d 15 875, 881 (9th Cir.1997) (quoting Montana v. United States, 440 U.S. 147, 153–54 (1979)). Under 16 Federal Rule of Civil Procedure 8(c), res judicata may be raised as an affirmative defense in 17 response to a pleading. To establish the defense of res judicata, a party must prove three elements: 18 “(1) an identity of claims, (2) a final judgment on the merits, and (3) [identity or] privity between 19 parties.” Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 20 (9th Cir. 2003); see also Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313 (1971). 21 Although res judicata is a defense, a party may assert it in a motion to dismiss where “the defense 22 raises no disputed issues of fact.” Scott v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). 23 Like res judicata, a statute-of-limitations assertion is an affirmative defense. However, a 24 defendant may still raise a motion to dismiss based on this defense if the running of the limitations 25 period is apparent on the face of the complaint. Jablon v. Dean Witter & Co., 614 F.2d 677, 682 26 (9th Cir. 1980). “When a motion to dismiss is based on the running of the statute of limitations, it 27 can be granted only if the assertions of the complaint, read with the required liberality, would not 28 permit the plaintiff to prove that the statute was tolled.” Id.; see also Supermail Cargo, Inc. v. 2 United States District Court Northern District of California 1 United States, 68 F.3d 1204, 1206 (9th Cir. 1995) (“[A] complaint cannot be dismissed unless it 2 appears beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness 3 of the claim”). 4 II. DISCUSSION 5 Defendant moves to dismiss the Complaint on three grounds: (1) Plaintiff’s claims are 6 barred by res judicata; (2) this Court lacks subject matter jurisdiction to hear Plaintiff’s tort claims 7 under the FTCA and criminal law claims; and (3) the claims are barred by any applicable statute 8 of limitations because the underlying incidents are alleged to have occurred in August 2009. See 9 ECF 7. The Court discusses each ground in turn. 10 A. 11 Defendant argues that Plaintiff’s action is barred by res judicata because this case is 12 “substantively analogous” to a previous action brought by Plaintiff against the United States Postal 13 Service (“USPS”), which this Court dismissed with prejudice. See Viray v. United States Postal 14 Service (Viray I), No. 18-cv-99-BLF, Order on Mot. to Dismiss, ECF 36 (Apr. 25, 2018).1 Res Judicata In addition to numerous claims, the Viray I Amended Complaint raised allegations relating 15 16 to stolen signatures, the death of Plaintiff’s grandmother, appropriation of “unconsented forms,” 17 lost wages, loss of consortium, and defamation. See ECF 7-2, Ex. C at 1–3. The Complaint 18 mentioned the time period of August 2009. Id. Plaintiff also alleged that Saba, who was not a 19 named defendant, had “assaulted, abused, and harassed” and “threatened” Plaintiff, as well as 20 “shown [his] pen[],” “proving to stab” Plaintiff. Id. Finally, he asked the Court to send several 21 individuals, including Saba, to prison and demanded capital punishment. 22 In his Complaint in this action, Plaintiff named only Saba as a defendant. He alleges that 23 Saba (1) “harass[ed], abuse[d], and assault[ed]” him; (2) stole his signature to which Plaintiff did 24 not consent; (3) tried to kill Plaintiff with his pen; and (4) defamed him. See Complaint 25 (“Compl.”), ECF 7-2, Ex. A at 2–3, Letter Attachment (“L.A.”). He also mentions his dying 26 27 28 1 After the present action was removed to federal court, the United States moved to relate this action to the previously dismissed Viray I action. See Viray I, No. 18-cv-99-BLF, ECF 40. This Court granted the motion to relate on August 9, 2018. See Viray I, No. 18-cv-99-BLF, ECF 41. 3 United States District Court Northern District of California 1 grandmother, loss of consortium, and sending Saba to prison. Id. Finally, he notes the time period 2 in question is August 2009 to present. Id. at 2. 3 The United States argues that res judicata’s three requirements are met here because there 4 is identity of the claims, a final decision on the merits of those claims, and identity of the parties. 5 The Court disagrees. Even assuming the first two requirements are met, the United States has not 6 adequately shown identity of the parties—namely identity between the USPS and Saba. In 7 support of its argument, the United States cites only the general rule governing identity or privity 8 of the parties—that “privity may exist if ‘there is substantial identity between the parties, that is, 9 when there is sufficient commonality of interest.’” Mot. at 5 (quoting Tahoe, 322 F.3d at 1081) 10 (internal quotation marks omitted). It does not cite any specific cases to support its arguments that 11 Saba is in privity with the USPS either because he was named as “an alleged tortfeasor” in the 12 Viray I complaint or because the USPS had sufficient “commonality of interests with respect to 13 Saba’s alleged conduct in both actions.” Id. at 6. As the United States recognizes, the privity 14 inquiry is fact-intensive, see id. at 5, and thus requires an inquiry into whether courts have found 15 similar relationships as the one at issue here to be in privity. Because the United States points to 16 no such cases, the Court finds that res judicata does not bar this action. 17 B. 18 The United States next argues that this Court lacks subject matter jurisdiction to hear Subject Matter Jurisdiction 19 Plaintiff’s claims because the Federal Tort Claims Act bars suits alleging tort claims against the 20 government “unless it is presented in writing to the appropriate Federal agency within two years 21 after such claim accrues . . . .” 28 U.S.C. § 2401(b). If the plaintiff does not meet this 22 requirement, the claims must be dismissed for lack of subject matter jurisdiction. McNeil v. 23 United States, 508 U.S. 106, 113 (1993). The United States also argues that the Court lacks 24 subject matter jurisdiction over Plaintiff’s claims to the extent he makes claims for assault, libel, 25 slander, or defamation, as the FTCA excludes such claims. See Mot. at 7. 26 The Court agrees with the United States’ argument that the Court lacks subject matter 27 jurisdiction to the extent that Plaintiff alleges assault, defamation, libel, or slander against 28 Defendant. See Compl. L.A. Assault, libel, and slander are expressly excluded from the FTCA’s 4 1 waiver of sovereign immunity. See 28 U.S.C. § 2680(h). Courts have further held that 2 “[d]efamation claims are the equivalent of libel and slander and thus exempt from the waiver of 3 sovereign immunity under the intentional tort exception.” Garling v. United States EPA, 849 F.3d 4 1289, 1298-1299 (10th Cir. 2017). 5 6 as the United States argues, the Complaint provides no allegations demonstrating that Plaintiff 7 properly exhausted the necessary administrative avenues within two years of his claims accruing. 8 See Mot. at 6–7. The Complaint contains no allegations that Plaintiff presented these issues to an 9 appropriate federal agency, much less that he did so within two years of the claims accruing, 10 11 United States District Court Northern District of California Moreover, to the extent Plaintiff makes other tort claims, they fail for two reasons. First, which seemingly occurred in August 2009. Second, the Complaint does not satisfy the notice pleading requirements of Federal Rule of 12 Civil Procedure 8. Among other allegations, the Complaint alleges that Defendant “use[d] his 13 career in medicine to harass, abuse, and assault me. He also stole my signature which is never real 14 or I never consent it. . . . I believe he is trying to kill me with his pen . . . . I demand for stealing 15 my unreal signature. I demand for defamation that he had caused. I got attacked wherever I 16 go . . . .” On its face, the Complaint alleges only claims of assault or defamation. To the extent 17 Plaintiff makes other claims, the Court finds that Defendant is not on fair notice of other claims 18 against him or the grounds upon which they rest. Fed. R. Civ. P. 8(a)(2); see also Erickson v. 19 Pardus, 551 U.S. 89, 93–94 (2007). Moreover, any such claims are not plausible as the Court 20 cannot “draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Iqbal, 556 U.S. at 678. 22 Thus, the Court lacks subject matter jurisdiction over Plaintiff’s claims for defamation and 23 assault. To the extent Plaintiff makes other tort claims, Plaintiff must plausibly plead that the 24 claims were properly exhausted under the FTCA and incorporate allegations that provide 25 Defendant with sufficient notice of the claims and the grounds upon which they rest. 26 Finally, the Court also agrees with Defendant that it lacks subject matter jurisdiction over 27 Plaintiff’s claims sounding in criminal law. Plaintiff accuses Defendant of “trying to kill 28 [Plaintiff] with his pen” and demands that Saba go to prison. See Compl. L.A. To the extent he 5 United States District Court Northern District of California 1 attempts to do so, Plaintiff does not have standing to bring a criminal complaint against 2 Defendant. Private citizens cannot file criminal charges. Rather, criminal proceedings in federal 3 court are initiated by the government, usually through the United States Attorney’s Office. See, 4 e.g., Harbor v. Kim, No. ED CV 16-01906, 2017 WL 443164, at *4 (C.D. Cal. Jan. 31, 2017) 5 (“The decision to institute criminal proceedings lies within the discretion of the proper state or 6 federal prosecuting authority”); see also United States v. Nixon, 418 U.S. 683, 693 (1974) 7 (observing that the executive branch has “exclusive authority and absolute discretion to decide 8 whether to prosecute a case”). Because Plaintiff lacks standing to bring criminal charges against 9 Defendant, the Court lacks subject matter jurisdiction over any such claims. 10 C. 11 The Court agrees with Defendant that Plaintiff’s claims are also barred by any applicable 12 statute of limitations. In the Complaint, Plaintiff references lost wages and various torts (such as 13 assault, theft, and perhaps fraud), as well as general wrongdoing and inappropriate behavior by 14 Defendant. See Compl. at 2, L.A. He also notes that the relevant time period is August 2009 to 15 present. Id. at 2. Statute of Limitations 16 As explained above, Plaintiff’s claims against Defendant are not plausible and are subject 17 to dismissal on that basis. It also appears on the face of the Complaint that any conceivable claim 18 that Plaintiff might allege would be time barred. Though Plaintiff alleges that the relevant time 19 period continues into the present, his specific allegations appear to be targeted at discrete 20 incidents, not ongoing ones. See L.A. Without additional information, it appears these 21 incidents occurred in August 2009, and that Plaintiff is seeking continuing losses into the present 22 that arise from those past incidents. As to any incident that occurred in August 2009, none of 23 Plaintiff’s discernible claims has a statute of limitations of nine years. For example, the only 24 avenue for tort claims against government agents acting in their official capacities is the Federal 25 Tort Claims Act 28 U.S.C. § 2679(d). Thus, Plaintiff was required to submit a tort claim within 26 two years of the accrual of his claims. See 28 U.S.C. § 2401(b). Moreover, claims under the 27 Privacy Act are subject to a two-year statute of limitations, 5 U.S.C. § 552a(g)(5), and all claims 28 arising out of another Act of Congress without an express statute of limitations are subject to a 6 1 four-year statute of limitations, 28 U.S.C. § 1658(a). Each of these statutes of limitations is much 2 shorter than the nine years at issue here. 3 III. 4 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss the 5 Complaint on the grounds that Plaintiff’s claims against him are time barred. Because leave to 6 amend should be freely given when justice so requires, and a motion to dismiss based on the 7 statute of limitations defense should be granted “only if the assertions of the complaint, read with 8 the required liberality, would not permit the plaintiff to prove that the statute was tolled,” Jablon, 9 614 F.2d at 682, the Court grants Plaintiff LEAVE TO AMEND. The November 29, 2018 hearing 10 11 United States District Court Northern District of California CONCLUSION on Defendant’s Motion to Dismiss is VACATED. If Plaintiff wishes to amend his claims, Plaintiff must file an amended complaint on or 12 before September 26, 2018. Failure to meet the deadline to file an amended complaint or failure 13 to cure the deficiencies identified in this Order will result in a dismissal of Plaintiff’s claims with 14 prejudice. 15 16 IT IS SO ORDERED. 17 18 19 20 Dated: August 27, 2018 ______________________________________ BETH LABSON FREEMAN United States District Judge 21 22 23 24 25 26 27 28 7