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DONG v. U.S.

United States District Court, S.D. New York

March 1, 2004.

XU X. DONG, Plaintiff, -against- UNITED STATES OF AMERICA, Defendant

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Xu X. Dong is suing the United States of America because Anthony J. Lawrence, a federal employee, damaged his car in an accident. The government moves to dismiss because Dong failed to exhaust his administrative remedies prior to filing suit and, alternatively, because Dong has failed to prosecute his claims. For the reasons that follow, the motion is granted and the case is dismissed.


  On October 15, 2003, Dong sued Lawrence for $2,600 in Civil Court of the City of New York, Small Claims Part, asserting an "action to recover monies arising out of damages to auto caused by negligence of the deft." Notice of Claim and Summons to Appear, Ex. A to 1/26/04 Declaration of John P. Cronan, counsel to the Government ("Cronan Decl."). It appears that he did not file an administrative claim prior to filing his small Page 2 claims suit or at any time thereafter. See Declaration of Scott A. Whitted, Associate Legal Advisor for the Department of Homeland Security ("Whitted Decl."), Ex. E to Cronan Decl. In any event, on December 4, 2003, the Government removed this case to federal court and substituted the United States of America as defendant, pursuant to the Federal Tort Claims Act. See 28 U.S.C. § 2679(d); see also Certification of David Kelley, United States Attorney for the Southern District of New York, Ex. B to Cronan Decl. (certifying that Lawrence was acting within the scope of his employment at the time of the incident that gave rise to Dong's claim); Notice of Removal and Substitution, Ex. C to Cronan Decl.; Notification of Removal, Ex. D to Cronan Decl. Dong has not been heard from since a Civil Court hearing that same day.

  The day before it removed the case, on December 3, 2003, the Government sent Dong a copy of the Notification of Removal and Notice of Removal and Substitution by Federal Express to the address listed on Dong's Civil Court complaint.*fn1 FedEx returned the documents as undeliverable because Dong was not listed at that address and no one there would sign for his package. See Ex. F to Cronan Decl. The same package, sent via certified mail, was also returned. See Ex. G to Cronan Decl. Page 3

  On December 9, 2003, the Government attempted to send Dong a copy of a letter requesting an extension of its deadline to answer or move against the complaint. The letter was sent by both FedEx and certified mail. Both were returned as undeliverable. See Ex. I to Cronan Decl. (FedEx); Ex. J to Cronan Decl. (certified mail receipt). On December 10, 2003, the government attempted to send its premotion letter to Dong, again by FedEx and certified mail. Not surprisingly, they too were returned. See Ex. L to Cronan Decl. (FedEx); Ex. M to Cronan Decl. (certified mail receipt).

  The Government even sent a letter to another person named Xu X. Dong in an attempt to apprise the plaintiff of the status of his case. See Ex. N to Cronan Decl. But that Xu X. Dong denied being this Xu X. Dong. See Cronan Decl. ¶ 19. The Government now moves to dismiss.


  A. Subject Matter Jurisdiction

  "It is well ingrained in the law that subject-matter jurisdiction can be called into question either by challenging the sufficiency of the allegation or by challenging the accuracy of the jurisdictional facts alleged." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 68 (1987) (Scalia, J., concurring in part and concurring in the judgment) (citations omitted). See also Robinson v. Government of Page 4 Malaysia, 269 F.3d 133, 140 (2d Cir. 2001) ("the defendant may challenge either the legal or the factual sufficiency of the plaintiff's assertion of jurisdiction, or both."). Where a defendant objects to a plaintiff's jurisdictional pleading, the standard of review is the same as the familiar Rule 12(b)(6) requirement: "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). "But where evidence relevant to the jurisdictional question is before the court, `the district court . . . may refer to [that] evidence'" without converting the motion into one for summary judgment. Robinson, 269 F.3d at 140 (alterations in original) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). Thus, "[i]n resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002).

  B. Failure to Prosecute

  Dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute is subject to the sound discretion of the district courts. See Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994); Alvarez v. Simmons Mkt. Research Bureau, Inc., Page 5 839 F.2d 930, 932 (2d Cir. 1988). That discretion, however, should be exercised sparingly and only when the district judge is "sure of the impotence of lesser sanctions." Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 665 (2d Cir. 1980).


  A. Subject Matter Jurisdiction

  The Government is immune from suit except "as it consents to be sued." United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). Where consent had not been given — or where a plaintiff fails to meet the requirements established by the Government as predicates to its consent — courts have no jurisdiction to hear suits against the Government. See Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994) ("Sovereign immunity is jurisdictional in nature."). Under the Federal Tort Claims Act, the Government requires that before a plaintiff may initiate litigation, he "shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing." 28 U.S.C. § 2675 (a).

  In this case, the relevant agency (the Department of Homeland Security) has certified that, since 1986, Dong has not filed an administrative complaint. See Whitted Decl. Indeed, there is no indication that Dong ever alleged that he filed such a claim. Accordingly, Dong failed to pursue, let alone exhaust, Page 6 his administrative remedies and this Court has no jurisdiction to entertain his suit. See McNeil v. United States, 508 U.S. 106, 113 (1993) ("The FTCA bars claimants from brining suits in federal court until they have exhausted their administrative remedies. Because petitioner has failed to heed that clear statutory command, the District Court properly dismissed his suit.").

  B. Failure to Prosecute

  Dismissal is appropriate for a second reason, as well. From the time this case was removed to federal court through the present, Dong has taken absolutely no action to pursue his claims. The Second Circuit has recognized five relevant factors in determining whether to dismiss a suit for failure to prosecute:

[1] the duration of the plaintiff's failures, [2] whether plaintiff had received notice that further delays would result in dismissal, [3] whether the defendant is likely to be prejudiced by further delay, [4] whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard, and [5] whether the district judge has adequately assessed the efficacy of lesser sanctions.
Shannon v. General Elec. Co., 186 F.3d 186, 193-94 (2d Cir. 1999) (quotation marks omitted).

  Here, Dong has had no contact with either the Court or the Government since a Civil Court hearing on December 4, 2004, a period of over two months. By serving this motion, the Page 7 Government has notified Dong that his failure to prosecute might result in dismissal. In addition, the Government has already made numerous attempts to serve Dong with various papers in this case. Each package has been returned to sender. Indeed, the very fact that Dong has been inaccessible for the last two months — without notifying the Court, the Government, or the Pro Se Office of a change of address — strongly suggests that he is not diligently pursuing this claim. See Hibbert v. Appel, No. 99 Civ. 4246, 2000 WL 977683, at *2 (S.D.N.Y. July 17, 2000) (Scheindlin, J.). Dong's totally unexplained disappearance is manifestly unreasonable, see id. at *3, and therefore presumptively prejudices the Government. See Pearl v. City of New York, 992 F.2d 458, 462 (2d Cir. 1993) (holding that prejudice may be presumed where delay is unreasonable).

  Moreover, no remedy other than dismissal makes sense. Ordinarily, I might send Dong a warning or order him to appear for a hearing, but I have no way to reach him. There is no reason for this case to languish on the Court's docket or to hang over the head of the Government if Dong is unwilling or unable to prosecute it. For this reason, too, the case must be dismissed. Page 8


  For the foregoing reasons, the government's motion is granted and the case is dismissed with prejudice. The Clerk is directed to close this motion [#3] and this case.


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