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
OPINION AND ORDER
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
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
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
II. LEGAL STANDARD
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
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.,
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,
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:
 the duration of the plaintiff's failures, 
whether plaintiff had received notice that further
delays would result in dismissal,  whether the
defendant is likely to be prejudiced by further
delay,  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  whether the district judge has
adequately assessed the efficacy of lesser
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
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
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.