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Lu v. University of Utah

United States District Court, D. Utah, Central Division

March 28, 2018

YUNG-KAI LU, Plaintiff,
v.
UNIVERSITY OF UTAH et al., Defendants.

          Clark Waddoups District Judge

          ORDER DENYING MOTION FOR OFFICIAL SERVICE OF PROCESS (ECF NO. 28) & MOTION TO EXPEDITE SUMMONS DELIVERY BY THE U.S. MARSHALS SERVICE (ECF NO. 29); REPORT AND RECOMMENDATION TO DISMISS AMENDED COMPLAINT (ECF NO. 26)

          Honorable Evelyn J Furse United States Magistrate Judge

         Pro se Plaintiff Yung-Kai Lu, proceeding in forma pauperis, initiated this case on January 20, 2016 (ECF Nos. 1 & 4), and filed the operative Amended Complaint on August 15, 2017 (ECF No 26). Mr. Lu alleges that Defendants (1) University of Utah and current or former University of Utah employees (2) Lori McDonald, (3) Ryan Randall, (4) Chalimar Swain, (5) Donn Schaefer, (6) Miguel Chuaqui, (7) Mike Cottle, (8) Robert Baldwin, (9) Michael Goodrich, (10) Charles Piele, and (11) Charles Wight (“University of Utah Defendants”)[1] failed to renew his graduate assistantship and scholarship in violation of Title VII of Civil Rights Act of 1964 (“Title VII”) and Title I of the Americans with Disabilities Act (“ADA”). Mr. Lu also appears to assert tort claims for invasion of privacy. The Amended Complaint has not been served on the University of Utah Defendants, but Mr. Lu has moved the Court for an order directing the United States Marshals Service to serve process. (Mot. for Official Service of Process, ECF No. 28; Mot. to Expedite Summons Delivery by the U.S. Marshals Service, ECF No. 29.) Mr. Lu filed a prior suit in the District of Utah against all of the University of Utah Defendants, except for Mr. Randall, asserting tort and contract claims also arising out of the University of Utah's decision not to renew his graduate assistantship and scholarship. The district judge dismissed Mr. Lu's prior case with prejudice, and the Tenth Circuit affirmed. See Lu v. Univ. of Utah, No. 2:13-CV-00984-TC-BCW, 2015 WL 5838797 (D. Utah Oct. 7, 2015); Lu v. Univ. of Utah, 660 F. App'x 573 (10th Cir. 2016) (unpublished).

         For the reasons addressed below, the undersigned[2] RECOMMENDS the District Judge DISMISS Mr. Lu's claims against the University of Utah Defendants for failure to state a claim upon which this Court can grant relief because claim preclusion bars the present case. Alternatively, the undersigned RECOMMENDS the District Judge DISMISS Mr. Lu's Amended Complaint because his Title VII and ADA claims are time-barred, and the Eleventh Amendment and Utah Governmental Immunity Act (UGIA) bar his tort claims. The undersigned further DENIES Mr. Lu's Motion for Official Service of Process (ECF No. 28) and Motion to Expedite Summons Delivery by the U.S. Marshals Service (ECF No. 29) because his Complaint fails to sate an actionable claim.

         RELEVANT BACKGROUND

         Mr. Lu initiated the present lawsuit on January 20, 2016 (“Lu II”). (ECF Nos. 1 & 4.) The Court permitted Mr. Lu proceed in forma pauperis under 28 U.S.C. § 1915 (“IFP statute”), (ECF No. 3), and appointed him pro bono counsel for the limited purpose of assisting him in determining whether he has a cognizable claim and the best way to proceed. (Order for Partial Appt. of Counsel, ECF No. 13.) The Court also granted Mr. Lu leave to file an Amended Complaint, (Order Granting Mot. for Leave to File Am. Compl., ECF No. 16), which he filed on August 15, 2017. (Am. Compl., ECF No. 26). Mr. Lu's First Amended Complaint (“Amended Complaint”) is the operative complaint in this case. On August 25, 2017, Mr. Lu moved the Court for an order directing the United States Marshals Service to serve process pursuant to 28 U.S.C. § 1915, (Mot. for Official Service of Process, ECF No. 28), and on February 26, 2018, filed a motion to expedite service of process. (Mot. to Expedite Summons Delivery by the U.S. Marshals Service, ECF No. 29.) The Court has not ruled on the Motions, and the University of Utah Defendants have not yet been served.

         Mr. Lu's Complaint in this case asserts claims arising out of the University of Utah's failure to renew his graduate assistantship and scholarship. (See generally Am. Compl., ECF No. 26.) Mr. Lu indicates that the statement on the nature of his current case is “based on the factual background” in the decision dismissing his case in the prior suit he filed in the District of Utah. (Am. Compl., ¶ 26, ECF No. 26.) Mr. Lu alleges that he was pursuing a master's degree at the University of Indiana in mid-2010, when Defendant Donn Schaefer, Associate Director of University of Utah's School of Music, called him several times promising him a graduate assistantship and a scholarship to support him for three years while he studied for a doctoral degree. (Id., ¶¶ 26, 27.) The University of Utah sent Mr. Lu a “Graduate Assistantship Contract, ” which stated that the assistantship was a nine-month appointment for the 2010-2011 academic year, explained that the appointments were for one academic year at a time, and that the University policy is to limit appointments to three years for doctoral students. (Id., ¶¶ 29, 30.) The contract also required Mr. Lu to commit to working on average twenty hours per week and complete at least nine credit hours per semester with a grade of B or higher for each class. (Id., ¶ 30.) Mr. Lu signed the contract on May 18, 2010, obtained an educational visa, and moved to Salt Lake City in August 2010. (Id., ¶ 32.) In an April 2011 meeting, Mr. Schaefer told Mr. Lu that the University of Utah had no money to continue to fund Mr. Lu's graduate assistantship and scholarship. (Id., ¶ 33.) Mr. Lu alleges, however, that Mr. Schaefer had told him as late as August 2010 that all he “had to do to continue his scholarship was to maintain a GPA of at least 3.00.” (Id.)

         After the April 2011 meeting, Mr. Lu met with a number of other University of Utah employees-including Defendants Robert Baldwin, the Interim Director of Graduate Studies for the School of Music, Charles A. Wight, Dean of the Graduate School, Chalimar L. Swain, Director of the International Center, Ryan Randall, Assistant Dean of Studies for Behavior Intervention and Advocacy, and Lori McDonald, Assistant Director of the Dean of Students-regarding various issues relating to the decision not to renew his graduate assistantship and scholarship. (Am. Compl., ¶¶ 36-41, ECF No. 26.) Among other things, Mr. Lu alleges that Mr. Baldwin told him the University could not offer him another graduate assistantship or scholarship in part because Defendant Miguel Chauqui, Head of the Composition Department for the School of Music, reported that Mr. Lu “had been rude to him.” (Id., ¶ 37.)

         Mr. Lu alleges further alleges that in late-August to mid-September 2011, Ms. McDonald gave the U.S. Immigration Court and the U.S. Immigration and Customs Enforcement Agency incorrect information about his “criminal history report” and provided false records stating that he “had been dismissed from the University of North Texas, had been arrested by University of Utah police officers, was subject to restraining orders in Utah and Indiana, and was a threat to public safety.” (Am. Compl., ¶ 42, ECF No. 26.) He claims that the statements were false, “eventually led to his arrest, deportation to Taiwan, and the abandonment of his personal possessions, ” and that as a result, “he has suffered emotional distress and can no longer pursue his doctoral studies or obtain a visa to return to the United States.” (Id., ¶ 43.) Mr. Lu claims that in June 2012, he called Ms. McDonald asking her to correct the allegedly erroneous information, and she refused. (Id., ¶ 47.) He claims that she then “took adverse actions against [him] by reporting more false information to the University of Utah Police Department and Immigration Custom Enforcement again such as that [he] had assaulted her.” (Id., ¶ 48.)

         In October 2012, Mr. Lu filed a notice of claim through the University of Utah's Internal Audit Department. (Am. Compl., ¶ 50, ECF No. 26.) Mr. Lu alleges that the auditors, Defendants Charles Piele and Michael G. Goodrich, investigated his complaint and produced a report, from which Mr. Lu learned that Defendant David Cottle, an Associate Professor, had given him and “unfavorable teaching report even though [he] had never before received such feedback.” (Id., ¶¶ 50, 51.) Mr. Lu alleges that this teaching report “presumably” led to the auditors' conclusion that he had not sufficiently performed his duties. (Id., ¶ 52.) Mr. Lu asserts that he challenged the report, but the auditors insisted he could not do so and that the investigation was closed. (Id., ¶ 53.) Mr. Lu states that he then filed his “original complaint with this court on October 31, 2013.” (Id., ¶ 54.)

         Mr. Lu alleges that from December 2014 to July 2015, he corresponded with the Utah State Attorney “and discovered evidence of discrimination in employment and education.” (Am. Compl., ¶ 55, ECF No. 26.) He claims that after “matching” the evidence from the Utah State Attorney “and the previous documents from the University of Utah, ” he filed charges of discrimination under Title VII of the Civil Rights Act of 1964 with the Equal Employment Opportunity Commission (“EEOC”) in August 2015. (Id., ¶¶ 3, 56.) Mr. Lu's Charge of Discrimination with the EEOC, which he attached to his original Complaint, states:

I am an international student in or around August 2010, I was selected for a Graduate Assistantship with the Respondent. In or around April 2011, I was denied renewal of the internship contract and terminated.
I immediately complained about the unfair denial of the scholarship, unfair treatment and wrongful termination through the University's complaint system. I was wrongfully profiled due to my national origin and I was subjected to harassment from the onset of my complaint, including but not limited to, a mental stability screening was performed on me and denied a transfer to other universities. Dean of Student Services, Lori McDonald led the faculty members to provide false accusations to the Immigration Custom Enforcement which led to my deportation in our around September 2011, and prevented me to return to the United States. In or around December 2012, the University of Utah Auditors ignored my request for further investigation and their negative reports prevented new teaching assistantships.
I believe I was discriminated against due to my national origin, Taiwanese, in violation of Title VII of the Civil Rights Act of 1664 [sic], as amended and retaliated against for complaining to my supervisor and administrators.

         (Ex. 54001, Docs. from EEOC, ECF No. 4-1 at 5.) On October 30, 2015, Mr. Lu claims he received a Notice of Right to Sue letter from the EEOC. (Am. Compl., ¶ 57, ECF No. 26.) The EEOC's Dismissal and Notice of Right to Sue, which is attached to Mr. Lu's original Complaint, indicates that his charge was dismissed because it “was not timely filed with EEOC; [i]n other words, you waited too long after the date(s) of the alleged discrimination to file your charge.” (Ex. 54001, Docs. from EEOC, ECF No. 4-1 at 3.) Mr. Lu filed a notice of claim with the Utah State Attorney General's Office in December 2015, (Am. Compl., ¶ 58, ECF No. 26), and then commenced this suit in January 2016. (ECF Nos. 1 & 4.)

         The Amended Complaint states that Mr. Lu brings his “lawsuit under title VII of the Civil Right Act of 1964, ” and that “[t]his action is brought pursuant to Title VII of the Civil Rights Act of 1964 as amended, for employment discrimination.” (Am. Compl., ¶¶ 5, 6, ECF No. 26.) But Mr. Lu fails to clearly plead his causes of action or indicate against which Defendant(s) each cause of action is pled. However, viewing the Amended Complaint in the light most favorable to Mr. Lu, he appears to assert (1) Title VII retaliation (Section 704, 42 U.S.C. 2000e-3) claims against Defendants Wight, McDonald, Goodrich, Piele, Schaefer, Chuaqui, Baldwin, Swain, and Cottle, (Am. Compl., ¶¶ 65-131, ECF No. 26); (2) Title VII national origin discrimination (Section 703, 42 U.S.C. 2000e-2) claims against Defendants Cottle, McDonald, Swain, Randall, Schaefer, Goodrich, Piele, (id., ¶¶ 142-74), (3) Title VII racial discrimination (Section 703, 42 U.S.C. 2000e-2) claims against all of the University of Utah Defendants (id., ¶¶ 175-212), (4) Title I ADA employment discrimination claims against Defendants University of Utah, McDonald, and Randall, (id., ¶ 213-24), and (5) invasion of privacy tort claims against Defendant McDonald (id., ¶¶ 132-41, 225- 27).

         Mr. Lu claims that as a result of these violations, he lost his U.S. visa in 2011, he is barred from returning to the United States for five years, he suffered emotional distress and professional losses since 2011, and that he suffers ongoing discrimination because the University of Utah Defendants “still refuse to admit the mistakes and correct all the mistakes on his academic and immigration records.” (Am. Compl., ¶¶ 228-29, ECF No. 126.) Mr. Lu seeks injunctive relief, monetary damages for professional losses and the loss of his assistantship and scholarship, a public apology, and the dismissal of the University of Utah employees. (Id., ¶¶ 233-42.)

         Mr. Lu filed his initial case in the District of Utah against all of the University of Utah Defendants, except Mr. Randall, on October 28, 2013. (Lu v. Univ. of Utah, No. 2:13-CV-00984-TC-BCW, 2015 WL 5838797 (D. Utah Oct. 7, 2015) (“Lu I”).) As with the present suit, Mr. Lu asserted claims arising out of the University of Utah's decision not to renew his graduate assistantship and scholarship. (Lu I, Second Am. Compl., ECF No. 12.) However, in that case, he asserted claims for breach of contract, as well as tort claims, including slander. (Id., ¶¶ 11-28.) Contrary to Mr. Lu's assertion in this case that he “discovered evidence of discrimination in employment and education, ” from December 2014 to July 2015, (Am. Compl., ¶ 55, ECF No. 26), Mr. Lu initially brought employment discrimination claims in Lu I. (Lu I, Compl., ECF No. 3 at 1-2; Civil Cover Sheet, ECF No. 3-3.) He later removed these claims (see, e.g., Lu I, Am. Compl., ECF No. 9), but nonetheless, he knew about such claims and the basis for those claims when filing his Complaint in October 2013.The University of Utah Defendants were served with the Second Amended Complaint, and filed a motion to dismiss the claims asserted against them. (Lu I, Mot. to Dismiss, ECF No. 54.) Mr. Lu responded to the motion to dismiss. (Lu I, Obj. to Motion to Dismiss, ECF No. 58.) On October 7, 2015, the district judge granted the University of Utah Defendants' motion, and dismissed Mr. Lu's claims with prejudice. (Lu I, Mem. Decision & Order, ECF No. 68, 2015 WL 5838797.) The district court found that Lu's tort claims were barred under the Eleventh Amendment and Utah Governmental Immunity Act (UGIA). (Id. at 6-10.) The district court further found that Mr. Lu failed to allege plausible breach of contract claims given the unambiguous language as to the term of the agreement, and Utah's parol evidence rule and statute of frauds barred any verbal promise that Mr. Lu would receive three years of scholarships. (Id. at 11-13.) The district court also found that Mr. Lu failed to establish a right to relief under the Alien Tort Claims Act (ATCA), Taiwan Relations Act, the International Covenant on Economic, Social and Cultural Rights or any other international treaty. (Id. at 14.)

         Mr. Lu appealed the district court's dismissal of his claims, (Lu I, Notice of Appeal, ECF No. 75), and the Tenth Circuit affirmed the district court's decision. (Lu v. Univ. of Utah, 660 F. App'x 573 (10th Cir. 2016) (unpublished)).

         STANDARD ...


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