United States District Court, D. Utah
MEMORANDUM DECISION & ORDER
Waddoups United States District Judge.
Yung-Kai Lu, proceeding in forma pauperis and pro
se, brings this civil rights action against the University of
Utah and others (Defendants), seeking compensation for
injuries he experienced when Defendants did not renew his
teaching-assistantship contract. (Amended Complaint, ECF No.
26.) This action was assigned to United States District Court
Judge Clark Waddoups, who then referred it to United States
Magistrate Judge Evelyn J. Furse under 28 U.S.C. §
636(b)(1)(B). (R&R, ECF No. 7.) The matter is now before the
court on a Report and Recommendation from Magistrate Judge
Furse, dated March 28, 2018, in which she recommends that
this court dismiss Plaintiff's action because claim
preclusion bars it and, alternatively, because
Plaintiff's Title VII and ADA claims are time-barred and
because the Eleventh Amendment and Utah Governmental Immunity
Act bar his tort claims. (Id. at 2.) The Report and
Recommendation is incorporated by reference. See 28
U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
several extensions of time, Plaintiff objected to Judge
Furse's Report & Recommendation on July 16, 2018.
(Objection, ECF No. 37.) No. defendant has yet been served
and, therefore, no response to Plaintiff's objection has
been filed. Because of Plaintiff's objection, the court
reviews Magistrate Judge Furse's report de novo.
Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.
1996). Because Plaintiff is proceeding pro se, the court must
liberally construe his pleadings, Haines v. Kerner,
404 U.S. 519, 520-21 (1972), but it cannot advocate for him,
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
careful review of the Amended Complaint, the Report and
Recommendation, the documents filed in case number
2:13-cv-984 (Lu I) in which Plaintiff sued all but
one Defendant over the same basic factual circumstances, and
Plaintiff's Objection, the court AFFIRMS and ADOPTS
Magistrate Judge Furse's recommendation in full and
dismisses Plaintiff's action with prejudice for failure
to state a claim.
Lu I Precludes Plaintiff's Claims.
Plaintiff's Amended Complaint asserts distinct causes of
action and contains more detail than the Second Amended
Complaint in Lu I (Compare ECF No. 26, with
Lu I ECF No. 12), the claims he asserts here arise out of a
common nucleus of facts with those in Lu 1. Both
cases involve the University of Utah's decision not to
renew Plaintiff's funding and the circumstances and
conflicts that arose as a result of that decision. This is a
sufficient connection under the transactional approach as
Judge Furse's Report and Recommendation explains. And
Plaintiff makes no argument in his Objection that would cause
this court to reach a different conclusion.
argues that claim preclusion does not bar this action because
Restatement (Second) of Judgments § 26 sets forth
multiple exceptions to claim preclusion, several of which he
argues apply. But he points the court to no record evidence
that satisfies the exceptions.
Defendant did not acquiesce to separate suits by failing to
timely respond. See Restatement (Second) of
Judgments § 26(a) (Am. Law Inst. 1982). Rather, under
Utah law, Defendants' silence constitutes a denial of the
claim. Utah Code Ann. § 63G-7-403(1)(b) (“A claim
is considered to be denied if, at the end of the 60-day
period, the governmental entity or its insurance carrier has
failed to approve or deny the claim.”). Second, there
were no restraints on the district court's jurisdiction
in Lu I that prevented it from hearing the claims Plaintiff
raises in this action. See Id. § 26(c). While
it may be true that the evidence Plaintiff relies upon in
this action supports a new cause of action for employment,
the prior absence of this newly discovered evidence did not
limit the Lu I court's subject matter
jurisdiction or otherwise limit its authority. See
Id. § 26(c) cmt. c. Third, Lu I was not
“plainly inconsistent with fair and equitable
implementation of a statutory or constitutional scheme.
See Id. § 26(d). And Plaintiff's bare
citation to Oklahoma Packing Co. v. Oklahoma Gas &
Electric Co., 309 U.S. 4 (1940), in which the United
States Supreme Court looked to Oklahoma law to decide a res
judicata claim, provides the court no basis to conclude to
the contrary. Oklahoma Packing Co. is not similar to
this case. Id.
Plaintiff has not alleged continuing or recurrent wrongs.
See Id. § 26(e). In support of his claim to the
contrary, Plaintiff asserts that his EEOC claim could not
have been joined with his breach of contract claim in
Lu I and that new evidence necessitates this second
action. Neither of these arguments is pertinent to §
26(e), see Id. § 26(e) cmts. f-h (explaining
that this exception applies to instances in which
“strong substantive policies favor” the
possibility of separate actions in “cases involving
anticipated continuing or recurrent wrongs” such as
contract cases involving series of material breaches or tort
actions involving temporary nuisances). Finally, Plaintiff
has not shown by clear and convincing evidence that
extraordinary reasons exist that should overcome policies
favoring preclusion. See Id. § 26(f). Newly
discovered evidence is not an extraordinary reason such that
it overcomes the need for finality or other policies favoring
preclusion unless the new evidence was “fraudulently
concealed or . . . could not have been discovered with due
diligence.” Lenox Maclaren Surgical Corp. v.
Medtronic, Inc., 847 F.3d 1221, (10th Cir. 2017).
Plaintiff has alleged this newly acquired evidence resulted
from his “pressur[ing]” the “Utah State
Attorney . . . to direct University of Utah to release most
of Lu's files, ” but he has not set forth factual
support from which the court can conclude Defendants
fraudulently hid evidence. (See Objection 5-6, ECF
No. 37.) Therefore, none of the exceptions set forth in
Restatement (Second) of Judgments § 26 justify a second
action under these circumstances.
next argues that preclusion does not apply because
“Plaintiff Lu's contract claim was reviewed under
the state contract laws. The previous case never asserted a
violation of discrimination law.” (See
Objection 6-7, ECF No. 37.) In support of this assertion,
Plaintiff cites language from a bankruptcy appeal in which
this court held that issue preclusion barred a second action.
See West v. Christensen, 576 B.R. 223 (D. Utah
2017). But Judge Furse has not recommended this court dismiss
on a theory of issue preclusion. For the reasons set forth in
Judge Furse's recommendation, claim preclusion applies.
Similarly, Judge Furse has not assumed the causes of action
are the same, as Plaintiff contends (see Objection
9, ECF No. 37), but decided that they arise out of the same
also argues that he could not bring his discrimination claim
in Lu I because he had not yet received a right to
sue letter from the EEOC. (EEOC Letter, ECF No. 4-1.) While
Plaintiff could not bring a Title VII discrimination claim
until after he had exhausted his administrative remedies in
front of the EEOC, the lack of a right-to-sue letter does not
bar jurisdiction. Wilkes v. Wyo. Dept. of Emp'ment
Div. of Labor Standards, 314 F.3d 501, 505-06 (10th Cir.
2002). Thus, none of Plaintiff's objections are
meritorious, and the court concludes this action is barred by
Plaintiff's Claims Are Time-Barred.
Furse also recommended dismissal of Plaintiff's
discrimination and retaliation claims because they are
time-barred. Judge Furse found that the 300-day statute
of limitations governing Plaintiff's Title VII and ADA
claims began to run 2011, and Plaintiff did not file with the
EEOC until 2015. Plaintiff objects that the 300-day period
did not begin to run until 2015 when he received evidence of
final decision to terminate him as a student and teaching
assistant. (Objection 10-11, ECF No. 37.) But the facts of
the complaint do not support his position. The alleged
discriminatory employment conduct was the decision not to
renew his teaching assistantship, which Plaintiff plainly
admits he learned about in April 2011. (Amended Complaint
¶ 33.) See Del. State Coll. v. Ricks, 449 U.S.
250, 256-59 (1980) (“Determining the timeliness of [an]
EEOC complaint, and th[e] ensuing lawsuit, requires [the
court] to identify precisely the ‘unlawful employment
practice' of which” the employee complains.). The
court has no doubt that Plaintiff felt the consequences of
the employment decision when he was unable to finance his
education the following school year, and then deported as a
result of his failure to enroll, and recognizes that he may
have learned more about the University's internal process
related to his status as a student and employee in 2015, but
this does not negate the fact that the only discriminatory
employment decision was the decision ...