Yang v. ICS Protective Serv.
| Docket Number | 1:22-cv-03836 (TNM) |
| Decision Date | 28 August 2023 |
| Parties | JIN YANG, Plaintiff, v. ICS PROTECTIVE SERVICES, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
This case arises from a sidewalk scuffle between protesters security guards, and police outside the Chinese Embassy in Washington, D.C. One protestor, Jin Yang, now brings various claims for damages against the Embassy guards, the Embassy builder, and the Department of State. Defendants say the claims should be dismissed because the Court lacks subject matter jurisdiction or, alternatively, they fail on the merits.
The Court will dismiss the claims against State because Yang has not exhausted administrative remedies before suing. And the Court will dismiss the other Defendants because Yang has failed to allege facts sufficient for this Court to exercise diversity jurisdiction.
In September 2022, Jin Yang and her photography assistant attended a protest outside the gates of the Chinese Embassy. See Compl. ¶¶ 1-2, ECF No. 1. Yang sought to film a video that would highlight China's mistreatment of a lawyer and a prisoner, using the Embassy as a backdrop. See id. ¶ 4.
Yang and the other protestors went to the Embassy around 9:00 p.m to avoid the Embassy's guards, who have allegedly attacked protestors before the Embassy's 9:30 p.m curfew sets in. See id. ¶¶ 1, 5. Soon after arriving, Yang stepped over a “ditch” near the Embassy's gate, broke her foot, and sprained her groin area.[1]Pl.'s Opp'n to State Mot. to Dismiss ¶ 2 (Opp'n State MTD), ECF No. 31.[2]Undeterred, Yang stayed as the group set up a banner and projector. See Compl. ¶ 7.
Seeing the group, the Embassy called the police. See id. According to Yang, six or seven police cars, a helicopter, and twenty Secret Service agents then burst onto the scene. See id. ¶ 8. The police told Yang to move away from the front of the Embassy and go to the sidewalk on the left side. See id. ¶ 9. Yang obliged and kept filming. See id. But the Embassy wanted Yang and the other protestors gone. See id. ¶ 17. So the Embassy instructed its security guards-contractors from ICS Protective Service-to force the group off the sidewalk and into the street. See id. ¶¶ 12-15. According to Yang, “a de facto border confrontation between countries had been formed.” Id. ¶ 12.
Armed with metal-tipped umbrellas, ICS guards chased the group. See id. ¶¶ 14-16. The guards then poked the demonstrators with the parasols' sharp ends, forcing the crowd backwards. See id. ¶ 15. When a guard jabbed an umbrella towards Yang's face, she reacted, pulling the weapon away. See id ¶ 16. Seeing the scuffle, the police approached Yang to arrest her. See id. ¶¶ 17-18. An officer then pulled Yang to the ground, at which point three other officers “pounced” on her, causing severe injuries. See id. ¶ 18. Yang was hospitalized for 80 days. See id.
Yang now sues the Chinese Embassy and ICS.[3]She also brings claims against China Construction America of South Carolina, Inc., and the Department of State for their alleged roles in building and maintaining the Embassy sidewalk where she tripped. See id. ¶¶ 21-22. But Yang does not sue the police. See id. ¶ 23. Instead, she will “pursue criminal liability” against them in a separate case. See id. Yang asks for $1.4 billion in damages. See id. ¶ 28.
ICS, State, and China Construction now move to dismiss.[4] Defendants argue the claims should be tossed under both Rule 12(b)(1) and 12(b)(6). Those motions are ripe for decision.
To survive a Rule 12(b)(1) motion, a plaintiff must establish the Court's jurisdiction over her claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The Court must “assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.” Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (cleaned up). If the Court determines that it lacks jurisdiction as to any claim, it must dismiss that claim. See Fed.R.Civ.P. 12(b)(1).
To pass muster under Rule 12(b)(6), a complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when the facts “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). At this stage, the Court must accept a plaintiff's factual allegations as true and grant in his favor “all inferences that can be derived from the facts alleged.” L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017) (cleaned up).
Complaints filed by pro se litigants “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (cleaned up). Although generally “the court may consider only the facts alleged in the Complaint, any documents either attached to or incorporated in the Complaint and matters of which the court may take judicial notice,” Hurd v. D.C. Gov't, 864 F.3d 671, 678 (D.C. Cir. 2017) (cleaned up), the Court must consider a pro se Complaint “in light of all filings, including filings responsive to a motion to dismiss.” Brown, 789 F.3d at 152. But even pro se litigants must meet the minimum pleading standards required by the federal rules and the Constitution. See Yellen v. U.S. Bank, Nat'l Assoc., 301 F.Supp.3d 43, 47 (D.D.C. 2018).
Consider first Yang's claim against State. Yang contends that State is strictly liable for her slip-and-fall and subsequent assault because State is “the landlord and owner of the property that is leased to the Embassy.” Compl. ¶ 21; see Opp'n State MTD at 1.
State submits that if Yang is trying to sue under the FTCA, then she has sued the wrong defendant. See State Mot. to Dismiss (State MTD) at 3, ECF No. 28. State correctly points out that “[t]he United States of America is the only proper defendant in a suit under the FTCA.” Chandler v. BOP, 226 F.Supp.3d 1, 6 n.3 (D.D.C. 2016). So, State says, Yang must sue the United States itself. That is generally right. But because Yang is pro se, “the Court overlooks this pleading defect and instead treats plaintiff's claim as if it had been brought against the United States directly.” Id.
Yet Yang's suit against State still fails. The “FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.” See Simpkins v. D.C. Gov't, 108 F.3d 366, 371 (D.C. Cir. 1997) (cleaned up). The requirement to file an administrative claim before suit is a “jurisdictional prerequisite to the maintenance of a tort suit against the United States.” GAP Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987). Yang has not met this requirement. She concedes that “she has not filed a Standard Form 95 prior to naming” State as a defendant. Opp'n State MTD at 1. So Yang did not even start, much less exhaust, the administrative process before suing.
Though Yang has since filed an administrative claim, that will not save her claim. See McNeil v. United States, 508 U.S. 106, 112-13 (1993) (). Because she did not go through the administrative process first, the Court lacks jurisdiction over her suit against State. These claims are premature and thus must be dismissed.
Now consider Yang's claims against ICS, the Embassy's security contractor. ICS contends that the Court lacks subject matter jurisdiction over Yang's claims against it based on derivative sovereign immunity. See ICS Mot. to Dismiss (ICS MTD) at 6-10, ECF No. 24-1. The Court agrees that it lacks subject matter jurisdiction over Yang's claims as plead, but for another reason.
ICS relies on the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602, et seq., for its claim of immunity. Under the FSIA, a foreign state and its agencies and instrumentalities cannot be sued in U.S. courts unless an exception applies. See 28 U.S.C. §§ 1604, 1605-07. The Chinese Embassy, a “part of [China's] political structure,” qualifies as a “foreign state” under § 1603. Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 151 (D.C. Cir. 1994). And ICS says that it shares the Embassy's immunity because it acted as the Embassy's contractor and agent.
ICS's immunity defense rests largely on Butters v. Vance International, Inc., 225 F.3d 462, 465 (4th Cir. 2000). There, the Fourth Circuit recognized “derivative FSIA immunity” for a private U.S. contractor providing security to the Saudi royal family in the United States. Id. To get there, the court started with the “well-settled law that contractors and common law agents acting within the scope of their employment for the United States have derivative sovereign immunity.” Id. at 466 (citing Yearsley v. W.A. Ross Constr Co., 309...
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