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Kim v. United States

United States District Court, D. Nevada

August 25, 2017

THOMAS KIM, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. CHANG AHN, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDERGRANTING INPARTAND DENYINGINPARTTHEUNITED STATES' MOTIONS TO DISMISS (ECF NOS. 10, 32)

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         The plaintiffs in this consolidated case co-owned a popular Korean supper club in Las Vegas, Nevada. On July 11, 2013, the club was raided by federal homeland security officials, who stated they were investigating possible immigration and prostitution violations. The club and its co-owners were subject to ongoing monitoring and harassment in the months following the raid. The plaintiffs contend that the purported rationale for the raid and subsequent harassment was pretextual, and that it was orchestrated by a rogue federal agent in cahoots with one of the club's business competitors.

         The plaintiffs assert claims under the Federal Tort Claims Act (FTCA) for negligence and intentional infliction of emotional distress (IIED) arising from the raid and its fallout. The government moves to dismiss, contending that most of the claims are barred by the statute of limitations and that the facts alleged by plaintiffs do not state either claim.

         The plaintiffs' negligence claims fail because they belong to the corporation, whereas the co-owners bring suit individually. The complaint is also insufficiently clear as to how the government was negligent, beyond Special Agent Lee's intentional misconduct. Thomas and Ae Ja Kim's IIED claims, which rely on misconduct toward Ae Ja, fail because they are time-barred. Thomas's claim additionally fails because it does not meet the extreme standard for outrageous behavior to a third party. I dismiss Ae Ja Kim's IIED claim without prejudice, in case she can assert harms within the statute of limitations. Thomas Kim's IIED claim is dismissed with prejudice, as amendment would be futile. The only surviving claim is Hwan Jae Lee and Mi Won Kim's IIED claim.

         I. BACKGROUND

         Plaintiffs Thomas Kim, Hwan Jae Lee, Mi Won Kim, and Chang Ahn co-owned “Club Yamang, ” a Korean supper club in Las Vegas, Nevada. ECF No. 1 at 3. On July 11, 2013, the club was raided by federal Homeland Security Investigations (HSI) agents under the direction of Special Agent Joohoon David Lee. Id. at 4. The plaintiffs allege that the raid had no legitimate law enforcement basis, but was instead a baseless and corrupt attempt to harass Club Yamang at the behest of a competitor supper club with which SA Lee had a relationship. Id.

         During the raid, several Korean employees were detained by SA Lee and questioned about their immigration status and whether they were prostitutes. Id. at 5. One of the women detained by SA Lee was plaintiff Ae Ja Kim, who was Thomas Kim's fiancée at the time (and now wife). Id. SA Lee transported Ae Ja to an Immigrations and Customs Enforcement (ICE) detention center, where he subjected her to interrogation and placed a GPS monitoring device on her ankle. Id. Thomas was not notified of her location for several hours. When he finally was allowed to see Ae Ja, Thomas was informed that the GPS would remain on Ae Ja for an indeterminate time. Id.

         SA Lee continued surveilling Club Yamang several times after the raid. Id. Other law enforcement agencies also participated in surveillance at SA Lee's request. Id. Thomas met with SA Lee in November 2013 to discuss the ongoing investigation. Id. At this meeting, SA Lee refused to remove the GPS devise from Ae Ja's ankle, stating that he would have to “think about it.” Id. at 6.[1]

         Plaintiffs Hwan Jae Lee and Mi Won Kim also experienced several incidents where they were detained at Las Vegas or Los Angeles airports for multiple hours upon return from travel to South Korea. See 2:17-cv-00133-APG-CWH, ECF No. 1 at 12. The incidents-which occurred in December, 2013; April, 2014; and September, 2014-all were resolved with a call to the couple's lawyers. SA Lee and a representative from the Nevada Attorney General were present during the April, 2014 detention. The plaintiffs believe that SA Lee has baselessly caused them to be “flagged” for secondary inspection. Id.

         SA Lee continued to harass the plaintiffs and their employees for more than a year following the initial raid. ECF No. 1 at 6. Club Yamang suffered significant economic losses due to public knowledge and rumors of the investigation. Each plaintiff claims to have suffered emotional devastation, with accompanying physical effects, from the business losses and reputational harms. Id. at 7.

         Plaintiff Thomas Kim submitted an administrative tort claim to the General Counsel of the federal Department of Homeland Security on July 20, 2015. Id. at 3. ICE denied the claim on November 30, 2015. Id. Plaintiffs Ae Ja Kim, Hwan Jae Lee, Mi Won Kim, and Chang Ahn submitted administrative tort claims on January 24, 2016. ECF No. 32 at 5.[2] The government has failed to adjudicate those claims. See 2:17-cv-00133-APG-CWH, ECF No. 1 at 3.

         II. ANALYSIS

         A. Motion to dismiss standard

         In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). However, I do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in the plaintiff's complaint. See Clegg v. Cult Awareness Network, 18 F.3d 752, 754- 55 (9th Cir. 1994). A plaintiff must make sufficient factual allegations to establish a plausible entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. ...


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