United States District Court, D. Nevada
ORDERGRANTING INPARTAND DENYINGINPARTTHEUNITED
STATES' MOTIONS TO DISMISS (ECF NOS. 10, 32)
P. GORDON UNITED STATES DISTRICT JUDGE
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
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.
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.
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
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.
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.
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.
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.
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
The government has failed to adjudicate those claims.
See 2:17-cv-00133-APG-CWH, ECF No. 1 at 3.
Motion to dismiss standard
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. ...