Opinion
21-CV-8027 (LAK) (RWL)
12-20-2022
ELHADJI OUSMANE TOUNKARA, Plaintiff, v. REPUBLIC OF SENEGAL, PERMANENT MISSION OF SENEGAL TO THE UNITED NATIONS, and PAPA GALLO NDIAYE, Defendants.
REPORT AND RECOMMENDATION TO HON. LEWIS A. KAPLAN: MOTION TO DISMISS
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Elhadji Ousmane Tounkara (“Tounkara” or “Plaintiff”) asserts claims and seeks damages for alleged negligence, negligent hiring and retention, and negligent training and supervision against the Republic of Senegal (“Senegal”) and the Permanent Mission of Senegal to the United Nations (“Mission”), as well as gross negligence, negligent infliction of emotional distress, and prima facie tort against Senegal, the Mission, and Mission employee Papa Gallo Ndiaye (“Ndiaye”). Tounkara previously filed an action in this District raising substantially the same claims against the same Defendants which was dismissed. The Court refers to that action, No. 19-CV-9029, as Tounkara I or the Prior Action, and the instant action as Tounkara II. Before the Court for report and recommendation is Defendants' motion to dismiss the instant action and for sanctions. For the reasons that follow, I recommend that the motion to dismiss be GRANTED and the motion for sanctions be DENIED.
FACTUAL BACKGROUND
As required on a motion to dismiss, the Court accepts as true all well-pleaded allegations of the Complaint and draws all reasonable inferences in favor of Tounkara, the non-moving party.
Senegal is a foreign state. (Tounkara II, Compl. ¶ 5.) Senegal maintains a Mission located in New York City by virtue of the Vienna Convention on Diplomatic Relations (“Vienna Convention”). (Id. ¶ 6.) The Mission is owned, operated, supervised, and otherwise controlled by Senegal and its agents. (Id. ¶ 8.) As of September 29, 2018, Ndiaye served as Second Counsellor for Senegal and/or the Mission. (Id. ¶ 10.) In that role, Ndiaye was responsible for “promoting international candidates and elections to the various bodies of the United Nations, corresponding with various United Nations entities, handling requests for accreditation and assisting delegates at the United Nations.” (Id.) Ndiaye did not work as security for the Mission or any of the officials at the Mission. (Id. ¶ 11.) Tounkara describes himself as a political activist and prospective candidate for political office in Senegal. (Id. ¶ 13.)
The Court uses the following terms to refer to the parties' pleadings and memoranda of law: “Compl.” refers to Plaintiff's complaint at Dkt. 4; “Def. Mem.” refers to Defendants' moving brief at Dkt. 30; “Pl. Mem.” refers to Plaintiff's opposition brief at Dkt. 34; and “Def. Reply” refers to Defendants' reply in support of their motion at Dkt. 35.
Tounkara alleges that on September 29, 2018, he was lawfully present outside of the Mission exercising his First Amendment right to protest and “attempt[ed] to take a video of the Minister of Foreign Affairs and Senegalese Abroad, head of Delegation.” (Id. ¶¶ 12-14.) Upon observing Tounkara, Ndiaye exited the Mission, rapidly walked towards him, stood in front of his phone, and demanded that he stop recording. (Id. ¶ 15.) Tounkara insisted upon his right to record the Foreign Minister. (Id. ¶ 17.) Nonetheless, Ndiaye “forcefully seize[d] and[/]or str[uck] Plaintiff's cell phone and/or person and also demanded that Plaintiff stop recording and cease and desist from exercising his right to peacefully assemble and protest.” (Id. ¶ 18.) As a result of Ndiaye's “sudden violent contact,” Tounkara twisted his knee and fell to the ground. (Id. ¶ 19.) Tounkara seeks damages to compensate him for violation of his First Amendment rights, as well as physical injury, pain and suffering, trauma, expenditure of money for medical treatment, economic damages, humiliation, embarrassment, and injury to reputation. (Id. ¶ 21.)
PROCEDURAL BACKGROUND
A. Tounkara's Prior Action Against Senegal, The Mission, And Ndiaye
On September 27, 2019, Tounkara filed suit in this District against Senegal, the Mission, and Ndiaye (collectively, “Defendants”) for assault, battery, negligent infliction of emotional distress, and intentional infliction of emotional distress arising out of the same confrontation outside of the Mission described in the present Complaint. (Tounkara I, Dkt. 4 (Complaint).) Tounkara also asserted claims against Senegal for negligent hiring and retention, negligent training and supervision, and prima facie tort. (Id. ¶¶ 39, 48, 57.) Tounkara alleged that he was struck by Ndiaye while lawfully protesting and, as a result, twisted his knee and fell to the ground. (Id. ¶¶ 11, 15.)
Defendants filed a motion to dismiss arguing that the Court lacked subject matter and personal jurisdiction over Ndiaye, that the Court lacked subject matter jurisdiction over claims against Senegal and the Mission, that Tounkara had failed to state a claim, and that Tounkara's claim was barred by the statute of limitations. (Tounkara I, Dkt. 21 at 11-12; Dkt. 21-1 at 16, 18-19.) Tounkara voluntarily dismissed all of his claims against Senegal and the Mission, and the negligent infliction of emotional distress claim against Ndiaye, invoking Federal Rule of Civil Procedure 41 (“Rule 41”), specifically Rule 41(a)(1). (Tounkara I, Dkt. 28.) After oral argument on the remaining intentional tort claims against Ndiaye, which were governed by state law, the Court dismissed the case for lack of subject matter jurisdiction. (Tounkara I, Tr. at 68-69.) The Court explained that “[t]he status of this case is that [there remains] three common law claims, state law claims alleged against this individual, the assault and battery and intentional infliction of emotional distress. There's nothing about the nature of those claims in the abstract or in the particular that raises a federal question or is based on any application or determination of federal law.” (Id.)
“Tr.” refers to the transcript of the August 27, 2020 oral argument on Defendants' motion to dismiss Tounkara I, filed at Dkt. 39 in Tounkara I.
B. Tounkara's Current Action Against The Same Defendants
On September 28, 2021, Tounkara again filed suit against Senegal, the Mission, and Ndiaye. (Tounkara II, Compl.) Once more, Plaintiff sought damages for prima facie tort, negligent infliction of emotional distress, negligent hiring and retention, and negligent training and supervision. (Id. ¶¶ 49, 65, 75, 85.) Based on the same facts alleged in Tounkara I, Tounkara added claims of negligence against Senegal and the Mission and gross negligence against all Defendants. (Id. ¶¶ 23, 41.)
Defendants moved to dismiss on April 25, 2022, based on lack of subject matter jurisdiction, lack of personal jurisdiction, failure to state a claim, and res judicata. Defendants also moved for sanctions against Tounkara under Rule 11, arguing that his withdrawal of claims in Tounkara I prevents him from relitigating the same claims and renders frivolous his instant complaint. Tounkara filed his opposition on June 17, 2022. Defendants filed their reply on July 2, 2022, at which point the motion was fully briefed.
DISCUSSION
Defendants advance five arguments why Tounkara's Complaint should be dismissed: (1) Senegal and the Mission have immunity under the Foreign Sovereign Immunity Act (“FSIA”), the only federal claim Tounkara asserts, thus depriving the Court of subject matter jurisdiction; (2) Ndiaye has immunity under Article 31(1) of the Convention of Vienna and, therefore, the Court lacks both subject matter and personal jurisdiction; (3) all of Tounkara's claims are barred by the doctrine of res judicata based on Tounkara I; (4) the Complaint does not assert a cause of action under state law as required for Tounkara's vicarious liability claims; and (5) the Complaint does not assert a plausible cause of action for negligent hiring, retention, and/or supervision of an employee. (Tounkara II, Def. Mem. at 13, 15, 18-21.) Defendants also purport to move to dismiss for insufficient service of process pursuant to Rule 12(b)(5), but do not elaborate on that ground in their briefs. (Id. at 5.)
The Court recommends that Defendants' motion to dismiss be granted. The Court agrees with Defendants' first argument that Senegal and the Mission have immunity under FSIA, as a result of which the Court lacks subject matter jurisdiction over the claims against Senegal and the Mission. The Court thus does not address Defendants' fourth and fifth arguments, which concern the merits of the claims against Senegal and the Mission. The Court disagrees with Defendants' second argument that Ndiaye has immunity under the Vienna Convention. The Court finds, however, that Plaintiff has not met his burden of establishing subject matter jurisdiction over his claims against Ndiaye. Additionally, as a prelude to addressing Defendants' motion for sanctions, the Court considers and rejects Defendants' third argument that res judicata bars Tounkara's claims. Finally, the Court finds that sanctions are not warranted and recommends that Defendants' motion for sanctions under Rule 11 be denied.
Although the Court finds that it lacks subject matter jurisdiction over the claims against all Defendants, it considers Defendants' res judicata argument because it is the basis for Defendants' Rule 11 motion and a substantial portion of the parties' briefs.
A. The Court Does Not Have Subject Matter Jurisdiction Over Tounkara's Claims Against Senegal And The Mission Under 28 U.S.C. § 1605(a)(5)
The sole basis for federal subject matter jurisdiction asserted by Tounkara against Senegal and the Mission is FSIA; Tounkara argues his claims fall under a FSIA exception to immunity permitting the exercise of jurisdiction over Senegal and the Mission. (See Compl. ¶ 2.) Tounkara is incorrect; no exception applies. Accordingly, Senegal and the Mission are immune from suit, Tounkara has no FSIA claim, and the Court has no subject matter jurisdiction over the claims against Senegal and the Mission.
On a motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, a court must dismiss a claim if it “lacks the statutory or constitutional power to adjudicate it.” Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869 (2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transportation System, Inc., 426 F.3d 635, 638 (2d Cir. 2005). In deciding a Rule 12(b)(1) motion to dismiss, the Court “must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff.” Morrison, 547 F.3d at 170 (quoting Natural Resources Defense Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (internal quotation marks omitted)).
Pursuant to FSIA, a foreign state is presumptively immune to jurisdiction and suit in the United States unless one of the statute's specified exceptions to that immunity applies. See 28 U.S.C. § 1604 (“A foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided” by the stated exceptions); accord Arch Trading Corp. v. Republic of Ecuador, 839 F.3d 193, 199 (2d Cir. 2016) (once a defendant is deemed to be “a foreign sovereign or related instrumentality,” the reviewing court “must determine whether an FSIA-recognized exception to immunity applies”). In determining whether an exception applies, “the district court can and should consider matters outside the pleadings relevant to the issue of jurisdiction.” Id. (quoting Kensington International Ltd. v. Itoua, 505 F.3d 147, 153 (2d Cir. 2007)). And where, as here, a sovereign defendant “challenges the factual basis of the plaintiff's claim [that the sovereign defendants are not immune], the plaintiff has the burden of going forward with evidence showing that, under exceptions set forth in the FSIA, immunity should not be granted, although the ultimate burden of persuasion remains with the alleged foreign sovereign.” Robinson v. Government of Malaysia, 269 F.3d 133, 141 (2d Cir. 2001) (internal quotation marks and citation omitted).
Tounkara's claims against Senegal and the Mission should be dismissed for lack of subject matter jurisdiction based on sovereign immunity. Defendants argue that Senegal and the Mission are immune from suit because they are each considered a “foreign state” for the purposes of FSIA. 28 U.S. Code § 1605(a)(4). See Gray v. Permanent Mission of People's Republic of Congo to United Nations, 443 F.Supp. 816, 820 (S.D.N.Y. 1978), aff'd, 580 F.2d 1044 (2d Cir. 1978) (“Indeed, it is hard to imagine a purer embodiment of a foreign state than that state's permanent mission to the United Nations.”) Plaintiff does not dispute that Senegal and the Mission are “foreign states” under FSIA, but counters that FSIA's tortious activity exception provides this Court with jurisdiction. (See Pl. Mem. at 13.) The exception “deprives a foreign state of sovereign immunity in legal actions ‘in which money damages are sought against [it] for personal injury ... caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment' provided that the claim is not ‘based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused.'” Robinson, 269 F.3d at 142 (quoting 28 U.S.C. § 1605(a)(5)).
To determine whether the exception applies, the Court must first identify the alleged tortious activity. Robinson, 269 F.3d at 142. The factual predicate for Tounkara's tort claims is the allegation that Ndiaye “forcefully seize[d] and[/]or str[uck] Plaintiff's cell phone and/or person and also demanded that Plaintiff stop recording and cease and desist from exercising his right to peacefully assemble and protest ...” (Compl. ¶ 18.) Tounkara further characterizes this physical contact as an “attack,” stating that Ndiaye “assaulted, beat and harassed” him. (Id. ¶¶ 31, 85.)
With the alleged tortious conduct identified, the Court must then determine whether the activity took place “within the scope of [the tortfeasor's] office or employment.” 28 U.S.C. § 1605(a)(5)). In determining whether conduct is a tort and within the scope of employment pursuant to the FSIA, courts apply the law of the state in which the locus of injury occurred. Swarna v. Al-Awadi, 622 F.3d 123, 144 (2d Cir. 2010). In this case, Tounkara's injury occurred in New York, so New York tort and employment law applies.
In determining whether an employee acted within the scope of employment for purposes of vicarious liability, courts consider, among other factors: “[(1)] the connection between the time, place and occasion for the act; [(2)] the history of the relationship between employer and employee as spelled out in actual practice; [(3)] whether the act is one commonly done by such an employee; [(4)] the extent of departure from normal methods of performance; and [(5)] whether the specific act was one that the employer could reasonably have anticipated (i.e., whether it was foreseeable).” Rivera v. State, 34 N.Y.3d 383, 389-90, 119 N.Y.S.3d 749, 753 (2019) (internal quotation marks omitted). Regardless, “New York Courts have long held that assaulting acts of employees are outside the scope of their employment.” Phillips v. Uber Technologies., Inc., No. 16-CV-295, 2017 WL 2782036, at *6 (S.D.N.Y. June 14, 2017); accord Yeboah v. Snapple, Inc., 286 A.D.2d 204, 204-05, 729 N.Y.S.2d 32, 33 (2001) (citation omitted) (“An employer cannot be held vicariously liable for an alleged assault where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer”); Cort v. Marshall's Department Store, No. 14-CV-7385, 2015 WL 9582426, at *3 (E.D.N.Y. Dec. 29, 2015) (under New York law, “an assault or battery is typically only considered within the scope of employment when the employee who committed the tortious act was authorized to use force by his or her job duties”); George v. New York City Transit Authority, No. 04-CV-3263, 2008 WL 4274362, at *3 (E.D.N.Y. Sept. 17, 2008) (under New York law, “intentional torts are generally not considered conduct within the scope of employment since they are often motivated by personal reasons”).
While “[w]hen a business employs security guards or bouncers to maintain order, the use of physical force may be within the scope of their employment," Norwood v. Simon Property Group, Inc., 200 A.D.3d 891, 159 N.Y.S.3d 482, 486 (2021), Tounkara acknowledges, and Defendants do not dispute, that Ndiaye was not hired as a security guard or bouncer. (See Tounkara II, Compl. ¶¶ 10-11.)
With the above principles in mind, the Court concludes that Tounkara has failed to allege that Ndiaye's conduct was undertaken within the scope of his employment.Under New York law, the facts alleged in Tounkara's Complaint describe an alleged act of assault and battery, not negligence. See Panzella v. Burns, 169 A.D.2d 824, 825, 565 N.Y.S.2d 194 (1991) (“[O]nce intentional offensive contact has been established, the actor is liable for assault and not negligence”). And because Ndiaye was not a security guard or the like (see Tounkara II, Compl. ¶ 11), for whom “the use of physical force may be within the scope of their employment,” Norwood, 200 A.D.3d 891, 159 N.Y.S.3d at 486, his intentional touching of Tounkara cannot premise an exception to Senegal and the Mission's immunity.
Given that Ndiaye's conduct was undertaken outside the scope of his employment, Tounkara's reliance on Usoyan v. Republic of Turkey, 6 F.4th 31, 45 (D.C. Cir. 2021), cert. denied, No. 21-1013, 2022 WL 16542123 (U.S. Oct. 31, 2022) is misplaced. Plaintiff cites Usoyan for the proposition that “diplomatic immunity will not obtain in negligent professional security training cases.” (Pl. Mem. at 8.) The instant case, however, does not implicate professional security training, negligent or not. Unlike the Turkish security forces in Usoyan, Ndiaye is not a security guard or officer authorized by a foreign sovereign to use force, and Ndiaye concedes as much. (Tounkara II, Compl. ¶ 11.)
Tounkara argues that Ndiaye acted within the scope of his employment because Ndiaye “did not walk out of the Mission solely for personal reasons” and instead acted entirely in furtherance of the Mission's business. (Pl. Mem. at 17.) That argument, however, misapprehends the principal inquiry alleged: whether Ndiaye's alleged tortious conduct, not his decision to exit the Mission, occurred within the scope of his employment. See Robinson, 269 F.3d at 142 (“[T]he district court was required, first, to determine what the relevant activities of the Malaysian government were. Second, the court was required to decide whether those acts were tortious under the law of the State of New York, which indisputably would apply to the merits of the claim”); accord Saudi Arabia v. Nelson, 507 U.S. 349, 356, 113 S.Ct. 1471, 1477 (1993) (“We begin our analysis by identifying the particular conduct on which the Nelsons' action is ‘based' for purposes of the Act”). Tounkara has neither presented evidence nor alleged any facts that suggest Senegal or the Mission condoned, instigated, or authorized Ndiaye to use intentional force. Tounkara instead relies on scant facts and conclusory claims that at times even contradict that assertion. (Compare Compl. ¶¶ 10-11 with Pl. Mem. at 17-18.)
Accordingly, the Court rejects Tounkara's argument that the tortious activity exception applies, finds that Senegal and the Mission are immune from suit, and finds that the Court lacks subject matter jurisdiction over the claims against Senegal and the Mission. Tounkara's claims against Senegal and the Mission thus should be dismissed.
B. Ndiaye Does Not Have Diplomatic Immunity Under The Vienna Convention
Lacking jurisdiction over claims against Senegal and the Mission, the Court next considers Ndiaye's claim of immunity. Ndiaye argues that, as a counsellor of the Mission, he is considered a diplomat and entitled to diplomatic immunity under the Vienna Convention, thus depriving the Court of subject matter jurisdiction. As evidence of his diplomatic status, Ndiaye provides an affirmation from Senegal's Head of Mission and Ambassador, Cheikh Niang. (Def. Mem. at 13; Dkt. 33-1 ¶¶ 4-6.)
Plaintiff also attaches the affirmation as Exhibit A to his Complaint at Dkt. 4-1.
The Court rejects Ndiaye's claim of diplomatic immunity. It is well-established that “neither [Ndiaye] nor anyone else is able unilaterally to assert diplomatic immunity.” United States v. Lumumba, 741 F.2d 12, 15 (2d Cir. 1984), aff'd, 794 F.2d 806 (2d Cir. 1986); accord United States v. Kuznetsov, 442 F.Supp.2d 102, 106 (S.D.N.Y. 2006) (“Although the Russian Mission has stated that Defendant performed duties on behalf of the Russian Federation in the United States at the time of his arrest and as part of the Geneva Group, diplomatic immunity is premised upon recognition by the receiving State”); Mazengo v. Mzengi, 542 F.Supp.2d 96, 99-100 (D.D.C. 2008) (“A foreign official cannot simply assert diplomatic immunity in order to evade civil jurisdiction or to open a judgment”). Rather, “the determination of a diplomat's status is made by the State Department, not the Court.” Jungquist v. Nahyan, 940 F.Supp. 312, 321-22 (D.D.C.1996), rev'd in part on other grounds, 115 F.3d 1020 (D.C. Cir. 1997); accord Kuznetsov, 442 F.Supp.2d, at 107 (“recognition and certification by the State Department is necessary to establish diplomatic immunity”) (collecting cases); Restatement (Third) of Foreign Relations Law of the United States § 464 (1987) (“In the United States, a person's diplomatic status is established when it is recognized by the Department of State”).
Ndiaye has not provided the Court with any proof that the State Department has accredited him with diplomatic immunity. The affirmation from Ambassador Niang asserts that “[d]uring his assignment at the Mission, Mr. Papa Gallo Ndiaye had the diplomatic status.” (Dkt. 33-1 ¶ 6.) It does not assert that the State Department (or any U.S. entity for that matter) has acknowledged Ndiaye's diplomatic status. Consequently, the Court finds that Defendant Ndiaye has not established that he is entitled to immunity under the Vienna Convention as a diplomatic agent.
In the Prior Action, Judge Daniels also concluded Ndiaye did not meet his burden of proof in asserting immunity under the Vienna Convention, finding that the affirmation from Senegal's Head of Mission alone was an insufficient basis for immunity in the absence of State Department recognition. (See Tounkara I, Tr. at 3-9.)
C. The Court Should Dismiss The Claims Against Ndiaye For Lack Of Subject Matter Jurisdiction
Notwithstanding Ndiaye's lack of diplomatic immunity, the Court should dismiss the claims against him for lack of subject matter jurisdiction. Tounkara argues that the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1330 and 28 U.S.C. § 1605(a)(5), the First, Fourth, and Fourteenth Amendments, and 28 U.S.C. § 1331. Plaintiff also invokes 28 U.S.C. § 1367 as grounds for supplemental jurisdiction. None of these statutes or Constitutional provisions give rise to subject matter jurisdiction in this case. Relying on conclusory statements, Plaintiff reasserts the same jurisdictional arguments that proved unsuccessful in the Prior Action and as such fails to carry his burden of proving jurisdiction by a preponderance of the evidence. See Aurecchione, 426 F.3d at 638.
First, Tounkara cannot claim jurisdiction based on either 28 U.S.C. § 1330 or § 1605(a)(5). Section 1330 provides that “district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.” 28 U.S.C. § 1330. Section 1603(a) further details that a foreign state includes its political subdivisions, agencies, and instrumentalities. 28 U.S.C. § 1603(a). Section 1605(a)(5) contains FSIA's tortious activity exception discussed above. 28 U.S.C. § 1605(a)(5).
As stated above, individuals acting outside of their official capacities cannot be sued as agents or instrumentalities of a state under FSIA. See Samantar v. Yousuf, 560 U.S. 305, 317-18, 130 S.Ct. 2278, 2288 (2010) (“in the FSIA[,] Congress expressly mentioned officials when it wished to count their acts as equivalent to those of the foreign state” including an exception for immunity for “an injury in the United States ‘caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office'”) (internal quotation marks and emphasis omitted). As Judge Daniels stated in the Prior Action before dismissing Tounkara's claims, the key question is “whether [Ndiaye is] an agent for the purposes of the assault that [Tounkara is] suing him for.” (Tounkara I, Tr. at 29.) Because Ndiaye acted outside the scope of his employment pursuant to FSIA in allegedly striking Tounkara, Ndiaye cannot be considered an agent or instrumentality of a foreign state under FSIA for the conduct alleged in Tounkara's Complaint. Accordingly, § 1330 and § 1605(a)(5) cannot provide Tounkara a basis for federal jurisdiction.
The Court next considers and rejects Tounkara's argument that the First, Fourth, and Fourteenth Amendments provide the Court with jurisdiction over claims against Ndiaye. It is true that 42 U.S.C. § 1983 (“Section 1983”) provides a federal cause of action to plaintiffs who have been deprived of their federal constitutional rights by any person acting “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia.” 42 U.S.C. § 1983. But “a litigant claiming that his constitutional rights have been violated must establish that the challenged conduct constitutes state action.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (internal citation and quotation marks omitted). To establish state action, a plaintiff must demonstrate “both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,' and that ‘the party charged with the deprivation [is] a person who may fairly be said to be a state actor.'” American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 41, 119 S.Ct. 977, 980, (1999) (emphasis in original) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753-54 (1982)). Section 1983 applies only to constitutional violations by state or local officials; it “does not apply to allegedly unlawful acts of federal officers.” United States v. Acosta, 502 F.3d 54, 60 (2d Cir. 2007). Nor, as is relevant here, does it apply to actions by foreign government employees or officials. See Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1518 (9th Cir. 1987) (“‘state action' or acts ‘under color of state law' refer to acts attributable to states of the United States ... acts performed by the defendants, all of whom are officials, instrumentalities, or employees of the Mexican government, could not constitute acts under color of state law”).
“State action” and acting “under color of state law” are synonymous. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2769 (1982).
Plaintiff has not actually pled a cause of action under Section 1983 alleging violation of his constitutional rights, despite invoking several constitutional provisions as grounds for jurisdiction. He does assert that Ndiaye “demanded that Plaintiff . cease and desist from exercising his right to peacefully assemble and protest,” describes the encounter at the Mission as an “unconscionable infringement of his [F]irst [A]mendment right to stand where he was and video tape and[/]or record the Foreign Minister” and identifies “[v]iolation of his rights under the First Amendment to the Constitution” as an injury suffered from his confrontation with Ndiaye. (Compl. ¶¶ 17-18, 21.) Judge Daniels found similar references to Tounkara's First Amendment rights within claims otherwise sounding in tort an insufficient basis for federal jurisdiction in Tounkara I. (Tounkara I, Tr. at 58 (“if I'm not suing under the Constitution for that right then that does not let me shoehorn a state claim into a federal case ... you can't make a federal case out of everything”)); accord McCormack Sand Co. v. Town of North Hempstead Solid Waste Management Authority, 960 F.Supp. 589, 593 (E.D.N.Y. 1997) (“not all injuries resulting from official misconduct give rise to a constitutional violation .. This limitation reflects the bedrock principle that the United States Constitution is not a mere ‘font of tort law'”) (quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160 (1976)); Veronese v. Finkle, No. 1:11-CV-1244, 2011 WL 6153184, at *1 (N.D.N.Y. Oct. 27, 2011) (dismissing a Section 1983 claim because the plaintiff “fail[ed] to specify the nature of her constitutional right that she allege[d] was infringed upon”), R. & R. adopted, 2011 WL 6258812 (N.D.N.Y. Dec. 12, 2011).
Even if Tounkara had adequately identified the constitutional right at issue, he has utterly failed to allege that Ndiaye's actions constitute “state action” in the context of Section 1983 liability. “The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043 (1941)). Nowhere in the Complaint does Tounkara explain how Ndiaye, as an employee of the Mission, was acting pursuant to authority granted to him by New York law or the law of any other state; the Complaint instead asserts that any authority Ndiaye had to interact with Plaintiff came from his position as Second Counsellor for the Mission. (See Compl. ¶ 9 (“Defendant SENEGAL through and by its Defendant MISSION employed agents, servants, officers and employees who operated, maintained, managed, supervised and controlled the Defendant MISSION thereof, in particular Defendant ... NDIAYE ....); ¶ 10 (Ndiaye was employed by Senegal and/or the Mission “as a Second Counsellor responsible for ... assisting delegates at the United Nations”).
A private defendant may nonetheless be a “state actor” if their conduct is “fairly attributable to the state.” Leeds v. Meltz, 85 F.3d 51,54 (2d Cir. 1996) (quoting Rendell-Baker, 457 U.S. at 838, 102 S.Ct. at 2769). The Supreme Court has held that conduct by a private individual may be state action “when it results from the State's exercise of coercive power[;] when the State provides significant encouragement, either overt or covert[;] or when a private actor operates as a willful participant in joint activity with the State or its agents.” Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 296, 121 S.Ct. 924, 930 (2001) (internal citations and quotation marks omitted). It has treated as state actors entities “controlled by an agency of the State,” those “delegated a public function by the State,” and those “entwined with governmental policies,” or where government is “entwined in [the entity's] management or control.” Id. (internal citations and quotation marks omitted). Tounkara has not pled any facts that would suggest these circumstances apply to Ndiaye.
Although foreign missions operating within the United States, such as Defendant Mission, are regulated and accredited by the federal government's State Department,Tounkara pleads nothing to suggest that the government of any state controls, directs, or acts together with Defendants such that Ndiaye is a state actor. With no state action, alleged Constitutional violations cannot survive dismissal and cannot vest this Court with jurisdiction. See, e.g., Bailey v. New York Law School, No. 19-3473, 2021 WL 5500078, at *5 (2d Cir. Nov. 24, 2021) (affirming dismissal for lack of state action); Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 269 (2d Cir. 2014) (affirming dismissal of plaintiff's § 1983 claim because “[Defendant]'s actions cannot be fairly attributed to the State”); Cain v. Christine Valmy International School of Esthetics, Skin Care, & Makeup, 216 F.Supp.3d 328, 333 (S.D.N.Y. 2016) (dismissing for lack of state action because “neither the receipt of funding from the state nor licensure by the state are sufficient to transform the actions of a private entity into ‘state action' for purposes of a lawsuit under § 1983”).
See About Us - Office of Foreign Missions, https://www.state.gov/about-us-office-of-foreign-missions (last visited Dec. 14, 2022).
Tounkara also cannot invoke 28 U.S.C. § 1331 as grounds for federal jurisdiction. Section 1331 vests federal district courts with jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. A primarily state-law case may “arise under” federal law “where the vindication of a right under state law necessarily turn[s] on some construction of federal law.” Franchise Tax Board of State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 9, 103 S.Ct. 2841, 2846 (1983); Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308, 313, 125 S.Ct. 2363, 2367 (2005) (“this Court had confined federal-question jurisdiction over state-law claims to those that ‘really and substantially involv[e] a dispute or controversy respecting the validity, construction or effect of [federal] law'”) (quoting Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706 (1912)). However, Tounkara's causes of action continue to be state common law claims that do not turn on substantial questions of federal law. (See Tounkara I, Tr. at 68-69.) Plaintiff provides no allegations or explanation for how, in the absence of a claim under FSIA or the Constitution, his claims raise a federal question or are based on an application or determination of federal law.
Plaintiff's counsel addressed this point as to the state law tort claims in the Prior Action, and the Court rejected the stated basis for jurisdiction under § 1331:
THE COURT: What's the federal question?
[Plaintiff's counsel] MR. NAZRALI: The federal question is: To what extent are we going to allow a foreign official to chill a citizen's or a citizen of that state's First Amendment right.
THE COURT: All right. That's not an element nor is it a question that need[s] to be resolved in order to determine whether the defendant is liable for any of the claims that you have brought.(Tounkara I, Tr. at 62.) Similar logic governs here; violation of the First Amendment is not an element nor an issue that need be resolved to resolve Tounkara's gross negligence, negligent infliction of emotional distress, or prima facie tort claims against Ndiaye.
The Court next considers and rejects Tounkara's argument that the Court should exercise supplemental jurisdiction over Tounkara's state law claims pursuant to 28 U.S.C. § 1367. “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine - judicial economy, convenience, fairness, and comity - will point toward declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 619 n. 7 (1988); see also 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction”). As such, this Court echoes Judge Daniels' conclusion in the Prior Action: there is “no ancillary or pendent jurisdiction to apply here” because “there is no independent basis for federal jurisdiction that [Tounkara is] relating these claims to.” (Tounkara I, Tr. at 69.)
Lastly, there is no basis for diversity jurisdiction under 28 U.S.C. §1332. To obtain federal jurisdiction through diversity, a case must have diversity of citizenship between the parties and an amount in controversy in excess of $75,000. 28 U.S.C. § 1332. “The burden of persuasion for establishing diversity jurisdiction, of course, remains on the party asserting it.” Hertz Corp. v. Friend, 559 U.S. 77, 96, 130 S.Ct. 1181, 1194(2010); In re Joint Eastern & Southern District Asbestos Litigation, 14 F.3d 726, 730 (2d Cir. 1993) (“Keene, as the party asserting jurisdiction, bears the burden of showing that the case is properly before the court”); Lupo v. Human Affairs International Inc., 28 F.3d 269, 273 (2d Cir. 1994) (“The Supreme Court has held that the party asserting diversity jurisdiction in federal court has the burden of establishing the existence of the jurisdictional amount in controversy”). Tounkara has neither pled diversity jurisdiction nor the facts to sustain it, instead specifically pleading and relying on the other jurisdictional bases set forth above. (See Compl. ¶ 2 (not citing § 1332 among the bases for subject matter jurisdiction).)
In short, Tounkara has not established a basis for this Court's exercise of subject matter jurisdiction over claims against Defendant Ndiaye, all of which are grounded in state law and should be dismissed.
D. The Requirements For Res Judicata Are Not Met
Although the Court lacks jurisdiction over all claims against Senegal, the Mission, and Ndiaye, it next considers Defendants' res judicata argument, as the parties dedicate a substantial portion of their briefs to it, and the issue underlies Defendants' motion for sanctions.
“The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'” Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150, 157 (2d Cir. 2017) (quoting Monahan v. N.Y.C. Department of Corrections, 214 F.3d 275, 284 (2d Cir. 2000)). Similarly, the principle of collateral estoppel "prevents the relitigation of an issue that was raised, litigated, and actually decided by a judgment in a prior proceeding.” Jim Beam Brands Co. v. Beamish & Crawford Ltd., 937 F.2d 729, 734 (2d Cir. 1991) (citing, inter alia, Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867 (1955)). The common law doctrines of res judicata and collateral estoppel are “related but distinct [and] operate to prevent parties from contesting matters that they have had a full and fair opportunity to litigate, thereby conserving judicial resources and protecting parties from the expense and vexation of multiple lawsuits.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74 (1979)).
Defendants specifically invoke res judicata, arguing that the Prior Action precludes Tounkara's pursuit of the claims asserted in the instant action. (Def. Mem. at 20-21.) “To prove that a claim is precluded under [the doctrine of res judicata], ‘a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the parties or those in privity with them; and (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.'” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001) (brackets omitted) (quoting Monahan, 214 F.3d at 28485); accord Truong v. Hung Thi Nguyen, No 10-CV-386, 2011 WL 1198254, at *3 (S.D.N.Y. March 3, 2011). The three requisites do not exist for the claims asserted against Senegal, the Mission, or Ndiaye.
Res judicata does not apply to the claims against Senegal and the Mission; there was no adjudication on the merits as to these Defendants in the Prior Action, and Tounkara had voluntarily dismissed both entities pursuant to Rule 41 before the Court resolved the motion to dismiss the remaining claims against Ndiaye. Rule 41 authorizes a plaintiff to “dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared.” Fed.R.Civ.P. 41 (a)(1)(A)(i-ii). Dismissals under Rule 41(a)(1) are “without prejudice” unless the notice or stipulation states otherwise or the plaintiff previously dismissed an action based on or including the same claim. Fed. R. Civ. P. Rule 41(a)(1)(B)). Neither of these exceptions apply here. The dismissal against Senegal and the Mission were without prejudice.
Tounkara also relies on Rule 41 with respect to his claim for negligent infliction of emotional distress against Ndiaye, which he voluntarily dismissed in the Prior Action along with the claims against Senegal and the Mission. Tounkara argues that because Rule 41 dismissals are “without prejudice,” he is free to reassert the negligent infliction of emotional distress claim in the instant action. (Pl. Mem. at 10-11.) That reasoning is faulty. “Rule 41 dismissals apply to actions, not claims. See Fed.R.Civ.P. 41 (‘Dismissal of Actions'). Rule 41 may not be used to dismiss a single claim.” Bazile v. Asset Protection Group LLC, No. 18-CV-6820, 2019 WL 7985168, at *2 (E.D.N.Y. Nov. 27, 2019) (emphasis in original); accord Hargrave v. Oki Nursery, Inc., 646 F.2d 716, 719 (2d Cir. 1980) (“The word ‘action' has been commonly understood to denote not merely a ‘claim' or ‘cause of action' but ‘the entire controversy,' and is so used in the Federal Rules of Civil Procedure”); Harvey Aluminum, Inc. v. American Cyanamid Co., 203 F.2d 105, 108 (2d Cir. 1953) (“Rule 41(a)(1) provides for the voluntary dismissal of an ‘action' not a ‘claim'; the word ‘action' as used in the Rules denotes the entire controversy, whereas ‘claim' refers to what has traditionally been termed ‘cause of action'”). Tounkara's withdrawal of some claims, but not the entire action, against Ndiaye in the Prior Action is “more appropriately considered to be an amendment to the complaint under Rule 15.” Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 302 n. 2 (5th Cir. 1978). Defendants therefore contend that because this claim could have been raised in the Prior Action, it should be barred here because Rule 41 does not operate to “bank” previously dismissed claims. (Def. Reply at 3.) But notwithstanding Tounkara's erroneous view of Rule 41, and regardless of whether the negligent infliction of emotional distress claim could have been brought in the Prior Action, there was no adjudication on any basis other than lack of subject matter jurisdiction.
Res judicata also does not bar Tounkara's claims against Ndiaye. Judge Daniels dismissed the claims for assault, battery, and intentional infliction of emotional distress against Ndiaye solely on the basis of there being no subject matter jurisdiction. Defendants are correct that the instant claims against Ndiaye for negligent conduct are based on the same events as the three intentional tort claims dismissed for lack of subject matter jurisdiction in the Prior Action, and so could have been brought at the same time. But as explained above, the dismissal of the intentional tort claims in the Prior Action for lack of subject matter jurisdiction was not an adjudication on the merits and therefore does not operate to preclude assertion of the claims presently asserted.
To be sure, “[i]t has long been the rule that principles of res judicata apply to jurisdictional determinations - both subject matter and personal.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n. 9, 102 S.Ct. 2099, 2104 n. 9 (1982). Nonetheless, “a dismissal for lack of jurisdiction is not an adjudication on the merits of a claim” and as such a dismissal for lack of jurisdiction only “precludes re-litigation of the [jurisdictional] issue it decided.” Stengel v. Black, 486 Fed.Appx. 181, 183 (2d Cir. 2012) (summary order); see also Bank v. Spark Energy Holdings, LLC, No. 13-CV-6130, 2014 WL 2805114, at *5 (E.D.N.Y. June 20, 2014) (jurisdiction is absent based on res judicata “only if this suit presents a jurisdictional issue that is identical to the issue that the [prior action] decided”). The Prior Action did not address whether subject matter jurisdiction existed over the claims Tounkara asserts against Ndiaye here - negligent infliction of emotional distress, gross negligence, and prima facie tort. Preclusion even as to the jurisdictional issue thus does not apply. Of course, as explained above, Tounkara's claims in the instant action against Ndiaye are also purely ones under state law for which there is no federal subject matter jurisdiction.
E. Leave to Amend Should Be Denied
Although Tounkara's claims should be dismissed without prejudice, leave to amend is unwarranted. When granting a motion to dismiss “leave to amend at least once should normally be granted as a matter of course.” Oliver Schools, Inc. v. Foley, 930 F.2d 248, 253 (2d Cir. 1991). However, leave may be denied where, as here, the plaintiff does not ask for leave to amend as an alternative to denying the defendant's motion to dismiss. See Cybercreek Entertainment, LLC v. United States Underwriters Insurance Company, 696 Fed.Appx. 554, 555 (2d Cir. 2017) (summary order) (“[plaintiff's] failure to request leave to amend alone supports the District Court's dismissal with prejudice”); Horoshko v. Citibank N.A., 373 F.3d 248, 249-50 (2d Cir. 2004) (“[p]laintiff's contention that the District Court abused its discretion in not permitting an amendment that was never requested is frivolous”).
Even if Plaintiff had asked for leave to amend, and notwithstanding the general policy favoring leave to amend, “[a] district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962)); accord Sprague v. Salisbury Bank & Trust Co., 969 F.3d 95, 101 (2d Cir. 2020); Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
Here, amendment would be futile. The problem with Tounkara's causes of action against Senegal and the Mission is “substantive; better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see Donnelly v. United States, 550 Fed.Appx. 54, 54-55 (2d Cir. 2014) (summary order) (“Upon such review, we conclude that Donnelly's action was correctly dismissed for lack of subject matter jurisdiction ... The district court also did not err in declining to grant Donnelly leave to amend, as an amendment to the complaint would not have cured this jurisdictional bar”).
Tounkara has pled, and nothing will change, the fact that Senegal and the Mission are subject to FSIA and thus immune. There are no facts Tounkara can plead in good faith that would trigger an exception. That is because Tounkara continues to allege facts demonstrating that Ndiaye's allegedly tortious conduct was not within the scope of his employment. Indeed, Tounkara pleads that Ndiaye did not work as security for the Mission or Senegal, a fact confirmed by the Senegalese Ambassador's affirmation that Tounkara attached to the Complaint. (Tounkara II, Compl. ¶ 11, Ex. A at 5.) Unable to plead facts establishing that Ndiaye's allegedly tortious conduct was within the scope of his employment, Tounkara will not be able to establish jurisdiction over claims against Senegal and the Mission under FSIA. There thus continues to be no basis for Tounkara's assertion of a federal cause of action against Senegal and the Mission, leaving no way to provide federal subject matter jurisdiction and supplemental jurisdiction over Tounkara's claims against Ndiaye, all of which remain ones of state law.
F. Defendants' Request For Sanctions Against Plaintiff Should Be Denied
In addition to moving to dismiss, Defendants ask the Court to sanction Plaintiff pursuant to Rule 11(c). (Def. Mem. at 21-22.)
Rule 11 allows a court to award sanctions upon application of a party if it determines that Rule 11(b) has been violated through “false, misleading, improper, or frivolous representations to the court.” Williamson v. Recovery Ltd. Partnership, 542 F.3d 43, 51 (2d Cir. 2008). In determining whether there has been a Rule 11 violation, courts apply “an objective standard of reasonableness.” Weinraub v. Glen Rauch Securities, Inc., 419 F.Supp.2d 507, 512 (S.D.N.Y. 2005) (quoting Rule 11(b)). A filing is frivolous if it is “clear under existing precedent that there is ... no reasonable argument to extend, modify or reverse the law as it stands.” Simon DeBartolo Group, L.P. v. RichardE. Jacobs Group, Inc., 186 F.3d 157, 167 (2d Cir. 1999) (citing Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990)). “Merely incorrect legal statements are not sanctionable under Rule 11.” ED Capital, LLC v. Bloomfield Investment Resources Corp., 316 F.R.D. 77, 81 (S.D.N.Y. 2016). Additionally, “[t]he focus of the inquiry is the attorney's and/or party's reasonable belief at the time of filing, not at some later time when developments during discovery or trial reveal no basis for the belief.” Vinuela v. S.S. Britanis, 647 F.Supp. 1139, 1148 (S.D.N.Y. 1986). This “construction [of Rule 11] serves to punish only those who would manipulate the federal court system for ends [opposite of] those for which it was created.” Eastway Construction Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985).
A party seeking Rule 11 sanctions against another party has a high bar to clear. Courts will issue Rule 11 sanctions only in extraordinary circumstances. See id. (“In framing this standard, we do not intend to stifle the enthusiasm or chill the creativity that is the very lifeblood of the law .... But where it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands, Rule 11 has been violated”); accord Louis Vuitton Malletier v. Dooney & Bourke, Inc., No. 04-CV-5316, 2006 WL 2807213, at *6 (S.D.N.Y. Sept. 28, 2006) (“Sanctions should always be a (very) last resort”) (citing Schlaifer Nance & Co., Inc v. Estate of Warhol, 194 F.3d 323, 333-34 (2d Cir. 1999)); E. Gluck Corp. v. Rothenhaus, 252 F.R.D. 175, 179 (S.D.N.Y. 2008) (“Courts maintain a high bar for establishing a Rule 11 violation given judicial concern for encouraging zealous advocacy”). Further, “Rule 11(c)(2) conditions the filing of a sanctions motion on the offending party being given notice and a twenty-one-day opportunity to correct or withdraw the document” in order “to reduce, if not eliminate, the unnecessary expenditure of judicial time and adversary resources.” Lawrence v. Richman Group of Connecticut LLC, 620 F.3d 153, 158 (2d Cir. 2010). Even if a district court concludes that an assertion violates Rule 11 and that the party moving for sanctions has complied with Rule 11's procedural requirements, “the decision whether or not to impose sanctions is a matter for the court's discretion.” Perez v. Posse Comitatus, 373 F.3d 321, 325 (2d Cir. 2004).
Defendants' argument is largely a recitation of general law interpreting Rule 11 and describing courts' power to sanction parties for improper conduct in litigation. (See Def. Mem. at 20-21). Defendants conclude that Tounkara and his counsel's decision to bring the present action was “outrageous,” arguing that Tounkara's claims were barred by res judicata and that Tounkara and his attorney acted improperly by previously bringing a claim for assault and now bringing a claim for negligence. (Def. Mem. at 21-22.)
The Court disagrees that Tounkara and his attorney's filing clears Rule 11's high bar. As explained above, Defendants' invocation of res judicata is unavailing, and this Court does not have subject matter jurisdiction over the claims asserted. While the Court has determined there is no basis for Tounkara's claims in federal court, the claims asserted and arguments raised do not strike the Court as having been advanced in bad faith or otherwise justifying sanctions. See Lawrence, 620 F.3d at 158 (“Rule 11 does not, after all, authorize sanctions for merely frustrating conduct”); accord Fishoff v. Coty Inc., 634 F.3d 647, 654 (2d Cir. 2011) (“The fact that a legal theory is a long-shot does not necessarily mean it is sanctionable”). Defendants' motion for sanctions should be denied.
CONCLUSION
For the reasons set forth above, I recommend that Defendants' motion to dismiss be GRANTED; that the action be DISMISSED without prejudice based on lack of subject matter jurisdiction; and that Defendants' motion for sanctions be DENIED. To the extent not addressed above, the Court has considered the parties' other arguments and finds them to be without merit.
PROCEDURES FOR FILING OBJECTIONS AND PRESERVING APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Lewis A. Kaplan, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review.
Respectfully submitted,