13‐3563 Li v. The Asphalt Green, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of July, two thousand fourteen.

PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges.

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LING LI,

Plaintiff‐Appellant,

‐v.‐ 13‐3563

THE ASPHALT GREEN, INC., et al.,

Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: Ling Li, pro se, Forest Hills, New York.

FOR DEFENDANTS‐APPELLEES: Jason A. Zoldessy, Jackson Lewis P.C., New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Preska, C.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Ling Li, proceeding pro se, appeals from the district

courtʹs order and judgment dismissing her complaint and barring her from filing any

further actions in the district court without first obtaining leave of court. We assume

the partiesʹ familiarity with the underlying facts, procedural history of the case, and

issues on appeal.

1. Dismissal

We review de novo a district courtʹs sua sponte dismissal of a complaint

pursuant to

(e). See Giano v. Goord,

, 149‐50 (2d Cir. 2001).

The complaint must plead ʺenough facts to state a claim to relief that is plausible on its

face.ʺ Bell Atl. Corp. v. Twombly,

(2007). A claim will have ʺfacial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.ʺ Ashcroft v.

Iqbal,

(2009). Pro se complaints should be liberally construed, and

district courts generally should not dismiss a pro se complaint without granting the

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plaintiff leave to amend, unless it would be futile. See Cuoco v. Moritsugu,

(2d Cir. 2000).

ʺThe preclusive effect of a judgment is defined by claim preclusion and

issue preclusion, which are collectively referred to as ʹres judicata.ʹʺ Taylor v. Sturgell,

(2008). The doctrine of claim preclusion ʺforecloses successive

litigation of the very same claim, whether or not relitigation of the claim raises the same

issues as the earlier suit.ʺ

(internal quotation marks omitted). The related doctrine

of issue preclusion bars ʺsuccessive litigation of an issue of fact or law actually litigated

and resolved in a valid court determination essential to the prior judgment.ʺ

Although Liʹs allegations of discriminatory treatment between 2009 and

2012 are precluded by res judicata, the doctrine does not bar her claims of

discriminatory conduct after the filing of her last complaint. Claims that arise after an

action has been filed ‐‐ and therefore could not have been brought in that action ‐‐ ʺare

not barred by res judicata regardless of whether they are premised on facts representing

a continuance of the same course of conduct.ʺ Storey v. Cello Holdings, L.L.C.,

(2d Cir. 2003) (internal quotation marks and italics omitted). ʺʹWhile the [prior]

judgment precludes recovery on claims arising prior to its entry, it cannot be given the

effect of extinguishing claims which did not even then exist and which could not

possibly have been sued upon in the previous case.ʹʺ

(alteration in original) (quoting

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Lawlor v. Natʹl Screen Serv. Corp.,

(1955)). Thus, Liʹs claim arising from

her failure to be rehired in 2013 is not barred by res judicata.

Nevertheless, we affirm because Li failed to state a claim on which relief

may be granted. See Adeleke v. United States,

(2d Cir. 2004) (noting

appellate courtʹs ability to ʺaffirm a judgment on any ground that finds support in the

recordʺ). Liʹs allegation of discrimination is based solely on the fact that defendant‐

appellee The Asphalt Green, Inc. (ʺAsphalt Greenʺ) failed to rehire her in 2013 for the

same or similar position that she once had. She failed to allege any facts from which it

could be plausibly inferred that Asphalt Green had a discriminatory motive. Moreover,

Li has not alleged any additional facts on appeal that suggest she could amend her

complaint to remedy this problem.

The district court properly determined that Liʹs claims against defendant‐

appellee Jeff Dorn were frivolous because her claims of mental sorcery were

implausible.

2. Filing Bar

We review for abuse of discretion a district courtʹs imposition, as a

sanction, of an injunction under the All Writs Act,

, barring plaintiffs

from filing further claims without leave of court. See United States v. Intʹl Bhd. of

Teamsters,

(2d Cir. 2001) (grant of injunction under the All Writs Act

reviewed for abuse of discretion); Gollomp v. Spitzer,

(2d Cir. 2009)

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(decision to impose sanctions reviewed for abuse of discretion). A district court ʺmay

not impose a filing injunction on a litigant . . . without providing the litigant with notice

and an opportunity to be heard.ʺ Iwachiw v. N.Y. State Depʹt of Motor Vehicles,

(2d Cir. 2005).

Here, the district court did not abuse its discretion in enjoining Li from

filing any further lawsuits without first obtaining leave of court because this was Liʹs

third lawsuit arising from her former employment at Asphalt Green. Moreover, the

district court gave Li notice and an opportunity to be heard prior to imposing the filing

injunction, and Li submitted a response. The court considered Liʹs arguments and

reasonably determined them to be insufficient.

* * *

We have considered Liʹs remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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