Petition for Writ of Certiorari — Mai-Trang Thi Nguyen, Petitioner v. United States

Supreme Court briefOct 17, 2023

Ask Donna

What actually matters in this document.

Text

Case: 22-16074, 07/12/2023, ID: 12753453, DktEntry: 12-1, Page 1 of 2

NOT FOR PUBLICATION

FILED

UNITED STATES COURT OF APPEALS

JUL 12 2023

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

MAI-TRANG THI NGUYEN,

Plaintiff-Appellant,

U S. COURT OF APPEALS

No. 22-16074

D.C. No. 5:2 2 -cv-00948-NC

MEMORANDUM*

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Nathanael M. Cousins, Magistrate Judge, Presiding**

Submitted June 26, 2023**

Before:

CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.

Mai-Trang Thi Nguyen appeals pro se from the district court’s judgment

dismissing her Federal Torts Claims Act action arising from voting procedures in

the 2020 presidential election. We have jurisdiction under 28 U.S.C. § 1291. We

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The parties consented to proceed before a magistrate judge. See 28

U.S.C. § 636(c).

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

Case: 22-16074, 07/12/2023, ID: 12753453, DktEntry: 12-1, Page 2 of 2

JmMiK A |

review de novo a dismissal for lack of jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1139

(9th Cir. 2003). We affirm.

The district court properly dismissed Nguyen’s action because Nguyen

failed to allege facts sufficient to establish Article III standing. See Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560-61 (1992) (explaining that constitutional standing

requires an “injury in fact,” causation, and redressability; “injury in fact” refers to

“an invasion of a legally protected interest which is (a) concrete and

particularized ... and (b) actual or imminent” (citation and internal quotation marks

omitted)); Carroll v. Nakatani, 342 F.3d 934, 940 (9th Cir. 2003) (recognizing that

a “generalized grievance against allegedly illegal government conduct” is

insufficient to confer standing).

We do not consider Nguyen’s contentions concerning the dismissal of her

prior action because it is outside the scope of this appeal.

AFFIRMED.

22-16074

Case 5:22-cv-00948-NC Document 25 Filed 07/18/22 Page 1 of 5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

MAI-TRANG THI NGUYEN,

E G

a! i3

4-»

THE UNITED STATES,

-18 14

C/5

Defendant.

ORDER GRANTING

DEFENDANT’S MOTION TO

DISMISS

Re: ECF 16

5 o

C/5

Case No. 22-cv-00948-NC

Plaintiff,

J-

4J to

53 c

Plaintiff Mai-Trang Thi Nguyen sued Defendant the United States under the Federal

c e

Torts Claims Act (FTCA) for negligence in introducing its “new” vote by mail system in

2020 and subsequently failing to recount 2020 Presidential Election votes in battleground

votes. This Court dismissed Nguyen’s previous case against the United States in January

2022. Now, the United States moves to dismiss the current lawsuit, arguing that it is not

only barred by res judicata and is moot, but also that Nguyen lacks standing. Because the

Court finds that: (1) this case arises from the same facts as the previous lawsuit that was

dismissed with prejudice, and (2) Nguyen lacks standing, the Court GRANTS the United

States’ motion and DISMISSES the complaint without leave to amend.

BACKGROUND

Prior Lawsuit, Case No. 20-cv-08755-NC (Nguyen I)

Nguyen sued Speaker Nancy Pelosi and Senator Mitch McConnell on December 9,

2020, under the FTCA for negligence in failing to conduct a recount of the 2020

Case 5:22-cv-00948-NC Document 25 Filed 07/18/22 Page 2 of 5

<3!

Presidential Election votes. Nguyen I, ECF 1 at 1. After several amendments, Nguyen

submitted a third amended complaint with substantially the same claim, but with the

United States as the sole defendant. Nguyen /, ECF 23. Nguyen claimed that the United

States’ negligence “became the seed of [her] mental-illness injury,” alleging damages of

“$1 trillion” for failing its duties “to vindicate the results of this coronavirus-infected

Presidential Election of 2020.” Id. at 4,6. The Court found that Nguyen lacked standing

to sue—her mental illness injury was not particularized, and her requested relief of a

“recount-recheck” was “beyond this court’s ability to redress absent the mythical time

machine.” Nguyen /, ECF 33 at 3 (citing Feehan v. Wis. Elections Comm’n, 506 F. Supp.

3d 596,615 (E.D. Wis. 2020)). Because Nguyen was unable to establish standing after

three amendments, the Court dismissed the case with prejudice and entered judgment on

January 11,2022.1 Id.

Current Lawsuit, Case No. 22-cv-00948-NC

On February 16, 2022, Nguyen brought a second suit against the United States

under the FTCA for negligence in conducting the 2020 Presidential Election during the

5 o

So 16

coronavirus pandemic. ECF 1. First, Nguyen alleges that the United States negligently

-o0) <L)E

launched and “forced” Nguyen to accept a vote by mail system, a “brand new product” that

had “cracks and holes.” Id. at 7-9. Second, Nguyen alleges that because the government

was negligent in administering the vote by mail system, this warrants an “automatic

recount-recheck in battleground states” to “vindicate the results” of the 2020 Presidential

Election. Id. at 15, 17. Nguyen further alleges that the United States’ negligence caused

her “mental illness injury” and “cost [her] a lot of money.” Id. at 11-12. Nguyen seeks

“$1 trillion for her mental injury” or the “cost of writing the suit” and a “letter of apology.”

Id. at 19. The United States moves to dismiss the lawsuit arguing res judicata and lack of

standing. ECF 16.

c t:

3°

All parties have consented to magistrate judge jurisdiction. ECF 3; ECF 12.

The full extent of the Court’s reasoning for dismissing the case can be found at Case No.

20-cv-08755, ECF 48.

Case 5:22-cv-00948-NC Document 25 Filed 07/18/22 Page 3 of 5

II.

Federal courts are courts of limited jurisdiction and are presumptively without

« .5

5 |

•4—*

■c

oC/3 .«!—

a z

53 Q

•o E

2£

S t:

LEGAL STANDARD

jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).

“Article III of the Constitution limits federal court jurisdiction to cases and controversies.”

Flint v. Dennison, 488 F.3d 816, 823 (9th Cir. 2007) (cleaned up). Rule 12(b)(1) allows a

defendant to move for dismissal for lack of subject-matter jurisdiction. It is the plaintiffs

burden to establish the existence of subject matter jurisdiction in response to a 12(b)(1)

motion. See Kingman ReefAtoll Inv., LLC v. U.S., 541 F.3d 1189, 1197 (9th Cir. 2008).

III.

DISCUSSION

The Current Lawsuit is Barred by Res Judicata

The United States first challenges the complaint on the grounds of res judicata.

ECF 16 at 4. Res judicata, or claim preclusion, bars litigation of any claims that were

raised or could have been raised in a prior action. W. Radio Servs. Co. v. Glickman, 123

F.3d 1189, 1192 (9th Cir. 1997). “Claim preclusion prevents parties from raising issues

that could have been raised and decided in a prior action—even if they were not actually

litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589,

1594 (2020). Res judicata “has the dual purpose of protecting litigants from the burden of

relitigating an identical issue with the same party.. . and of promoting judicial economy by

preventing needless litigation.” Parkland Hosiery Co. v. Shore, 439 U.S. 322,326 (1979).

For res judicata to apply there must be: (1) an identity of claims, (2) a final judgment on

the merits, and (3) identity or privity between parties. W. Radio Servs. Co., 123 F.3d at

1192. Under these criteria, the Court dismisses Nguyen’s Complaint under res judicata.

First, there is an identity of claims between this case and Nguyen’s prior case. To

satisfy this factor, the two suits need only to arise out of the same transactional nucleus of

facts. Lenk v. Monolithic Power Sys., Inc., Case No. 16-CV-02625-BLF (NC), 2017 WL

2491597, at *2 (N.D. Cal. Apr. 20,2017). Here, both lawsuits arise from nearly identical

facts concerning the 2020 Presidential Election—Nguyen bases her claims on the

government’s negligence in the 2020 Presidential Election for failing to conduct a

Case 5:22-cv-00948-NC Document 25 Filed 07/18/22 Page 4 of 5

“recount-recheck” in response to the use of vote by mail. Compare ECF 1 at 17 (alleging

that there should be “recount-recheck” due to the government’s negligence in “launching

its . . . vote by mail systemf] for the 2020 President Election”) with Nguyen /, ECF 23 at 4,

6 (alleging during the Presidential Election of 2020, the government should have

conducted a “recount-recheck” due to the “first launch” of nationwide mail-in ballots).

Nguyen argues that the current case is “not EXACTLY the same” because it

“contains one more tort claim. . . and contains [new] real-life evidence of duplicate-voting

ballots.” ECF 18 at 1-2. These changes are not sufficient to defeat the identity of claims.

An additional claim does not preclude cases from having the same transactional nucleus of

facts. See Lenk, Case No. l6-cv-02625-BLF (NC), 2017 WL 2491597, at *2 (stating that

“two cases can have the same transactional nucleus of facts even if the second lawsuit

identifies new claims”). Further, Nguyen’s inclusion of new evidence of the same

1 E

Q | 13

negligence does not create a different claim. Thus, the Court finds that there is an identity

■s2

of claims.

C/5

Second, there was a final judgment on the merits in the previous case. “The

dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is a

-o

i> <U

judgment on the merits.” Federated Dep't Stores v. Moitie, 452 U.S. 394, 399 n.3 (1981).

The Court ruled twice on motions to dismiss and entered final judgment in Nguyen’s prior

case. Nguyen /, ECF 22; Nguyen /, ECF 48, Nguyen /, ECF 49. Therefore, there was

already a judgment on the merits.

~ JZ

c C

Third, there is an identity or privity of parties in the two actions. Privity exists

when a party is “so identified in interest with a party to former litigation that he represents

precisely the same right in respect to the subject matter involved.” Stratosphere Litig. 1.1.C.

v. Grand Casinos, Inc., 298 F.3d 1137, 1142 n.3 (9th Cir. 2002). Nguyen was the plaintiff

in both suits against the defendant, the United States. Accordingly, the Court finds that

there is privity.

Because there is an identity of claims, a final judgment on the merits, and identity

or privity between the parties, the Court concludes that this case is barred by res judicata.

Case 5:22-cv-00948-NC Document 25 Filed 07/18/22 Page 5 of 5

lftppe»)pix (B

« .2

■*—*

Generally, a court must grant leave to amend freely. Fed. R. Civ. P. 15(a).

However, in doing so, the Court considers futility of the proposed amendment. Loehr v.

Ventura Cnty. Cmty. Coll. Dist., 743 F.2d 1310, 1319 (9th Cir. 1984). Here, the Court

finds that granting leave to amend would be futile.

No Leave to Amend due to Uncurable Deficiencies

The current lawsuit, like the three complaints Nguyen filed in the prior lawsuit,

lacks standing for not alleging a cognizable injury or redressability. Nguyen’s alleged

harm is shared by other “Trump[] voter[s]” and “[United States’] citizens” and is therefore

not a particular, concrete injury. ECF 1 at 7-10. Nguyen’s requested relief of a “recount-

recheck” is also not redressable.2 There is no provision in the U.S. Constitution or federal

law for an audit or re-do of a presidential election two years later.3

Thus, because Nguyen has not been able to cure her lack of standing in three prior

complaints and because this complaint is barred by res judicata, the Court finds granting

18 14

leave to amend would be futile. See Lopez v. Smith, 2003 F.3d 1122, 1127 (9th Cir. 2000).

Gin ‘Co

IV.

CS ‘X

.23 °

£ tS

« c

-a cu

D o

.ti -e

c t:

CONCLUSION

For the foregoing reasons, the Court GRANTS the United States’ motion to dismiss

and DISMISSES the complaint with prejudice and without leave to amend.

IT IS SO ORDERED.

Dated: July 18,2022

NATHANAEL M. COUSINS

United States Magistrate Judge

2 If there was a mistake with Nguyen’s ballot, she should contact the Santa Clara County

Registrar of Voters (https://sccvote.sccgov.Org/search-results-0#18492743142996967254). If Nguyen does not like the results of an election, she is encouraged to vote

again in the next one. If Nguyen seeks to change the rules for nationwide elections, she

should contact her representative (https://wvvvv.congress.gov/members/Fmd-your-member).

Nguyen’s complaint is also moot because the Courts cannot turn back the clock and order

a recount of results that are already final and certified.

Case: 22-16074, 10/11/2023, ID: 12808314, DktEntry: 14, Page 1 of 1

iW&jmHD

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

OCT 11 2023

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

MAI-TRANG TM NGUYEN,

Plaintiff-Appellant,

UNITED STATES OF AMERICA,

No. 22-16074

D.C. No. 5:22-cv-00948-NC

Northern District of California,

San Jose

ORDER

Defendant-Appellee.

Before:

CANBY, S.R. THOMAS, and CHRISTEN, Circuit Judges.

Nguyen’s petition for panel rehearing (Docket Entry No. 13) is denied.

No further filings will be entertained in this closed case.

■x

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.