Petition for Writ of Certiorari — Meng Ellen Xia, Petitioner v. Lina T. Ramey, and Associates, et al.

Case: 23-10508

Document: 79-1

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Appendix A

®mtet) States Court of Appeals

for tfjr Jftfffj Circuit

United States Court of Appeals

Fifth Circuit

No. 23-10508

FILED

February 21, 2024

Xia

Lyle W. Cayce

Clerk

Plaintiff—Appellant,

versus

Lina T. Ramey, and Associates; William Martinez,

Defendants—Appellees.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:21-CV-3072

Before Jolly, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

ia, a pro se litigant, sued her employer for employment

discrimination and harassment, fraud, promissory estoppel, and violations of

the H-lB visa statute. The district court dismissed Xia’s lawsuit under

12(b)(6) for failing to state a claim. Xia now appeals that dismissal and moves

us to appoint her counsel. We AFFIRM the district court’s dismissal and

DENY Xia’s motion.

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

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I.

On September 16, 2019, Linda T. Ramey, and Associates (“LTRA”)

offered Xia, a Chinese national working in America on an H-lB visa, a job as

a design engineer. After several months on the job, however, LTRA

terminated Xia. In response, Xia sued LTRA.

Xia later amended her initial complaint and added William Martinez,

an LTRA employee and Xia’s supervisor, as a codefendant, though it

essentially alleged the same claims as Xia’s initial complaint. Eight days later,

Xia submitted a “Plaintiff’s Brief,” which the district court accepted as Xia’s

second amended complaint. In that same order, the district court directed

Xia to make no further amendments unless permitted by the court.

If we construe her pro se pleadings liberally, Xia alleges employment

discrimination based on sex, race, and national origin. She further alleges a

hostile working environment claim and claims related to her H-lB visa. Xia

further alleges that: (1) her supervisor told an inappropriate joke around her,

glanced at her inappropriately, invited her to lunch, and followed her to her

car, as well as other grievances; (2) her male coworkers invited her to drink

alcohol with them during working hours; and (3) her coworkers gossiped

about her and made comments about and asked her insensitive questions

relating to her Chinese heritage. Regarding her visa claim, Xia further alleges

that LTRA defrauded her when it promised to help her earn her green card,

fraudulently induced her to accept the employment offer based on that

promise, and fired her in violation of the H-lB statute. Xia’s initial complaint

also alleged that LTRA defamed her to other employers following her

termination.

On June 9,2022, LTRA and Martinez (“Appellees”) filed the instant

motion to dismiss. Instead of responding to the motion, Xia moved to clarify

her pleadings and to remove her second amended complaint. The district

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court granted Xia’s motion to clarify, which reinstated her first amended

complaint as the operative pleading, and referred the motion to dismiss to a

magistrate judge. In a report and recommendation, the magistrate judge

recommended that the district court dismiss each of Xia’s claims with

prejudice. The district court adopted the R&R, over Xia’s objection, and

dismissed the case with prejudice. The district court then declined to certify

the order for an in forma pauperis appeal, ruling that Xia’s claims were

frivolous.

II.

Now on appeal, Xia argues that: (1) the district court erred by

dismissing her claims under Rule 12(b)(6); (2) the district court erred by

failing to rely on the factual allegations in both of her amended complaints;

and (3) the district court abused its discretion in refusing to allow Xia to

amend her complaint for a third time. Furthermore, Xia moves for

appointment of counsel to represent her. We will discuss each issue below.

We first turn to Xia’s argument that the district court erred in

dismissing her claims under Rule 12(b)(6). A district court's grant of a Rule

12(b)(6) motion to dismiss is reviewed de novo. Vizaline} L.L.C. v. Tracy,

949 F.3d 927, 931 (5th Cir. 2020). We accept all well-pled facts as true,

construing all reasonable inferences in the complaint in the light most

favorable to the plaintiff. Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir.

2020). “But we do not accept as true conclusory allegations, unwarranted

factual inferences, or legal conclusions.” Id. (internal quotation marks and

citations omitted). “To survive a Rule 12(b)(6) motion to dismiss, a

complaint ‘does not need detailed factual allegations,’ but must [establish]

the plaintiff's grounds for entitlement to relief—including factual allegations

in a complaint that when assumed to be true ‘raise a right to relief above the

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speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007)

(ayxotin^BellAtl. Corp. v. Tmmbly, 550 U.S. 544, 555 (2007)).

Notwithstanding her three pleadings, Xia’s claims fail to satisfy the

standard for survival. Dismissal was thus proper. Scanlan v. Texas A&M

Univ., 343 F.3d 533, 536 (5th Cir. 2003). Xia’s discrimination claim, which

for example involves her allegations surrounding her supervisor and

coworkers, is deficient because she failed to establish that her claims were

caused by her race, national origin, sex, or any other protected characteristic.

Sanchez v. Chevron N. Am. Expl. & Prod. Co., No. 20-30783, 2021 WL

5513509, at *5 (5th Cir. 2021). Xia’s hostile work environment claim, which

involves essentially the same facts as her discrimination claim, fails because

the alleged instances of abuse are too infrequent and inconsequential to be

legally significant. E.E.O.C. v. Boh Bros. Constr. Co., L.L.C., 731 F.3d 444,

453 (5th Cir. 2013) (en banc). Xia’s promissory estoppel and fraud claims,

which involve her employer’s alleged promise to help transfer Xia’s H-lB via

to a green card, fail because her attached exhibit refutes the existence of that

promise. Without such a promise, both claims necessarily fail. Esty v. Beal

Bank S.S.B., 298 S.W.3d 280, 305 (Tex. App. - Dallas 2009, no pet.); Elson

v. Black, 56 F.4th 1002,1008 (5th Cir. 2023). Xia’s H-lB visa statutory claim

fails because she failed to allege that she had exhausted her administrative

remedies as required by 8 U.S.C. § 1182(n); therefore, she has no private

right of action. See Watson v. Elec. Data Sys., 191F. App'x 315 (5th Cir. 2006);

see also Shah v. Wilco Sys., Inc., 126 F. Supp. 2d 641, 648 (S.D.N.Y. 2000).

Finally, Xia’s defamation claim from her initial complaint also fails for its

vagueness because she did not identify a specific defamatory statement or

when or where it was made. Mandawala v. Ne. Baptist Hosp., Counts 1, 2, &

11,16 F.4th 1144,1153 (5th Cir. 2021); Ameen v. Merck & Co., 226 F. App'x

363,370 (5th Cir. 2007).

u.

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In sum, Xia cannot show that the district court erred by: (1) dismissing

her claims, (2) not relying on the allegations found in both of her amended

complaints, or (3) refusing to permit her to further amend her claims. Nor

can Xia show that she is entitled to appointed counsel, and her motion is

DENIED. Accordingly, the district court’s judgment dismissing the

complaint is in all respects

AFFIRMED.

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Appendix B

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ELLEN XIA,

Plaintiff,

v.

LINA T. RAMEY AND ASSOCIATES,

and WILLIAM MARTINEZ,

Defendants.

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Civil Action No. 3:21-CV-3072-L-BN

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ORDER

The Findings, Conclusions and Recommendation of the United States Magistrate Judge

(“Report”) (Doc. 51) was entered on January 20, 2023, recommending that the court grant pro se

Plaintiff Ellen Xia’s (“Plaintiff’ or “Ms. Xia”) Motion to Clarify and Remove the Filing of Second

Amended Complaint (“Motion to Clarify”) (Doc. 49), and grant Defendant Lina T. Ramey and

Associates (“Ramey”) Second Motion to Dismiss (Doc. 43), dismissing with prejudice Plaintiffs

claims against Ramey and Ramey’s employee William Martinez (collectively, “Defendants”).

Doc. 51.

Plaintiff filed Objections to the Report (“Objections”) (Doc. 52) on February 2, 2023,

which appear to make three substantive objections:1 (1) that she did not intend that the Second

Amended Complaint (“SAC”) replace the First Amended Complaint (“FAC”) or show

abandonment of claims made in the FAC, and therefore the Report should not rely on the SAC to

dismiss her claims; (2) the Report’s recommendation to construe her Motion to Clarify as brought

under Rule 54(b) rather than Rule 60(a) is an incorrect application of the Federal Rules of Civil

1 The court notes that Plaintiff s Objections are difficult to follow and include extended case quotes from Sixth Circuit

and Second Circuit opinions, and the California Civil Code, none of which are controlling precedent for this court.

This court is only bound by rulings from the Fifth Circuit and the Supreme Court.

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Procedure; and (3) the Report incorrectly determines Plaintiffs alleged facts as insufficient under

Rule 8, and therefore should not grant Defendants’ Motion to Dismiss under Rule 12(b)(6). See

Doc. 52. The court will address each objection in turn.

First, Plaintiff argues that she did not intend for the SAC to supersede the FAC, and as the

SAC presents “no material change, [Pjlaintiff did not [ajmend her claim.” Id. at 1. She contends

that the Report misunderstands the SAC because it does not use the “traditional tools of

construction,” citing Supreme Court opinion Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Id. at 2. That

case, however, addresses deference to commentary associated with agency regulations and is not

applicable to the issues presented here. More to the point, the Report clearly states that the

magistrate judge reviewed Plaintiffs factual allegations in both the FAC and SAC when

considering the Motion to Dismiss. Doc. 51 at 5. The Report did not rely exclusively on the SAC,

which is the bases for Plaintiffs objection. Accordingly, Plaintiffs objection to the Report’s

reference to the SAC is overruled.

Second, Plaintiff objects that the Report improperly construed her Motion to Clarify as one

brought under Rule 54(b), rather than Rule 60. Doc. 52 at 6. She appears to argue that Rule 60’s

provision that allows reconsideration for “mistake, inadvertence, surprise, or excusable neglect” is

the provision under which she must seek relief. Rule 60, however, is reserved for relief from final

judgment. Rivera v. PNS Stores, Inc., 647 F.3d 188,193-94 (5th Cir. 2011). Because Plaintiff seeks

reconsideration of the court’s acceptance of her SAC, which is not a final judgment, Rule 60 is not

the proper vehicle. Rule 54(b)’s liberal provision that permits a court to reconsider “any order or

other decision, however designated” is the correct rule for a party seeking reconsideration of an

interlocutory order, that is, an order that is not a final judgment. Fed. R. Civ. P. 54(b); see also

Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017). Because Plaintiffs Motion to

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Clarify sought reconsideration of an interlocutory order, Rule 54(b) was the proper vehicle, and

the Report’s recommendation is the correct application of the Federal Rules of Civil Procedure.

Accordingly, the court overrules this objection.

Finally, Plaintiff objects to the Report’s finding that she failed to set forth sufficient facts

to plead her claims for sexual harassment, race discrimination, and fraud related to Defendant’s

alleged offer of assistance in converting her H1B visa into a green card. Doc. 52 at 7-9. She states

that the Report misunderstood her claim for sex harassment as a hostile work environment claim,

and under that mistaken understanding, the Report incorrectly recommended the court dismiss her

claims for failure to state a claim upon which relief may be granted. Id. Plaintiff argues that

“[wjhen [her] claims of sexual harassment are considered together, such allegations constitute a

claim of the creation of a hostile work environment by the alleged sexual harassment of

Defendants.” Id. at 9. Although Plaintiff objects to the Report’s characterization and analysis of

her alleged work-based discrimination as a hostile work environment claim, she appears to assert

that the totality of her claims as set forth sufficiently allege a hostile work environment. She repeats

similar arguments related to her race discrimination and fraud claims, arguing that her filings have

already satisfied the pleading standard. Plaintiff fails to set forth any new facts for the court to

consider.

After a de novo review of Plaintiff s factual allegations in the Complaint, FAC, SAC, and

responses to magistrate judge’s questionnaire (Doc. 8), the court finds that she has not set forth

sufficient facts to allege sex harassment, a hostile work environment, race discrimination, or fraud.

Taking her allegations as true, as the court must when considering a motion to dismiss pursuant to

Rule 12(b)(6), Plaintiff has not alleged facts, if proven to be true, showing severe or pervasive

behavior such that it interferes with a term, condition, or privilege of employment. See Johnson v.

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PRIDE Indus., Inc., 7 F.4th 392, 399-400 (5th Cir. 2021). Likewise, Plaintiff has failed to point to

any similarly situated employees who are male or of other races who Defendants treated more

favorably. See Raj v. Louisiana State Univ., 714 F.3d 322, 331 (5th Cir. 2013). Thus, her

allegations of sex or race-based discrimination fail to state a claim.

As to her claim for fraud for Defendants’ failure to help her transfer her H1B visa to a

green card as she contends was promised, she fails to allege that Defendants made a definite

promise but rather asserts that Defendants made a statement regarding possible future aid. For

these reasons, the court concludes that Plaintiff has not set forth sufficient facts to successfully

plead the elements of fraud. Accordingly, for the reason stated, the court overrules Plaintiffs

objection to the Report’s recommendation to grant Defendants’ Motion to Dismiss.

Having considered the Complaint, FAC, SAC, Plaintiffs responses to magistrate judge’s

questionnaire, Report, file, and record, and having conducted a de novo review of the portions of

the Report to which objections were made, the court determines that the magistrate judge’s finding

and conclusions in the Report are correct, and accepts them as those of the court. The court grants

Plaintiffs Motion to Clarify and Remove the Filing of Second Amended Complaint (Doc. 49).

Further, Plaintiff fails to point to controlling law or offer new facts showing that the Report’s

recommendations are incorrect. Accordingly, the court grants grant Defendant Lina T. Ramey and

Associates’ Second Motion to Dismiss (Doc. 43), and dismisses with prejudice Plaintiffs claims

and this action against Lina T. Ramey and Associates and William Martinez for failure to state a

claim upon which relief may be granted.

Further, the provision of Rule 15(a)(2) of the Federal Rules of Civil Procedure that states

“[t]he court should freely give leave when justice so requires” is not without limitation. The

decision to allow amendment of a party’s pleadings is within the sound discretion of the district

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court. Foman v. Davis, 371 U.S. 178, 182 (1962); Norman v. Apache Corp., 19 F.3d 1017, 1021

(5th Cir. 1994) (citation omitted). In determining whether to allow an amendment of the pleadings,

a court considers the following: “undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice

to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.”

Foman, 371 U.S. at 182; Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003)

(citation omitted).

Plaintiff has had ample opportunity to present her factual allegations to the court because

she amended her claims twice through the FAC and SAC—even though she contends that she did

not want the SAC to replace the FAC—and responded to the magistrate judge’s questionnaire.

Further, she had the opportunity to object to the Report and provide the court with factual bases

for her allegations, which she did. She has failed to present sufficient factual bases for her claims,

despite these opportunities to do so, and the court concludes that Plaintiff has stated her “best

case.” See Schiller, 342 F.3d at 566. The court therefore determines that permitting further pleading

attempts would be an inefficient use of the parties’ and the court’s resources, cause unnecessary

and undue delay, and also be futile. For these reasons, the court will not allow Plaintiff an

opportunity to amend her pleading regarding her claims against Defendants Lina T. Ramey and

Associates and William Martinez.

The court prospectively certifies that any appeal of this action would not be taken in good

faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). In support of this certification, the

court incorporates by reference the Report. See Baugh v. Taylor, 117 F.3d 197, 202 and n.21 (5th

Cir. 1997). Based on the magistrate judge’s Report, the court concludes that any appeal of this

action would present no legal point of arguable merit and would therefore be frivolous. Howard v.

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King, 707 F.2d 215, 220 (5th Cir. 1983). In the event of an appeal, Plaintiff may challenge this

certification by filing a separate motion to proceed in forma pauperis on appeal with the clerk of

the United States Court of Appeals for the Fifth Circuit. See Baugh, 117 F.3d at 202; Fed. R. App.

P. 24(a)(5).

It is so ordered this 17th day of April, 2023.

Sam A. Lindsay

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ELLEN XIA,

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Plaintiff,

v.

LINA T. RAMEY AND ASSOCIATES

and WILLIAM MARTINEZ,

Defendants.

Civil Action No. 3:21-CV-3072-L-BN

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JUDGMENT

The court issues this judgment pursuant to its Order issued earlier today. It is therefore

ordered, adjudged, and decreed that Plaintiff Ellen Xia’s First Amended Complaint is dismissed

with prejudice as to her claims and this action against Lina T. Ramey and Associates, and William

Martinez for failure to state a claim upon which relief may be granted. The clerk of court shall

transmit a copy of this judgment and a copy of the order dated April 13, 2023, accepting the

Findings, Conclusions, and Recommendations of the United States Magistrate Judge, to Plaintiff.

The parties shall bear their own costs of court.*

Signed this 17th day of April, 2023

Sam A. Lindsay

United States District Judge

* Rule 54(d)( 1) of the Federal Rules of Civil Procedure provides, “Unless a federal statute, these rules, or a court order

provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Rule 54(d) creates

a strong presumption that the prevailing party will be awarded costs. Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir.

1985). In this case, however, Plaintiff, the losing party, is pro se and proceeding in forma pauperis. She does not have

the means to pay costs. Under these circumstances, the court does not believe that the imposition of costs against

Plaintiff is warranted.

Judgment -Solo Page

/