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 28 U.S.C. § 1915(e). See Giano v. Goord, 250 F.3d 146, 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, 550 U.S. 544, 570 (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, 556 U.S. 662, 678 (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, 222 F.3d 99,
112 (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,
553 U.S. 880, 892 (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 Id. (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 Id.
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., 347 F.3d
370, 383 (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 Id. (alteration in original) (quoting
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Lawlor v. Natʹl Screen Serv. Corp., 349 U.S. 322, 328 (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, 355 F.3d 144, 147 (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, 28 U.S.C. § 1651, barring plaintiffs
from filing further claims without leave of court. See United States v. Intʹl Bhd. of
Teamsters, 266 F.3d 45, 49 (2d Cir. 2001) (grant of injunction under the All Writs Act
reviewed for abuse of discretion); Gollomp v. Spitzer, 568 F.3d 355, 368 (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, 396 F.3d
525, 529 (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.
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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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