Shehan v. Turner Constr. Co.

WILLIAM C. SHEHAN, JR. PLAINTIFF v. TURNER CONSTRUCTION COMPANY, et al. DEFENDANTS

CIVIL ACTION NO. 18-14-DLB-CJS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON

March 22, 2019

MEMORANDUM OPINION AND ORDER* * * * * * * * * *

This matter is before the Court on three pending Motions: Defendant Turner Construction Company's Motion to Dismiss (Doc. # 15); Defendant American Museum of Natural History's Motion to Dismiss (Doc. # 16); and Defendant United States Department of Justice's Motion to Dismiss (Doc. # 22). Plaintiff William C. Shehan, Jr., who is proceeding pro se, has filed a Response to each Motion (Docs. # 40, # 41, # 42), and Defendants have each filed a Reply (Docs. # 43, # 44, # 45). Accordingly, the above motions have been fully briefed and are ripe for adjudication. For the reasons set forth below, all three motions to dismiss will be granted.

I. BACKGROUND

According to Plaintiff, this lawsuit stems from the Department of Justice's prosecution of him in this Court for attempted tax evasion beginning in 2010. See United States v. Shehan, Case No. 2:10-cr-72. Shehan pleaded guilty in May 2011 to attempted income tax evasion and was sentenced to a 24-month term of incarceration. Shehan contends in this civil suit that the Department of Justice's prosecution was a "fabricated fraud" and ultimately "destroyed [his] finances, bonding capacity and businesses." (Doc. # 1, at 8, 20). He asserts that his ability to engage in his profession has wrongfully been hindered as a result of his prosecution. Specifically, Shehan alleges that because of his conviction, he is unable to obtain bonding and provide financial strength to engage in business deals with Defendants Turner Construction Company and the American Museum of Natural History. (See id. at 16).

Plaintiff, proceeding pro se, filed this action on January 16, 2018, naming as Defendants Turner Construction Company ("Turner"), United States Department of Justice (the "DOJ"), and the American Museum of Natural History (the "Museum") and seeking damages allegedly resulting from the DOJ's prosecution of him for tax evasion and from Turner's and the Museum's breach of contracts for work as he attempted to rebuild his businesses following his conviction. (See Doc. # 1).

Shehan is the owner of L.T.C. Signature Environments, LLC, doing business as Larson Theme Construction, a Kentucky limited liability company which specializes in designing theme environments. (Id. at 5). He asserts that two contracts were formed that give rise to his claims against Turner and the Museum. First, he alleges a contract was formed in 2016 between himself, Defendant Turner, and non-party St. Elizabeth Healthcare in which Turner agreed to help Shehan "find projects and get work" in exchange for Shehan's assistance in mending a strained business relationship between Turner and St. Elizabeth (the "2016 Contract"). (Id. at 9-11; see Doc. # 1-1, at 2). Shehan asserts that as a result of his efforts, St. Elizabeth awarded Turner a contract to build a $200 million cancer treatment center and placed Turner in a favorable strategic position to bid for future projects with St. Elizabeth. (Doc. # 1, at 14).

Second, Shehan asserts that he and Turner entered into a contract November 3, 2017, after Turner had been awarded a construction project to build an expansion for the American Museum of Natural History located in New York (hereinafter referred to as the "Gilder Center project"). (Id.). Shehan alleges that as part of the Gilder Center project, Turner, by and through its representative Andrew Thomann, entered into a contract with him on November 3, 2017, to design/build and design/assist with the Shotcrete Canyon for the Museum's Gilder Center project (the "2017 Contract"). Shehan avers that "[i]n order to issue contract documents, on Wednesday, November 8, 2017," Turner's representative "requested documentation of Shehan's vital statistics, bonding capacity and financial strength . . . ." (Id.). However, he alleges the contract was terminated by Turner "and by extension" the Museum on November 29, 2017, because he "could not provide an immediate bonding facility and financial strength." (Id. at 15, 16).

Shehan further maintains that the 2016 Contract for Turner to help Shehan "find projects and get work" was also terminated during this time, "days after Turner captured the $200 million St. Elizabeth contract[.]" (Id. at 16). He alleges that when he could not immediately provide a bonding facility, rather than provide Shehan with work on the Shotcrete Canyon that could be negotiated and did not require bonding, Turner declined attempts to provide him with any work and "terminated [his] design/build - design/assist contract . . . and Turner's broader contract with [him] to: find projects and get work." (Id. at 15-16) (emphasis omitted). He asserts that he has suffered damage as a result of these terminations. (Id.).

Plaintiff also alleges that "[w]hile not the focus of the action," he has suffered damage from "the felonious prosecution" by the DOJ in the unrelated criminal tax case.(Id. at 16). As a result of these events, Shehan asserts "Defendants stole by deception, [his] path to rebuilding [h]is business" and he therefore filed the instant action. (Id. at 17). In his Complaint, Shehan alleges nine counts: 1) intentional infliction of emotional distress ("IIED") by the DOJ and Turner; 2) breach of contract by Turner; 3) conspiracy to defraud by Turner; 4) unfair business practices by Turner; 5) theft by deception by Turner; 6) unjust enrichment by Turner; 7) breach of good faith and fair dealing by Turner; 8) a claim for punitive damages against all Defendants; and 9) a claim for reasonable attorney's fees against all Defendants. (Id. at 21-27). The last count being brought even though he is proceeding pro se without counsel.

In lieu of an answer, each Defendant has filed a Motion to Dismiss Plaintiff's original Complaint. (Doc. # 15; Doc. # 16; Doc. # 22). Turner filed its Motion to Dismiss on March 1, 2018. (Doc. # 15). Turner argues that because they have initiated a parallel action in New York state court based on a breach of a separate confidentiality agreement and other actions by Shehan, the Court should abstain from hearing the instant matter based on the Supreme Court's holding in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). (Id. at 8-19). Alternatively, if the Court declines to abstain, Turner moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief can be granted. (Id. at 19-39).

The Museum filed its Motion on March 1, 2018. (Doc. # 16). The Museum moves to dismiss the Complaint pursuant to Federal Rule 12(b) for: 1) lack of personal jurisdiction, and 2) failure to state a claim for which relief can be granted. The Museumalso asserts that because Plaintiff is not the real party in interest, he lacks standing to bring this action. (Id. at 14; Doc. # 45, at 10-11).

The DOJ filed its Motion to Dismiss, or, alternatively, Motion for Summary Judgment on April 3, 2018. (Doc. # 22). The DOJ moves to dismiss the Complaint on the basis that Shehan has failed to exhaust all administrative remedies prior to filing the current suit as required by the Federal Torts Claim Act ("FTCA") and is thus barred from bringing this action in district court. (Doc. # 22-1, at 1-2). In support, the DOJ provides that a search of the DOJ "database of administrative claims revealed no claim presented by William Shehan" as of March 20, 2018. (Id. at 2; Doc. # 22-2). Additionally, the DOJ asserts that because Plaintiff's IIED claim against the DOJ arises out of a contractual relationship and malicious prosecution claim, that IIED claim is excepted from coverage under the FTCA, and thus the DOJ has not waived its sovereign immunity. (Doc. # 22-1, at 2-6). Alternatively, the DOJ asserts that the case should be dismissed pursuant to Federal Rule 12(b)(6) for failure to state a claim for which relief can be granted. (Id. at 6-7, 8-9). Finally, the DOJ argues that pursuant to federal law, the Government cannot be liable for punitive damages, nor is there a separate cause of action for attorney's fees under the FTCA. (Id. at 7).

Subsequent to each Motion to Dismiss filing, Shehan filed a 79-page submission on April 17, 2018, wherein he sought to respond to the pending Motions to Dismiss, move to open discovery, and to amend his Complaint. (Doc. # 24; see Doc. # 39). On the same day, the same filing was docketed as a proposed Amended Complaint. (Doc. # 26). A Motion Conference was held on June 12, 2018 by the presiding Magistrate Judge regarding Plaintiff's submission and to clarify the record. (Doc. # 39). Plaintiff's filing wasstricken as procedurally improper and Shehan was provided with additional time to file separate Responses to each of the Defendants' Motions to Dismiss and/or a Civil Rule 8 compliant amended complaint. (Id. at 2). Shehan did not file an amended complaint, instead filing separate Responses to each of Defendants' Motions (Doc. # 40; Doc. # 41; Doc. # 42). However, in his Responses to Turner and the Museum, Shehan provides that he is responding to each party's Motion to Dismiss his Amended Complaint and refers to a "motion for leave to file a Second Amended Complaint." (Doc. # 40, at 1; Doc. # 41, at 1). Moreover, in his Response to Turner, Plaintiff attaches his original Complaint (Doc. # 1) and in his Response to the Museum, he attaches his prior 79-page filing that was previously stricken.

Pursuant to this Court's Minute Entry Order of June 12, 2018 (Doc. # 39), Plaintiff's 79-page submission was stricken from the record. Although the same filing was also docketed at Entry 26, it is the same procedurally improper filing. Shehan was given an opportunity to file an amended complaint, but chose not to do so. Because he has not filed an amended...