                          UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
NING YE,                                   )
                                           )
            Petitioner,                    )
                                           )
            v.                             )    Civil Action No. 09-103 (ESH)
                                           )
ERIC H. HOLDER, JR.,                       )
Attorney General, et al.,                  )
                                           )
            Defendants.                    )
__________________________________________)

                         MEMORANDUM OPINION AND ORDER

       This matter is here again on defendant Maria Amato’s motion for dismissal. Plaintiff

Ning Ye, an attorney proceeding pro se, has sued defendant, who is the general counsel for the

District of Columbia Department of Corrections (“DOC”), as well as various federal officials for

various torts and civil rights violations. The Court’s prior Order dismissed all claims against

Amato except for one defamation claim based upon an email, written in response to an inquiry

by plaintiff’s colleague David Zapp, in which defendant stated that plaintiff “lied” about giving

his client some candy when visiting him at the D.C. Jail. See Ning Ye v. Holder, No. 09-CV-103,

2009 WL 2475169, at *3-*6, *8 (D.D.C. Aug. 13, 2009). Amato now moves for summary

judgment on that remaining defamation claim or, in the alternative, to dismiss that claim for lack

of subject matter jurisdiction. (See Mem. of P. & A. in Supp. of Def. Amato’s Mot. for Summ. J.

(“Mem.”) at 7.) The Court will grant the motion and dismiss the remaining claim against her for




                                                 1
lack of jurisdiction.1

        A court with original federal jurisdiction over certain claims has supplemental

jurisdiction over state law claims “that are so related . . . that they form part of the same case or

controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). “In order

for a federal claim and a state-law claim to form part of the ‘same case or controversy,’ the

claims must derive from a ‘common nucleus of operative fact.’” Taylor v. District of Columbia,

626 F. Supp. 2d 25, 28 (D.D.C. 2009) (quoting United Mine Workers v. Gibbs, 383 U.S. 715,

725 (1966)). “If there is almost no factual or legal overlap between the state and federal claims,

a common nucleus of operative fact does not exist.” Id. Where the federal law claims that

provide the Court with original jurisdiction over the action have been dismissed, the Court “may

decline to exercise supplemental jurisdiction” over the remaining state law claims. 28 U.S.C. §

1367(c)(3).

        Here, the only remaining federal claims are those against the federal defendants in

Counts II, III, IV, and VIII. See Ning Ye, 2009 WL 2475169, at *8. These counts allege

discrimination on the basis of race or national origin, false arrest and false imprisonment,


        1
          Notably, plaintiff does not oppose defendant’s jurisdictional argument. Instead, he only
requests discovery pursuant to Federal Rule of Civil Procedure 56(f). Because the Court is
granting the motion on jurisdictional grounds as a matter of law in light of the facts asserted in
plaintiff’s complaint and accompanying exhibits, the Court denies plaintiff’s request “because
the discovery sought is not relevant to the Court’s analysis of the issues presented . . . .”
Mahoney v. District of Columbia, No. 09-CV-105, 2009 WL 3126620, at *10 n.7 (D.D.C. Sept.
30, 2009). And even if the discovery sought were arguably relevant, plaintiff offers only
“conclusory assertion[s] without any supporting facts” regarding his belief that further discovery
would create a triable issue. See Byrd v. E.P.A., 174 F.3d 239, 248 n.8 (D.C. Cir. 1999)
(affirming grant of summary judgment for defendant and finding no abuse of discretion in
denying Rule 56(f) request for discovery where plaintiff had “merely alleged that ‘there may
well be knowledge on the part of [the defendant’s] employees or undisclosed documents” that
would create fact issues).

                                                  2
malicious prosecution, and civil fraud, and they arise from plaintiff’s March 18, 2008 altercation

with U.S. Marshals following a hearing in this courthouse and his subsequent indictment on

October 23, 2008 for assaulting two Marshals. (See Compl. at 13-16, 18.) By contrast, the sole

remaining claim against Amato, for common law defamation, arises from two entirely separate

events: one incident at the D.C. Jail on February 23, 2008, and an October 3, 2008 email to

Zapp, who had written to Amato on plaintiff’s behalf. See Ning Ye, 2009 WL 2475169, at *5,

*8. “The events that trigger liability for [Amato] and for the [federal defendants] are completely

separate . . . .” Taylor, 626 F. Supp. 2d at 29 (dismissing common law tort claims against one

defendant for lack of jurisdiction where remaining federal claims only alleged constitutional

violations by other defendants); cf. Singh v. George Washington Univ., 368 F. Supp. 2d 58, 72

(D.D.C. 2005) (finding no supplemental jurisdiction over state law defamation claim because

facts needed to prove defamation claim “would offer no insight” into facts needed to prove

federal discrimination claim), vac’d on other grounds, 508 F.3d 1097 (D.C. Cir. 2007).

“Accordingly, the state and federal claims here do not derive from a common nucleus of

operative fact and the [C]ourt concludes that it should not exercise supplemental jurisdiction

over the state-law claims alleged against [Amato].” Taylor, 626 F. Supp. 2d at 29.2


       2
         In the alternative, defendant argues that her statement is not actionable as defamation
because plaintiff cannot establish it was published to a third party, see Jankovic v. Int’l Crisis
Group, 494 F.3d 1080, 1088 (D.C. Cir. 2007) (setting out third-party publication as defamation
element), since Zapp was acting as plaintiff’s agent and therefore did not constitute a “third
party.” (Mem. at 4.) The Court agrees that Zapp was acting as plaintiff’s agent when he wrote
to Amato; he stated twice he was acting “on behalf” of plaintiff when inquiring how plaintiff
could regain access to the D.C. Jail. (See Compl., Ex. 3.)
       There is also considerable persuasive authority for defendant’s contention that
“[p]ublication to an agent of the plaintiff who is acting at plaintiff’s behest and on his behalf is
tantamount to a publication to the plaintiff himself, and as such does not fulfill the publication
requirement.” Delval v. PPG Indus., Inc., 590 N.E.2d 1078, 1081 (Ind. App. 1992). See, e.g.,

                                                  3
        For the foregoing reasons, it is hereby ORDERED that defendant Amato’s motion is

GRANTED and the remaining claim under Count VII is DISMISSED for lack of subject matter

jurisdiction.

        SO ORDERED.

                                                                /s/
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

DATE:      November 4, 2009




Restatement 2d Torts § 577, cmt. (e) (“[I]f the [allegedly defamatory] communication is in
answer to a letter or a request from the other or his agent, the publication may not be actionable
in defamation.”); Eggleston v. Klemp, 295 F. App’x 233, 234 (9th Cir. 2008) (“Publications
made to agents of the complaining party will not support an action for defamation when the
complaining party or his agents induced the publication.”). However, because courts in this
jurisdiction do not appear to have yet decided this question of law, the Court declines to reach it
at this time. Cf. Nat’l Disabled Soldiers’ League v. Haan, 4 F.2d 436, 439, 441 (D.C. Cir. 1925)
(holding that where U.S. senator acted as agent of plaintiff organization by writing defendant to
inquire about defendant’s supposed mistreatment of organization’s member, and where
defendant responded to senator by disputing plaintiff’s characterization of events and citing
plaintiff’s “unsavory” reputation, defendant’s statement was protected by qualified privilege
because, inter alia, senator was acting on plaintiff’s behalf).

                                                 4
