UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

YUNG-KAI LU, 

 Plaintiff - Appellant, 

v. 

UNIVERSITY OF UTAH; ROBERT 

BALDWIN; MIGUEL CHUAQUI; 

MICHAEL G. GOODRICH; LORI 

McDONALD; CHARLES PIELE; DONN 

SCHAEFER; CHALIMAR L. SWAIN; 

CHARLES A. WIGHT, 

 Defendants - Appellees. 

No. 15-4179 

(D.C. No. 2:13-CV-00984-TC) 

(D. Utah) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit Judges. 

_________________________________ 

Plaintiff Yung-Kai Lu, a citizen of Taiwan, appeals from the district court’s 

dismissal of his lawsuit alleging tort and contract claims against the University of 

Utah and several of its officials claiming they wrongfully failed to renew his 

doctoral-studies scholarship after the expiration of its contractual term. Exercising 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 16, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

jurisdiction under 28 U.S.C. § 1291, we affirm the dismissal of Lu’s second amended 

complaint for substantially the reasons stated by the district court. 

I. BACKGROUND 

Because the district court dismissed Lu’s amended complaint under 

Fed. R. Civ. P. 12(b)(6), we must “accept as true all well-pleaded factual allegations 

and view these allegations in the light most favorable to [him].” Casanova v. 

Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (ellipsis and internal quotation marks 

omitted). The district court’s order thoroughly and accurately sets forth Lu’s 

allegations; thus, our summary is brief. 

The University entered into a written agreement with Lu in May 2010, 

agreeing to give him a scholarship in return for Lu’s agreement to be a teaching 

assistant (the contract). The contract specified that scholarships and teaching 

assistant appointments are limited to “one academic year at a time” and that Lu’s 

appointment was “a nine-month appointment beginning August 16, 2010, and ending 

May 15, 2011.” R. Vol. I, at 287. Despite this limitation, Lu alleges that University 

Assistant Music Director Donn Schaefer verbally promised him that as long as he 

maintained a 3.00 GPA, the assistantship and scholarship would be renewed for the 

full three years Lu studied for his doctorate. 

In April 2011, Schaefer told Lu the contract wouldn’t be renewed because the 

University lacked sufficient funding. But according to Lu, defendant Robert 

Baldwin, the Director of Orchestral Activities and of Graduate Studies, told Lu the 

contract wouldn’t be renewed because defendant Miguel Chuaqui, Interim Director of 
3 

the School of Music, reported that Lu had been rude. Lu complained to defendants 

Lori McDonald, Dean of Students, and Charles Wight, Former Dean of the Graduate 

School. Lu didn’t re-enroll for the next academic term and his failure to enroll was 

reported to immigration officials by McDonald and defendant Chalimar Swain, 

Director, International Center. As a result Lu’s visa wasn’t extended, resulting in his 

deportation to Taiwan. After his deportation, Lu filed an ethics complaint with the 

University’s Internal Audit Department. Defendants Charles Piele and Michael 

Goodrich, University Audit Managers, investigated the complaint. 

Lu’s complaint against the University and University officials in their official 

capacities (collectively, the defendants) alleged they breached the contract and verbal 

promises. Lu also alleged tort claims for slander and for dereliction of unspecified 

duties, claiming the defendants made false statements about his job performance, 

gave inaccurate information to immigration officials, and failed to timely or properly 

investigate his complaints. His complaint also mentioned the Taiwan Relations Act 

and the International Covenant on Economic, Social and Cultural Rights. The 

defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and (6), asserting that the 

court lacked jurisdiction over the claims and that Lu’s complaint failed to state any 

plausible claim as a matter of law. 
4 

In granting the defendants’ motion, the district court found Lu’s tort claims 

barred under both the Eleventh Amendment1

 and the Utah Governmental Immunity 

Act (UGIA).2

 Further, the court concluded Lu failed to allege any plausible breach 

of contract claims given the contract’s unambiguous language as to the term of the 

contract. Additionally, the court reasoned that Utah’s parol evidence rule and statute 

of frauds barred any verbal promise to extend Lu’s appointment for three years. 

Finally, the district court ruled that Lu lacked any plausible claim under the Alien 

Tort Claims Act (ATCA), Taiwan Relations Act, the International Covenant on 

Economic, Social and Cultural Rights or any other international treaty. 

II. DISCUSSION 

We review a Rule 12(b)(6) dismissal de novo. Casanova, 595 F.3d at 1124. 

To survive a motion to dismiss, a complaint must contain sufficient factual matter, 

accepted as true, “to state a claim to relief that is plausible on its face.” Id. (internal 

quotation marks omitted). Because Lu proceeds pro se, we construe his complaint 

liberally, but pro se parties are “not relieve[d] . . . of the burden of alleging sufficient 

facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 

1106, 1110 (10th Cir. 1991). 

 1

 In relevant part, the Eleventh Amendment to the U.S. Constitution bars 

actions by “Citizens or Subjects of any Foreign State” in federal court against states, 

state entities and state employees acting in their official capacities absent a waiver by 

the state or valid congressional override. U.S. Const. amend. XI; Kentucky v. 

Graham, 473 U.S. 159, 169 (1985). 

2

 The UGIA provides governmental entities and employees with immunity 

“from suit for any injury that results from the exercise of a governmental function.” 

Utah Code Ann. § 63G–7–201(1). 
5 

Lu raises numerous issues on appeal. First, he argues the district court erred in 

failing to evaluate his claims under the federal Administrative Procedure Act (APA). 

But we won’t consider this argument because Lu never raised an APA claim or issue 

before the district court. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 

(10th Cir. 2009) (“Absent extraordinary circumstances, we will not consider 

arguments raised for the first time on appeal.”). 

Next, Lu contends the UGIA is unconstitutional and doesn’t apply to claims 

alleging violations of the Utah Constitution. Within this claim of error, Lu argues the 

defendants’ actions violated the First, Fourth, Fifth and Fourteenth Amendments to 

the U.S. Constitution, as well as provisions of the Utah Constitution and state 

criminal code provisions. Again, we won’t consider these arguments as they aren’t 

based on any claim asserted in his complaint. Moreover, Lu cites no authority 

supporting his assertion that the UGIA is unconstitutional. 

Lu also challenges the district court’s interpretation of the Eleventh 

Amendment, arguing his suit against the defendants is not a suit against the State of 

Utah. As the district court explained, however, it is well-settled that the University 

of Utah is considered an “arm of the state” entitled to Eleventh Amendment 

immunity, Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 574–75 (10th Cir. 1996), 

as are its officials acting in their official capacity. Graham, 473 U.S. at 169. 

Alternatively, Lu contends the individual defendants are not entitled to 

immunity under the UGIA because their actions were not undertaken in the exercise 

of a governmental function. We disagree. Lu’s allegations relate to actions taken by 
6 

the individual defendants in the exercise of a governmental function. See Utah Code 

Ann. § 63G–7–102(4)(a)–(b) (broadly defining “[g]overnmental function” as “each 

activity, undertaking, or operation of a governmental entity” or of “a department, 

agency, employee, agent, or officer of a governmental entity”). Lu additionally 

argues the defendants aren’t entitled to UGIA immunity because they didn’t act in 

good faith. But the cases Lu relies upon are inapposite as they involve the doctrine 

of qualified immunity—not the UGIA immunity at issue here. 

Next, Lu challenges the dismissal of his breach of contract claims. He argues 

Utah’s parol evidence rule3

 doesn’t apply because the contract was an incomplete 

integrated contract. Contrary to Lu’s suggestion, the contract contained a complete, 

final expression as to the length of Lu’s scholarship and teaching assistant 

appointment. See Tangren Family Tr. v. Tangren, 182 P.3d 326, 330 (Utah 2008) 

(defining an integrated agreement as “a writing . . . constituting a final expression of 

one or more terms of an agreement” and holding that an agreement reduced to writing 

is “conclusively presumed” to contain “the whole of the agreement between the 

parties”). Thus, the district court correctly ruled Utah’s parol evidence rule would 

bar admission of any pre-contract verbal agreement to extend the appointment past 

May 15, 2011. 

 3

 Utah’s parol evidence rule precludes admission of a prior side agreement 

offered to contradict or vary the terms of an integrated, written agreement. Young 

Living Essential Oils, LC v. Marin, 266 P.3d 814, 818 (Utah 2011). 
7 

Citing language in the contract limiting doctoral students to three-year 

teaching assistant appointments, Lu argues the district court erred in applying the 

statute of frauds4

 to bar his breach of contract claim. But the language Lu relies on 

does not bind the parties to renewing the appointment for three years; instead, it 

simply states the outside limit on such reappointments. Thus, the district court 

correctly ruled that evidence of a verbal agreement to renew his appointment for two 

years after the May 2011 termination date would be barred by Utah’s statute of 

frauds. 

Further, because the contract unambiguously terminated the appointment on 

May 15, 2011, and made no representation or promise regarding renewal, we reject 

Lu’s arguments that he is entitled to relief under the principles of good faith and fair 

dealing or promissory estoppel. See Young Living, 266 P.3d at 817 (holding covenant 

of good faith and fair dealing can’t be invoked if it creates “obligations inconsistent 

with express contractual terms”) (internal quotation marks omitted); Youngblood v. 

Auto-Owners Ins. Co., 158 P.3d 1088, 1095 (Utah 2007) (“When a party knows or 

should have known reliance [on a statement] would be in error, the party cannot 

reasonably rely on the misrepresentation as a matter of law.”). 

Next, Lu challenges the defendants’ assertion that his claims are barred by his 

failure to file a notice of claim as required by the UGIA. The parties dispute whether 

 4

 Utah’s statute of frauds provides that “every agreement that by its terms is 

not to be performed within one year” is “void unless the agreement, or some note or 

memorandum of the agreement, is in writing, signed by the party to be charged with 

the agreement.” Utah Code Ann. § 25–5–4(1)(a). 
8 

Lu filed the claim notice, but the district court didn’t resolve the dispute and instead 

simply assumed for purposes of the motion to dismiss that Lu properly filed his claim 

notice. Because we agree with the district court that the defendants were entitled to 

UGIA immunity, we also decline to reach this issue. 

Lu additionally contends that the district court should have ruled that UGIA 

immunity is waived for 42 U.S.C. § 1983 claims. But as the district court correctly 

noted, Lu’s complaint doesn’t assert or plausibly allege a § 1983 claim. 

Lu also complains that the district court dismissed his complaint because it 

wasn’t well-written. However, the district court didn’t cite this as a reason for 

dismissing Lu’s complaint. Moreover, we are satisfied from our review of the record 

that the district court liberally construed his complaint. 

Lu next challenges the district court’s conclusion that he can’t proceed under 

the ACTA. But the district court correctly ruled that Lu’s slander and so-called 

“dereliction of duty” tort claims don’t qualify as torts committed in violation of 

international law or any treaty of the United States, including the Taiwan Relations 

Act, as required to invoke jurisdiction under the ACTA. See Sosa v. Alvarez–

Machain, 542 U.S. 692, 725 (2004). 

Finally, Lu asserts the district court should have considered whether the Utah 

State attorneys representing the defendants had an ethical conflict of interest. Lu 

presents no factual or legal basis for this argument, and we find it without merit. 

Having found no error in the district court’s dismissal of Lu’s complaint, we 

affirm the dismissal for substantially the reasons stated by the district court in its 
9 

order dated October 7, 2015. Lu’s motion for appointment of pro bono counsel is 

denied. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge