Song v. Chang

Filing 5

ORDER DISMISSING CASE. Signed by Judge Charles R. Breyer on 8/4/2005. (crblc1, COURT STAFF) (Filed on 8/4/2005) Additional attachment(s) added on 8/8/2005 (be, COURT STAFF).

Song v. Chang

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Case 3:05-cv-03041-CRB

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Filed 08/04/2005

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1 2 3 4 5 6 7 8 9 10 I N THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF CALIFORNIA

U n it e d United States District Court

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For the Northern District of California

L E S LI E BINSHYANG SONG, P l a i n ti f f , v. S H Y U E YIH CHANG, De fend ant. /

N o . C 05-03041 CRB O R D E R OF DISMISSAL

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N o w before the Court is plaintiff's application to proceed in forma pauperis ("IFP"). A court may authorize a plaintiff to prosecute an action in federal court without prepayment o f fees or security if the plaintiff submits an affidavit showing that he or she is unable to pay suc h fees or give security therefor. See 28 U.S.C. § 1915(a). Plaintiff has submitted the required documentation, and it is evident from his application that his assets and income are i n s u f f ic i e n t to enable plaintiff to prosecute the action. View ing plaintiff's application in isolation, it appears that he should be allowed to proc eed IFP. A court is under a continuing duty, however, to dismiss a case whenever it d e t e r m in e s that the action "(i) is frivolous or malicious; (ii) fails to state a claim on which r e l ie f may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-- (iii). P l a i n ti f f is a physician. He alleges that while he was working as an intern at Taipei V e t e r a n s General Hospital in Taiwan in the 1980's he was treated by defendant, a surgeon,

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Case 3:05-cv-03041-CRB

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f o r treatment of snoring. Plaintiff claims that defendant intentionally created a severe upper airw ay obstruction and that this intentional conduct caused plaintiff to become permanently d i s a b l e d . He appears to contend that defendant engaged in such "mayhem" because d e f e n d a n t was anti-American. P l a i n ti f f ' s complaint must be dismissed. First, he does not identify under what law or statute he makes his claims. Although his complaint sounds in medical malpractice, his c o m p l a i n t states that it is "an intentional anti-American terrorism mayhem case" instead of a med ical malpractice case. The Court is not aware of any federal statute that would permit p la in ti ff to sue a Taiwanese physician for such a claim. S e c o n d , the Court does not have venue of plaintiff's claims. As he does not identify a n y federal statute, the Court will treat the complaint as a diversity case, that is, a case betw een a citizen of California and a foreign citizen. Venue of such a case is proper in this C o u r t only if (1) the defendant resides in this district, (2) "a substantial part of the events or om issions giving rise to the claim occurred" in this district, or (3) the defendant is subject to p e rs o na l jurisdiction in this district or is otherwise found in this district. 28 U.S.C. § 1391(a), (b). The complaint makes it obvious that the first two conditions do not apply. T h e complaint also demonstrates that this Court does not have personal jurisdiction of d e f e n d a n t , a Taipei surgeon. Personal jurisdiction can be either "general" or "specific." Data Disc, Inc. v. Systems Technologies Associates, Inc., 557 F.2d 1280, 1287 (9th Cir. 1 9 7 7 ) . The basic rule is that the defendant must have certain minimal contacts with the f o r u m such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. See Data Disc, 557 F.2d at 1287 (citing International Shoe Co. v. W a s h i n g t o n, 326 U.S. at 316. In either case, plaintiff bears the burden of showing that per son al jurisdiction is proper. See Fields v. Sedgwick Assoc. Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986). If a defendant's activities in the forum (here, California) were "substantial," or " c o n t in u o u s and systematic," the Court may assert personal jurisdiction as to any cause of action filed against defendants, regardless of whether the cause of action is related to 2

United States District Court

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For the Northern District of California

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Case 3:05-cv-03041-CRB

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def end ants ' activities in the state. Data Disc, 557 F.2d at 1287. In the Ninth Circuit, "the l e v e l of contact with the forum . . . necessary to establish general jurisdiction is quite high." Shute v. Carnival Cruise Lines, 897 F.2d 377, 380 (9th Cir. 1990), rev'd on other grounds, 499 U.S. 585 (1991). The Ninth Circuit has noted that [t]he Supreme Court has upheld general jurisdiction only once. . . . Perkins v. B e n gu e t Consol. Mining Co., 342 U.S. 437, 72 (1952). We have stated that " t h e Perkins holding that the cause of action need not arise out of the d e f e n d a n t 's activities in the forum is limited to its unusual facts . . . , and regu larly have declined to find general jurisdiction even where the contacts w e r e quite extensive. A m o c o Egypt Oil Co. v. Leonis Nav. Co., Inc., 1 F.3d 848, 851 n.3 (9th Cir. 1993).

9 P l a i n ti f f alleges that defendant did some medical training in California in 1979 and 10 1 9 8 0 , and that prior to 1998, he would annually attend a medical conference in San 11 F r a n c i sc o . Such allegations, assuming they are true, are insufficient to establish general 12 j u r i s d i c ti o n of defendant. Plaintiff also seeks discovery of defendant's immigration records;
For the Northern District of California

United States District Court

13 presum ab ly he wants to verify when defendant has visited California. Again, defendant's v i s it s to California do not establish general jurisdiction over him in California. The Ninth Circuit employs a three-part test in determining whether there is specific j ur is d ic ti on : "(1) The nonresident defendant must do some act or consummate some t r a n sa c t io n with the forum or perform some act by which he purposefully avails himself of t h e privilege of conducting activities in the forum, thereby invoking the benefits and p r o t e c ti o n s of its laws;" (2) the claim must arise out of the defendant's forum-related 20 activ ities; and (3) the exercise of jurisdiction must be reasonable. Data Disc, 557 F.2d at 21 128 7. The test is not to be applied mechanically, but "instead must focus on the relationship 22 a m o n g the defendant, the forum, and the litigation within the particular factual context of 23 e a c h case." Core-Vent Corp. v. Novel Indus. AB, 11 F.3d 1482, 1487 (9th Cir. 1991)(citing 24 C a l d e r, 465 U.S. at 789). 25 Plaintiff's claims arise from conduct that occurred in Taipei. Plaintiff does not allege 26 t h a t defendant did any act in this forum that gives rise to his claims. According to the 27 c o m p l a i n t, plaintiff was treated by defendant because plaintiff was performing his medical 28 interns hip in Taipei. That defendant has presented posters of his research and work in 3 14 15 16 17 18 19

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C a l i f o rn i a does not confer specific jurisdiction of plaintiff's claims. Plaintiff's complaint also establishes that defendant cannot be currently "found" in this district. F i n a l ly , the Court notes that while plaintiff does not identify a specific statute or c o m m o n law pursuant to which he brings his claim, any claim is likely to be barred by the s t a tu t e of limitations. The conduct of which he complains appears to have occurred in the 1 9 8 0 ' s and he alleges that a newspaper published an article about defendant's "malicious c o n d u c t " in 1998. He also has attached numerous medical records to his complaint which do cu m en t the problems that plaintiff has had as a result of his surgery. F o r all these reasons, plaintiff's complaint­which he seeks to file without the payment o f costs­is DISMISSED without prejudice. I T IS SO ORDERED.

United States District Court

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For the Northern District of California

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D a t e d : August 4, 2005

CHARLES R. BREYER U N I TE D STATES DISTRICT JUDGE

G:\CRBALL\2005\3041\orderofdismissal.wpd

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