Lauricella v. Cordis Corporation

Filing 27

ORDER by Judge Saundra Brown Armstrong GRANTING 25 Motion to Clarify IFP Status. The action is DISMISSED WITH LEAVE TO AMEND. Plaintiff shall file an Amended Complaint within (30) thirty-days from the date of this Order. (lrc, COURT STAFF) (Filed on 9/30/2009) Modified on 10/1/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 JOSEPH LAURICELLA, 7 8

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

Case No: C 07-2016 SBA ORDER DISMISSING ACTION WITH LEAVE TO AMEND Docket 25

Plaintiff, vs.

9 CORDIS CORPORATION, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant.

Plaintiff is incarcerated at D.V.I. State Prison in Tracy, California. He filed the instant diversity jurisdiction action against Defendant Cordis Corporation (Cordis) in this Court. The Complaint alleges that Cordis, a Florida corporation, is liable for designing and/or manufacturing an allegedly defective medical device known as "Cypher." The Court previously granted Plaintiff's request to proceed in forma pauperis (IFP). However, Plaintiff has filed a motion for clarification of his IFP status to ensure his access to the law library. (Docket 25.) Under 28 U.S.C. § 1915(e)(2), federal courts are authorized to review claims filed IFP prior to service and to dismiss the case at any time if the court determines that: (1) the allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) the action fails to state a claim; or (4) the action seeks monetary relief from a defendant who is immune from such relief. A pleading filed by a pro se plaintiff must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When jurisdiction is founded solely on diversity, venue is proper in "(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial

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district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(a). Venue may be raised by the court sua sponte where the defendant has not yet filed a responsive pleading and the time for doing so has not run. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). Where a case is filed in the wrong venue, the district court has the discretion either to dismiss the case or transfer it to the proper federal court "in the interest of justice." See 28 U.S.C. § 1406(a). Here, Plaintiff alleges that venue is proper in this District because Defendant is subject to personal jurisdiction here. See Compl. ¶ 4. However, Plaintiff alleges no facts in support of that claim. To properly establish personal jurisdiction, Plaintiff must allege facts demonstrating the Defendant's connections with California in one of two ways. First, Plaintiff may allege facts demonstrating that Defendant's relationship with California is sufficiently significant to reasonably require that Defendant defend itself in this Court. Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Second, Plaintiff may allege facts demonstrating that Defendant "purposefully availed" itself of the privileges of conducting activities in California by showing that the Defendant engaged in conduct aimed at and having an effect in California. Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001). In other words, Plaintiff must allege facts showing that the Defendant's intentional actions had some effect in California so that the Defendant, a non-resident, is not required to defend itself in California in an action that had a minimal (or possibly no) effect in the state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985). As Plaintiff has not alleged sufficient facts demonstrating that this Court has personal jurisdiction over a non-resident defendant, Plaintiff cannot proceed with this action until such time as the Court is persuaded the Defendant is subject to personal jurisdiction in this state. See Sanders v. United States, 760 F.2d 869, 871 (8th Cir. 1985) (dismissing plaintiff's pro se claim under section 1915 for failing to allege facts that would support the exercise of personal jurisdiction over defendants). The Court also notes that venue based on 28 U.S.C. § 1391(a)(3), i.e., a forum where the defendant is subject to personal jurisdiction, is permissible only if there is no other forum in
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which the case may be brought. 28 U.S.C. § 1391(a)(3). As such, the Court must determine whether venue is proper under 28 U.S.C. § 1391(a)(1) or (2). Plaintiff alleges that Defendant resides in Florida, and thus, the case could be brought there. 28 U.S.C. § 1391(a)(1). However, there may be a forum other than Florida, including this District, where the case may be brought depending on where a "substantial part of the events or omissions giving rise to the claim occurred...." 28 U.S.C. § 1391(a)(2). However, Plaintiff has not alleged any facts regarding where such events transpired. Thus, before Plaintiff may rely on 28 U.S.C. § 1391(a)(3), he must allege facts concerning where a substantial part of the events forming the basis of his Complaint occurred in order for the Court to make an informed decision regarding whether venue properly lies in this District. Finally, Plaintiff seeks clarification of his IFP status so that he will be allowed access to the law library. The Court previously granted Plaintiff's request to proceed IFP. However, to the extent that "clarification" is necessary to ensure his access to the law library, such clarification is granted. Accordingly, IT IS HEREBY ORDERED THAT: 1. The instant action is DISMISSED WITH LEAVE TO AMEND in the manner

set forth above. Plaintiff shall file his amended complaint within 30 days of the date this order is filed. The failure to do so will result in the dismissal of the action with prejudice for failure to prosecute. 2. Plaintiff's motion to clarify his IFP status for the purpose of ensuring access to

the law library is GRANTED. 3. This order terminates Docket 25.

IT IS SO ORDERED. Dated: September 29, 2009 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOSEPH LAURICELLA, Plaintiff, v. CORDIS CORPORATION et al, Defendant. / Case Number: CV07-02016 SBA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 30, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Joseph Lauricella F-79306 D.V.I. State Prison P.O. Box 600 Tracy, CA 95378 Dated: September 30, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk