Fukuda v. Japan Ministry of Foreign Affairs et al

Filing 57

ORDER DENYING AS UNNECESSARY MOTION TO AMEND COMPLAINT; ORDER GRANTING DEFENDANT'S MOTION TO DISMISS re 40 , 44 - Signed by JUDGE SUSAN OKI MOLLWAY on 1/24/2017. "This court rules here that this entire action is dismi ssed. The Clerk of Court is directed to file the Amended Complaint and then to file this order, enter judgment in favor of the Ministry of Foreign Affairs of Japan, and close this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Mark Fukuda served by first class mail at the address of record on January 24, 2017.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARK FUKUDA,

)
)
Plaintiff,
)
)
vs.
)
)
MINISTRY OF FOREIGN AFFAIRS
)
OF JAPAN; JOHN DOES 1-10;
)
JANE DOES 1-10; DOE
)
PARTNERSHIPS 1-10; DOE
)
GOVERNMENT ENTITIES 1-10,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 15-00290 SOM/KJM
ORDER DENYING AS UNNECESSARY
MOTION TO AMEND COMPLAINT;
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

ORDER DENYING AS UNNECESSARY MOTION TO AMEND COMPLAINT;
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
I.

INTRODUCTION.
Plaintiff Mark Fukuda, proceeding pro se, is suing the

Ministry of Foreign Affairs of Japan, which he previously named
as the Japan Ministry of Foreign Affairs, claiming that it
stonewalled and refused to serve a complaint he had filed in a
State of Hawaii court.

The Hague Convention governed the service

of process, and Fukuda says he sought to comply with those
procedures.
The Ministry has moved to dismiss the claims.
No. 40.

See ECF

While the motion to dismiss was pending before this

court, Fukuda filed a Motion to Amend the Original Complaint, in
part to correct Defendant’s name.

See ECF No. 44.

The motion to amend was filed within 21 days after
service of the motion to dismiss under Rule 12(b) of the Federal

Rules of Civil Procedure, Fukuda thus had a right to amend his
Complaint without leave of court.
15(a)(1)(B).

See Fed. R. Civ. P.

Accordingly, the court orders that the Proposed

First Amended Complaint, ECF No. 44-2, be deemed the operative
complaint in this case.

The court directs the Clerk of Court to

file the Proposed First Amended Complaint as Fukuda’s Amended
Complaint.

Fukuda’s motion to amend is denied as unnecessary,

given his obtaining of the very action that motion sought.
The court treats the motion to dismiss as applying to
the Amended Complaint.

Any reference in the present order to the

Amended Complaint is a reference to the Proposed First Amended
Complaint, as if the Proposed First Amended Complaint has already
been filed as the Amended Complaint.
The Ministry seeks dismissal on the ground that, under
the Foreign Sovereign Immunities Act, this court lacks subject
matter jurisdiction with respect to this case, as well as
personal jurisdiction over Japan.

The court agrees that it lacks

subject matter jurisdiction and dismisses this action without a
hearing pursuant to Local Rule 7.2(d).
III.

STANDARD.
Under Rule 12(b)(1) of the Federal Rules of Civil

Procedure, a complaint may be dismissed for lack of subject
matter jurisdiction.

An attack on subject matter jurisdiction

“may be facial or factual.”

Safe Air for Everyone v. Meyer, 373

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F.3d 1035, 1039 (9th Cir. 2004).

A facial attack asserts that

“the allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction.”

Id.

A factual

attack, on the other hand, “disputes the truth of the allegations
that, by themselves, would otherwise invoke federal
jurisdiction.”

Id.

Before this court is a facial attack.

In deciding a Rule 12(b)(1) motion, a court must assume
the facts alleged in the complaint to be true and must construe
the allegations in the light most favorable to the nonmoving
party.

Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139

(9th Cir. 2003).

However, courts “do not accept legal

conclusions in the complaint as true, even if ‘cast in the form
of factual allegations.’”

Lacano Invs., LLC v. Balash, 765 F.3d

1068, 1071 (9th Cir. 2014) (quoting Doe v. Holy See, 557 F.3d
1066, 1073 (9th Cir. 2009).
II.

BACKGROUND.
Fukuda’s Amended Complaint alleges that the Ministry of

Foreign Affairs of Japan was responsible for serving Fukuda’s
state-court complaint.

See Amended Complaint ¶ 2, ECF No. 44-2,

PageID # 605.
The court takes judicial notice that the Ministry of
Foreign Affairs of Japan is part of the executive branch of the
Japanese Government and is responsible for Japan’s foreign
policy.

See http://www.studycountry.com/guide/JP-government.htm

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(last visited January 9, 2017); see also ECF No. 40-6, PageID
# 473.
According to Fukuda, the Ministry of Foreign Affairs of
Japan, which is located in Japan, “used excuse after excuse” to
delay and prevent service of Fukuda’s state-court complaint on
the state-court defendants who live in Japan.
44-2, PageID # 606.

Id. ¶ 6, ECF No.

Fukuda claims that the Ministry committed

fraud (Count I) and an unidentified “Tort” (Court II), was
negligent (Count III), and negligently inflicted emotional
distress (Count IV).
III.

ANALYSIS.
“The Foreign Sovereign Immunities Act [codified at 28

U.S.C. §§ 1602 to 1611] provides the exclusive source of subject
matter jurisdiction over suits involving foreign states and their
instrumentalities.”1

EIE Guam Corp. v. Long Term Credit Bank of

Japan, Ltd., 322 F.3d 635, 639 (9th Cir. 2003); Gates v. Victor
Fine Foods, 54 F.3d 1457, 1459 (9th Cir. 1995).

Foreign states

are normally immune from suit in federal and state courts in the
United States, subject to certain exceptions.

Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983).

In fact, under

the Foreign Sovereign Immunities Act, there is a presumption of

1

“[T]he existence of sovereign immunity [under the Foreign
Sovereign Immunities Act] deprives the court of both subject
matter and personal jurisdiction . . . .” Sec. Pac. Nat. Bank v.
Derderian, 872 F.2d 281, 284 (9th Cir. 1989); see Verlinden B.V.
v. Cent. Bank of Nigeria, 461 U.S. 480, 485 n.5 (1983).
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immunity.

Sec. Pac. Nat. Bank v. Derderian, 872 F.2d 281, 285

(9th Cir. 1989).

However, when one of the exceptions in the Act

applies, a foreign state is liable “in the same manner and to the
same extent as a private individual under like circumstances,”
but is not liable for punitive damages.

28 U.S.C. § 1606.

There is no dispute that the Ministry of Foreign
Affairs of Japan qualifies as a foreign state or an
instrumentality of a foreign state for purposes of the Foreign
Sovereign Immunities Act.

The Act defines a “foreign state” as

including “a political subdivision of a foreign state or an
agency or instrumentality of a foreign state.”
§ 1603(a).

28 U.S.C.

The Act defines an “agency or instrumentality of a

foreign state” as including
any entity--(1) which is a separate legal
person, corporate or otherwise, and (2) which
is an organ of a foreign state or political
subdivision thereof, or a majority of whose
shares or other ownership interest is owned
by a foreign state or political subdivision
thereof, and (3) which is neither a citizen
of a State of the United States as defined in
section 1332(c) and (e) of this title, nor
created under the laws of any third country.
28 U.S.C. § 1603(b).

Because the Ministry of Foreign Affairs of

Japan is a cabinet-level ministry in the executive branch of
Japan’s government responsible for foreign policy, the Act
governs whether this court has subject matter jurisdiction over
Fukuda’s claims.

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The Foreign Sovereign Immunities Act lists
circumstances under which foreign states are subject to this
court’s subject matter jurisdiction.

Fukuda points only to 28

U.S.C. § 1605(a)(5) as the source of jurisdiction.

That

provision confers subject matter jurisdiction in this court over
a foreign state with respect to an action for money damages “for
personal injury or death, or damage to or loss of property,
occurring in the United States and caused by the tortious act or
omission of that foreign state or of any official or employee of
that foreign state while acting within the scope of his office or
employment.”

28 U.S.C. § 1605(a)(5).

However, with respect to

those claims, the Foreign Sovereign Immunities Act excludes from
this court’s jurisdiction:
(A) any claim based upon the exercise or
performance or the failure to exercise or
perform a discretionary function regardless
of whether the discretion be abused, or
(B) any claim arising out of malicious
prosecution, abuse of process, libel,
slander, misrepresentation, deceit, or
interference with contract rights.
28 U.S.C. § 1605(a)(5).
For purposes of this order, this court need not
determine whether Fukuda has suffered “personal injury or death,
or damage to or loss of property,” as required by § 1605(a)(5).
Even assuming he has, the Ministry of Foreign Affairs of Japan
correctly argues that this court lacks subject matter

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jurisdiction because any injury Fukuda may have suffered resulted
from acts it allegedly committed in Japan.

The Ninth Circuit has

stated that § 1605(a)(5) “applies to non-commercial torts and
requires not only that personal injury or property damages occur
in the United States, but that the tortious act or omission occur
here.”

Derderian, 872 F.2d at 285 n.8.

This limitation is

consistent with Congress’ primary purpose in enacting
§ 1605(a)(5), which “was to eliminate a foreign state’s immunity
for traffic accidents and other torts committed in the United
States, for which liability is imposed under domestic tort law.”
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
439–40 (1989).

As the legislative history of § 1605(a)(5)

indicates, “the tortious act or omission must occur within the
jurisdiction of the United States, and must not come within one
of the exceptions enumerated in the second paragraph of the
subsection.”

H.R. Rep. 94-1487, 21 (1976).

In Olsen by Sheldon v. Gov't of Mexico, 729 F.2d 641,
646 (9th Cir. 1984), abbrogated on other grounds as stated in
Joseph v. Office of Consulate Gen. of Nigeria, 830 F.2d 1018,
1026 (9th Cir. 1987), the Ninth Circuit clarified that, so long
as “plaintiffs allege at least one entire tort occurring in the
United States, they may claim under section 1605(a)(5).”
Fukuda alleges no claim based on conduct occurring in
the United States.

While Fukuda appears to be contending with

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respect to each claim that he was injured in the United States,
his own allegations indicate that the allegedly wrongful conduct
by the Ministry occurred in Japan.

For each of the torts Fukuda

asserts, he claims damage in the United States based on the
Ministry’s alleged conduct in Japan.

Paragraph 2 of the Amended

Complaint, for example, alleges that the Ministry, which has an
address in Japan, was the designated authority for service of
Japanese citizens under The Hague Convention.

Paragraph 6 of the

Amended Complaint alleges that the Ministry used “excuse after
excuse” to delay and prevent the service of Fukuda’s state-court
complaint.

No act by the Ministry is alleged to have been

committed in the United States.
At most, the Ministry placed documents in the mail in
Japan that were sent to Hawaii.

See Complaint ¶¶ 5-9.

Receipt

of mail in Hawaii is insufficient to support a determination that
an entire tort occurred in Hawaii.

The Ministry’s alleged

excuses and delay occurred in Japan.
The Amended Complaint adds an allegation that the “tort
occurred in Hawaii at Plaintiff’s address when he opened the
mail.”

Amended Complaint ¶ 13,

ECF No. 44-2, PageID # 607.

For

purposes of this motion, the court need not accept that legal
conclusion as true.

See Lacano Invs., 765 F.3d at 1071.

But

even if the alleged damage occurred in Hawaii, Fukuda alleges no
facts indicating that the Ministry of Foreign Affairs acted

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outside the borders of Japan, let alone that any entire tort
occurred in Hawaii.

Accordingly, under controlling appellate

law, this court lacks jurisdiction over the Ministry under 28
U.S.C. § 1605(a)(5).
Because Fukuda does not show the applicability of any
other exception to the immunity recognized in the Foreign
Sovereign Immunities Act, this court grants the motion to dismiss
for lack of subject matter jurisdiction.

This ruling makes it

unnecessary for this court to address any other argument raised
in the motion to dismiss.
IV.

CONCLUSION.
This order disposes of two motions.

First, as noted

earlier in this order, Fukuda’s motion seeking leave to file the
Amended Complaint is denied as unnecessary.

This court accepts

the Amended Complaint, which Fukuda could have filed without
leave of court, as the operative pleading.

Second, treating the

Ministry of Foreign Affairs of Japan’s Motion to Dismiss as
directed to the Amended Complaint, this court grants that motion.
That is, lacking subject matter jurisdiction over the claims
asserted in Fukuda’s Amended Complaint against the Ministry of
Foreign Affairs of Japan, the court dismisses the Amended
Complaint.
Because Fukuda identifies no act by the Ministry of
Foreign Affairs of Japan that occurred in the United States, the

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court declines to grant Fukuda leave to file a Second Amended
Complaint, as any amendment would be futile.

This court makes no

ruling as to whether Fukuda may seek relief for the claims
asserted in the Amended Complaint in court in Japan.
This court rules here that this entire action is
dismissed.

The Clerk of Court is directed to file the Amended

Complaint and then to file this order, enter judgment in favor of
the Ministry of Foreign Affairs of Japan, and close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 24, 2017.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Fukuda v. Ministry of Foreign Affairs of Japan, Civ. No. 15-00290 SOM/KJM;
ORDER DENYING AS UNNECESSARY MOTION TO AMEND COMPLAINT; ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS

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