Drake v. Mercedes Benz USA et al

Filing 9

ORDER DISMISSING "PLAINTIFFS ORIGINAL COMPLAINT" WITHOUT PREJUDICE AND RESERVING RULING ON PLAINTIFFS MOTION TO PROCEED IN FORMA PAUPERIS. Signed by JUDGE LESLIE E. KOBAYASHI on 09/30/2016. - - Plaintiff& #039;s Original Complaint, filed August 29, 2016, is HEREBY DISMISSED WITHOUT PREJUDICE. This Court GRANTS Plaintiff leave to file an amended complaint by November 29, 2016. The amended complaint must comply with the terms of this Order.In light of the dismissal of the Complaint without prejudice, this Court RESERVES RULING on the Motion to Proceed in Forma Pauperis, also filed August 29, 2016, pending Plaintiff's filing of an amended complaint and this Court's screening of the ame nded complaint. (eps, )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). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
E. DRAKE,

)
)
Plaintiff,
)
)
vs.
)
)
MERCEDES BENZ USA, AND
)
AUTOHAUS LLC,
)
)
Defendants.
)
_____________________________ )

CIVIL 16-00478 LEK-RLP

ORDER DISMISSING “PLAINTIFF’S ORIGINAL COMPLAINT”
WITHOUT PREJUDICE AND RESERVING RULING ON
PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS
On August 29, 2016, pro se Plaintiff Eric Drake
(“Plaintiff”) filed “Plaintiff’s Original Complaint”
(“Complaint”) and a Motion to Proceed in Forma Pauperis
(“Application”).

[Dkt. nos. 1, 2.]

The Court has considered

these matters without a hearing pursuant to Rule LR7.2(e) of the
Local Rules of Practice of the United States District Court for
the District of Hawai`i (“Local Rules”).

After careful

consideration of the Complaint and the relevant legal authority,
this Court HEREBY DISMISSES the Complaint WITHOUT PREJUDICE – in
other words, Plaintiff has LEAVE TO FILE an amended complaint.
This Court will reserve ruling on the Motion until Plaintiff
files his amended complaint.
BACKGROUND
The Defendants in this action are Mercedes Benz USA

(“MBUSA”) and Autohaus LLC (“AH,” collectively “Defendants”).
Plaintiff alleges that jurisdiction and venue are proper in this
district court because “AH sells automobiles in Hawaii” and
“MBUSA sells automobile parts in Hawaii County, Hawaii and
worldwide.”1

[Complaint at pg. 1.]

However, the events that

form the basis of Plaintiff’s claims occurred in Lafayette
Parish, Louisiana.

[Id. at ¶ 6.]

Although Plaintiff alleges

that Defendants each “expected or should have expected that its
acts would have consequences within the United States,” [id. at
¶ 9,] he does not allege that Defendants’ actions had any
consequences in Hawai`i.

Plaintiff states he is “a citizen of

the United States,” [id. at ¶ 6,] and his address of record is a
Texas address [id. at pg. 26].

Based on the allegations in the

Complaint, Plaintiff has no apparent ties to Hawai`i.
Plaintiff alleges that: he purchased a Mercedes Benz
spoiler from AH on May 27, 2014; and MBUSA sold the spoiler to
him through AH.

[Id. at ¶ 12.]

According to Plaintiff, “the

spoiler was defective because the product label had a pass [sic]
due expiration date” and, because of the age of the tape, it
would not “properly adhere to the deck-lid (or trunk) of the car
without its failing.”

[Id.]

Plaintiff alleges that Defendants’

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Plaintiff alleges that this Court has jurisdiction over
this case based on, inter alia: 28 U.S.C. § 1343(a)(1) and (3)
(civil rights claims); 28 U.S.C. § 1331 (federal question); and
28 U.S.C. § 1367 (supplemental jurisdiction). [Id. at pgs. 1-2.]
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conduct in selling the defective spoiler constituted deceptive
trade practices, in violation of the Texas Deceptive Trade
Practice statute and federal antitrust laws.

[Id. at ¶¶ 12-14.]

In addition, Plaintiff alleges that AH discriminated against him
because of his race when he attempted to return the spoiler, and
also discriminated against him on a prior occasion when he
attempted to purchase a vehicle from AH.

He further alleges that

AH’s counsel committed ethical violations when Plaintiff retained
an attorney to try to negotiate with AH’s counsel to settle
Plaintiff’s disputes with AH.

[Id. at ¶¶ 15-20.]

Plaintiff alleges the following claims: race
discrimination, in violation of 42 U.S.C. §§ 1981 and 1983;
deprivation of his rights under 42 U.S.C. § 2000a; gross
negligence; fraud; breach of contract; antitrust
violations/deceptive and unfair trade practices; a claim for
specific performance; a claim seeking exemplary damages and the
imposition of vicarious liability based on conspiracy, actual
authority agency liability, and respondeat superior; negligence
and negligent misrepresentation; a claim for declaratory relief;
intentional infliction of emotional distress; and a claim seeking
attorney’s fees, costs, and interest.

[Id. at pgs. 7-24.]

STANDARD
“Federal courts can authorize the commencement of any
suit without prepayment of fees or security by a person who

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submits an affidavit that demonstrates he is unable to pay.”
Smallwood v. Fed. Bureau of Investigation, CV. NO. 16-00505 DKWKJM, 2016 WL 4974948, at *1 (D. Hawai`i Sept. 16, 2016) (citing
28 U.S.C. § 1915(a)(1)).
The Court subjects each civil action
commenced pursuant to Section 1915(a) to mandatory
screening and can order the dismissal of any
claims it finds “frivolous, malicious, failing to
state a claim upon which relief may be granted, or
seeking monetary relief from a defendant immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B);
Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
2000) (en banc) (stating that 28 U.S.C. § 1915(e)
“not only permits but requires” the court to sua
sponte dismiss an in forma pauperis complaint that
fails to state a claim); Calhoun v. Stahl, 254
F.3d 845, 845 (9th Cir. 2001) (per curiam)
(holding that “the provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners”).
Id. at *3.
In addition, this Court has recognized that the
following standards apply in the screening analysis:
Plaintiff is appearing pro se; consequently,
the court liberally construes her pleadings.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987) (“The Supreme Court has instructed the
federal courts to liberally construe the ‘inartful
pleading’ of pro se litigants.” (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per
curiam))). The court also recognizes that
“[u]nless it is absolutely clear that no amendment
can cure the defect . . . a pro se litigant is
entitled to notice of the complaint’s deficiencies
and an opportunity to amend prior to dismissal of
the action.” Lucas v. Dep’t of Corr., 66 F.3d
245, 248 (9th Cir. 1995); see also Lopez v. Smith,
203 F.3d 1122, 1126 (9th. [sic] Cir. 2000).
Despite the liberal pro se pleading standard,
the court may dismiss a complaint pursuant to
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Federal Rule of Civil Procedure 12(b)(6) on its
own motion. See Omar v. Sea–Land Serv., Inc., 813
F.2d 986, 991 (9th Cir. 1987) (“A trial court may
dismiss a claim sua sponte under [Rule] 12(b)(6).
Such a dismissal may be made without notice where
the claimant cannot possibly win relief.”);
Ricotta v. California, 4 F. Supp. 2d 961, 968 n.7
(S.D. Cal. 1998) (“The Court can dismiss a claim
sua sponte for a Defendant who has not filed a
motion to dismiss under Fed. R. Civ. P.
12(b)(6).”); see also Baker v. Dir., U.S. Parole
Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990)
(holding that district court may dismiss cases sua
sponte pursuant to Rule 12(b)(6) without notice
where plaintiff could not prevail on complaint as
alleged). Additionally, a paid complaint that is
“obviously frivolous” does not confer federal
subject matter jurisdiction and may be dismissed
sua sponte before service of process. Franklin v.
Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984);
see also Fed. R. Civ. P. 12(h)(3); Grupo Dataflux
v. Atlas Global Group, L.P., 541 U.S. 567, 593
(2004) (“[I]t is the obligation of both district
court and counsel to be alert to jurisdictional
requirements.”). “Federal courts are courts of
limited jurisdiction,” possessing “only that power
authorized by Constitution and statute.” United
States v. Marks, 530 F.3d 799, 810 (9th Cir. 2008)
(quoting Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994)). The assumption is that the
district court lacks jurisdiction. See Kokkonen,
511 U.S. at 377. Accordingly, a “party invoking
the federal court’s jurisdiction has the burden of
proving the actual existence of subject matter
jurisdiction.” Thompson v. McCombe, 99 F.3d 352,
353 (9th Cir. 1996).
Mather v. Nakasone, Civil No. 13–00436 LEK–KSC, 2013 WL 4788930,
at *1-2 (D. Hawai`i Sept. 5, 2013) (alterations in Mather)
(citation omitted).
DISCUSSION
I.

Improper Venue
None of the events at issue in this case occurred in
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Hawai`i.

Nor does the Complaint even allege that Plaintiff

suffered any damages in Hawai`i as a result of Defendants’
actions and omissions.

The only allegation about Hawai`i is that

Defendants each make sales in Hawai`i.

Thus, it appears that

this district court may not be the proper venue for Plaintiff’s
claims.
“Venue in federal courts is governed by statute.”
Spagnolo v. Clark Cty., CIVIL NO. 15-00093 DKW-BMK, 2015 WL
7566672, at *2 (D. Hawai`i Nov. 24, 2015) (citing Leroy v. Great
Western United Corp., 443 U.S. 173, 181 (1979)).

“The plaintiff

has the burden of showing that venue is proper in this district.”
Id. (citing Piedmont Label Co. v. Sun Garden Packing Co., 598
F.2d 491, 496 (9th Cir. 1979)).

28 U.S.C. § 1391(b) states:

Venue in general. – A civil action may be brought
in –
(1) a judicial district in which any defendant
resides, if all defendants are residents of the
State in which the district is located;
(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) if there is no district in which an action
may otherwise be brought as provided in this
section, any judicial district in which any
defendant is subject to the court’s personal
jurisdiction with respect to such action.
For venue purposes, MBUSA and AH are each “deemed to reside . . .
in any judicial district in which such defendant is subject to

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the court’s personal jurisdiction with respect to” Plaintiff’s
case.

See § 1391(c)(2).
The following analysis applies to the determination of

whether Defendants are subject to this Court’s personal
jurisdiction with respect to Plaintiff’s claims:
The district court considers two factors
before exercising personal jurisdiction over a
nonresident defendant . . . : “(1) whether an
applicable state rule or statute potentially
confers jurisdiction over the defendant; and
(2) whether assertion of such jurisdiction accords
with constitutional principles of due process.”
Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1392
(9th Cir. 1984). “The jurisdictional inquiries
under state law and federal due process merge into
one analysis” when, as here, the state’s long-arm
statute is “co-extensive with federal due process
requirements.” Roth v. Garcia Marquez, 942 F.2d
617, 620 (9th Cir. 1991). See Cowan v. First Ins.
Co. of Hawaii, 61 Haw. 644, 649, 608 P.2d 394, 399
(1980) (Hawaii’s long-arm statute, Haw. Rev. Stat.
§ 634–35, was adopted to expand the jurisdiction
of Hawaii’s courts to the extent permitted by the
due process clause of the Fourteenth Amendment).
Accordingly, personal jurisdiction over [the
defendant] depends on federal due process
requirements.
The Due Process Clause protects a person’s
“liberty interest in not being subject to the
binding judgments of a forum with which he has
established no meaningful ‘contacts, ties, or
relations.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 471–72, 105 S. Ct. 2174, 85 L. Ed. 2d
528 (1985) (quoting Int’l Shoe Co. v. Washington,
326 U.S. 310, 319, 66 S. Ct. 154, 90 L. Ed. 95
(1945)). The Due Process Clause requires that
defendants have “certain minimum contacts with
[Hawaii] such that the maintenance of the suit
does not offend traditional notions of fair play
and substantial justice.” Int’l Shoe, 326 U.S. at
316, 66 S. Ct. 154; Data Disc, Inc. v. Systems
Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir.
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1977). The minimum contacts required mean that
the defendant must have purposefully availed
itself of the privilege of conducting activities
within the foreign jurisdiction, thereby invoking
the benefits and protections of the foreign
jurisdiction’s laws. See Asahi Metal Indus. Co.
v. Sup. Court of Cal., Solano County, 480 U.S.
102, 109, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987).
In applying Due Process Clause requirements,
courts have created two jurisdictional concepts —
general and specific jurisdiction.
A court may exercise general jurisdiction
over the defendant when the defendant is a
resident or domiciliary of the forum state, or the
defendant’s contacts with the forum state are
continuous, systematic, and substantial.
Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 414–16, 104 S. Ct. 1868, 80 L. Ed.
2d 404 (1984); Data Disc, 557 F.2d at 1287 (“If
the nonresident defendant’s activities within a
state are ‘substantial’ or ‘continuous and
systematic,’ there is a sufficient relationship
between the defendant and the state to support
jurisdiction even if the cause of action is
unrelated to the defendant’s forum
activities.”). . . .
Specific jurisdiction, on the other hand, may
be found when the cause of action arises out of
the defendant’s contact or activities in the forum
state. See Roth v. Garcia Marquez, 942 F.2d 617,
620 (9th Cir. 1991); Data Disc, 557 F.2d at 1287.
To ensure that the exercise of specific
jurisdiction is consistent with due process in
this particular case, this court must be satisfied
that the following have been shown:
1) the nonresident defendant must have
purposefully availed himself of the privilege
of conducting activities in the forum by some
affirmative act or conduct; 2) plaintiff’s
claim must arise out of or result from the
defendant’s forum-related activities; and
3) exercise of jurisdiction must be
reasonable.
Roth, 942 F.2d at 620–21.
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Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, 942 F. Supp. 2d
1035, 1041-42 (D. Hawai`i 2013) (some alterations in Maui Elec.)
(footnote omitted).
This Court concludes that it could not exercise
specific jurisdiction over Defendants because Plaintiff’s claims
in this case do not arise out of Defendants’ contacts with, or
activities in, Hawai`i.

Further, based on the allegations in the

Complaint, this Court cannot conclude that either Defendant is a
Hawai`i resident or domiciliary for jurisdictional purposes or
that either has “continuous, systematic, and substantial”
contacts with Hawai`i.

See id. at 1041.

Thus, this Court

concludes that it could not exercise general jurisdiction over
Defendants.

Because it could not exercise either general or

specific jurisdiction over Defendants, this Court concludes that
Defendants are not Hawai`i residents for purposes of the venue
analysis.

See § 1391(b)(1).
Further, based upon the allegations in the Complaint,

this Court cannot find that “a substantial part of the events or
omissions giving rise to” Plaintiff’s claims occurred in Hawai`i,
nor can it find that “a substantial part of property that is the
subject of” Plaintiff’s claims is located in Hawai`i.
§ 1391(b)(2).

See

Finally, § 1392(b)(3) does not apply because

Plaintiff arguably could have brought this action in the United

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States District Court for the district in Louisiana where most of
the events at issue in this case occurred.

This Court therefore

CONCLUDES that venue in the District of Hawai`i is improper in
this case.
This district court has stated:
Under 28 U.S.C. § 1406, if the court finds that
the case has been filed “in the wrong division or
district,” it must “dismiss, or if it be in the
interest of justice, transfer the case to any
district or division in which it could have been
brought.” 28 U.S.C. § 1406(a). . . .
Spagnolo, 2015 WL 7566672, at *2.

“A court should examine a

plaintiff’s claim to determine whether the interests of justice
require transfer instead of dismissal.”

Rosiere v. United

States, CIVIL NO. 16-00260 HG-RLP, 2016 WL 3408848, at *2 (D.
Hawai`i June 1, 2016) (citing King v. Russell, 963 F.2d 1301,
1305 (9th Cir. 1992)), report and recommendation adopted as
modified, 2016 WL 3440566 (D. Hawai`i June 20, 2016).
This Court has examined Plaintiff’s claims, and notes
that the Complaint in the instant case is virtually identical to
“Plaintiff’s Original Complaint,” which Eric Drake filed on
August 29, 2016 in the United States District Court for the
Western District of Louisiana, Lafayette Division.

See Drake v.

Mercedes Benz USA, et al., 6:16-cv-01228-RFD-CBW (“Louisiana
Action”).

The Louisiana Action is still pending, and the

magistrate judge granted the plaintiff leave to proceed in forma
pauperis.

See id., dkt. no. 3.

Eric Drake also apparently
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attempted to file a similar – if not identical – complaint in the
United States District Court for the Eastern District of Texas,
Sherman Division, but he was not permitted to do so because of a
prior order prohibiting him from proceeding in forma pauperis in
future actions without leave of court.

See In re Eric Drake,

CIVIL ACTION No. 4:16-mc-37-RC, Order Denying Motion Requesting
Permission to File Suit, filed 5/8/16 (dkt. no. 2).

In light of

Plaintiff’s filings in other districts – particularly in the
Louisiana Action – this Court CONCLUDES that the interests of
justice do not require it to transfer the instant case instead of
dismissing it.

This Court therefore DISMISSES Plaintiff’s

Complaint based on improper venue.
II.

Leave to Amend
As previously noted, unless amendment is not possible,

a pro se plaintiff is entitled to notice of the defects in his
complaint and the opportunity to cure the defects by amendment.
See Lucas, 66 F.3d at 248.

This Court CONCLUDES that it is

arguably possible for Plaintiff to cure the defects identified in
this Order by amending the Complaint to: 1) allege facts that
would support a conclusion that venue is proper in this district
because this Court would be able to exercise general jurisdiction
over both Defendants for purposes of Plaintiff’s claims; and
2) establish that Plaintiff’s claims in the instant case are not
duplicative of the claims in the Louisiana Action.

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The dismissal

of Plaintiff’s Complaint must therefore be WITHOUT PREJUDICE.
This Court GRANTS Plaintiff leave to file an amended
complaint by November 29, 2016.

Plaintiff’s amended complaint

must include all of the claims that he wishes to allege, and all
of the allegations that his claims are based upon, even if he
previously presented them in the original Complaint.

He cannot

incorporate any part of his original Complaint into the amended
complaint by merely referring to the original Complaint.
This Court CAUTIONS Plaintiff that, if he fails to file
his amended complaint by November 29, 2016, or if the amended
complaint fails to cure the defects that this Court has
identified in this Order, this Court will dismiss his claims with
prejudice – in other words, without leave to amend.

Plaintiff

would then have no remaining claims in this district court, and
this Court would direct the Clerk’s Office to close the case.
This Court also emphasizes that it has only conducted a
preliminary screening of the Complaint, analyzing the issue of
venue.

This Order makings no finding or conclusions regarding

the merits of Plaintiff’s claims.

If Plaintiff files an amended

complaint, this Court will conduct further screening, including –
but not limited to – analyzing whether Plaintiff states claims
that satisfy the Rule 12(b)(6) standard.
III. Motion
Insofar as this Court has dismissed the Complaint with
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leave to amend, this Court finds that it is not appropriate for
it to rule on the Motion at this time.

This Court will therefore

RESERVE RULING on the Motion until Plaintiff files an amended
complaint.

If any portion of Plaintiff’s amended complaint

survives the screening process, this Court will then rule upon
the Motion and address whether Plaintiff is entitled to proceed
in forma pauperis.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Original
Complaint, filed August 29, 2016, is HEREBY DISMISSED WITHOUT
PREJUDICE.

This Court GRANTS Plaintiff leave to file an amended

complaint by November 29, 2016.

The amended complaint must

comply with the terms of this Order.
In light of the dismissal of the Complaint without
prejudice, this Court RESERVES RULING on the Motion to Proceed in
Forma Pauperis, also filed August 29, 2016, pending Plaintiff’s
filing of an amended complaint and this Court’s screening of the
amended complaint.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, September 30, 2016.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

E. DRAKE VS. MERCEDES BENZ USA, ET AL; CIVIL 16-00478 LEK-RLP;
ORDER DISMISSING “PLAINTIFF’S ORIGINAL COMPLAINT” WITHOUT
PREJUDICE AND RESERVING RULING ON PLAINTIFF’S MOTION TO PROCEED
IN FORMA PAUPERIS

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