Phillips v. Henry Schein Inc.

Filing 15

Opinion and Order: Based on the foregoing, Plaintiff's Amended Complaint (#9) is dismissed without prejudice and with leave to refile and Amended Complaint within 30 days of this ruling. Plaintiff must cure the deficiencies identified above or his case will be dismissed. Plaintiff's Application for Leave to Proceed IFP # 2 is held in abeyance and will be considered when the amended complaint is filed. Motion to Change or Transfer Venue 14 is denied. (A copy of this Order mailed to Plaintiff). Signed on 6/15/2018 by Magistrate Judge Mark D. Clarke. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

Case No. 1: 18-cv-00340-CL

DAYID N. PHILLIPS,
Plaintiff,

OPINION AND ORDER

v.

HENRY SCHEIN Inc.,
Defendant.

CLARKE, Magistrate Judge.
Plaintiff David Phillips seeks to proceed in forma pauperis ("IFP") in this action. For the
reasons stated below, Plaintiffs Amended Complaint (#9) is dismissed without prejudice and
with leave to refile a First Amended Complaint within thirty days of this ruling. Plaintiffs IFP
application (#2) is held in abeyance and will be considered when the amended complaint is filed.
Plaintiffs motion to transfer venue (#14) is denied.

LEGAL STANDARD
Generally, all parties instituting any civil action in United States District Court must pay
a statutory filing fee.

28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C.

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~

1915( a)(l ), provides indigent litigants an opportunity for meaningful access to the federal courts
despite their inability to pay the costs and fees associated with that access.

To authorize a

litigant to proceed IFP, a court must make two determinations. First, a court must determine
whether the litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(l ).
Second, it must assess whether the action is frivolous, malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § I 915(e)(2)(B).
In regard to the second of these determinations, district courts have the power under 28
U.S.C. § 1915(e)(2)(B) to screen complaints even before the service of the complaint on the
defendants, and must dismiss a complaint if it fails to state a claim. Courts apply the same
standard under 28 U.S.C. § 1915(e)(2)(B) as when addressing a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To
survive a motion to dismiss under the federal pleading standards, the complaint must include a
short and plain statement of the claim and "contain sufficient factual matter, accepted as true, to
'state a claim for relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibilit)
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged. The plausibility standard ... asks for
more than a sheer possibility that a defendant has acted unlawfully." Id. The Court is not
required lo accept legal conclusions, unsupported by alleged facts, as true. Id.
Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines
v. Kerner, 404 U.S. 519, 520-521 (1972). That is, the court should construe pleadings by prose

plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los

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Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a prose
litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend.
unless the complaint's deficiencies cannot be cured by amendment. Id.
DISCUSSION

1. Plaintifrs Amended Complaint is dismissed for lack of personal jurisdiction.
This court previously dismissed Plaintiffs Complaint (#1) with leave to amend. In that
Opinion and Order (#6), the court informed Plaintiff of the deficiencies in his complaint. The
court identified one deficiency in that he failed to allege that he had received a Right To Sue
letter from the Equal Employment Opportunity Commission (EEOC) before filing this action
alleging violations of the Americans with Disabilities Act (ADA) against his former employer. In
his Amended Complaint, Plaintiff has cured that particular deficiency. See Am. Comp!. The
court also previously informed Plaintiff that he had failed adequately state the basis for this court
to exercise personal jurisdiction over Defendant, Henry Schein, Inc. Plaintiff has failed to cure
that deficiency.
Where, as here, there is no federal statute governing personal jurisdiction, the law of the
state in which the Court sits applies. CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1073 (9th Cir.2011); Panavisio11 Int'/, LP. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998).
Oregon's long arm statute, Oregon Rule of Civil Procedure ("ORCP") 4, extends personal
jurisdiction to the extent permitted by federal due process. Gray & Co. v. Firstenberg Mach
Co., 913 F.2d 758, 760 (9th Cir.1990); Tech Heads, Inc. v. Desktop Serv. Ctr., Inc., 105 F. Supp.
2d 1142, 1144 (D. Or. 2000).
Federal due process requires that a nonresident defendant have "certain mm1mum
contacts" with the forum state of such a nature that the exercise of personal jurisdiction "does not

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offend 'traditional notions of fair play and substantial justice."' International Shoe Co. v. State of
Washington, O.ffice of Unemployment Compensation and Placement, 326 U.S. 310, 316 (1945)

(quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). This constitutional test may be satisfied
by showing that (1) the defendant has "substantial" or "continuous and systematic" contacts with
the forum state-i.e. "general jurisdiction," or (2) there is a strong relationship between the
defendant's forum contacts and the cause of action-i.e. "specific jurisdiction." Decker Coal Co.

v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir.1986). See also Ziegler v. Indian River
County, 64 F.3d 470, 473 (9th Cir.1995).

In this case, Plaintiff identifies the defendant as a corporation incorporated under the laws
of the State of New York, with a principal place of business in the State of California. Thus, the
defendant is a "non-resident" of Oregon, and the Plaintiff must demonstrate that the Court has
specific personal jurisdiction.
In order for the court to exercise specific jurisdiction, the lawsuit "must arise out of or
relate to the defendant's contacts with the forum." Bristol-Myers Squibb Co. v. Superior Court o(
Cul(fornia, San Francisco Cty., 13 7 S. Ct. 1773, 1780, 198 L. Ed. 2d 395 (2017) (citing Burger
King C01p. v. Rudzewicz, 471 U.S. 462, 472-473 (1985); Helicopteros Nacionales de Colombiu.
SA. v. Hall, 466 U.S. 408, 414 (1984). In other words, there must be "an affiliation between the

forum and the underlying controversy, principally, [an] activity or an occurrence that takes place
in the forum State and is therefore subject to the State's regulation." Goodyear, 564 U.S., at 919.
131 S.Ct. 2846 (internal quotation marks and brackets omitted).

For this reason, "specific

jurisdiction is confined to adjudication of issues deriving from, or connected with, the very
controversy that establishes jurisdiction." Id. (internal quotation marks omitted).

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Plaintiff has failed once again to show that there is a strong relationship between his
claims. and the defendant's contacts with the State of Oregon. He does not allege that he was
employed by the defendant in Oregon, nor does he state whether any of the facts alleged in the
Complaint took place in Oregon. In fact, it appears that Plaintiff alleges he was employed by the
defendant in California. See Am. Comp!. Therefore, he has failed to allege sufficient facts for
the Court to exercise personal jurisdiction over the defendant. If he is unable to allege such facts
in an amended complaint - as it seems likely he cannot - Plaintiff must bring his claims in a
court that does have personal jurisdiction - i.e., a court in the State of California or the State of
Nev• York.

2. Plaintiff's motion for transfer of venue is denied.
Plaintiff filed a change of address (#13) indicating he now resides in Spokane.
Washington. Plaintiff then filed a motion for change of venue (#14) requesting a transfer of
venue to "Spokane Washington Court," presumably intending to request transfer of this action to
the U.S. District Court for the Eastern District of Washington, which is located in Spokane.
Plaintiff did not provide any support for why the Eastern District of Washington would be a
proper venue for this action. Reviewing Plaintiffs Amended Complaint, it is almost certain that
his complaint would suffer the same issues regarding personal jurisdiction over defendant in
Washington as it does in Oregon. If Plaintiff wishes to transfer venue, he should be mindful that
it is likely that only courts in the State of California or the State of New York will be able to
exercise personal jurisdiction over defendant, and therefore have the ability to hear his claims.
II I
II I

II I

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ORDER
Based on the foregoing, Plaintiffs Amended Complaint (#9) is dismissed without
prejudice and with leave to refile an Amended Complaint within thirty days of this ruling.
Plaintiff must cure the deficiencies identified above or his case will be dismissed. Plaintiffs IFP
application (#2) is held in abeyance and will be considered when the amended complaint is filed.
Plaintiffs Motion for Transfer of Venue (#15) is denied.

ORDERED and DATED this

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United States Magistrate Judge

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