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SOONG v. CHANG

United States District Court, Northern District of California


March 31, 2003

BINSHYANG SOONG, PLAINTIFF,
v.
SHYUE YIH CHANG AND JOHN AND JANE DOES 1-5, DEFENDANTS.

The opinion of the court was delivered by: Susan Illston, United States District Judge.

JUDGMENT

Plaintiff's complaint has been dismissed, without prejudice to filing a paid complaint and his application to proceed in forma pauperis has been denied as moot. Accordingly, judgment is entered against plaintiff.

IT IS SO ORDERED AND ADJUDGED.

ORDER PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND; DISMISSING ACTION; AND DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AS MOOT
Plaintiff Binshyang Soong filed a petition to proceed in forma pauperis in his intentional assault and battery action filed pro se with this court on July 26, 2002. In ruling on plaintiff's application, this Court must review plaintiff's complaint pursuant to 28 U.S.C. § 1915(e)(2)*fn1 to ensure that cognizable claims are stated against each defendant. If the Court determines that the plaintiff has failed to state a claim, it must dismiss the action. Id. After reviewing the plaintiff's complaint, this Court finds that plaintiff has failed to state a claim upon which relief can be granted.

This is the second case plaintiff has filed in this court, alleging the same claims against the same defendant. In Soong v. Chang, No. C-98-0846 SI, the same claims were brought, and the action was dismissed without prejudice for lack of personal jurisdiction. See Order Denying Pl.'s 2nd Motion for Leave to Amend November 15, 2000 at 1.

Once again, plaintiff has filed the same claims against the same defendant, and it still appears that plaintiff's complaint does not establish personal jurisdiction over the defendant. The defendant is a doctor at the Taipei Veterans General Hospital in Taiwan, and the acts that form the basis of plaintiff's complaint took place in Taiwan sometime in the late 1980's.

In order for a court to exercise judicial authority over a defendant, the plaintiff must demonstrate that the Court has either general or specific jurisdiction over the defendant. As plaintiff's operation occurred in Taiwan and defendant is a doctor at the Taipei Veterans General Hospital, on the current facts known to the Court, plaintiff is not able to establish specific jurisdiction. See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995) (specific jurisdiction requires that: (1) defendant purposefully availed himself of privilege of conducting activities in forum; (2) plaintiff's claim arises out of defendant's forum-related activities; and (3) the exercise of jurisdiction would be reasonable).

Additionally, for claims involving intentional torts, specific jurisdiction can only be established where the "intentional action was expressly aimed at the forum state causing harm, the brunt of which is suffered, and which defendant knows is likely to be suffered in the forum state." Core-Vent Corp. v. Nobel Industries AB, 11 F.3d 1482, 1486. It is clear that the single operation, which forms the basis of the alleged intentional assault and battery, performed in Taiwan by defendant upon plaintiff could not constitute an intentional action by defendant expressly aimed at the forum state. Furthermore, it is highly unlikely that the defendant would know that the plaintiff would suffer the harm in California since at the time of the operation the plaintiff was an intern physician at the Taipei Veterans Hospital in Taiwan. Therefore, the plaintiff has failed to demonstrate that the Court has specific jurisdiction over the defendant.

General jurisdiction exists if the nonresident's contacts with the forum are "continuous, systematic, and the exercise of jurisdiction satisfies `traditional notions of fair play and substantial justice.'" Ziegler, 64 F.3d at 473 (quoting Reebok Int'l Ltd. v. McLaughlin, 49 F.3d 1387, 1391 (9th Cir. 1995)). Defendant's "contacts" with the forum consist, according to plaintiff, of visits to San Francisco to participate in the American Academy of Otolaryngology Conference and Annual Pacific Voice Conference, demonstrating and discussing his posters of clinical experiments, and attending the University of California San Francisco for his fellowship. Defendant's limited contacts with California, as alleged by plaintiff, will not suffice to sustain general jurisdiction over defendant. See Amoco Egypt Oil Co. v. Leonis Navigation Co., Inc., 1 F.3d 848, 851 n. 3 (9th Cir. 1993) (noting that general jurisdiction is usually limited to large companies conducting a large amount of business locally).

The Court also notes that in California the statute of limitations for intentional assault and battery actions was, at the time this action was filed, one year. See Cal. Code Civ. Proc. § 340(3). Here it appears that the defendant performed the surgery at issue in the late 1980's. Therefore, plaintiff's cause of action is barred by the applicable statute of limitations.

"A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (emphasis added). Having carefully reviewed plaintiff's documents, the Court finds that allowance for amendment would be futile. The action is DISMISSED, without prejudice to filing a paid complaint. Plaintiff's application to proceed in forma pauperis is DENIED as moot.

IT IS SO ORDERED.


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