United States District Court, N.D. California
August 4, 2005.
LESLIE BINSHYANG SONG, Plaintiff,
SHYUE YIH CHANG, Defendant.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER OF DISMISSAL
Now before the Court is plaintiff's application to proceed in
forma pauperis ("IFP"). A court may authorize a plaintiff to
prosecute an action in federal court without prepayment of fees
or security if the plaintiff submits an affidavit showing that he
or she is unable to pay such fees or give security therefor.
See 28 U.S.C. § 1915(a). Plaintiff has submitted the required
documentation, and it is evident from his application that his
assets and income are insufficient to enable plaintiff to
prosecute the action.
Viewing plaintiff's application in isolation, it appears that
he should be allowed to proceed IFP. A court is under a
continuing duty, however, to dismiss a case whenever it
determines that the action "(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from such
relief." 28 U.S.C. § 1915(e)(2)(B)(i) (iii).
Plaintiff is a physician. He alleges that while he was working
as an intern at Taipei Veterans General Hospital in Taiwan in the
1980's he was treated by defendant, a surgeon, for treatment of snoring. Plaintiff claims that defendant
intentionally created a severe upper airway obstruction and that
this intentional conduct caused plaintiff to become permanently
disabled. He appears to contend that defendant engaged in such
"mayhem" because defendant was anti-American.
Plaintiff's complaint must be dismissed. First, he does not
identify under what law or statute he makes his claims. Although
his complaint sounds in medical malpractice, his complaint states
that it is "an intentional anti-American terrorism mayhem case"
instead of a medical malpractice case. The Court is not aware of
any federal statute that would permit plaintiff to sue a
Taiwanese physician for such a claim.
Second, the Court does not have venue of plaintiff's claims. As
he does not identify any federal statute, the Court will treat
the complaint as a diversity case, that is, a case between a
citizen of California and a foreign citizen. Venue of such a case
is proper in this Court only if (1) the defendant resides in this
district, (2) "a substantial part of the events or omissions
giving rise to the claim occurred" in this district, or (3) the
defendant is subject to personal jurisdiction in this district or
is otherwise found in this district. 28 U.S.C. § 1391(a), (b).
The complaint makes it obvious that the first two conditions do
The complaint also demonstrates that this Court does not have
personal jurisdiction of defendant, a Taipei surgeon. Personal
jurisdiction can be either "general" or "specific." Data Disc,
Inc. v. Systems Technologies Associates, Inc., 557 F.2d 1280,
1287 (9th Cir. 1977). The basic rule is that the defendant must
have certain minimal contacts with the forum such that the
maintenance of the suit does not offend traditional notions of
fair play and substantial justice. See Data Disc,
557 F.2d at 1287 (citing International Shoe Co. v. Washington,
326 U.S. at 316. In either case, plaintiff bears the burden of showing that
personal jurisdiction is proper. See Fields v. Sedgwick Assoc.
Risks, Ltd., 796 F.2d 299, 301 (9th Cir. 1986).
If a defendant's activities in the forum (here, California)
were "substantial," or "continuous and systematic," the Court may
assert personal jurisdiction as to any cause of action filed
against defendants, regardless of whether the cause of action is
related to defendants' activities in the state. Data Disc,
557 F.2d at 1287. In the Ninth Circuit, "the level of contact with the forum
. . . necessary to establish general jurisdiction is quite high."
Shute v. Carnival Cruise Lines, 897 F.2d 377, 380 (9th Cir.
1990), rev'd on other grounds, 499 U.S. 585 (1991). The Ninth
Circuit has noted that
[t]he Supreme Court has upheld general jurisdiction
only once. . . . Perkins v. Benguet Consol. Mining
Co., 342 U.S. 437, 72 (1952). We have stated that
"the Perkins holding that the cause of action need
not arise out of the defendant's activities in the
forum is limited to its unusual facts . . ., and
regularly have declined to find general jurisdiction
even where the contacts were quite extensive.
Amoco Egypt Oil Co. v. Leonis Nav. Co., Inc., 1 F.3d 848
n. 3 (9th Cir. 1993).
Plaintiff alleges that defendant did some medical training in
California in 1979 and 1980, and that prior to 1998, he would
annually attend a medical conference in San Francisco. Such
allegations, assuming they are true, are insufficient to
establish general jurisdiction of defendant. Plaintiff also seeks
discovery of defendant's immigration records; presumably he wants
to verify when defendant has visited California. Again,
defendant's visits to California do not establish general
jurisdiction over him in California.
The Ninth Circuit employs a three-part test in determining
whether there is specific jurisdiction: "(1) The nonresident
defendant must do some act or consummate some transaction with
the forum or perform some act by which he purposefully avails
himself of the privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its laws;" (2)
the claim must arise out of the defendant's forum-related
activities; and (3) the exercise of jurisdiction must be
reasonable. Data Disc, 557 F.2d at 1287. The test is not to be
applied mechanically, but "instead must focus on the relationship
among the defendant, the forum, and the litigation within the
particular factual context of each case." Core-Vent Corp. v.
Novel Indus. AB, 11 F.3d 1482, 1487 (9th Cir. 1991) (citing
Calder, 465 U.S. at 789).
Plaintiff's claims arise from conduct that occurred in Taipei.
Plaintiff does not allege that defendant did any act in this
forum that gives rise to his claims. According to the complaint,
plaintiff was treated by defendant because plaintiff was
performing his medical internship in Taipei. That defendant has
presented posters of his research and work in California does not confer specific jurisdiction of plaintiff's
claims. Plaintiff's complaint also establishes that defendant
cannot be currently "found" in this district.
Finally, the Court notes that while plaintiff does not identify
a specific statute or common law pursuant to which he brings his
claim, any claim is likely to be barred by the statute of
limitations. The conduct of which he complains appears to have
occurred in the 1980's and he alleges that a newspaper published
an article about defendant's "malicious conduct" in 1998. He also
has attached numerous medical records to his complaint which
document the problems that plaintiff has had as a result of his
For all these reasons, plaintiff's complaint-which he seeks to
file without the payment of costs-is DISMISSED without prejudice.
IT IS SO ORDERED.
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