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Fukuda v. Ministry of Foreign Affairs of Japan

United States District Court, D. Hawaii

January 24, 2017

MARK FUKUDA, Plaintiff,
v.
MINISTRY OF FOREIGN AFFAIRS OF JAPAN; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE GOVERNMENT ENTITIES 1-10, Defendants.

          ORDER DENYING AS UNNECESSARY MOTION TO AMEND COMPLAINT; ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          Susan Oki Mollway, United States District Judge

         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. See ECF No. 40. 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. See Fed.R.Civ.P. 15(a)(1)(B). 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 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 (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. Id. ΒΆ 6, ECF No. 44-2, PageID # 606. Fukuda claims that the Ministry committed fraud (Count I) and an unidentified ...


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