United States District Court, D. Hawaii
ORDER DENYING AS UNNECESSARY MOTION TO AMEND
COMPLAINT; ORDER GRANTING DEFENDANT'S MOTION TO
Oki Mollway, United States District Judge
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
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.
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.
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.
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).
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
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).
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.
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
visited January 9, 2017); see also ECF No. 40-6,
PageID # 473.
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. ¶ 6, ECF No. 44-2, PageID # 606. Fukuda
claims that the Ministry committed fraud (Count I) and an