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Hopkins v. Subaru Telescope National Astronomical Observatory of Japan

United States District Court, D. Hawaii

November 7, 2019

JAMES HOPKINS, Plaintiff,
v.
SUBARU TELESCOPE NATIONAL ASTRONOMICAL OBSERVATORY OF JAPAN, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, ECF NO. 19 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, ECF NO. 19

          J. Michael Seabright Chief United States District Judge.

         I. INTRODUCTION

         Defendant “Subaru Telescope National Astronomical Observatory of Japan, ” officially known as the “National Astronomical Observatory of Japan, ” (“Defendant” or “the NAOJ”), moves to dismiss the Complaint filed by pro se Plaintiff James Hopkins (“Plaintiff” or “Hopkins”). ECF No. 19. Specifically, the NAOJ moves (1) pursuant to Federal Rule of Civil Procedure 12(b)(5) based on insufficient service of process, and (2) under Rule 12(b)(1) for lack of subject-matter jurisdiction arguing that it is immune from suit under the Foreign Sovereign Immunities Act (“FSIA”). ECF No. 19. Based on the following, the motion is GRANTED under Rule 12(b)(5). The action is DISMISSED without prejudice.[1]

         II. BACKGROUND

         Because the motion does not concern the merits of Plaintiff's claims (which sound in wrongful termination of employment), the court discusses the allegations of the Complaint only as necessary to understand the context of the present motion. Rather, the court focuses on the status of the NAOJ, and Plaintiff's attempts to serve it with the Complaint. In this regard, the court may consider evidence as needed to resolve the Rule 12(b)(5) motion. See, e.g., Ketchmark v. Brown-Williamson Tobacco Corp., 2018 WL 3451450, at *2 (D. Haw. July 17, 2018) (“In assessing the sufficiency of process [under Rule 12(b)(5)] . . . courts may weigh the evidence and resolve disputed issues of fact in accordance with Rule 12(d).”) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1353 (3d ed. 2005)); Yamano v. Hawaii Judiciary, 2018 WL 3431921, at *3 (D. Haw. July 16, 2018) (same).

         The record establishes (and Plaintiff does not dispute) that the NAOJ is a part of the government of Japan. See Masayo Nakajima (“Nakajima”) Decl. ¶ 2, ECF No. 19-2; see also ECF No. 26 at PageID #193. It was previously “under the jurisdiction of the Japan Ministry of Education, Culture, Sports, Sciences and Technology, ” and was later “incorporated as the Inter-University Research Institute Corporation, National Institutes of Natural Sciences, National Astronomical Observatory of Japan on April 1, 2004.” Nakajima Decl. ¶ 2, ECF No. 19-2. The NAOJ's primary source of funding for “management and facilities maintenance” comes from that Japan Ministry. Id. “[The] NAOJ is an inter-university research facility for carrying out astronomy research at the national level. It builds and operates first class research facilities for researchers throughout Japan and facilitates international collaboration.” Subaru Telescope, https://subarutelescope.org/NAOJ/NAOJ.html (last visited Nov. 7, 2019). Its primary mission includes “develop[ing] and construct[ing] large-scale cutting-edge astronomical research facilities and promot[ing] their open access aiming to expand our intellectual horizons, ” and “contribut[ing] to the development of astronomy as a world leading research institute by making the best use of a wide variety of large-scale facilities.” NAOJ's Philosophy, https://www.nao.ac.jp/en/ about-naoj/organization/philosophy.html (last visited Nov. 7, 2019).[2]

         The evidence also establishes that the NAOJ-with assistance from the Research Corporation of the University of Hawaii (“RCUH”) through a Master Agreement for the RCUH to provide certain administrative services-operates the Subaru Telescope, which is “an 8.2-meter optical-infrared telescope at the summit of Mauna Kea, Hawaii.” Subaru Telescope, https://subarutelescope.org/index.html (last visited Nov. 7, 2019); see also ECF No. 19-3 (Master Agreement between the NAOJ and RCUH). Under the Master Agreement, “Project Employees hired by RCUH on behalf of NAOJ [are] RCUH employees.” ECF No. 19-3 at PageID #161.

         According to Plaintiff's charge of discrimination filed with the Hawaii Civil Rights Commission, Plaintiff was hired in 1999 as a “motor pool transportation technician” with the NAOJ facility in Hilo, Hawaii. ECF No. 1-1 at PageID #5. He was terminated in 2017 “for reasons that [Plaintiff] believe[s] to be discriminatory in nature.” Id. After the Equal Employment Opportunity Commission (“EEOC”) investigated and did not find a violation of the charges, the EEOC issued a right-to-sue letter on October 29, 2018. ECF No. 1-1 at PageID #7. Plaintiff filed this suit against the NAOJ on January 27, 2019. ECF No. 1.[3]

         On June 16, 2019, Plaintiff attempted to serve the Complaint on the NAOJ by having a process server leave a copy of it with Nakajima at the NAOJ office in Hilo. See ECF No. 19-2 at PageID #159; see also ECF No. 18. It is undisputed that (1) Nakajima is not “authorized by appointment or by law to receive service of process on behalf of NAOJ, ” ECF No. 19-2 at PageID #159; (2) Nakajima was not provided with a Japanese translation of the documents, id.; and (3) there was no “special arrangement between Hopkins and NAOJ for NAOJ to accept service of process, ” id.

         On July 10, 2019, the NAOJ filed its Motion to Dismiss. ECF No. 19. Plaintiff failed to file an Opposition, but he appeared by telephone at a hearing on the Motion on September 23, 2019, and the court gave him another opportunity to file a written Opposition. See ECF No. 25. Plaintiff then filed an Opposition on September 30, 2019. ECF No. 26.[4] The NAOJ filed its Reply on October 7, 2019. ECF No. 27.

         III. STANDARD OF REVIEW

         Rule 12(b)(5) of the Federal Rules of Civil Procedure authorizes dismissing a complaint based on insufficient service of process because “[f]ederal courts cannot exercise personal jurisdiction over a defendant without proper service of process.” Yamano, 2018 WL 3431921, at *3 (citing Omni Capital Int'l Ltd v. Wolff & Co., 484 U.S. 97, 104 (1987)).

         “To determine whether service of process was proper, a court looks to the requirements of Rule 4 of the Federal Rules of Civil Procedure.” Id. (citations omitted). Although “Rule 4 is a flexible rule that should be liberally construed, ” Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986) (citation omitted), “neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction without ‘substantial compliance with Rule 4, '” id. (quoting Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982)). “Once service is challenged, plaintiffs bear the burden of establishing that service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004) (citations omitted).

         IV. ...


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