United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, ECF
NO. 19 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, ECF
Michael Seabright Chief United States District Judge.
“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.
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).
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
(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,
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.
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.
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.
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. The NAOJ filed
its Reply on October 7, 2019. ECF No. 27.
STANDARD OF REVIEW
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)).
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