United States District Court, D. Hawaii
ORDER DISMISSING AMENDED COMPLAINT WITHOUT
C. Kay, United States District Judge.
Plaintiff Mark Fukuda (“Plaintiff”) filed his
initial Complaint, ECF No. 1, in this action on December 12,
2019, against Defendants Dr. William Wong Sr.
(“Defendant Wong”) and Hawaii Dermatology and
Surgery, Inc. (“Defendant Hawaii Dermatology”).
Because Plaintiff failed to plead diversity or federal
question jurisdiction, the Court dismissed the Complaint with
leave to amend. See ECF No. 6 (the “Dismissal
Order”). Plaintiff promptly filed an Amended Complaint,
ECF No. 8, on January 3, 2020. The Amended Complaint fails to
correct the deficiencies the Court identified in its
Amended Complaint alleges the same facts and the same five
causes of action as those alleged in the prior
Complaint. Compare Compl. ¶¶
16-20, and Am. Compl. ¶¶ 16-20; see
also Dismissal Order at 1-3 (summarizing factual
allegations). In response to the Dismissal Order, however,
the Amended Complaint makes some slight changes in its
discussion of jurisdiction. In the section labeled
“JURISDICTION AND VENUE, ” the Amended Complaint
alleges that the damages sought exceed §75, 000 and that
“the claims are protected under the Medicare Act under
Medicare Fraud, ” Am. Compl. ¶ 4. Neither of these
changes has the effect of establishing subject matter
jurisdiction in federal court.
claim to be properly in the United States District Court, the
Court must have either (1) federal question jurisdiction
under 28 U.S.C. § 1331, or (2) diversity jurisdiction
under 28 U.S.C. § 1332. The Court has an obligation to
investigate whether it has subject matter jurisdiction, and
lack of subject matter jurisdiction can be raised on a
court's own motion at any time. See United Investors
Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960,
966-67 (9th Cir. 2004); Csibi v. Fustos, 670 F.2d
134, 136 n.3 (9th Cir. 1982).
considering federal question jurisdiction Plaintiff has not
alleged any federal causes of action. The only possible
suggestion of federal question jurisdiction comes in a vague
allegation that the state-law claims somehow arise from the
Medicare Act, 42 U.S.C. § 405(g). Assuming Plaintiff is
seeking to invoke jurisdiction on this basis, the Court
rejects that theory. See 28 U.S.C. § 1331
(federal question); 42 U.S.C. § 405(g) (Social Security
one, Plaintiff provides no factual allegations to support his
assertion that his claims arise under the Medicare Act.
“The Supreme Court has identified two circumstances in
which a claim ‘arises under' the Medicare Act, thus
preempting the state-law claims: (1) where the
‘standing and the substantive basis for the
presentation of the claims' is the Medicare Act . . .;
and (2) where the claims are ‘inextricably
intertwined' with a claim for Medicare benefits . . .
.“ Do Sung Uhm v. Humana, Inc., 620 F.3d 1134,
1141-42 (9th Cir. 2010) (quoting Heckler v. Ringer,
466 U.S. at 602, 615, 104 S.Ct. 2013, 2022 (1984)) (internal
citations omitted). Plaintiff's claims here are based on
Defendant Wong's alleged malpractice and his
“fraudulently” billing Plaintiff for the
injury-inducing surgical procedure and subsequent care. These
claims plainly do not fall into either of the two categories
set forth by the Supreme Court.
to diversity jurisdiction, Plaintiff has failed to adequately
plead subject matter jurisdiction for the same reasons
described in the prior Dismissal Order. See
Dismissal Order at 5. While Plaintiff added an allegation as
to the amount in controversy, he again fails to allege the
citizenship of Plaintiff and Defendant
Wong. See Am. Compl. ¶¶ 1-3;
see also Dismissal Order at 5 (citing Kanter v.
Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001),
which distinguished between citizenship and residency and
clarified that “the diversity jurisdiction statute, 28
U.S.C. § 1332, speaks of citizenship, not of
residency”). Plaintiff appears to be alluding to the
idea that all three parties are citizens of the same state
(Hawai`i), as he has given no reason to suggest that the
parties' citizenship is different from their state of
residency. Either way, Plaintiff has again failed to plead
diversity of citizenship, without which Plaintiff cannot
invoke diversity jurisdiction. See Rilling v. Burlington
N. R.R. Co., 909 F.2d 399, 400 (9th Cir. 1990).
these reasons, Plaintiff's Amended Complaint is hereby
DISMISSED without prejudice. In the event Plaintiff wishes to
continue pursuing his state-law claims, he should do so by
filing a complaint in state court.
 These causes of action include (I)
fraudulent malpractice, (II) malpractice, (III) fraud, (IV)
negligence, and (V) intentional infliction of emotional
distress. Compare Compl. ¶¶ 16-20,
and Am. Compl. ¶¶ 16-20.
 Even if the Amended Complaint
supported a reading that the claims arise under the Medicare
Act, the Court would lack jurisdiction because it does not
appear that those claims have been exhausted. See Do Sung
Uhm, 620 F.3d at 1141 (“Accordingly, we must
determine whether any of the Uhms' state law claims
‘arises under' the Medicare Act. If so, we cannot
exercise subject matter jurisdiction until those claims are
 Plaintiff's only change to the
Amended Complaint with respect to citizenship appears to be
the added allegation that he and Dr. Wong are “United
States Citizen[s].” Compare Compl.
¶¶ 1-2 (alleging that Plaintiff and Dr. Wong were
residents of Hawai`i), and Am. Compl. ¶¶
1-2 (alleging that Plaintiff and Dr. Wong are United States
citizens and resident of Hawai`i). The Amended Complaint also
clarifies that Defendant Hawaii Dermatology ...