Opinion
Case No C 02-4590 VRW
February 24, 2003
ORDER
On September 23, 2002, plaintiff, a resident of Toronto, Ontario, Canada, filed a complaint alleging causes of action for slander, defamatory libel and assault against defendants Tom Mann, ITW Plastiglide Company Ltd, Plastiglide Company Ltd and Plastiglide Manufacturing Corporation for conduct apparently dating from 1981 through 1988. See Compl (Doc #1, Tab 1), ¶¶ 1-5. According to the complaint, Mann is a resident of California and a citizen of the United States and Canada. Id, ¶ 2. ITW Plastiglide Company Ltd is located in Concord, Ontario, Canada. Id, ¶ 3. Plastiglide Company Ltd is located in Downsview, Ontario, Canada. Id, ¶ 4. Both are alleged to be subsidiaries of Plastiglide Manufacturing Corporation, a United States corporation located in California, and the other named defendant in this action. Id, ¶¶ 3-5. On the same date the complaint was filed, plaintiff moved for leave to proceed in forma pauperis. See Doc #2.
On October 23, 2002, Illinois Toolworks Inc, erroneously named in the complaint as Plastiglide Manufacturing Corp, filed a motion to dismiss for inadequate service of process or to quash the defective service of the summons and complaint. See Doc #4.
Until November 26, 2002, the case was before Magistrate Judge Chen. On that date, the matter was reassigned to the undersigned for all further proceedings. One day later, on November 27, 2002, Judge Chen issued an order purporting to grant plaintiff's motion to proceed in forma pauperis and to dismiss the complaint for lack of jurisdiction. See Doc #17. Because that order was not issued until after reassignment of the case, it did not dispose of the motions now pending before the court: plaintiff's motion to proceed in forma pauperis (Doc #2) and defendant's motion to dismiss or quash service (Doc #4).
For the reasons detailed below, plaintiff's motion to proceed in forma pauperis (Doc #2) is DENIED as frivolous. Because the court lacks jurisdiction over plaintiff's claims and because the venue does not properly lie within this district, plaintiff's complaint is DISMISSED. Dismissal is without prejudice to plaintiff's filing an amended complaint stating a claim cognizable in the proper federal venue, which would appear to be the Central District of California. Defendant's motion to dismiss or quash service (Doc #4) is TERMINATED as MOOT. Because the court finds these matters suitable for determination without oral argument, the hearing scheduled for February 27, 2003, is VACATED. See Civ. LR 7-1(b).
I
Pursuant to Civil Local Rule 3-10, plaintiff's application to proceed in forma pauperis is before the court for review. The court has considered the application and has carefully reviewed the complaint pursuant to 28 U.S.C. § 1915(e)(2). Section 1915(e)(2) requires the court to dismiss any case in which a litigant seeks leave to proceed in forma pauperis, if the court determines that plaintiff's claims to be "frivolous or malicious". 28 U.S.C. § 1915(e)(2)(B)(I). "An in forma pauperis complaint is frivolous if "it [has] no arguable substance in law or fact." Tripati v. First National Bank Trust, 821 F.2d 1368, 1370 (9th Cir 1987); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (frivolous claims "lack an arguable basis either in law or in fact"); Mack v. Commonwealth of Massachusetts, 204 F. Supp.2d 163, 166 (D Mass. 2002). "Where the court has no subject matter jurisdiction there is no rational argument in law or fact to support the claim for relief and the case must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(I)." Mobley v. Ryan, 2000 WL 1898856 at *1 (N.D. Ill 2000) (citing Jones v. Morris, 777 F.2d 1277, 1279-80 (7th Cir 1985)); see also Mack, 204 F. Supp. at 166.
Because, as discussed below, the court concludes that it lacks jurisdiction over plaintiff's complaint, plaintiff's application to proceed in forma pauperis is DENIED, pursuant to 28 U.S.C. § 1915(e)(2)(B)(I). Denial is without prejudice to plaintiff's applying for leave to proceed in forma pauperis upon filing an amended complaint as discussed further below.
II
Upon review of the complaint, the court concludes that venue is improper in the Northern District of California and that the court lacks both diversity jurisdiction and federal question jurisdiction over this action. Plaintiff is a Canadian resident. Two defendants are also Canadian residents. The remaining two defendants are alleged to reside for jurisdictional purposes in California, but not within the Northern District of California. The allegations contained in the complaint relate to conduct that occurred primarily at Plastiglide Company Ltd's Downsview, Ontario facility. See Complaint, ¶¶ 6-19. The court cannot discern from the complaint whether plaintiff alleges any additional conduct occurring in California that might be the source of additional claims for relief. If it does, that conduct would have taken place at the Plastiglide Manufacturing Corporation's facility in Rancho Dominguez, California. Rancho Dominguez is located in the Central District of California.
The court may raise the question of its subject matter jurisdiction over proceedings before it at any time and on its own initiative. See Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1380 (9th Cir 1988); In re Mooney, 841 F.2d 1003, 1006 (9th Cir 1988). The court may also raise the question whether venue is proper on its own initiative. See Costlow v. Weeks, 790 F.2d 1486, 1487-88 (9th Cir 1986). It is plaintiff who bears the burden of demonstrating the existence of federal jurisdiction and the propriety of venue within the district in which he files his complaint. See Kokkonen v. Guardian Life Ins Co of America, 511 U.S. 375, 377 (1994); Piedmont Label Co v. Sun Garden Packing Co, 598 F.2d 491, 496 (9th Cir 1979); see also Remley v. Lockheed Martin Corp, 2001 WL 681257 at *3 (N.D. Cal 2001). Absent subject matter jurisdiction, the court must dismiss an action before it. Dismissal is generally without prejudice to plaintiff's filing an amended complaint. The court may also, upon a finding of improper venue, dismiss a case or, if justice requires, transfer it to a district in which venue would have been proper at the time the initial complaint was filed. 28 U.S.C. § 1406.
If the basis of federal jurisdiction is diversity, venue may lie in (1) a judicial district in which any defendant resides if all defendants reside within the same state; (2) a judicial district in which a substantial part of the conduct or events giving rise to the claim occurred; or (3) a judicial district in which any defendant is subject to personal jurisdiction if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). If the source of federal jurisdiction is a federal question, venue may lie in (1) a judicial district in which any defendant resides if all defendants reside within the same state; (2) a judicial district in which a substantial part of the conduct or events giving rise to the claim occurred; or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). A corporate defendant is deemed to reside in any district in which it is subject to personal jurisdiction, treating each district as if it were a separate state. See 28 U.S.C. § 1391(c); DaCruz v. Princess Cruise Lines, 2000 WL 1585695 at *3 (N.D. Cal 2000).
The court lacks diversity jurisdiction over this matter because diversity among the parties is incomplete. The court lacks jurisdiction over a suit filed by an alien against a mixture of foreign defendants and citizen defendants provided the alien defendants are indispensable parties to the litigation. See Faysound Limited v. United Coconut Chemicals, Inc, 878 F.2d 290, 294 (9th Cir 1989); Cheng v. Boeing Co, 708 F.2d 1406, 1412 (9th Cir 1983); Craig v. Atlantic Richfield Co, 19 F.3d 472, 476 (9th Cir 1994). "Diversity jurisdiction does not encompass foreign plaintiffs suing foreign defendants." Boeing, 708 F.2d at 1412. "Where an alien is made co-defendant with a citizen-defendant by an alien plaintiff, Boeing is dispositive; there is no jurisdiction over the alien. If the alien defendant is indispensable, Boeing clearly implies, there is no jurisdiction at all." Faysound, 878 F.2d at 294. Because of the nature and location of the conduct giving rise to plaintiff's claims, the alien corporate defendants appear to be indispensable parties. Diversity is therefore incomplete and the court without jurisdiction to entertain plaintiff's claims on that ground.
In the alternative, plaintiff asserts that the court has federal question jurisdiction under 42 U.S.C. § 2000e-5(g). That provision is, however, a part of Title VII of the Civil Rights Act of 1964, which is inapplicable "to an employer with respect to employment of aliens outside of any State." 42 U.S.C. § 2000e-1(a); see Lemnitzer v. Philippine Airlines, 783 F. Supp. 1238, 1241 (N.D. Cal 1991). Because plaintiff's claims arise out of his employment by the corporate defendants and that employment occurred in Canada, where plaintiff resides, he may not properly bring a federal claim against defendants under Title VII. Federal question jurisdiction is absent accordingly.
Venue is also improper in the Northern District of California, because the events giving rise to plaintiff's claims occurred in Canada and possibly within the Central District of California. Aside from the jurisdictional defects in the complaint, there was no impediment to plaintiff's filing the complaint in the Central District of California. Because those jurisdictional defects would have been equally fatal to plaintiff's complaint had it been filed in the Central District of California, however, the court concludes that dismissal, not transfer, is a more appropriate disposition.
Plaintiff's complaint is therefore DISMISSED in its entirety. Dismissal is without prejudice to plaintiff's filing a complaint asserting claims within the jurisdiction of a federal court in the district in which venue properly lies. Venue would appear, based on the complaint currently before the court, to lie in the Central District of California.
Because the court lacks jurisdiction, plaintiff's motion for leave to proceed in forma pauperis (Doc #2) is DENIED as frivolous. Defendant's motion to dismiss or to quash service (Doc #4) is TERMINATED as MOOT.
The clerk is directed to close the file and terminate all pending motions.
IT IS SO ORDERED.