United States District Court, D. Oregon, Medford Division
DAVID N. PHILLIPS, Plaintiff,
HENRY SCHEIN Inc., Defendant.
OPINION AND ORDER
D. CLARKE UNITED STATES MAGISTRATE JUDGE.
David Phillips seeks to proceed in forma pauperis
("IFP") in this action. For the reasons stated
below, Plaintiffs Amended Complaint (#9) is dismissed without
prejudice and with leave to refile a First Amended Complaint
within thirty days of this ruling. Plaintiffs IFP application
(#2) is held in abeyance and will be considered when the
amended complaint is filed. Plaintiffs motion to transfer
venue (#14) is denied.
all parties instituting any civil action in United States
District Court must pay a statutory filing fee. 28 U.S.C.
§ 1914(a). However, the federal IFP statute, 28 U.S.C.
§ 1915(a)(1), provides indigent litigants an opportunity
for meaningful access to the federal courts despite their
inability to pay the costs and fees associated with that
access. To authorize a litigant to proceed IFP, a court must
make two determinations. First, a court must determine
whether the litigant is unable to pay the costs of commencing
the action. 28 U.S.C. § 1915(a)(1). Second, it must
assess whether the action is frivolous, malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2)(B).
regard to the second of these determinations, district courts
have the power under 28 U.S.C. § 1915(e)(2)(B) to screen
complaints even before the service of the complaint on the
defendants, and must dismiss a complaint if it fails to state
a claim. Courts apply the same standard under 28 U.S.C.
§ 1915(e)(2)(B) as when addressing a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Watison
v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). To
survive a motion to dismiss under the federal pleading
standards, the complaint must include a short and plain
statement of the claim and "contain sufficient factual
matter, accepted as true, to 'state a claim for relief
that is plausible on its face.'" Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted
unlawfully." Id. The Court is not required to
accept legal conclusions, unsupported by alleged facts, as
pleadings are held to less stringent standards than pleadings
by attorneys. Haines v. Kerner, 404 U.S. 519,
520-521 (1972). That is, the court should construe pleadings
by pro se plaintiffs liberally and afford the plaintiffs the
benefits of any doubt. Karim-Panahi v. Los
Angeles Police Dept., 839 F.2d 621, 623 (9th Cir.
1988) (citation omitted). Additionally, a pro se litigant is
entitled to notice of the deficiencies in the complaint and
the opportunity to amend, unless the complaint's
deficiencies cannot be cured by amendment. Id.
Plaintiffs Amended Complaint is dismissed for lack of
court previously dismissed Plaintiffs Complaint (#1) with
leave to amend. In that Opinion and Order (#6), the court
informed Plaintiff of the deficiencies in his complaint. The
court identified one deficiency in that he failed to allege
that he had received a Right To Sue letter from the Equal
Employment Opportunity Commission (EEOC) before filing this
action alleging violations of the Americans with Disabilities
Act (ADA) against his former employer. In his Amended
Complaint, Plaintiff has cured that particular deficiency.
See Am. Compl. The court also previously informed
Plaintiff that he had failed adequately state the basis for
this court to exercise personal jurisdiction over Defendant,
Henry Schein, Inc. Plaintiff has failed to cure that
as here, there is no federal statute governing personal
jurisdiction, the law of the state in which the Court sits
applies. CollegeSource, Inc. v. AcademyOne, Inc.,
653 F.3d 1066, 1073 (9th Cir.2011); Panavision Int'l,
L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir.1998).
Oregon's long arm statute, Oregon Rule of Civil Procedure
("ORCP") 4, extends personal jurisdiction to the
extent permitted by federal due process. Gray & Co.
v. Firstenberg Mack. Co., 913 F.2d 758, 760 (9th Cir.
1990); Tech Heads, Inc. v. Desktop Serv. Ctr., Inc.,
105 F.Supp.2d 1142, 1144 (D. Or. 2000).
due process requires that a nonresident defendant have
"certain minimum contacts" with the forum state of
such a nature that the exercise of personal jurisdiction
"does not offend 'traditional notions of fair play
and substantial justice.'" International Shoe
Co. v. State of Washington, Office of Unemployment
Compensation and Placement, 326 U.S. 310, 316 (1945)
(quoting Milliken v. Meyer, 311 U.S. 457, 463
(1940)). This constitutional test may be satisfied by showing
that (1) the defendant has "substantial" or
"continuous and systematic" contacts with the forum
state-i.e. "general jurisdiction, " or (2) there is
a strong relationship between the defendant's forum
contacts and the cause of action-i.e. "specific
jurisdiction." Decker Coal Co. v. Commonwealth
Edison Co., 805 F.2d 834, 839 (9th Cir.1986). See
also Ziegler v. Indian River County, 64 F.3d 470, 473
(9th Cir. 1995).
case, Plaintiff identifies the defendant as a corporation
incorporated under the laws of the State of New York, with a
principal place of business in the State of California. Thus,
the defendant is a "non-resident" of Oregon, and
the Plaintiff must demonstrate that the Court has specific
order for the court to exercise specific jurisdiction, the
lawsuit "must arise out of or relate to the
defendant's contacts with the forum."
Bristol-Myers Squibb Co. v. Superior Court of California,
San Francisco Cty., 137 S.Ct. 1773, 1780, 198 L.Ed.2d
395 (2017) (citing Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472-473 (1985); Helicopteros Nacionales de
Colombia. S.A. v. Hall, 466 U.S. 408, 414 (1984). In
other words, there must be "an affiliation between the
forum and the underlying controversy, principally, [an]
activity or an occurrence that takes place in the forum State
and is therefore subject to the State's regulation."
Goodyear, 564 U.S., at 919. 131 S.Ct. 2846 (internal
quotation marks and brackets omitted). For this reason,
"specific jurisdiction is confined to adjudication of
issues deriving from, or connected with, the very controversy
that establishes jurisdiction." Id. (internal
quotation marks omitted).
has failed once again to show that there is a strong
relationship between his claims, and the defendant's
contacts with the State of Oregon. He does not allege that he
was employed by the defendant in Oregon, nor does he state
whether any of the facts alleged in the Complaint took place
in Oregon. In fact, it appears that Plaintiff alleges he was
employed by the defendant in California. See Am.
Compl. Therefore, he has failed to allege sufficient facts
for the Court to exercise personal jurisdiction over the
defendant. If he is unable to allege such facts in an amended
complaint - as it seems ...