Opinion
CASE NO. CV 01-9672 DT (CWx)
April 1, 2002
I. Background
A. Factual Summary
This action is brought by Plaintiff Duck Soo Chang ("Plaintiff") against Defendants Sung Jong Shin ("Shin"), Young Ho Cha ("Cha"), Kap Hoon Lee ("Lee"), Kyn Min Hwang ("Hwang"), Myung Kyun Kim ("Kim"), Judy A. Kim, Daniel Taerim Kim ("Daniel Kim"), Holy Hill Community Church, Inc. ("the Church"), Hee Sok Park ("Park"); De Young Kim ("Young Kim"), Hyon Kyong Kim ("Hyon Kim"), Holy Hill Village, LLC, Law Office of Park Lim, LLP, Leonora Lindsey ("Lindsey"), Tae Hong ("Hong"), Chief Bernard Parks, the Los Angeles Police Department ("LAPD"), Charles Rossotti ("Rossotti"), Steven Miller ("Miller"), and the Department of Treasury (collectively, "Defendants") over disputes arising from the expulsion of Plaintiff from the Holy Hill Community Church. Presently before this Court is Leonora Lindsey and Tae Hong's Motion to Dismiss Plaintiff's seventeenth claim and the Federal Defendants' Motion to Dismiss Plaintiff's nineteenth claim.
No Proof of Service of the FAC was filed with respect to Chief Bernard Parks of the LAPD. Therefore, this Court dismisses without prejudice the Complaint with respect to that defendant.
The following facts are alleged in Plaintiff's First Amended Complaint ("FAC"):
Plaintiff and his wife have been members of the Holy Hill Community Church since September 2000. See FAC at ¶ 2. In December 2000, Plaintiff began volunteering three days a week to assist Pastor Shin in various capacities including the investigation of the Church's financial situation. See id. at ¶ 5. On January 15, 2001, Plaintiff informed Pastor Shin about Kim's embezzlement of the Church offerings, misuse of a Church credit card and fraudulent R-1 Visa scams. See id, at ¶ 6. Shin asked Plaintiff to write a letter to the LAPD requesting an investigation. See id. Later, a church member told Plaintiff Pastor Shin was also involved in the Church's financial corruption. See id. at ¶ 7.
Since March 2001, Church members suspected Defendants Kim and Shin were conspiring to divert about two million dollars of the Church's construction and general funds to purchase Shin's house and Kim's business interests. See id. at ¶ 89. In April 2001, Shin hired Hwang as his bodyguard to protect himself from Church members and to intimidate and harass Church members who spoke out against Shin and Kim's financial misdeeds. See id. at ¶ 90. On or about April 12, 2001, Plaintiff filed a criminal complaint with the LAPD against Kim on grounds he stole a Church credit card and charged $40,000 for personal use. See id. at ¶ 8. Plaintiff was referred to Officer Lindsey of the Financial Crime Division of the LAPD. See id. at ¶ 321. After receiving a fax from Plaintiff and speaking with Plaintiff by telephone, Lindsey decided not to investigate Plaintiff's criminal complaint. See id. at ¶ 323.
On June 19, 2001, Plaintiff filed a complaint in the Superior Court of the State of California for the County of Los Angeles ("Superior Court"). entitled Chang v. Shin. et al., Case No. BC 25292, alleging Shin and Kim committed financial crimes in connection with the purchase of Church property and the construction of a worship center. See Id. at ¶ 10. After a demurrer was sustained and Plaintiff failed to file an amended complaint in the state court action, Defendants filed a Motion for dismissal, which was granted. Plaintiff forwarded a copy of the state court complaint to the California Departments of Treasury and Justice, and the United States Attorney's Office in Los Angeles. See id. at ¶ 9. Since Plaintiff filed his complaint in Superior Court and the criminal complaint with the LAPD and the IRS, Shin, Kim and their cohorts Cha and Lee have conspired with Hwang to harass and intimidate Plaintiff. See id. at ¶ 91.
On June 23, 2001, Cha reported to the Session of the Church that Church attorney Hee Sok Park outlined a strategy with Cha and Kim to harass Plaintiff to have an altercation with Hwang at the Church, expel Plaintiff from the Church, call the police if Plaintiff returned to the Church after being excommunicated, and obtain a temporary restraining order against him. See id. at ¶ 73. Cha also reported at the Session that attorney Park strongly advised him to expel Plaintiff from the Church during the litigation. See id. at ¶ 75. Some members objected. See id. Shin thereafter announced, "the Session expels Mr. Chang from the church unanimously." See id.
On July 13, 2001, Shin told Church members, "I will excommunicate Mr. Chang this Sunday from the emergency Session due to his lawsuit against me and the Elder Kim." See id. at ¶ 74. Two days later, after the evening Church service, Hwang grabbed Plaintiff's hand and stated, "hey, you son of bitch, why you filed the lawsuit against the Church and reported to the IRS about the Church's financial corruption re the purchase of the building and the construction of the Worship Center? You are disgraceful. You know you ought not to come to this Church because you were excommunicated. If you come to the Church again, I am going to kill you, you dirty old man." See id. at ¶ 94.
On July 17, 2001, Plaintiff filed a "Terrorist Threat" at the 77th Street Division of the LAPD. See Id. at ¶¶ 108, 330. On July 25, 2001, Officer Hong from the Asian Crime Investigation Section of the LAPD called Plaintiff. See id. at ¶ 109. Plaintiff faxed Hwang's name and address to Hong. See id. at ¶ 108, 331. Hong asked Plaintiff whether Hwang's previous threats were "idle" or "serious." See id. at ¶ 332. Plaintiff told Hong that Hwang's threat was a "very serious threat." See id. at ¶ 333. Hong did not investigate because he did not believe there was a serious risk. See id. at ¶ 333.
On July 29, 2001, Hwang followed Plaintiff from the inside of the sanctuary and terrorized him by saying "You, fucking bitch, why did you come to the Church. You were expelled from the Church." See id. at ¶ 110. Hwang attempted unsuccessfully to hit Plaintiff in the face. See id. On July 31, 2001, Plaintiff faxed a second terrorist threat to Investigator Hong. See id. at ¶ 111.
As a result of Defendants actions, Plaintiff has suffered and continues to suffer devastating losses to his religious and social reputation, emotional distress, and injury to his "nervous system," thereby violating Plaintiff's constitutional rights. See id. at ¶¶ 123-26.
From the above set of common facts Plaintiff asserts the following causes of action in his FAC:
(1) Against Park and all Church Defendants for conspiracy in violation of RICO;
On January 14, 2002, this Court dismissed all conspiracy claims against Park. RICO claims may only be brought against Defendants Shin, Cha, Hwang, Kim, Judy Kim, Daniel Kim and the Church.
(2) Against Shin for conspiracy in violation of RICO;
(3) Against Kim, Cha, Lee and Young Kim and Does 140 for aiding and abetting, a violation of RICO;
(4) Against Kim for conspiracy in violation of RICO;
(5) Against Daniel Kim, Christian Herald USA, Progressive Art Products, Inc., and Does 1-50 for aiding and abetting, a violation of RICO;
No Proof of Service of the Complaint was filed with respect Christian Herald USA and Progressive Art Products, Inc. Therefore, on January 14, 2002, this Court dismissed without prejudice the Complaint with respect to those defendants.
(6) Against Judy Kim for aiding and abetting, a violation of RICO;
(7) Against Lee, Cha, Kim and Does 1-50 for aiding and abetting, a violation of RICO;
(8) Against Shin and Kim for fraudulent transfer of the "corporation grant deed" and constructive fraud;
(9) Against De Young Kim and Hyon Kim and Holy Hill Village, LLP for fraudulent transfer of the "corporation grant deed" and constructive fraud;
(10) Against Cha, Lee and Young Kim for aiding and abetting Holy Hill Village's fraudulent transfer of the "corporation grant deed" and constructive fraud;
(11) Against Shin, Kim, Young Kim, Hyon Kim for fraudulent transfer of the "corporation grant deed" and constructive fraud;
(12) Against Shin for breach of fiduciary duty;
(13) Against Kim for breach of fiduciary duty;
(14) Against Cha for breach of fiduciary duty;
(15) Against Lee for breach of fiduciary duty;
(16) Against Young Kim for breach of fiduciary duty;
(17) Against Lindsey and Hong for violation of Plaintiffs civil rights under 42 U.S.C. § 1983;
(18) Against LAPD Chief Parks, in his official capacity, for violation of Plaintiff's civil rights under 42 U.S.C. § 1983;
(19) Against Charles Rossotti, in his official capacity as IRS Commissioner, and the IRS for violation of Plaintiffs civil rights under 42 U.S.C. § 1983.
B. Procedural Summary
On November 9, 2001, Plaintiff filed a Complaint for Damages.
On November 19, 2001, this Court issued an Order to Show Cause as to the Proper Plaintiff. In response, Plaintiff filed a Declaration amending the caption of the Original Complaint to delete the name of Korean-American Common Cause, Inc. and informing this Court the actual and proper plaintiff in this action is Duck Soo Chang. Therefore, the Order to Show Cause is discharged.
In his Declaration filed in response to the OSC, Plaintiff also stated he retained an attorney to represent him in this case. This Court has not received a written notice of substitution of attorney as required by Local Rule 2.8.2.2. Therefore, Plaintiff continues to appear and act pro se in this matter.
On December 4, 2001, Plaintiff filed a Declaration re Lost Summons and First Alias Summons which includes a Proof of Service by Mail List.
On December 10, 2001, Defendants Shin, Cha, Lee, Hwang, Kim, Judy Kim, Daniel Kim, the Church, Park, and the Law Office of Park Lim, LLP filed a Motion to Dismiss for failure to state a claim upon which relief can be granted pursuant to FED. R. Civ. P. 12(b)(6), which was granted in part and denied in part on January 14, 2002.
On January 7, 2002, Lindsey filed an Answer to Plaintiff's Complaint and a Demand for jury trial.
On February 11, 2002, Federal Defendants filed a Motion to Dismiss Complaint and Action for lack of subject matter jurisdiction, lack of personal jurisdiction and failure to state a claim upon which relief can be granted, which was scheduled for March 11, 2002, but was later withdrawn.
On February 14, 2002, Plaintiff filed the FAG.
On February 28, 2002, Federal Defendants withdrew the Motion to Dismiss Complaint and Action.
On March 1, 2002, Federal Defendants filed a Motion to Dismiss FAC for lack of subject matter jurisdiction, lack of personal jurisdiction and failure to state a claim upon which relief can be granted, which is presently before this Court.
On March 3, 2002, Defendants Lindsey and Hong filed a Motion to Dismiss FAC for failure to state a claim upon which relief can be granted, which is presently before this Court.
On March 5, 2002, Plaintiff filed a correction to the FAG.
On March 8, 2002, Defendants Shin, Cha, Lee, Kim, Hwang, Judy Kim, Daniel Kim, Holy Hill Community Church, Inc., Park and Law Office of Park Lim, LLP filed a Motion to Dismiss for failure to state a claim upon which relief can be granted, which is scheduled for April 8, 2002.
On March 18, 2002, Plaintiff filed a Motion for Reconsideration of the January 14, 2002, Order of this Court regarding Defendants Park and the Law Offices of Park Lim, which is scheduled for April 8, 2002.
On March 19, 2002, Defendants De Young Kim, Hyon Kyong Kim and Holy Hill Village, LLC filed a Motion to Dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, which is scheduled for April 8, 2002. On the same day, those Defendants joined Shin and Cha's, et al. Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), which is also set for April 8, 2002.
II. Discussion
A. Standards
1. Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may seek to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. Civ. P. 12(b)(6). Pursuant to Rule 12(b)(6), the court may only dismiss a plaintiff's complaint if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). The question presented by a motion to dismiss is not whether a plaintiff will prevail in the action, but whether a plaintiff is entitled to offer evidence in support of his claim. Cabo Distributing Co., Inc. v. Brady, 821 F. Supp. 601 (N.D. Cal. 1992). Dismissal is proper under Rule 12(b)(6) only where there is a lack of a cognizable legal theory, or an absence of sufficient facts alleged under a cognizable legal theory. Balisteri v Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
In testing the sufficiency of a complaint, the court must assume that all of the plaintiff's allegations are true, and must construe the complaint in a light most favorable to the plaintiff. United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981) (citing California Dump Truck Owners Assn. v. Associated General Contractors of America, 562 F.2d 607, 614 (9th Cir. 1977); McKinney v. DeBord, 507 F.2d 501, 503 (9th Cir. 1974)). Therefore, it is only the extraordinary case in which dismissal is proper. Corsican Productions v. Pitchess, 338 F.2d 441, 442 (9th Cir. 1964).
Generally, orders granting motions to dismiss are without prejudice unless "allegations of other facts consistent with the challenged pleading could not possibly cure the defect." Schreiber Dist. v. Serv-Well Furniture, 806 F.2d 1393, 1401 (9th Cir. 1986).
2. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Federal courts are "presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock West Inc. v. Confederated Trities, 873 F.2d 1221, 1225 (9th Cir. 1989). Thus, when a defendant brings a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), the plaintiff bears the burden of establishing jurisdiction. See Kokkonen v. Guardian Life Ins., 511 U.S. 375, 378 (1994).
3. Motion to Dismiss for Lack of Personal Jurisdiction
In order to maintain an action in the Central District, a plaintiff must meet the requirements of 28 U.S.C. § 1391(A) and must establish that this Court has personal jurisdiction over a defendant. See FDIC v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1441 (9th Cir. 1987). In order to establish personal jurisdiction over a nonresident defendant, a plaintiff must show that the forum state's jurisdictional statute confers personal jurisdiction over the defendant, and that the exercise of jurisdiction accords with constitutional principals of due process. See Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir. 1987). Because California Civil Procedure Code Section 410.10 extends jurisdiction to the maximum extent permitted by due process, the state and due process jurisdictional inquiries can be conducted as one analysis. See Cal. Civ. Proc. Code § 410.10 (West 1973).
Due process requires that a non-resident defendant have sufficient minimum contacts with the forum state so that "maintenance of a suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Courts may exercise either general or specific personal jurisdiction over a nonresident defendant. See FDIC, 828 F.2d at 1442.
On a motion to dismiss for lack of personal jurisdiction, a plaintiff need only make a prima facie showing that personal jurisdiction exists. See Data Disc, Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977).
a. General Jurisdiction.
General jurisdiction exists when a nonresident defendant has "substantial, continuous and systematic" activities with the forum state, even if the cause of action is unrelated to these forum activities. See Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437 (1952).
b. Specific Jurisdiction.
If a defendant's contacts with the forum state are not substantial or continuous and systematic, this Court may only exercise jurisdiction over the defendant if the alleged activities occurred in the forum state. See Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cit. 1986). In order to confer specific personal jurisdiction in this Court, a plaintiff must show that:
(1) the nonresident defendant purposefully directed activities or consummated transactions with the forum or residents thereof, or performed some act by which he purposefully availed himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim arises out of or relates to the defendant's forum related contacts; and
(3) the exercise of jurisdiction is reasonable, meaning that it comports with fair play and substantial justice.
Data Disc, 557 F.2d at 1287.
B. Analysis
1. Dismissal of the Seventeenth Claim for the Violation of Plaintiff's Civil Rights under 42 U.S.C. § 1983 is Warranted
Defendants Lindsey and Hong contend Plaintiffs FAC should be dismissed with prejudice and without leave to amend pursuant to FED. R. Civ. P. 12(b)(6) because it fails to state a cognizable § 1983 claim. Defendants further argue Plaintiff's allegations that their failure to investigate his criminal complaints of financial corruption and terrorist threats resulted in a violation of his civil rights, are merely conclusory and thus insufficient to state a § 1983 claim. This Court agrees with Defendants and dismisses Plaintiff's seventeenth claim with prejudice and without leave to amend.
a. Plaintiff alleges the following facts supporting his § 1983 claim against Defendants Lindsey and Hong
On April 18, 2001, Plaintiff filed a criminal complaint against Kim with Detective John Stieglitz ("Stieglitz") of the Financial Crimes Division of the LAPD. See FAC, at ¶ 320. Stieglitz referred Plaintiff to Officer Lindsey of the Financial Crimes Division. See id. at ¶ 321. Lindsey refused to investigate Kim because there was "no clear evidence and her Division had only four detectives." See id. at ¶ 323. Plaintiff urged Lindsey to investigate Kim and he also told Lindsey that he might face "some kind of retaliation" because church members including Kim knew Plaintiff had filed the criminal complaint with the LAPD. See id. Plaintiff also demanded Lindsey subpoena Kim. See id. at ¶ 323. Lindsey's failure to investigate violated the LAPD manual and created a danger which ultimately led to a terrorist threat upon Plaintiff and his wife and a failed murder attempt on Plaintiff by Kim. See id. at ¶ 324.
On July 17, 2001, Plaintiff filed a "Terrorist Threat" with the LAPD asserting Defendant Hwang's misconduct at the Church. See id. at ¶ 330. On July 25, 2001, Hong, a police officer with the Asian Crime Investigation Section, informed Plaintiff he was assigned to Plaintiff's case. See id. at ¶ 331. The next day, Hong asked Plaintiff whether Hwang's threat was an "idle threat" or a "serious threat." See id. at ¶ 332. Plaintiff told Hong that Hwang's threat was a "very serious threat." See id. Hong did not investigate because he did not perceive a serious risk to Plaintiff nor did he believe there was widespread financial corruption at the Church that needed to be investigated. See id. at ¶¶ 333-34.
By failing to conduct a preliminary investigation of Hwang's terrorist threats and Kim's embezzlement, Hong violated the LAPD manual, which resulted in repeated threats by Hwang, the theft of two million dollars by Kim and the deprivation of Plaintiff's constitutional rights of life, liberty and personal security. See id. at ¶¶ 335-36, 341-42.
b. Plaintiff has not alleged sufficient facts to sustain his § 1983 claim against Defendants Lindsey and Hong
To state a § 1983 claim, Plaintiff must show (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived Plaintiff of a constitutional right. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Plaintiff argues Defendants, who were acting under color of law, violated his civil rights when they failed to investigate his criminal complaints of terrorist threats and financial corruption.
In this case, Defendants Lindsey and Hong were acting under color of state law as LAPD Officers assigned respectively to the Financial Crimes Division and the Asian Crime Investigation Section of the LAPD. However, neither Lindsey nor Hong deprived Plaintiff of any constitutional rights when they decided against investigating his complaints any further. "The Due Process Clause of the Fourteenth Amendment provides that '[n]o State shall deprive any person of life, liberty or property, without due process of law.'" LeShuney v. Winnebago County Dept. Of Social Services, 489 U.S. 189, 194, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). However, nothing in the language of the Due Process Clause "requires the State to protect the life, liberty and property of its citizens against invasion by private actors." Id. at 195. Therefore, state officials have no constitutional duty to protect the public from crime absent a special relationship between the state official and a particular member of the public, which only arises when the State restrains an individual's freedom to act on its own behalf. See id. at 200; see also Balistreri, 901 F.2d at 699-700. Moreover, police officers do not have an affirmative duty to investigate crimes in a particular manner or to protect one citizen from another. See Gini v. Las Vegas Metro. Police Dept., 40 F.3d 1041, 1045 (9th Cir. 1994).
Here, Plaintiff filed his complaints with two divisions in the LAPD. Both Officer Lindsey of the Financial Crimes Division and Officer Hong of the Asian Crime Division Section of the LAPD followed up the complaints with a phone. call to Plaintiff. According to Plaintiff, Lindsey chose not to investigate the financial misconduct of the Church further because there was "no clear evidence." Hong decided against investigating the terrorist threats any further because her perceived the threats as not serious. In each instance, Lindsey and Hong had no affirmative duty to investigate the situation in the manner Plaintiff demanded. Furthermore, the Ninth Circuit has held that an inadequate investigation by police officers is not sufficient to state a § 1983 claim unless another recognized constitutional right is involved. See Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985). Hence, even if Lindsey and Hong had conducted an inadequate investigation of Plaintiff's complaints, which this Court doubts, Plaintiff would not be able to sustain a § 1983 claim against Lindsey and Hong.
Since it appears beyond doubt that Plaintiff can prove no set of facts entitling him to relief and Plaintiff also lacks a cognizable legal theory supporting his claim against Lindsey and Hong, this Court dismisses Plaintiff's seventeenth claim with prejudice and without leave to amend pursuant to FED. R. Civ. P. 12(b)(6).
2. Dismissal of the Nineteenth Claim for the Violation of Plaintiff's Civil Rights under 42 U.S.C. § 1983 is Warranted
Defendants Charles Rossotti, Commissioner of Internal Revenue Service, Steven Miller, Examination Officer of Programs and Review, and Department of Treasury, Internal Revenue Service (collectively referred to as the "Federal Defendants") argue Plaintiff's FAG should be dismissed with prejudice and without leave to amend pursuant to FED. R. Civ. P. 12(b)(1), (2), (6) and 12(h)(3), on the grounds of lack of subject matter jurisdiction, lack of personal jurisdiction and failure to state a claim upon which relief can be granted.
a. Plaintiff alleges the following facts supporting his § 1983 claim against the Federal Defendants
Since 1996, the Federal Defendants have ignored Plaintiff's endless criminal complaints alleging financial misconduct in Korean churches including the Church in this case and Plaintiff's former church, Young Nak Church. See FAC, at ¶ 356. By not investigating the Church's financial corruption, the IRS contributed to the widespread corruption of Korean churches. See id. at ¶ 363.
On February 28, 2001, Plaintiff wrote a letter to Commissioner Rossotti. See id. at ¶ 364. Rossotti knew Plaintiff had been previously assaulted after he became a whistle-blower at his former church. See id. at ¶¶ 364-65. On April 2, 2001, Plaintiff received a letter from Miller, on behalf of Rossotti. See id. at ¶ 367. Rossotti, Miller and the IRS ignored Plaintiff's complaint about the Church, which caused Hwang to terrorize Plaintiff and his wife at Church. See id. at ¶ 369. Plaintiff was also expelled from the Church and a failed attempt was made on his life. See id.
Plaintiff also faxed a letter and a police report to the IRS. See id. at ¶ 370. In response, Plaintiff received a letter from the IRS, which Plaintiff claimed was "lust a courtesy." See id. at ¶ 371. The IRS violated its public duty when Rossotti and Miller decided not to investigate the Church's financial corruption. See id. at ¶¶ 37l-72.
b. This Court does not have subject matter jurisdiction over the IRS, the Department of Treasury or Rossotti and Miller in their official capacities as IRS employeesFederal courts are courts of limited jurisdiction. As such, this Court is "presumed to lack jurisdiction in each case unless the contrary affirmatively appears." Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). The Federal Defendants contend both the IRS and the Department of Treasury are not suable entities and thus this Court lacks subject matter jurisdiction over them. The Federal Defendants further argue this Court lacks subject matter jurisdiction over Miller and Rossotti, in their official capacities as IRS employees, because there has been no waiver of sovereign immunity. This Court agrees and dismisses the nineteenth claim with prejudice and without leave to amend against all Federal Defendants pursuant to FED. R. Civ. P. 12(b)(1).
In this case, Plaintiff named the IRS and the Department of Treasury as Defendants. Neither the Department of Treasury nor the IRS is an entity subject to suit. See Krouse v. IRS, 380 F. Supp. 219, 221 (C.D. Cal. 1974) (citing Blackmar v. Guerre, 342 U.S. 512, 514, 72 S.Ct. 410, 96 L.Ed 534 (1952)). Furthermore, even if the IRS and the Department of Treasury were suable entities, neither could be sued unless sovereign immunity had been waived. Absent a waiver of sovereign immunity, the federal government and its agencies are shielded from suit. See Federal Deposit Insurance Corp. v. Meyer. 510 U.S. 471, 475, 114 S.Ct. 996, 1000, 127 L.Ed.2d 308 (1994). Here, the IRS and the Department of Treasury, which are agencies of the federal government, did not waive their sovereign immunity. Thus, both agencies are shielded from this action. As such, Plaintiffs nineteenth claim must be dismissed as to the IRS and the Department of Treasury because this Court lacks subject matter jurisdiction.
Plaintiff fails to argue in its Opposition why the IRS and the Department of Treasury are suable entities. Furthermore, Plaintiff does not discuss why sovereign immunity does not shield the IRS and the Department of Treasury from suit.
Additionally, Plaintiff's nineteenth claim must also be dismissed against Miller and Rossotti in their official capacities as IRS employees because they are immune from suit. To the extent IRS employees are sued in their official capacity, sovereign immunity bars any claims against them. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). A suit against IRS employees is essentially a suit against the United States. See id. Here, according to Plaintiff, Rossotti is the Commissioner of the IRS and Miller is the Director of the Exemption Organization, Programs and Review of the IRS. Since both Rossotti and Miller are employees of the IRS, who are being sued in their official capacities, this claim is essentially against the United States and thus sovereign immunity must be waived before a suit can be brought against Rossotti and Miller.
To maintain an action against the United States, Plaintiff must point to a statute granting subject matter jurisdiction and a statute waiving sovereign immunity. See Powelson v. United States, 150 F.3d 1103, 1004 (9th Cir, 1998). As noted above, it is well-settled that the United States is immune from suit unless it has expressly waived immunity and consented to be sued. See id. Therefore, Plaintiff must demonstrate an unequivocal waiver of sovereign immunity. See Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1993). According to the FAC, Plaintiff originally brought this claim under 42 U.S.C. § 1983. In his Opposition, Plaintiff now asserts jurisdiction based on 28 U.S.C. § 1343(a)(4) and 42 U.S.C. § 1981 and 28 U.S.C. § 1361. Those additional sections are of no benefit to Plaintiff because even if they conferred subject matter jurisdiction here, those statutes do not waive sovereign immunity. Since Plaintiff has failed to establish an unequivocal waiver of sovereign immunity, dismissal of this claim is necessary.
Therefore, this Court grants Federal Defendants' Motion to Dismiss pursuant to FED. R. Civ. P. 12(b)(1) with prejudice and without leave to amend as to the IRS, the Department of Treasury and Rossotti and Miller in their official capacities as IRS employees.
c. This Court does not have personal jurisdiction over Rossotti or Miller in their individual capacities
Finally, Defendants argue this Court does not have personal jurisdiction over Rossotti and Miller in their official capacities. This Court agrees. Personal jurisdiction requires service of process in accordance with statutory and due process requirements. See Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) (no personal jurisdiction where service was not made in substantial compliance with Fed.R.Civ.P. 4.) Fed.R.Civ.P. 4(e) provides in pertinent part:
"Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, . . . may be effected in any judicial district of the United States:
(1) pursuant to the law of the state in which the district court is located. . . .; or
(2) by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house of usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process."
Rule 4(i)(2) provides that service upon the agencies, corporations, officers or employees of the United States which are "sued only in an official capacity, is effected by serving the United States . . . and by also sending a copy of the summons and complaint by registered or certified mail to the officer, employee, agency, or corporation."
In this case, Plaintiff failed to properly serve Rossotti and Miller as required by Rules 4(e) or 4(i)(2). Moreover, neither Rossotti nor Miller has filed a waiver submitting to this Court's jurisdiction. "An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority by formal process." Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 119 S.Ct 1322 (1999). Personal jurisdiction is an essential element of the jurisdiction of a district court . . without which the court is powerless to proceed to an adjudication." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (internal quotes omitted).
Plaintiff has also filed no proof of service with respect to Rossotti and Miller, but neither does he claim to have served those individuals in accordance with the Federal Rules of Civil Procedure set forth above.
Accordingly, this Court dismisses the First Amended Complaint with respect to Charles Rossotti and Steven Miller for lack of personal jurisdiction.
III. Conclusion
Based on the foregoing, this Court grants Defendants Lindsey and Hong's Motion to Dismiss the First Amended Complaint for Failure to State a Claim. upon Which Relief Can Be Granted, and grants Federal Defendants' Motion to Dismiss First Amended Complaint for Lack of Subject Matter Jurisdiction; Lack of Personal Jurisdiction; and Failure to State a Claim upon Which Relief Can Be Granted. Accordingly,
(1) Plaintiff's seventeenth claim for violation of Plaintiff's civil rights is dismissed with prejudice and without leave to amend.
(2) Plaintiff's nineteenth claim for violation of Plaintiff's civil rights is dismissed with prejudice and without leave to amend.
IT IS SO ORDERED.