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CHIU v. AU

May 23, 2003

MICHAEL W. CHIU, PLAINTIFF,
v.
JOHN AU, AKZO CHEMICAL LTD., CANADA, AKZO CHEMICAL INC., DEFENDANTS.



The opinion of the court was delivered by: Wayne Andersen, District Judge

MEMORANDUM OPINION AND ORDER

This case is before the Court on the motion of defendant Akzo Nobel Chemicals, Inc. to dismiss plaintiff Michael Chiu's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motion to dismiss is granted.

BACKGROUND

Plaintiff Michael Chiu is a Canadian citizen who has alleged that he worked as a "technical specialist" in the "food and polymer industries" since graduating from college in Canada in the late 1970's. (Complt. at ¶ 14.) Defendant Akzo Nobel Chemicals, Inc. ("Akzo USA") is an American company with its principal place of business in or around Chicago, Illinois. (Complt. at ¶ 4)

While the complaint is largely incoherent, the primary thrust of Chiu's complaint is that the defendants made "a series of obscene negative statements and profile, defamation and negative references, gossips, vulgar languages, ethnic and racial slurs and derogatory remarks into the industries in Canada and the United States beginning in 1977." (Complt. at ¶ 5.) From what we can gather from the disjointed allegations in the complaint, defendant John Au apparently worked for Akzo USA's Canadian subsidiary sometime between 1977 and the present. While working as an Akzo employee, Au allegedly made a series of derogatory and defamatory statements about the plaintiff that damaged his ability to find employment in the "food and polymer industries." In addition, Chiu has alleged that Au and the corporate defendants engaged in other unsavory activities, including "[p]hysical threat and intimidation, physical swarming against the plaintiff's family members, murder plot was engaged against the plaintiff and his family and members of individuals he associated with." (Complt. at ¶ 6) Further, "[b]ackmail for sex was taken place against the plaintiff's former female schoolmates and colleagues" and "[tlhe plaintiff's personal belongings and property were stolen and vandalized" (Id.)

On October 4, 2002, the plaintiff filed the instant defamation and slander suit against Au and the corporate defendants. To date, only Akzo USA has been properly served with a summons and a copy of the complaint. Service on Au and Akzo Chemical, Inc. (Canada) was attempted but apparently was unsuccessful. The complaint purports to allege violations of "the Canadian constitution of Charter of Rights and Freedoms, and the Slander and Libel Act, and the Courts of Justice Acts of Canada and United States, and the Human Rights Code, and the section 264 and 301 and 319 subsec. (1), (2) of Criminal Code R.S., C-34, S.262 and R.S.C. 1984, C.27, S.37 and R.S., c.11 (1st Supp.), s.1 (as amended), and R.S.C. C-34, S.266." (Complt. at ¶ 20.) In a supplemental pleading, which we have construed as an amended complaint, he also has alleged that he is entitled to relief based on the following sections of the Illinois Code: 740 ILCS § 145/1, 740 ILCS § 14512, 720 ILCS § 511-3, 1-4, 1-5, and 1-6 (E)(L), 720 ILCS § 5/8.21(a)(b), 775 ILCS 5/6-101(A)(B)(C), and 720 ILCS 5/26-1(a). In response to these pleadings, Akzo USA has moved to dismiss the plaintiff's complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted

DISCUSSION

In reviewing a motion to dismiss under Rule 12(b)(1), the Court must accept all well-pled facts as true and "draw reasonable inferences from those allegations in the plaintiff's favor." Transit Express. Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001) (citing Rueth v. United States Envtl. Protection Agency, 13 F.3d 227, 229 (7th Cir. 1993)). "[I]n reviewing a pro se complaint, we must employ standards less stringent than if the complaint had been drafted by counsel." Curtis v. Bembenek, 48 F.3d 281, 283 (7th Cir. 1995). "However, this does not mean that we will fill in all of the blanks in a pro se complaint." Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir. 1996). The plaintiff in a civil case is responsible for demonstrating that "diversity or federal question jurisdiction exists." Minor v. Prudential Services, Inc., 94 F.3d 1103, 1105 (7th Cir. 1996).

Before we delve into the merits of the motion to dismiss, we would briefly like to address some of the inaccuracies present in the plaintiffs "pleadings" to the Court. We put the word pleadings in quotation marks because virtually all of the court copies we received from the plaintiff were sent via facsimile. To file any paper or pleading in this Court by fax is a violation of both Clerk's office policy and the binding local rules of this Court. On a substantive note, Mr. Chin is under the misapprehension that he is entitled to a default judgment in this case. Apparently, he believes that, because the defendants have not filed an answer to his complaint, he is entitled to a Rule 55 default judgment. This is incorrect. Rule 12 of the Federal Rules specifically contemplates that a defendant to an action may file either an answer to a complaint or a Rule 12(b) motion. In this case, Akzo USA filed a timely 12(b)(1)/(6) motion. Thus, the plaintiff is not entitled to a default judgment.

I. Lack of Federal Question Jurisdiction

Pursuant to 28 U.S.C. § 1331, federal district courts may assert jurisdiction over cases arising under the Constitution, laws, or treaties of the United States. To establish federal question jurisdiction in this case, Chiu must show either: 1) that a federal statute grants the Court jurisdiction; or 2) that there is common law jurisdiction to a "uniquely federal interest," which would be frustrated by the "application of state law." Northrap Corp. v. AIL Systems, Inc., 959 F.2d 1424, 1426-27 (7th Cir. 1992).

In the complaint in this case, the plaintiff has made reference to a variety of statutes, most of which, aside from the Illinois statutes, are completely unfamiliar to us. The defendant has stated in its motion that the authorities cited in the complaint are from the Canadian Constitution or from Canadian statutory law. We do not disagree. For obvious reasons, Canadian tort law is not sufficient to trigger our federal question jurisdiction in this case. This conclusion is bolstered by the fact that the plaintiff's claims are in the nature of common law libel, slander, and defamation of character. While it is true that such claims are cognizable under Canadian or Illinois state tort law, it is undeniable that they do not arise under the Constitution, laws, or treaties of the United States. Therefore, we conclude there is no federal question jurisdiction present in this case.

II. Lack of Diversity Jurisdiction

The original jurisdiction of federal district courts under 28 U.S.C. § 1332 (diversity jurisdiction) is limited to cases between, inter alia, citizens of different states, or citizens of a state and a foreign state, in which the "matters in controversy exceed [] $75,000." 28 U.S.C. § 1332 (a). Section 1332 has been interpreted to require "complete diversity," that is, each and every defendant must have different citizenship from each and every plaintiff. Carden v. Arkoma Assoc., 494 U.S. 185, 187, 110 S.Ct. 1015 (1990) (citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L.Ed. 435 (1806)). It is undisputed that the ...


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