United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
AARON POLSTER UNITED STATES DISTRICT JUDGE.
Azaadjeet Singh, pro se, filed the above-captioned
case on November 2, 2015, against Defendant Singapore Housing
& Development Board (“HDB”). Doc #: 1. On
December II, after reviewing the Complaint, the Court
directed Singh to amend his complaint to properly allege
personal jurisdiction and set forth a cognizable claim for
relief. Doc #: 3.
January 8, 2016, Singh filed his Amended Complaint. Doc #: 5.
In the Amended Complaint, Singh alleges, “On December
1, 1997, Azaadjeet Singh [buyer] and Housing &
Development Board [HDB] [seller] entered into a written
agreement . . . for the purchase of the apartment Block 403
Bukit Batok West Avenue 7 #02-24 Singapore 650403. . . . On
or about in 2005, HDB breached the said agreement by
compulsorily acquisition of the apartment.” Am. Compl.
¶ 11 (brackets in original).
months later, on March 9, 2016, the Court noted that nothing
had been filed since January and directed Singh to file
either proof of service compliant with 28 U.S.C. § 1608
or a status report regarding service of process. Doc #: 6. On
March 31, 2016, Singh filed a Status Report describing his
attempts to serve HDB. Doc #: 7. On April 7, 2016, the Court
issued a follow-up, non-document order requesting or proof of
service or another status report, by June 7, 2017.
19, 2016, Singh filed a second Status Report. Doc #: 8. The
Court observed, “[t]he Status Report describes and
documents Singh's attempts to serve HDB and also appears
to move the Court for default judgment.” Order 1, Doc
#: 9. The Court denied the motion for default judgment and
directed Singh to file proof of service and a “a
separate memorandum demonstrating that such service is
legally effective upon a foreign entity, pursuant to Fed. R.
Civ P. 4(j), 28 U.S.C. § 1608, and other relevant
rules.” Id. 2. Singh did so on July 5, 2016.
Doc ##: 10, 11.
five more months' docket silence, the Court issued an
order finding service of process on HDB effective as of April
7, 2016, and instructing the Clerk of Court to enter default
against HDB. Order 5, Doc #: 12. The Court directed Singh to
“ file, on or before February 13, 2017, a proper motion
for default judgment, pursuant to Fed.R.Civ.P. 55(b). To
afford HDB an opportunity to object to the Clerk's entry
of default, the Court will not, prior to February 13, 2017,
rule on any motion for default judgment.” Id.
February 10, 2017, Singh filed a Motion for Default Judgment.
Doc #: 14. On February 13, HDB sent a letter to Court
requesting additional time to oppose the Motion for Default
Judgment. Doc #: 15. On February 14, 2017, by non-document
order, the Court granted the extension until March 13, 2017.
On February 21, Singh filed a Motion to Oppose Extension of
Time. Doc #: 16. The Court scheduled a teleconference for
February 24, 2017.
the teleconference, the Court denied the Motion for Default
Judgment, because HDB had appeared. Teleconference Minutes,
Doc #: 20. The Court directed the parties to exchange certain
documents related to the transfer of the apartment and
scheduled a follow-up teleconference, noting explicitly that
through this participation, “HDB is not waiving any
jurisdictional defenses.” Id. 2. HDB's
counsel, but not Signh, attended the follow-up teleconference
on March 14, 2017, at which the Court set a briefing schedule
for HDB's responsive pleading.
April 10, 2017, HDB filed a Motion to Dismiss Pursuant to
FRCP 12(b)(1), (2), and under the Doctrine of Forum non
Conveniens. Doc #: 23. This Motion is now fully
to the Federal Rules of Civil Procedure, a court may dismiss
claims filed in a complaint for “lack of subject-matter
jurisdiction.” Fed.R.Civ.P. 12(b)(1). Lack of subject
matter jurisdiction is a non-waivable, fatal defect.
Watson v. Cartee, 817 F.3d 299, 302-03 (6th Cir.
2016). “Where subject matter jurisdiction is challenged
pursuant to Rule 12(b)(1), the plaintiff has the burden of
proving jurisdiction in order to survive the motion.”
Moir v. Greater Cleveland Reg'l Transit
Auth., 895 F.2d 266, 269 (6th Cir.1990) (citing
Rogers v. Stratton Industries, Inc., 798 F.2d 913,
915 (6th Cir.1986)).
12(b)(1) motions to dismiss for lack of subject matter
jurisdiction generally fall under one of two categories:
facial attacks or factual attacks. Ohio Nat'l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th
Cir.1990). A facial attack tests the sufficiency of the
pleading. Id. When reviewing a facial attack, the
court must take the material allegations of the pleading as
true and construe them in the light most favorable to the
non-moving party. United States v. Ritchie, 15 F.3d
592, 598 (6th Cir. 1994). In contrast, a factual attack is a
challenge to the factual existence of subject matter
jurisdiction. Ohio Nat'l, 922 F.2d at 325. If a
Rule 12(b)(1) motion makes a factual attack, a court is free
to consider and weigh extrinsic evidence of its own
jurisdiction, without granting the plaintiff's
allegations any presumption of truthfulness, until the court
is satisfied of the existence of its power to hear the case.
se complaints are to be held ‘to less stringent
standards than formal pleadings drafted by lawyers, ' and
should therefore be liberally construed.” Williams
v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting
Martin v. Overton, 391 F.3d 710, 712 (6th
Cir.2004)). However, pro se plaintiffs must still satisfy
basic pleading requirements. Wells v. Brown, 891
F.2d 591, 594 (6th Cir.1989).
moves to dismiss for three reasons: lack of subject matter
jurisdiction, lack of personal jurisdiction, and forum
non conveniens. Each of these arguments raises a
separate-and typically independent-requirement for the Court
to consider a case. For example, it is possible that a court
may have subject matter jurisdiction but lack of personal
jurisdiction and consequently be required to dismiss the
case; or a court may have subject matter and personal
jurisdiction but dismiss on the basis of forum non
conveniens. Put another way, the failure to meet any one
of these requirements results in dismissal no matter how
strongly or weakly one or two of the other requirements may
be met. Accordingly, because the above-captioned case is
subject to dismissal on the basis of subject matter
jurisdiction, the Court need not and does not address
personal jurisdiction or forum non conveniens.
Subject Matter Jurisdiction Law
Foreign Sovereign Immunities Act (“FSIA”),
“is the ‘sole basis for obtaining jurisdiction
over a foreign sovereign state in federal court.'”
Samantar v. Yousuf, 560 U.S. 305, 314 (2010)
(quoting Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 439 (1989)).
FSIA provides that “a foreign state shall be immune
from the jurisdiction of the courts of the United States and
of the States” except as otherwise provided. 28 U.S.C.
§ 1604. “Foreign state, ” for purposes of
the FSIA, is defined in 28 U.S.C. § 1603. In relevant
part, a foreign state “includes a political subdivision
of a foreign state or an agency or instrumentality of a