Opinion
No. C 01-03342 WHA
November 25, 2002
ORDER DISMISSING COMPLAINT WITH PREJUDICE
On September 4, 2001, plaintiff Andrey Klimenko, proceeding pro se, filed a complaint commencing this copyright suit against defendant Russian-American Company Sovtek Sobor Corporation, a Russian corporation with offices in Moscow. The action was assigned to Magistrate Judge Zimmerman. On October 10, 2001, Klimenko's application to proceed in forma pauperis was denied. That order noted and explained to Klimenko that he failed to "allege any activity that occurred in the United States or otherwise suggest any basis for this court to acquire personal jurisdiction over the defendant." Therein, Magistrate Judge Zimmerman gave Klimenko until November 13, 2001, to amend the complaint to include sufficient allegations to support personal jurisdiction. Otherwise, the complaint was to be dismissed a frivolous.
Construed liberally to give Klimenko the benefit of any doubt, the same order concluded:
[P]laintiffs complaint alleges facts sufficient to state a claim. Sometime between 1990 and 1995, plaintiff, then residing in Russia, created certain paintings which defendant either misappropriated, converted to its own use or used commercially without reimbursing him. Plaintiff moved to the United States in 1997 and has unsuccessfully attempted to get compensation from defendant.
The first amended complaint was filed on November 9, 2001. Since neither Klimenko or defendant consented to proceed before a Magistrate Judge, on December 18, 2001, Magistrate Judge Zimmerman ordered reassignment to a district court judge and issued a report and recommendation. Therein, Magistrate Judge Zimmerman again found and explained that the first amended complaint failed to allege facts sufficient to sustain personal jurisdiction over the foreign defendant as it "appeared to reside and operate entirely in Russia." The report instructed Klimenko that he must "allege facts demonstrating that the defendant or the litigation bears a sufficient relationship to the Northern District of California, such that it would be reasonable to require the defendant to defend the action in this court." The report recommended that the first amended complaint be dismissed without prejudice for failure to allege facts to support personal jurisdiction.
On January 16, 2002, after the action was reassigned to the undersigned, this Court adopted the report and recommendation by Magistrate Judge Zimmerman. For the reasons given therein, the first amended complaint was dismissed without prejudice. Klimenko was given until January 31, 2002, to file a second amended complaint to aver sufficient personal jurisdiction allegations, as per the specific instructions given in the adopted report. That order warned that if the second amended complaint was not timely filed, judgment shall be entered for defendant because the first amended complaint was frivolous as currently pled.
Klimenko timely filed his second amended complaint. Therein, Klimenko's personal jurisdiction allegations are: (1) in 1990 (while in Russia), the president of defendant promised to help support any exhibitions of his artwork in the United States; and, (2) in 1991 (while still in Russia), Klimenko received two business cards for defendant which listed telephone and facsimile numbers for Los Angeles, San Francisco, New Jersey, Miami Beach and other locations outside the United States. Klimenko states he no longer has these business cards.
Again, Klimenko has failed to plead sufficient factual allegations for this Court to assert personal jurisdiction over this foreign defendant. Construed liberally to give Klimenko the benefit of any doubt, he has failed to allege any activity that occurred in the United States to support the exercise of personal jurisdiction. Klimenko only alleges that while in Russia he received defendant's business cards. These two cards listed telephone numbers for locales in the United States. Accordingly, this order dismisses the complaint with prejudice. Sanders v. United States, 760 F.2d 869, 871 (8th Cir. 1985) (dismissing the plaintiffs pro se claim under 28 U.S.C. § 1915(d) as frivolous due to the plaintiffs failure to allege a set of facts that would support the exercise of jurisdiction over the defendants). Klimenko has already twice amended his complaint after being given specific instructions on how to cure the deficient allegations on personal jurisdiction. Any appeal must be filed with the Court of Appeals for the Ninth Circuit within thirty days.