Oksana Baiul-Farina v. Joseph Charles Lemire et al, No. 2:2015cv07325 - Document 117 (C.D. Cal. 2018)
Court Description: AMENDED ORDER DENYING MOTION TO REMAND AND GRANTING MOTIONS TO DISMISS by Judge Dean D. Pregerson. Plaintiffs motion to remand is DENIED. Defendants Motions to Dismiss are GRANTED. Plaintiffs FAC is DISMISSED, with prejudice. (shb)
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Oksana Baiul-Farina v. Joseph Charles Lemire et al Doc. 117 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 OKSANA BAIUL-FARINA, professionally known as OKSANA BAIUL, an individual, 13 14 15 16 17 18 Plaintiff, v. JOSEPH CHARLES LEMIRE, an individual; OLYMPIC CHAMPIONS LTD., a Delaware corporaiton; OLYMPIC CHAMPIONS LTD., a British Virgin Islands corporation; REPUBLIC OF UKRAINE, a sovereign nation, 19 Defendants. 20 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 15-07325 DDP (MRWx) AMENDED ORDER DENYING MOTION TO REMAND AND GRANTING MOTIONS TO DISMISS [Dkts 89, 91, 92, 96, 105] 21 22 Presently before the court are Plaintiff’s Motion to Remand 23 and separate Motions to Dismiss, one filed by Defendants Joseph 24 Lemire, Olympic Champtions, Ltd., and Olympic Champions, Ltd.-BVI 25 (Collectively, “Lemire”) and the other by Defendant Republic of 26 Ukraine. 27 court denies the motion to remand and grants the motions to 28 dismiss. Having considered the submissions of the parties, the Dockets.Justia.com 1 I. Background 2 This is one in a series of law suits brought by Plaintiff 3 relating to professional figure skating performances in the 1990s. 4 This is not Plaintiff’s first suit against Lemire. 5 Plaintiff filed suit against Lemire, William Morris Agency, LLC, 6 and others in New York. 7 case (the New York Complaint) alleged, among other things, that 8 Lemire stole money from Plaintiff, misrepresented amounts owed to 9 her, and made other false statements. In 2013, Plaintiff’s wide-ranging complaint in that (Lemire’s Request for 10 Judicial Notice (“RJN”, Ex. 5). The New York Complaint alleged 11 causes of action against Lemire for racketeering and conspiracy and 12 conversion. (RJN Ex. 5.) 13 prejudice, characterizing the suit as “frivolous . . ., bizarre, 14 [and] wholly without merit.” 15 court determined that Plaintiff could not possibly satisfy the 16 applicable statute of limitations, as, according to her own 17 pleadings, she had notice of, or should have discovered, the 18 alleged wrongdoing no later than the year 2000. 19 23.) 20 The court dismissed all claims with (RJN Ex. 7 at 1, 29.) The dismissal was affirmed on appeal. The New York (RJN Ex. 7 at 12, (RJN Ex. 9.) The operative complaint in the instant case alleges causes of 21 action against Lemire for breach of contract, fraud and 22 constructive fraud, and money had and received.1 23 Complaint (“FAC”) ¶¶ 1, 3-5, 18, 21, 27, 30, 33.) 24 York Complaint, the First Amended Complaint (“FAC”) here alleges 25 that Lemire stole money from Plaintiff and made fraudulent 26 representations to her, including false statements regarding (First Amended Like the New 27 1 28 Plaintiff’s First Amended Complaint alleges all but the fraud claim against Defendant Ukraine as well. 2 1 amounts payable to Plaintiff. 2 3.) Defendants now move to dismiss the FAC. 3 II. Legal Standard 4 (See Declaration of Martin Domb, Ex. A complaint will survive a motion to dismiss when it contains 5 “sufficient factual matter, accepted as true, to state a claim to 6 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 8 570 (2007)). 9 “accept as true all allegations of material fact and must construe 10 those facts in the light most favorable to the plaintiff.” Resnick 11 v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 12 need not include “detailed factual allegations,” it must offer 13 “more than an unadorned, the-defendant-unlawfully-harmed-me 14 accusation.” 15 allegations that are no more than a statement of a legal conclusion 16 “are not entitled to the assumption of truth.” Id. at 679. Even 17 under the liberal pleading standard of Federal Rule of Civil 18 Procedure 8(a)(2), under which a party is only required to make a 19 “short and plain statement of the claim showing that the pleader is 20 entitled to relief,” a “pleading that offers ‘labels and 21 conclusions’ or a ‘formulaic recitation of the elements of a cause 22 of action will not do.’” Id. 678 (quoting Twombly, 550 U.S. at 23 555). 24 When considering a Rule 12(b)(6) motion, a court must Iqbal, 556 U.S. at 678. Although a complaint Conclusory allegations or Federal Rule of Civil Procedure 12(b)(2) provides that a court 25 may dismiss a suit for lack of personal jurisdiction. 26 plaintiff has the burden of establishing that jurisdiction exists, 27 but need only make “a prima facie showing of jurisdictional facts 28 to withstand the motion to dismiss.” 3 The Pebble Beach Co. v. Caddy, 1 453 F.3d 1151, 1154 (9th Cir. 2006). “Uncontroverted allegations in 2 the complaint must be taken as true, and conflicts over statements 3 contained in affidavits must be resolved in [the plaintiff’s] 4 favor.” 5 (9th Cir. 2010). 6 III. Discussion 7 A. 8 9 Love v. Associated Newspapers. Ltd., 611 F.3d 601, 608 Plaintiff’s Motion to Remand Plaintiff moves for remand of this action to state court, notwithstanding the appearance and participation of Defendant 10 Republic of Ukraine, which confers subject matter jurisdiction over 11 this matter upon this Court. 12 1603(a). 13 citation to authority, that “the issue of sovereign immunity is the 14 only issue for which Ukraine is entitled to a Federal forum and 15 that request can be accommodated as a jurisdictional ruling prior 16 to remand.” 17 Plaintiffs’ invitation to split claims to accommodate Defendant 18 Republic of Ukraine’s “request.” 19 dispute that she made no attempt to meet and confer with respect to 20 this motion. 21 of Plaintiff’s motion. 22 motion to remand is denied. 23 B. 24 See 28 U.S.C. 1441(d); 28 U.S.C. § Plaintiff contends, in a single sentence and without (Opp. at 2.) This Court declines what appears to be (Opp. at 1). Furthermore, Plaintiff does not This failure alone would merit denial C.D. Cal. L.R. 7-3, 7-4. Plaintiff’s Lemire’s Motion to Dismiss Lemire argues first that Plaintiff’s claims are barred by the 25 doctrine of res judicata. 26 court sitting in diversity must apply the res judicata law of the 27 state in which it sits.” 28 F.2d 1199, 1201 (9th Cir. 1982). (Lemire Motion at 9.) “[A] federal Constantini v. Trans World Airlines, 681 California law looks to federal 4 1 law to determine the effect of a prior federal judgment. 2 also Louie v. BFS Retail and Commercial Operations, LLC, 178 Cal. 3 App. 4th 1544, 1553-54 (“[W]here a prior federal judgment was based 4 on federal question jurisdiction, the preclusive effect of the 5 prior judgment of a federal court is determined by federal law. 6 Where a prior federal judgment was based on diversity jurisdiction, 7 the preclusive effect is subject to federal common law – meaning 8 the law of the state in which the federal court sits – if the state 9 law is compatible with federal interests.”) (internal citations 10 omitted, emphases original); Butcher v. Truck Ins. Exchange, 77 11 Cal.App.4th 1442, 1452 (2000) (“California follows the rule that 12 the preclusive effect of a prior judgment of a federal court is 13 determined by federal law, at least where the prior judgment was on 14 the basis of federal question jurisdiction.”). 15 Complaint was litigated in federal court after having been removed 16 on the basis of federal question jurisdiction. 17 therefore, apply federal law preclusion principles. 18 Id; See Here, the New York This court will, Res judicata “bars litigation in a subsequent action of any 19 claims that were raised or could have been raised in the prior 20 action.” 21 708, 713 (9th Cir. 2001); W. Radio Servs. Co. v. Glickman, 123 F.3d 22 1189, 1192 (9th Cir. 1997). The doctrine applies when there is “1) 23 [an] identity of claims, 2) a final judgment on the merits, and 3) 24 identity or privity between the parties.” W. Radio Servs. Co., 123 25 F.3d at 1192. 26 this case involve the same parties. 27 that the New York court’s decision was not “on the merits,” but 28 rather “procedural,” insofar as it was premised on statute of Owens v. Kaiser Foundation Health Plan, Inc. 244 F.3d There is no dispute that the New York Complaint and 5 Although Plaintiff contends 1 limitations concerns, that arguments is not persuasive. 2 of finality, both statutory and judge made, treat a dismissal on 3 statute-of-limitations grounds the same way they treat a dismissal 4 for failure to state a claim . . . : as a judgment on the merits.” 5 Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 28 (1995).2 6 “The rules The question remains, however, whether there is an identity of 7 claims between the two cases. 8 four factors to determine if there is an identity of claims: 9 10 11 12 Courts in the Ninth Circuit rely on (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. 13 Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980); Constantini, 14 681 F.2d at 1201-02. 15 there is an identity of claims is whether the two suits “arise out 16 of the same transactional nucleus of facts.” Costantini, 681 F.2d 17 at 1202; see also Frank v. United Airlines, Inc., 216 F.3d 845, 851 18 (9th Cir. 2000). 19 often sufficient to find an identity of claims for res judicata 20 purposes, even without analysis of the other factors. 21 JPMorgan Chase Bank, No. 11-CV-02920, 2011 WL 6002599, at *8 (N.D. 22 Cal. Nov. 30, 2011); see Int’l Union of Operating Eng’rs-Employers 23 Constr. Indus. Pension, Welfare and Training Trust Funds v. Karr, 24 994 F.2d 1426, 1430 (9th Cir. 1993). The central issue in determining whether Satisfaction of the fourth Constantini factor is Quinto v. When analyzing the nucleus of 25 26 27 28 2 The New York claims also suffers simply no reason to of this glaring and (RJN Ex. 7 at 12.) court also observed that “each of Baiul’s from additional fatal defects, but there is spend the resources to review them all in light dispositive [statute of limitations] issue.” 6 1 facts factor, courts ask “whether [the two actions] are related to 2 the same set of facts and whether they could conveniently be tried 3 together.” W. Systems, Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 4 1992). 5 The facts of the New York case and the instant matter overlap 6 almost entirely. 7 on California rather than federal law, nevertheless contends that 8 there is no identity of claims because the two suits allege 9 different causes of action. (Domb Decl., Ex. 3.) Plaintiff, focusing largely (Opp. at 18-19.) That argument is not 10 persuasive. 11 claims’ does not mean that an imaginative attorney may avoid 12 preclusion by attaching a different legal label to an issue that 13 has, or could, have been litigated.” 14 Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077-78 (9th 15 Cir. 2003). 16 of the same nucleus of facts because the same evidence, and one fax 17 in particular, was not at issue in the prior case but is crucial 18 here. 19 separate factors in the identity of claims analysis, but fails to 20 acknowledge that the fax at issue was discussed in the prior case.3 21 (RJN, Ex. 15.) 22 23 “The fact that res judicata depends on an ‘identity of Tahoe-Sierra Pres. Council, Plaintiff also argues that the claims do not arise out (Opp. at 19.) Plaintiff’s argument not only conflates Because this suit and the New York case arise out of the same nucleus of transactional facts, there is an identity of claims 24 25 26 3 27 28 Plaintiff’s argument concerning rights and interests similarly conflates separate identity of claims factors and, in any event, restates Plaintiff’s argument about distinctly labeled “claims.” (Opp at. 19-20.) 7 1 between the two cases. 2 are met.4 3 C. 4 All three res judicata factors, therefore, Accordingly, Plaintiff’s claims are dismissed.5 Defendant Republic of Ukraine’s Motion to Dismiss Defendant Republic of Ukraine (“Ukraine”) moves separately to 5 dismiss Plaintiff’s FAC. 6 reasons stated above. 7 appear that Ukraine has been properly served. 8 dispute that she made no attempt to comply with 28 U.S.C. § 9 1608(a)(1) or (b)(1).6 Ukraine’s motion must be granted, for the See note 4, supra. Furthermore, it does not Plaintiff does not See Peterson v. Islamic Republic Of Iran, 10 627 F.3d 1117, 1129 n.4 (9th Cir. 2010) (“The four forms of service 11 [under Section 1608] are listed in descending order of 12 preference.”); Angellino v. Royal Family Al-Saud, 688 F.3d 771, 773 13 (D.C. Cir. 2012); Magness v. Russian Fed'n, 247 F.3d 609, 613 (5th 14 Cir. 2001). 15 4 16 17 18 19 20 21 Even if the particular claims here were not precluded, the issue of when Plaintiff had notice of the alleged wrongdoing would be. “Issue preclusion . . . bars successive litigation of an issue of fact or law actually litigated . . ., even if the issue recurs in the context of a different claim.” White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012) (internal quotation and citation omitted). Issue preclusion applies where “(1) the issue at stake was identical in both proceedings; (2) the issue was actually litigated and decided in the prior proceedings; (3) there was a full and fair opportunity to litigate the issue; and (4) the issue was necessary to decide the merits.” Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012). 22 5 23 The court need not address Lemire’s remaining arguments. 6 24 25 26 27 Even if Plaintiff had attempted service under the Section 208 hierarchy, Plaintiff did not, contrary to her argument, “substantially” comply with Section 208((b)(3), as she does not dispute that she did not provide a translated version of her complaint. See Straub v. A P Green, Inc., 38 F.3d 448, 453 (9th Cir. 1994) (“Failure to deliver a complaint in the correct language is such a fundamental defect that it fails both a ‘strict compliance’ test and a ‘substantial compliance’ test.”) 28 8 1 Accordingly, Plaintiff’s claims against Ukraine are 2 dismissed.7 3 IV. 4 Conclusion For the reasons stated above, Plaintiff’s motion to remand is 5 DENIED. 6 FAC is DISMISSED, with prejudice. Defendants’ Motions to Dismiss are GRANTED. Plaintiff’s 7 8 IT IS SO ORDERED. 9 10 11 Dated: June 18, 2018 DEAN D. PREGERSON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 The court need not address Ukraine’s remaining arguments. 9
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