(PS) Van Noland et al v. Pelletier et al, No. 2:2009cv02035 - Document 89 (E.D. Cal. 2010)
Court Description: ORDER denying 83 Motion for Reconsideration, signed by Judge Morrison C. England, Jr., on 4/5/10. (Kastilahn, A)
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(PS) Van Noland et al v. Pelletier et al Doc. 89 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MILTON CHARLES VAN NOLAND and JOY GARNER, No. 2:09-cv-02035-MCE-DAD 12 Plaintiffs, 13 ORDER v. 14 15 ERIC S. PELLETIER and “GRRR! LIMITED,” 16 Defendants. 17 18 ----oo0oo---- 19 20 In bringing the present Motion for Reconsideration, 21 Plaintiffs Milton Charles Van Noland and Joy Garner, both 22 proceeding pro se, ask this Court to reverse the magistrate 23 judge’s February 24, 2010 Order denying Plaintiffs’ Motion to 24 Remand. 25 magistrate judge’s denial of their Motion for Recusal in this 26 matter. 27 /// 28 /// Plaintiffs also ask this Court to reconsider the 1 Dockets.Justia.com STANDARD 1 2 3 In reviewing a magistrate judge’s determination, the 4 assigned judge shall apply the “clearly erroneous or contrary to 5 law” standard of review set forth in Local Rule 303(f), as 6 specifically authorized by Federal Rule of Civil Procedure 72(a) 7 and 28 U.S.C. § 636(b)(1)(A).1 8 must accept the magistrate judge’s decision unless it has a 9 “definite and firm conviction that a mistake has been committed.” 10 Concrete Pipe & Products of Calif., Inc. v. Construction Laborers 11 Pension Trust for So. Calif., 508 U.S. 602, 622 (1993). 12 Court believes the conclusions reached by the magistrate judge 13 were at least plausible, after considering the record in its 14 entirety, the Court will not reverse even if convinced that it 15 would have weighed the evidence differently. 16 Supply Inc. v. Universal Elec. Co., Inc., 104 F.3d 1137, 1141 17 (9th Cir. 1997). Under this standard, the Court If the Phoenix Eng & 18 ANALYSIS 19 20 21 Plaintiffs claim the magistrate judge erred in denying both 22 their requests for remand to state court and recusal by the 23 magistrate judge. 24 25 26 27 28 1 Federal Rule of Civil Procedure 72(a) directs the district court judge to “modify or set aside any portion of the magistrate judge’s order found to be clearly erroneous or is contrary to law.” Similarly, 28 U.S.C. § 636(b)(1)(A), the district judge may reconsider any pretrial order “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 2 1 With respect to the Motion to Remand, Plaintiffs give a laundry 2 list of claimed errors. 3 stem from the magistrate judge’s ultimate determination that the 4 principal place of business, if any, of the Defendant 5 corporation, Grrr! Limited, was located in the island of 6 Guernsey, not California. 7 Plaintiffs contend that recusal is warranted due to the 8 magistrate judge’s various adverse rulings. Plaintiffs’ contentions, however, all As for the Motion for Recusal, 9 10 A. The Magistrate Judge Properly Denied the Motion to Remand 11 12 Plaintiffs argue that the magistrate judge’s denial of the 13 Motion for Remand (Doc. #78) was erroneous as a matter of fact 14 and law. 15 they allege that the Supreme Court’s recent decision in Hertz 16 Corp. v. Friend, 130 S. Ct. 1181, 2010 WL 605601 (Feb. 23, 2010), 17 changed the prevailing law so that citizenship is no longer 18 determined by the state of incorporation. 19 contend that incorporation is not the only way of forming a 20 company. 21 applied to this case was incorrect. 22 Plaintiffs, the magistrate judge failed to make a definitive 23 finding that the Defendant corporation, Grrr! Limited, was active 24 or inactive and that under the proper analysis, the court should 25 have found evidence of substantial activity by the company in 26 California during the relevant time period. 27 area of alleged error rests with their contention that there was 28 in fact no evidence of substantial activity in Guernsey. Plaintiffs advance seven specific arguments. First, Second, Plaintiffs Third, they allege that the “start up” theory as 3 Fourth, according to Plaintiffs’ fifth 1 Sixth, Plaintiffs claim that the “naked assertions” considered by 2 the magistrate judge in making his determination were not 3 evidence. 4 improperly reversed the burden applicable to their Motion in any 5 event. 6 Finally, according to Plaintiffs, the magistrate judge A defendant may remove any civil action from state court to 7 federal district court if the district court has original 8 jurisdiction over the matter. 9 district courts have original jurisdiction over civil actions in 10 two instances: (1) where there is complete diversity between the 11 parties, or (2) where a federal question is presented in an 12 action arising under the Constitution, federal law, or treaty. 13 28 U.S.C. §§ 1331 and 1332. 14 28 U.S.C. § 1441(a). Generally, To determine where a corporation is a citizen, the Court 15 looks to where the corporation has been incorporated and where 16 its principal place of business exists. 17 “Subject matter jurisdiction is determined on the basis of the 18 facts that existed at the time the action was filed.” 19 Corp. v. Taylor, 964 F.2d 912, 917 (9th Cir. 1992) (citing 20 Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989)). 21 Here, there is no dispute that Defendant Grrr! Limited was 22 incorporated in Guernsey on December 29, 2008. 23 dispositive question is whether Grrr! Limited has its principal 24 place of business in California or in Guernsey. 25 /// 26 /// 27 /// 28 /// 4 28 U.S.C. § 1332(c)(1). Stock West Therefore, the 1 The record suggests that Defendant Grrr! Limited has 2 remained an inactive corporation since the time of its creation. 3 Consequently, the only relevant inquiry in determining its 4 citizenship would appear to be its place of incorporation. 5 a general matter, an ‘inactive’ corporation (that is, a 6 corporation conducting no business activities) has no principal 7 place of business, and is instead a citizen of its state of 8 incorporation only.” 9 693, 696 (3rd Cir. 1995); Stock West Corp., 964 F.2d at 917. “[A]s Midlantic National Bank v. Hansen, 48 F.3d See 10 also Harris v. Black, 961 F.2d 547, 551 (5th Cir. 1992) (a 11 corporation is a citizen of the state of its last place of 12 business unless a “substantial amount of time” has passed since 13 it became inactive). 14 been inactive since inception because Plaintiffs failed to turn 15 over certain intellectual property. 16 Recons. 5:8-9. 17 According to Defendants, Grrr! Limited has Opp. to Pls.’ Mot. for Even if Defendant Grrr! Limited is an “active” corporation, 18 its principal place of business is in Guernsey, not California. 19 In an effort to establish a single, uniform standard, the Supreme 20 Court recently clarified that “‘principal place of business’ is 21 best read as referring to the place where a corporation’s 22 officers direct, control, and coordinate the corporation’s 23 activities.” 24 called “nerve center” test, as applied to the case at bar, leads 25 to the determination that Guernsey is the principal place of 26 business for Defendants. 27 (including two in Guernsey) and no directors in California. 28 /// Hertz Corp., 2010 WL 605601, at *11. This so- Defendants have directors in Europe 5 1 The corporate and financial records are maintained in Guernsey 2 and decisions regarding the present litigation are being made by 3 the directors in Europe. 4 Plaintiffs nonetheless argue that the court should look at 5 pre-incorporation activities, including two meetings held in 6 California. 7 statute, that argument lacks merit. 8 § 1332(c)(1), a corporation is a citizen where the corporation 9 has been incorporated and where its principal place of business However, looking at the plain language of the Pursuant to 28 U.S.C. 10 exists. 11 meetings because it had yet to be incorporated. 12 to cite any case law to the contrary and the assigned magistrate 13 judge properly excluded the pre-incorporation activities as proof 14 of California citizenship. 15 recent Hertz decision makes clear, in the event of a difficult 16 case, a court should look to a “single direction, toward the 17 center of overall direction, control, and coordination.” 18 Corp., 2010 WL 605601, at *13. 19 not in California. 20 Grrr! Limited was not a “corporation” at the time of the Plaintiffs fail Moreover, as the Supreme Court’s Hertz Here, that place is in Guernsey, After reviewing the entire file, this Court cannot say that 21 the magistrate judge’s decision on the motion to remand was 22 clearly erroneous as that standard has been defined. 23 24 B. The Magistrate Judge Properly Denied the Motion for Recusal 25 26 Notwithstanding Plaintiffs’ assertions to the contrary, they 27 have not established that the assigned magistrate judge is either 28 unbiased or unfair. 6 1 Plaintiffs contend that the magistrate judge has displayed a 2 “clear pattern” of abuse in areas “where the court has no 3 discretion”, and that consequently Plaintiffs’ “right to due 4 process” has been abridged. 5 point to alleged instances where the magistrate judge’s decisions 6 created excessive and legally prohibited delays in favor of 7 Defendants. 8 voided a preliminary injunction in this matter without due 9 process. Mot. for Recons. 16:7-9. Plaintiffs Plaintiffs further allege that the magistrate judge Both these assertions relate to orders issued by the 10 magistrate judge. Allegations that stem entirely from the 11 magistrate judge’s adverse rulings are not an adequate basis for 12 recusal. 13 1999). 14 Magistrate Judge’s Order denying the Motion for Recusal is 15 denied. Leslie v. Grouo ICA, 198 F.3d 1152, 1160 (9th Cir. Therefore, Plaintiffs’ Motion for Reconsideration of the 16 CONCLUSION 17 18 19 20 21 For all these reasons, Plaintiffs’ Motion for Reconsideration (Docket No. 83) is DENIED. IT IS SO ORDERED. 22 23 Dated: April 5, 2010 24 25 26 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 27 28 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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