Pelletier v. Rodriguez et al, No. 3:2017cv01809 - Document 24 (S.D. Cal. 2018)
Court Description: ORDER Granting Defendants' Motions to Dismiss re 12 Motion to Dismiss; 19 Motion to Dismiss. Signed by Judge Barry Ted Moskowitz on 9/21/2018. (All non-registered users served via U.S. Mail Service)(sjm)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17-cv-1809-BTM-JMA 13 GAETAN PELLETIER, derivatively on behalf of Clover Valley Ranch LLC, 14 Plaintiff, 12 15 v. 16 WILLIAM V. RODRIGUEZ, individually and as trustee; JUDY A. RODRIGUEZ, individually and as trustee; WILLIAM V. RODRIGUEZ REVOCABLE LIVING TRUST, a Nevada Trust dated November 7, 1991; JAMES W. MIDDAGH; MORTENSEN PARTNERS, LIMITED PARTNERSHIP; ROBERT J. WINES; JOHN DOE(S), partners in Mortensen Partnership; JOHN DOES(S), beneficiaries of the Rodriguez Revocable Trust Beneficiaries in January 2015 and Now; CLOVER VALLEY RANCH LLC, 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS [ECF NOS. 12, 19] Defendants. 1 17-cv-1809-BTM-JMA 1 Defendant Robert J. Wines has filed a motion to dismiss Plaintiff Gaetan 2 Pelletier’s Complaint. (ECF No. 12). Defendants William V. Rodriguez, Judy A. 3 Rodriguez, and the William V. Rodriguez Revocable Living Trust have joined the 4 motion to dismiss. (ECF No. 19). For the reasons discussed below, the Court 5 GRANTS Defendant’s motion. 6 I. BACKGROUND 7 Plaintiff alleges that he is the “managing member” of Clover Ranch LLC, 8 which is comprised of two other members. (ECF No. 1 (“Complaint”) ¶ 5). On 9 August 29, 2014, Plaintiff, “representing Assignee” Clover Ranch LLC, entered into 10 a contract with Defendants William V. Rodriguez and Judy A. Rodriguez, as 11 Trustees of the William V. Rodriguez Family Revocable Living Trust dated 12 November 7, 1991, to purchase property known as Clover Valley Ranch. Compl. 13 ¶ 1, Exh. 1. 14 Plaintiff alleges that “the sale Contract terms . . . were breached, and made 15 with fraudulent promises that Defendants had no intention to keep for the purpose 16 of inducing Plaintiff to purchase the ranch to be assigned to Clover Valley Ranch 17 LLC.” Compl. ¶ 1. On September 17, 2017, Plaintiff filed a “Derivative Complaint,” 18 “on behalf of Clover Valley Ranch LLC, for the following “derivative claims”: breach 19 of contract, negligence and gross negligence, fraud, slander, and false 20 representation. Id. 21 On October 17, 2017, Defendant Wines filed a motion to dismiss Plaintiff’s 22 Complaint. (ECF No. 12). Defendants William V. Rodriguez, Judy A. Rodriguez, 23 and the William V. Rodriguez Revocable Living Trust joined Wines’ motion to 24 dismiss. (ECF No. 19). The Court addresses Defendants’ arguments that (1) 25 Plaintiff is improperly acting pro se in representing Clover Valley Ranch LLC and 26 (2) Plaintiff’s action violates the first-to-file rule. 27 28 2 17-cv-1809-BTM-JMA 1 2 II. DISCUSSION A. Plaintiff Improperly Acting Pro Se 3 Plaintiff has brought this action pro se “derivatively on behalf of Clover Valley 4 Ranch LLC.” Compl. ¶ 1. Plaintiff states that “this litigation belongs to the LLC [and] 5 other members of the LLC have no personal financial benefit and are 6 disinterested.” Id. ¶ 5. Plaintiff argues that he “has standing since he is the 7 manager of the LLC and has provided an excess of $600,000 for the LLC to 8 purchase [Clover Valley Ranch].” Id. ¶ 4. Plaintiff states that he will “benefit 9 indirectly upon the LLC prevailing in this lawsuit because the LLC would then be 10 able to recover from damages and repay Plaintiff the money he advanced to the 11 LLC to purchase [Clover Valley Ranch].” Id. ¶ 5. 12 Defendants request that Plaintiff’s Complaint be stricken because Plaintiff 13 cannot represent Clover Ranch LLC pro se. (ECF No. 12 at 4). The Court agrees. 14 According to the Local Civil Rules, 15 16 17 18 19 20 21 22 23 24 25 26 27 Only natural persons representing their individual interests in propria persona may appear in court without representation by an attorney permitted to practice pursuant to Civil Local Rule 83.3. All other parties, including corporations, partnerships and other legal entities, may appear in court only through an attorney permitted to practice pursuant to Civil Local Rule 83.3. L. Civ. R. 83.3(j). Plaintiff has not established that he is an attorney permitted to represent Clover Ranch LLC pursuant to Civil Local Rule 83.3. Therefore, Plaintiff cannot properly file the Derivative Complaint on behalf of Clover Ranch LLC. See United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (“A corporation may appear in federal court only through licensed counsel.”); Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008) (“courts have routinely adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative capacity”); In re Am. W. Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (“non-attorney members of a partnership [cannot] appear on 28 3 17-cv-1809-BTM-JMA 1 behalf of the partnership”). Further, no attorney has entered an appearance on 2 behalf of Clover Valley Ranch LLC. Therefore, the Court strikes Plaintiff’s 3 Complaint (ECF No. 1). 4 B. First-to-File Rule 5 Defendant also argues Plaintiff’s Complaint should be dismissed because it 6 was filed after he first filed a nearly identical complaint in the United States District 7 Court for the District of Nevada (“Nevada Complaint”), thus violating the first-to-file 8 rule. (ECF No. 12 at 19). 9 “There is a generally recognized doctrine of federal comity which permits a 10 district court to decline jurisdiction over an action when a complaint involving the 11 same parties and issues has already been filed in another district.” Pacesetter 12 Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 94–95 (9th Cir. 1982). “Thus, a court 13 analyzes three factors: chronology of the lawsuits, similarity of the parties, and 14 similarity of the issues.” Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 15 787 F.3d 1237, 1240 (9th Cir. 2015). 16 Plaintiff’s Nevada Complaint was filed on September 5, 2017. (ECF No. 12, 17 Exh. 1). Plaintiff’s instant Complaint was filed on September 7, 2017. (ECF No. 1). 18 Accordingly, the first factor is satisfied. 19 “[T]he first-to-file rule does not require strict identity of the parties, but rather 20 substantial similarity.” Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 1147 21 (E.D. Cal. 2010). The parties between Plaintiff’s Nevada Complaint and the instant 22 Complaint are identical, with the exception of Plaintiff appearing “derivatively on 23 behalf of Clover Valley Ranch LLC” and Clover Valley Ranch LLC included as a 24 nominal defendant. (See ECF No. 12, Exh. 1; ECF No. 1). Accordingly, the second 25 factor is satisfied. 26 Plaintiff’s claims in the instant Complaint are identical to the ones in the 27 Nevada Complaint. Further, Plaintiff’s instant Complaint and the Nevada 28 Complaint are identical in language, except for an additional section in the instant 4 17-cv-1809-BTM-JMA 1 Complaint regarding Plaintiff’s standing to bring the suit on behalf of Clover Valley 2 Ranch LLC. (See ECF No. 12, Exh. 1; ECF No. 1). Accordingly, the third factor is 3 satisfied. 4 5 Because Plaintiff has initiated and pursued a substantially identical action in the District of Nevada, the Court declines jurisdiction over this action. 6 The Court further notes that the Complaint alleges that Clover Valley Ranch 7 LLC is the real Plaintiff in interest. Compl. ¶ 1, 5. The Complaint also invokes 8 diversity jurisdiction under 28 U.S.C. 1332. Compl. ¶ 2. In ascertaining whether 9 Plaintiff has met diversity requirements, the Court must “disregard nominal or 10 formal parties and rest jurisdiction only upon the citizenship of real parties to the 11 controversy.” Kuntz v. Lamar Corp., 385 F.3d 1177, 1183 (9th Cir. 2004) 12 (emphasis added) (quoting Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980)). 13 See also Dep’t of Fair Emp’t v. Lucent Techs., 642 F.3d 728 (9th Cir. 2011) (holding 14 named plaintiff had standing yet did not constitute real party in interest for purposes 15 of diversity jurisdiction); Fed. R. Civ. P. 17(a) (“An action must be prosecuted in 16 the name of the real party in interest.”); Cunningham v. BHP Petroleum Great 17 Britain PLC, 427 F.3d 1238, 1244 (10th Cir. 2005) (holding court lacked diversity 18 jurisdiction because partnership “was always the real [plaintiff] in interest” and 19 plaintiff failed to plead citizenship of every partner). The citizenship of Clover Valley 20 Ranch LLC, the real Plaintiff in interest, is therefore determinative of whether the 21 Court has subject matter jurisdiction here. 22 The citizenship of an LLC is that of its individual members. Johnson v. 23 Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). See also 24 Carden v. Arkoma Assocs., 494 U.S. 185, 195 (1990) (“[W]e reject the contention 25 that to determine, for diversity purposes, the citizenship of an artificial entity, the 26 court may consult the citizenship of less than all of the entity’s members.”) Since 27 the real Plaintiff is an LLC composed of 3 members (Compl. ¶ 5), the Complaint 28 must show that each member of the LLC is a citizen of a state other than the state 5 17-cv-1809-BTM-JMA 1 of citizenship for each and all defendants. Johnson, 437 F.3d at 899. In the 2 Complaint, Plaintiff alleges that he is a citizen of California but fails to allege the 3 citizenship of the other two members. Compl. ¶ 2. The Complaint therefore fails to 4 set forth subject matter jurisdiction. 5 III. CONCLUSION AND ORDER 6 For the foregoing reasons, the Court GRANTS Defendant’s motion to 7 dismiss (ECF Nos. 12, 19). The Clerk shall enter final judgment dismissing this 8 case. 9 10 IT IS SO ORDERED. Dated: September 21, 2018 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 17-cv-1809-BTM-JMA
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