Chien v. Commonwealth Biotechnologies, Inc., No. 3:2012cv00900 - Document 31 (E.D. Va. 2013)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 06/26/13. (kyou, ) (copy mailed to Pro Se party at Riverside Regional Jail)
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Chien v. Commonwealth Biotechnologies, Inc. Doc. 31 L Ml.. ¢ IN THE UNITED STATES DISTRICT ¢ ¢ ¢ . ¢ - ¢ li » ¢ ¢ - ¢ ¢ ¢ ^ " i COURT FOR THE EASTERN DISTRICT OF VIRGINIA JUN 2 6 2013 Richmond Division RICHMOND. VA ANDREW CHIEN, Appellant, v. Civil Action No. 3:12cv900 COMMONWEALTH BIOTECHNOLOGIES, INC., Appellee. MEMORANDUM OPINION This matter is before the Court on appellant Andrew Chien's PChien") FOR MOTION TO GRANT ANDREW CHIEN AS THE SUBSTITUTION PARTY FORNOVA AS DEFENDANT IN reasons set forth herein, THIS CASE (Docket No. 12). For the the motion will be denied. BACKGROUND This Fornova appeal arises Pharmworld Bankruptcy Court from entry of Inc. {"Fornova") for the Eastern January 20, 2011, Biotechnologies, Inc. default by judgment against the District of United States Virginia ("the Bankruptcy Court"). On Chapter 11 of the May 2011, Fornova 16, 10, 2012, claim and ("CBI") the filed a petition Bankruptcy Code filed debtor-appellee, a in claim the for Commonwealth for relief under Bankruptcy Court. $622,167. On On February CBI initiated an Adversary Proceeding objecting to the seeking either to either equitably subordinate the Dockets.Justia.com claim or recharacterize March 12, the claim 2012, Chien filed on behalf of Proceeding" Fornova's "trustee." On a as "Motion Fornova, March an 20, equity to interest. Dismiss describing 2012, pretrial conference on behalf of Fornova. Chien On Adversary himself appeared as at At this meeting, a Chien was advised by the Bankruptcy Court that he could not appear on behalf of Fornova without attorney. Thereafter, represent Fornova of theories, Order on or Undeterred, Chien before a engaged the licensed in a and duly series Bankruptcy Court, of admitted efforts under a variety 1, 2012 requiring attempting to however, on Chien appear June 13, to refrain on behalf 2012, from of Chien filing Fornova. filed additional motions before the Bankruptcy Court. Accordingly, June order 14, to which culminated in the Bankruptcy Court entered an May documents being 2012, the Bankruptcy Court issued an two on directing Chien to appear before the Bankruptcy Court and show cause why he should not be held in contempt. On July hearing 18, and, 2012, after the Bankruptcy Court hearing Chien's held various a show cause arguments, the Bankruptcy Court held Chien in contempt.1 As a result of its conclusion that Chien could not represent Fornova, and finding 1 That order was appealed to this Court and was affirmed by Memorandum Opinion dated December 19, 2012. Chien Commonwealth Biotechnologies, Inc., No. 3:12-cv-707-REP, B.R. 659 (E.D. Va. 2012) . v. 484 that Fornova had failed to Proceeding, the respond as Bankruptcy Court required to entered against Fornova and in favor of CBI. the Adversary default On December 20, judgment 2012, Chien timely filed a notice of appeal of the Bankruptcy Court's order. On January 8, 2013, Bankruptcy Court's Memorandum Court Order denied directed the Chien to Chien filed a motion for a stay of the order pending the dated February motion. file In a 5, that appeal 2013 (Docket Order, supplemental (Docket No. the brief No. Court 4). 11), sua addressing By the sponte how he had standing to appeal the Bankruptcy Court's order on behalf of Fornova. On February 7, 2013, Chien filed the present motion seeking to substitute himself for Fornova as a party to this action. On February to 20, 2013, the Court reconsider its February 5 Order, granted Chien's motion insofar as Chien had set forth his theory of standing in his motion to substitute parties. Order dated February 20, substitute parties, 2013 Chien (Docket No. asserts, in 16). In the motion to essence, purchased the note at issue from Fornova and that, now has CBI standing to pursue the claim against CBI. filed a limited objection (Docket No. 17) See that he has therefore, he In response, taking the view that it has no objection to Chien being substituted for Fornova if he had purchased the note, but expressing the view that Chien had not, in fact, purchased the note.2 In a supplemental response (Docket No. authority 21) , CBI a motion similar only, by (Docket No. commended to decision Chien by in the Court, the that for its persuasive Bankruptcy court. Court Chien denying filed 18) and a supplemental reply (Docket No. a a reply 25). DISCUSSION Chien's motion to substitute himself as the proper party in interest is predicated on the claim that he has validly become a holder of the Fornova note. If he has, then, as CBI concedes, Chien likely ought to be substituted as the party in this action and Chien would, appeal. Debtor See at that point, have Appellee's not does Objection to object the standing to (Docket No. substitution prosecute the 17) of at Mr. 8 ("The Chien for Fornova if ... he has properly purchase the purported note and is indeed the legal holder of the Claim."). determine whether Chien is a holder of the Thus, the Court must Fornova note. According to the terms of the Purchase Agreement, by Chien as aspects State evidence of of of [the] his purchase of Agreement Connecticut." should be the Fornova note, governed Purchase Agreement submitted by (Docket the No. "all Laws of 13-9) at 2 As CBI notes, if the motion to substitute were granted, Chien would "step occurred." 1998) . into In What afford Chien re his predecessor's Wills, relief, if 226 any, B.R. a shoes 369, as 375 substitution is not before the Court if no (Bankr. of change E.D. parties in this motion. has Va. would 2. Under Connecticut instrument, such governed Connecticut's Conn. by Gen. as law, Stat. the § the transfer promissory Uniform 42a-3-203. person other who, is the through instrument." A.3d 1077, than Ulster 1085 App. transferred when it issuer for delivery the the to quotations omitted). note, thus holder Cadle and must Co. is the the Errato, Estate 1998) Ltd ("The v. it Code, here, is codified provides instrument 28 2012). to the the to at that Brynwood Lane, Further, another holder of the Ltd., 41 "[a]n instrument to A.2d the establish enforce physical 802 to person instrument." the 887, 895 note, of (Conn. production of 716 A. 2d (internal the the App. of the purported note. Ct. See 2002) the plaintiff was required possessed the note."); Gallicchio, Id. receiving possession possession ("[T]o establish a prima facie case, to demonstrate that issue law becomes giving order right demonstrate v. of enforce In negotiable delivered by a person other than its purpose right of Bank v. Ct. a a transfer of possession by negotiation, (Conn. at Connecticut issuer Savings note Commercial "negotiation of an instrument means someone of 903, see also SKW Real 908 the note establishes (Conn. App. his prima Ct. facie case against the makers and he may rest there.") . A copy of the note may serve to establish possession, party "fail[s] to [purported holder] present any evidence but only where the other demonstrating was not in possession of that the the note or casting any doubt on the [purported holder's] course." Cadle Co. , 802 A.2d at the original note," "sufficient evidence the status as 8 96. However, purported a holder in due in "the absence of holder must present . . . to support a finding" of possession. Id. CBI clearly challenges Chien's claim to Debtor's Supp. Obj. hold the note. (Docket No. 21) at 2. Chien does not dispute that he does not have possession of the note. to Supp. Andrew Obj. (Docket No. signed Chien the Wang . . . However, Chien Lizi nevertheless 25) at 1 ("On purchasing Wang argues can't that See Chien's Resp. December deliver the the and Connecticut signed law is by the clear: in parties. order 2012, Lizi original."). "purchasing Id. for 22, with agreement enforceable" because the agreement is "original, written" See at the order real, 2. is and well Nevertheless, Fornova Note to be effectively negotiated and for Chien to become the legal holder of the note, the note must be delivered to Chien and he must that Chien is not the have the take possession of it. Accordingly, holder of the the Fornova right to enforce it. Court Note concludes and, as a result, does not CONCLUSION For the reasons set forth above, ANDREW CHIEN AS IN THIS CASE It is THE SUBSTITUTION (Docket No. 12) PARTY Chien's MOTION TO GRANT FOR FORNOVA AS DEFENDANT will be denied. so ORDERED. /a/ fcliP Robert E. Payne Senior United States District Judge Richmond, Virginia Date: June %>L.t 2013
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