Oksana Baiul-Farina v. Joseph Charles Lemire et al
Filing
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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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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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OKSANA BAIUL-FARINA,
professionally known as
OKSANA BAIUL, an individual,
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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,
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Defendants.
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Case No. CV 15-07325 DDP (MRWx)
AMENDED ORDER DENYING MOTION
TO REMAND AND GRANTING MOTIONS
TO DISMISS
[Dkts 89, 91, 92, 96, 105]
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Presently before the court are Plaintiff’s Motion to Remand
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and separate Motions to Dismiss, one filed by Defendants Joseph
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Lemire, Olympic Champtions, Ltd., and Olympic Champions, Ltd.-BVI
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(Collectively, “Lemire”) and the other by Defendant Republic of
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Ukraine.
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court denies the motion to remand and grants the motions to
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dismiss.
Having considered the submissions of the parties, the
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I.
Background
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This is one in a series of law suits brought by Plaintiff
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relating to professional figure skating performances in the 1990s.
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This is not Plaintiff’s first suit against Lemire.
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Plaintiff filed suit against Lemire, William Morris Agency, LLC,
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and others in New York.
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case (the New York Complaint) alleged, among other things, that
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Lemire stole money from Plaintiff, misrepresented amounts owed to
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her, and made other false statements.
In 2013,
Plaintiff’s wide-ranging complaint in that
(Lemire’s Request for
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Judicial Notice (“RJN”, Ex. 5). The New York Complaint alleged
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causes of action against Lemire for racketeering and conspiracy and
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conversion. (RJN Ex. 5.)
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prejudice, characterizing the suit as “frivolous . . ., bizarre,
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[and] wholly without merit.”
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court determined that Plaintiff could not possibly satisfy the
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applicable statute of limitations, as, according to her own
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pleadings, she had notice of, or should have discovered, the
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alleged wrongdoing no later than the year 2000.
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23.)
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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
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action against Lemire for breach of contract, fraud and
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constructive fraud, and money had and received.1
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Complaint (“FAC”) ¶¶ 1, 3-5, 18, 21, 27, 30, 33.)
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York Complaint, the First Amended Complaint (“FAC”) here alleges
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that Lemire stole money from Plaintiff and made fraudulent
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representations to her, including false statements regarding
(First Amended
Like the New
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Plaintiff’s First Amended Complaint alleges all but the
fraud claim against Defendant Ukraine as well.
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amounts payable to Plaintiff.
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3.)
Defendants now move to dismiss the FAC.
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II.
Legal Standard
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(See Declaration of Martin Domb, Ex.
A complaint will survive a motion to dismiss when it contains
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“sufficient factual matter, accepted as true, to state a claim to
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relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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570 (2007)).
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“accept as true all allegations of material fact and must construe
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those facts in the light most favorable to the plaintiff.” Resnick
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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).
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need not include “detailed factual allegations,” it must offer
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“more than an unadorned, the-defendant-unlawfully-harmed-me
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accusation.”
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allegations that are no more than a statement of a legal conclusion
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“are not entitled to the assumption of truth.” Id. at 679. Even
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under the liberal pleading standard of Federal Rule of Civil
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Procedure 8(a)(2), under which a party is only required to make a
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“short and plain statement of the claim showing that the pleader is
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entitled to relief,” a “pleading that offers ‘labels and
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conclusions’ or a ‘formulaic recitation of the elements of a cause
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of action will not do.’” Id. 678 (quoting Twombly, 550 U.S. at
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555).
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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
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may dismiss a suit for lack of personal jurisdiction.
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plaintiff has the burden of establishing that jurisdiction exists,
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but need only make “a prima facie showing of jurisdictional facts
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to withstand the motion to dismiss.”
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The
Pebble Beach Co. v. Caddy,
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453 F.3d 1151, 1154 (9th Cir. 2006). “Uncontroverted allegations in
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the complaint must be taken as true, and conflicts over statements
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contained in affidavits must be resolved in [the plaintiff’s]
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favor.”
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(9th Cir. 2010).
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III. Discussion
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A.
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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
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Republic of Ukraine, which confers subject matter jurisdiction over
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this matter upon this Court.
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1603(a).
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citation to authority, that “the issue of sovereign immunity is the
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only issue for which Ukraine is entitled to a Federal forum and
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that request can be accommodated as a jurisdictional ruling prior
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to remand.”
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Plaintiffs’ invitation to split claims to accommodate Defendant
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Republic of Ukraine’s “request.”
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dispute that she made no attempt to meet and confer with respect to
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this motion.
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of Plaintiff’s motion.
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motion to remand is denied.
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B.
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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
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doctrine of res judicata.
(Lemire Motion at 9.)
“[A] federal
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court sitting in diversity must apply the res judicata law of the
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state in which it sits.”
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F.2d 1199, 1201 (9th Cir. 1982).
Constantini v. Trans World Airlines, 681
California law looks to federal
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law to determine the effect of a prior federal judgment.
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also Louie v. BFS Retail and Commercial Operations, LLC, 178 Cal.
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App. 4th 1544, 1553-54 (“[W]here a prior federal judgment was based
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on federal question jurisdiction, the preclusive effect of the
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prior judgment of a federal court is determined by federal law.
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Where a prior federal judgment was based on diversity jurisdiction,
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the preclusive effect is subject to federal common law – meaning
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the law of the state in which the federal court sits – if the state
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law is compatible with federal interests.”) (internal citations
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omitted, emphases original); Butcher v. Truck Ins. Exchange, 77
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Cal.App.4th 1442, 1452 (2000) (“California follows the rule that
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the preclusive effect of a prior judgment of a federal court is
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determined by federal law, at least where the prior judgment was on
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the basis of federal question jurisdiction.”).
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Complaint was litigated in federal court after having been removed
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on the basis of federal question jurisdiction.
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therefore, apply federal law preclusion principles.
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Id; See
Here, the New York
This court will,
Res judicata “bars litigation in a subsequent action of any
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claims that were raised or could have been raised in the prior
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action.”
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708, 713 (9th Cir. 2001); W. Radio Servs. Co. v. Glickman, 123 F.3d
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1189, 1192 (9th Cir. 1997). The doctrine applies when there is “1)
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[an] identity of claims, 2) a final judgment on the merits, and 3)
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identity or privity between the parties.” W. Radio Servs. Co., 123
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F.3d at 1192.
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this case involve the same parties.
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that the New York court’s decision was not “on the merits,” but
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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
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Although Plaintiff contends
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limitations concerns, that arguments is not persuasive.
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of finality, both statutory and judge made, treat a dismissal on
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statute-of-limitations grounds the same way they treat a dismissal
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for failure to state a claim . . . : as a judgment on the merits.”
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Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 28 (1995).2
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“The rules
The question remains, however, whether there is an identity of
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claims between the two cases.
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four factors to determine if there is an identity of claims:
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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.
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Harris v. Jacobs, 621 F.2d 341, 343 (9th Cir. 1980); Constantini,
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681 F.2d at 1201-02.
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there is an identity of claims is whether the two suits “arise out
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of the same transactional nucleus of facts.” Costantini, 681 F.2d
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at 1202; see also Frank v. United Airlines, Inc., 216 F.3d 845, 851
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(9th Cir. 2000).
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often sufficient to find an identity of claims for res judicata
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purposes, even without analysis of the other factors.
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JPMorgan Chase Bank, No. 11-CV-02920, 2011 WL 6002599, at *8 (N.D.
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Cal. Nov. 30, 2011); see Int’l Union of Operating Eng’rs-Employers
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Constr. Indus. Pension, Welfare and Training Trust Funds v. Karr,
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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
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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.”
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facts factor, courts ask “whether [the two actions] are related to
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the same set of facts and whether they could conveniently be tried
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together.” W. Systems, Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.
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1992).
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The facts of the New York case and the instant matter overlap
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almost entirely.
(Domb Decl., Ex. 3.)
Plaintiff, focusing largely
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on California rather than federal law, nevertheless contends that
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there is no identity of claims because the two suits allege
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different causes of action.
(Opp. at 18-19.)
That argument is not
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persuasive.
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claims’ does not mean that an imaginative attorney may avoid
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preclusion by attaching a different legal label to an issue that
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has, or could, have been litigated.”
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Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077-78 (9th
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Cir. 2003).
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of the same nucleus of facts because the same evidence, and one fax
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in particular, was not at issue in the prior case but is crucial
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here.
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separate factors in the identity of claims analysis, but fails to
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acknowledge that the fax at issue was discussed in the prior case.3
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(RJN, Ex. 15.)
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“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
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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.)
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between the two cases.
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are met.4
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C.
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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
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dismiss Plaintiff’s FAC.
Ukraine’s motion must be granted, for the
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reasons stated above.
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appear that Ukraine has been properly served.
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dispute that she made no attempt to comply with 28 U.S.C. §
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1608(a)(1) or (b)(1).6
See note 4, supra.
Furthermore, it does not
Plaintiff does not
See Peterson v. Islamic Republic Of Iran,
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627 F.3d 1117, 1129 n.4 (9th Cir. 2010) (“The four forms of service
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[under Section 1608] are listed in descending order of
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preference.”); Angellino v. Royal Family Al-Saud, 688 F.3d 771, 773
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(D.C. Cir. 2012); Magness v. Russian Fed'n, 247 F.3d 609, 613 (5th
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Cir. 2001).
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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).
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The court need not address Lemire’s remaining arguments.
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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.”)
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Accordingly, Plaintiff’s claims against Ukraine are
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dismissed.7
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IV.
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Conclusion
For the reasons stated above, Plaintiff’s motion to remand is
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DENIED.
Defendants’ Motions to Dismiss are GRANTED.
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Plaintiff’s
FAC is DISMISSED, with prejudice.
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IT IS SO ORDERED.
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Dated: June 18, 2018
DEAN D. PREGERSON
United States District Judge
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The court need not address Ukraine’s remaining arguments.
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