Chien v. Commonwealth Biotechnologies, Inc. et al

Filing 30

ORDER: The plaintiff's Motions to Remand (Doc. Nos. 15 and 17 ) are hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 5/28/13. (Sykes, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
ANDREW CHIEN,
:
:
Plaintiff,
:
:
v.
:
:
COMMONWEALTH BIOTECHNOLOGIES, INC.,:
RICHARD FREER AND LECLAIRRYAN,
:
A PROFESSIONAL CORPORATION,
:
:
Defendants.
:
:
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Civil No. 3:12CV1378(AWT)

RULING ON MOTIONS TO REMAND
The pro se plaintiff, Andrew Chien (“Chien”), brought this
action in Connecticut Superior Court against defendants
Commonwealth Biotechnologies, Inc. (“CBI”)1, Dr. Richard J. Freer
(“Dr. Freer”) and LeClairRyan, a Professional Corporation
(“LeClairRyan”).

The defendants removed this case to federal

court, and the plaintiff has filed two motions to remand the
case to Connecticut Superior Court.

For the reasons set forth

below, the motions to remand are being denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND
This action arises from a case tried in Chesterfield County

Circuit Court in the Commonwealth of Virginia, where Chien was

1

The court has entered an order dismissing the case as to CBI
only without prejudice. See Doc. No. 11.
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found liable to Dr. Freer for $1.6 million in damages caused by
Chien’s tortious conduct, which included acts of defamation and
conspiracy.

Final judgment was entered against Chien and the

other defendant in the Virginia action on August 9, 2012.
A. The Instant Action
On September 12, 2012, Chien filed a complaint in
Connecticut Superior Court in New Haven asserting seven claims:
1) malicious prosecution against Dr. Freer and LeClairRyan, 2)
abuse of process against Dr. Freer and LeClairRyan, 3) “bad
faith and submitted falsified or perjury information” against
Dr. Freer and LeClairRyan, 4) unjust enrichment against Dr.
Freer, 5) “securities fraud and fiduciary duty violation”
against CBI, 6) “fiduciary duty violation” against CBI, and 7)
“manipulation operation” against Dr. Freer.

On October 5, 2012,

the defendants removed the case to this court pursuant to 28
U.S.C. § 1441(b) based on diversity jurisdiction.

Chien is a

resident of Connecticut; Dr. Freer is a resident of Virginia;
and LeClairRyan is organized and incorporated under Virginia law
and has its headquarters in Richmond, Virginia.
The plaintiff filed a “Motion to Remand this Case to State
Court due to Defendant Freer’s Violation of 28 U.S.C.
§ 1446(b)(2)(A)” (“First Motion to Remand”) on October 31, 2012,
and a “Motion to Remand this Case to State Court due to the Lack
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of Subject-Matter Over this Case and to Require Sanction over
Defendant LeClairRyan due to 28 U.S.C. § 1447(c)” (“Second
Motion to Remand”) on November 2, 2012.
B. Connecticut Judgment Domestication Proceeding
On September 26, 2012, Dr. Freer filed a Certification
Concerning Foreign Judgment (the “Certification”) in Connecticut
Superior Court in New Haven.

The Certification requested that

the judgment obtained by Dr. Freer in the Commonwealth of
Virginia against Chien be treated in the same manner as a
Connecticut judgment (the “Connecticut Judgment Domestication
Proceeding”).
On October 10, 2012, Chien filed a pleading in the
Connecticut Judgment Domestication Proceeding styled as
“Response/Complaint” and attempted to assert counterclaims and
third party claims against the defendants.
Dr. Freer successfully domesticated his Virginia judgment
in Connecticut.
II.

DISCUSSION
Chien contends, inter alia, that complete diversity does

not exist and that the removal of this case by Dr. Freer and
LeClairRyan, counsel for Dr. Freer, was in violation of 28
U.S.C. § 1446(b)(2)(A) and was fraudulent.

Defendants Freer and

LeClairRyan argue that removal was proper pursuant to 28 U.S.C.
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§ 1441(b) because the requirements of federal diversity
jurisdiction have been met.

The court agrees.

“The federal removal statute allows a defendant to remove
an action to the United States District Court in any civil
action brought in a State court of which the district courts of
the United States have original jurisdiction....The district
courts...have original jurisdiction of all civil actions where
the matter in controversy exceeds the sum of $75,000, exclusive
of interest and costs, and is between...[inter alia] citizens of
different States.”

Bounds v. Pine Belt Mental Health Care

Resources, 593 F.3d 209, 215 (2d Cir. 2010) (internal quotation
marks omitted; citations omitted).

“To remove a case based on

diversity jurisdiction, it is incumbent upon the diverse
defendant to aver that all the requirements of diversity
jurisdiction have been met....Complete diversity of citizenship
of the parties is required, since an action shall be removable
only if none of the parties in interest properly joined and
served as defendants is a citizen of the State in which such
action is brought....In other words: When a plaintiff sues more
than one defendant in a diversity action, the plaintiff must
meet the requirements of the diversity statute for each
defendant or face dismissal.”

Id. (internal quotation marks

omitted; citations omitted).
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“An individual’s citizenship, within the meaning of the
diversity statute, is determined by his domicile.”
Corio, 232 F.3d 38, 42 (2d Cir. 2000).

Palazzo v.

An individual’s domicile

is the place where he has “his true fixed home and principal
establishment, and to which, whenever he is absent, has the
intention of returning.”

Linardos v. Fortuna, 157 F.3d 945, 948

(2d Cir. 1998) (quoting 13B Charles A. Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice and Procedure § 3612, at
526 (2d ed. 1984)).

“[A] corporation shall be deemed to be a

citizen of any State by which it has been incorporated and of
the State where it has its principal place of business.”
U.S.C. § 1332(c)(1).

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A corporation’s principal place of

business is its “nerve center” or its main headquarters and “not
simply an office where the corporation holds its board
meetings.”

Hertz Corp. v. Friend, 130 S.Ct. 1181, 1192 (2010)

(“We conclude that ‘principal place of business’ is best read as
referring to the place where a corporation’s officers direct,
control, and coordinate the corporation’s activities.

It is the

place that Courts of Appeals have called the corporation’s
‘nerve center.’”).
The party opposing a motion to remand bears the burden of
showing that the requirements for removal have been met.

See

California Pub. Emps.’ Ret. Sys. v. WorldCom, Inc., 368 F.3d 86,
5

100 (2d Cir. 2004) (citing Grimo v. Blue Cross/Blue Shield of
Vermont, 34 F.3d 148, 151 (2d Cir. 1994)); 14C Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice
and Procedure § 3739 (3d ed. 1998) (collecting cases). “In light
of the congressional intent to restrict federal court
jurisdiction, as well as the importance of preserving the
independence of state governments, federal courts construe the
removal statute narrowly, resolving any doubts against
removability.”

Lupo v. Human Affairs Intern., Inc., 28 F.3d

269, 274 (2d Cir.1994) (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108 (1941); 1A J. Moore and B. Ringle,
Moore's Federal Practice ¶ 0.157, at 38 (2d ed. 1989)).
Removal is appropriate in this action under 28 U.S.C.
§ 1441(b) because the complete diversity of citizenship and the
amount in controversy requirements are satisfied.

Complete

diversity exists in this case because Chien is a citizen of
Connecticut and the defendants are citizens of Virginia.
Moreover, the amount in controversy is $2,003,100, which exceeds
the $75,000 required in federal diversity cases.
As to the First Motion to Remand, Chien argues that Dr.
Freer violated 28 U.S.C. § 1446(b)(2)(A) because he had filed
the Connecticut Judgment Domestication Proceeding on September
26, 2012 with respect to the Virginia judgment and removing this
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case was contrary to the doctrines of res judicata and/or
collateral estoppel in that Dr. Freer had an identical dispute
with Chien being litigated in Connecticut Superior Court.
However, the doctrines of res judicata and collateral estoppel
have no applicability here.

The instant action brought by the

plaintiff involves the seven claims described above.

On the

other hand, the Connecticut Judgment Domestication Proceeding
filed by Dr. Freer is a statutory, post-judgment procedure that
allows a creditor like Dr. Freer to expedite the recognition and
domestication of a foreign judgment in Connecticut pursuant to
the Uniform Enforcement of Foreign Judgments Act, Conn. Gen.
Stat. § 52-604 et seq.
As to the Second Motion to Remand, Chien argues that this
court should remand the case to the Connecticut Superior Court
because this court lacks subject matter jurisdiction and because
LeClairRyan, counsel for Dr. Freer, violated 28 U.S.C.
§ 1446(b)(2)(A) by removing the case.

First, Chien argues that

complete diversity does not exist because all of the parties are
citizens of Connecticut.

In particular, he argues that

LeClairRyan is a citizen of Connecticut based on the fact that
it has offices in New Haven and Hartford and is licensed and
doing business in Connecticut.

However, the court concludes

that LeClairRyan is a citizen of Virginia because its place of
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incorporation is Virginia; its headquarters is located in
Richmond, Virginia; its principal place of business is Richmond,
Virginia; and its executive officers direct, control and
coordinate its activities in Richmond, Virginia.

See Hertz

Corp., 130 S.Ct. at 1192.
Second, he reasserts his argument that LeClairRyan violated
28 U.S.C. § 1446(b)(2)(A) because Dr. Freer had an identical
dispute with Chien being litigated in Connecticut Superior
Court.

As discussed above, this argument is without merit.

The plaintiff includes a request for sanctions in the
Second Motion to Remand.

That request is being denied as

lacking merit, as reflected in the discussion above, because the
defendants did not act improperly in removing this case to
federal court.
Therefore, the motions to remand are being denied.
III. CONCLUSION
For the reasons set forth above, the plaintiff’s Motions to
Remand (Doc. Nos. 15 and 17) are hereby DENIED.
It is so ordered.
Signed this 28th day of May 2013 at Hartford, Connecticut.

/s/
Alvin W. Thompson
United States District Judge
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