Wilcox v. Bibin et al

Filing 57

MEMORANDUM DECISION AND ORDER- It is hereby ORDERED that the Defendants' Motion for Reconsideration and alternative Motion to Dismiss for Forum Non Conveniens (Dkt 52 ) is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CRAIG WILCOX, an individual,
Case No. 2:15-cv-00261-EJL-REB
Plaintiff,
vs.

MEMORANDUM DECISION AND
ORDER

MICHAEL J. BIBIN AND
ASSOCIATES, CPA, P.A., an Idaho
Corporation, and MICHAEL BIBIN, an
individual,
Defendants.
INTRODUCTION
Pending before the Court in the above-entitled matter is Defendants’ Motion for
Reconsideration or, alternatively, Motion to Dismiss for Forum Non Conveniens. (Dkt.
52.)1 The matter is ripe for the Court’s consideration. Having fully reviewed the record
herein, the Court finds that the facts and legal arguments are adequately presented in the
briefs and record. Accordingly, in the interest of avoiding further delay, and because the
Court conclusively finds that the decisional process would not be significantly aided by
oral argument, the Motion is decided on the record before this Court without oral argument.

1

There are other pending motions in this case which will be ruled upon separately in due course.

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FACTUAL AND PROCEDURAL BACKGROUND
In June of 2012, Plaintiff Craig Wilcox and his father, Cort Wilcox, were financial
advisors for another entity when Wells Fargo Advisors LLC offered Plaintiff an
employment position. That offer prompted Plaintiff to explore a consulting arrangement
with Cort Wilcox to purchase his book of business in conjunction with accepting the
employment offer from Wells Fargo Advisors LLC. Plaintiff met with and hired
Defendants Michael J. Bibin and Associates CPA, P.A. and Michael Bibin (collectively
Bibin) for the purpose of obtaining federal and state income and employment tax advice
regarding these prospective employment and business acquisition opportunities. (Dkt. 1.)
Based on the advice from Defendants, Plaintiff accepted the employment offer and entered
into the consulting arrangement with Cort Wilcox. Later, in April of 2014, when
Defendants prepared Plaintiff=s 2013 tax returns they notified Plaintiff that he would not
be able to deduct the expenses relating to the consulting arrangement with Cort Wilcox due
to the operation of the Alternative Minimum Tax. Plaintiff=s resulting total federal tax
liability as reported was higher than expected and will continue to be higher for the ensuing
nine years. Additionally, Plaintiff alleges the Defendants failed to claim a state income tax
deduction for payments to Cort Wilcox resulting in additional tax liability and improperly
advised him concerning IRS Form 1099 resulting in other tax penalties.
As a result, Plaintiff initiated this action raising a negligence claim for professional
malpractice and a breach of fiduciary duty claim. (Dkt. 1.) Defendants filed a Motion to
Dismiss arguing Cort Wilcox is a necessary and indispensable party who must be joined in
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this action. (Dkt. 7.) The Court denied the Motion to Dismiss concluding Cort Wilcox is
not a necessary party to this litigation. (Dkt. 19.) Defendants have filed the instant Motion
to Reconsider that decision and alternative Motion to Dismiss which the Court takes up
herein and finds as follows.
DISCUSSION
1.

Motion for Reconsideration
Defendants seeks reconsideration of the Court’s Order denying their Motion to

Dismiss for Failure to Join an Indispensable Party. (Dkt. 52.) Defendants argue new
evidence has arose since the Court’s ruling in the form of Cort Wilcox’s filing suit against
Defendants in state court arising out of the same facts and circumstances as Craig Wilcox’s
claims in this case. (Dkt. 52.) As such, Defendants contend, they are now at risk of being
subjected to double recovery for the same harm and have shown Cort Wilcox is an
indispensable party to this action. (Dkt. 52.) Plaintiffs oppose the Motion arguing it is
untimely and without merit because Defendants have not shown they are at risk of being
subjected to multiple or inconsistent recoveries. (Dkt. 54.)
A.

Standard of Law

Federal Rule of Civil Procedure 60(b) provides that the Court may reconsider a final
judgment or order based on: “(1) mistake, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment;
or (6) extraordinary circumstances which would justify relief.” School Dist. No. 1J,
Multnomah Cnty, Or. v. ACanS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Under Rule
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60(b)(6), the so-called catch-all provision, the party seeking relief “must demonstrate both
injury and circumstances beyond [her] control that prevented [her] from proceeding with
the action in a proper fashion.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097,
1103 (9th Cir. 2006). In addition, the Ninth Circuit has stated that “[t]o receive relief under
Rule 60(b)(6), a party must demonstrate extraordinary circumstances which prevented or
rendered [her] unable to prosecute [her] case.” Lal v. California, 610 F.3d 518, 524 (9th
Cir. 2010). This Rule must be “used sparingly as an equitable remedy to prevent manifest
injustice and is to be utilized only where extraordinary circumstances prevented a party
from taking timely action to prevent or correct an erroneous judgment.” Id. (quoting United
States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)). Any Rule 60(b) motion must
be brought within a reasonable time and no later than one year after entry of judgment or
the order being challenged. See Fed. R. Civ. P. 60(c)(1).
B.

Timeliness of the Motion for Reconsideration

The Order denying Defendants’ Motion to Dismiss was issued on February 24,
2016. The Motion to Reconsider was filed on March 10, 2017, more than one year later,
and therefore outside of Rule 60’s one-year time limit. See Fed. R. Civ. P. 60(c)(1). Here,
however, because the Motion to Reconsider is based on newly discovered evidence – Cort
Wilcox’s filing of a state case on April 1, 2016 – the Court finds it appropriate to consider
Defendants’ Motion in the interests of justice.

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C.

Merits of the Motion for Reconsideration

Having reviewed the Order denying Defendants’ Motion to Dismiss and all of the
parties’ briefing on the question of Cort Wilcox’s joinder, the Court concludes its decision
is correct even in light of the new evidence. In fact, the possibility of Cort Wilcox filing
his own case against Defendants was addressed in the prior Order which states:
[T]he Court disagrees that Defendants are exposed to double recovery absent
Cort Wilcox’s joinder in this case. Again, the Plaintiff’s claims seek recovery
of damages resulting from the Defendants’ advice made to Plaintiff. Any
claims Cort Wilcox may have against Defendants for the advice they
provided to him would be for distinct damages, i.e., damages suffered by
Cort Wilcox.
(Dkt. 19 at 7.) Now that what was possible has become a reality and Cort Wilcox has filed
a case against Defendants in state court, that does not change the fact that Cort Wilcox’s
claims against Defendants are separate and distinct from the Plaintiff’s claims and damages
alleged against the Defendants in this case. For these reasons and those stated in the Court’s
prior Order, which are incorporated herein, the Motion for Reconsideration is denied.
2.

Motion to Dismiss for Forum Non Conveniens
Alternative to their Motion to Reconsider, Defendants have moved to dismiss this

case based on the doctrine of forum non conveniens. (Dkt. 52 at 7-8.) Plaintiff disagrees
arguing the doctrine does not apply in this context – i.e., remanding a properly filed federal
action to state court – and the Motion should be denied on its merits. (Dkt. 54.)

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Under the doctrine of forum non conveniens, “[a] district court has discretion to
decline to exercise jurisdiction in a case where litigation in a foreign forum would be more
convenient for the parties.” Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir.
2001); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255–56 (1981). “To prevail on
a motion to dismiss based upon forum non conveniens, a defendant bears the burden of
demonstrating an adequate alternative forum, and that the balance of private and public
interest factors favors dismissal.” Carijano v. Occidental Petroleum Corp., 643 F.3d 1216,
1224 (9th Cir. 2011). “[T]here is ordinarily a strong presumption in favor of the plaintiff’s
choice of forum, which may be overcome only when the private and public interest factors
clearly point towards trial in the alternative forum.” Id. (quoting Piper Aircraft, 545 U.S.
at 255).
The doctrine is generally applied in cases where the alternative forum is abroad but
also in “rare instances where a state court…serves litigational convenience best,” such as
enforcing a forum-selection clause. Sinochem Intern. Co. Ltd. v. Malaysia Int'l Shipping
Corp., 549 U.S. 422, 430 (2007); see also Mehta v. Power-One, Inc., 2014 WL 12603185,
at *3 (C.D. Cal. June 2, 2014) (citing cases).2
A.

Existence of Adequate Alternative Forum

Plaintiff’s state law claims in this case are before this Court based on diversity
jurisdiction. Thus, Idaho state court is an adequate alternative form for Plaintiff’s claims.

2

Forum non conveniens does not apply to transfers between federal district courts as those are
governed by 28 U.S.C. §§ 1404(a) and 1406(a).
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B.

Deference to Plaintiff’s Choice of Forum

Plaintiff is a resident of the State of Oregon and, therefore, Idaho is not Plaintiff’s
home forum making the presumption in favor of Plaintiff’s choice of forum less weighty.
See Sinochem, 549 U.S. at 430 (quoting Piper Aircraft, 454 U.S. at 255-56); see also
Mehta, 2014 WL 12603185, at *4. That being said, the Court still finds Plaintiff’s choice
of forum in this case carries some significance.
C.

Private and Public Interest Factors

The “private interest factors” the Court considers in resolving a forum non
conveniens motion include:
(1) the residence of the parties and the witnesses; (2) the forum’s convenience
to the litigants; (3) access to physical evidence and other sources of proof;
(4) whether unwilling witnesses can be compelled to testify; (5) the cost of
bringing witnesses to trial; (6) the enforceability of the judgment; and (7) all
other practical problems that make trial of a case easy, expeditious and
inexpensive.
Mehta, 2014 WL 126033185, at *3 (quoting Carijano, 643 F.3d at 1229). “The ‘public
interest factors’ include ‘(1) the local interest in the lawsuit, (2) the court’s familiarity with
the governing law, (3) the burden on local courts and juries, (4) congestion in the court,
and (5) the costs of resolving a dispute unrelated to a particular forum.’” Id. (quoting
Carijano, 643 F.3d at 1232).
The private interest factors are the same whether the case is heard in this Court or
Idaho state court. Plaintiff in this case is a resident of Oregon and Defendants are residents
of Idaho. The litigants, witnesses, accessibility to evidence, and the like are all factors that

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are equally convenient, expeditious, and economical between the two courts as the case
will be heard in Idaho regardless of which court it is before. As to the public interest factors,
the Court finds these interests are also very similar in both forums. The facts and
circumstances giving rise to this case arose based on contacts and dealings had, at least in
part, here in Idaho and, regardless of which court hears the case, the proceedings will occur
in Idaho. While this Court is fully capable of hearing the claims, because the claims are
state law claims, arguably, the state court is more familiar with its own governing law. The
burden on the local courts and juries as well as the congestion of the courts is felt equally
by both the Idaho state courts and this Court. The costs of resolving the dispute would also
be quite similar.3
In conclusion, after weighing each of the public and private interest factors, the
Court finds there is little difference in litigational convenience between having this case
proceeding in this Court or in Idaho state court. Defendants have not met their burden to
show the balance of private and public interests factors favor dismissal or that a trial in this
forum would be unnecessarily burdensome to the Defendants or the Court. See Dole Foods
Co., Inc. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (moving defendant must make a
“clear showing of facts which establish such oppression and vexation of a defendant as to
be out of proportion to plaintiff’s convenience, which may be shown to be slight or
nonexistent.”). For these reasons, the Court declines to exercise its discretion to grant

3 The Court recognizes that the costs of litigation in federal court may be somewhat higher and that this District
continues to have an open judicial vacancy, but finds both of those factors are slight and do not demand dismissal
for forum non convenience in this case.

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dismissal based on forum non convenience. Piper Aircraft, 454 U.S. at 257 (The
determination to dismiss under the forum non conveniens doctrine is “committed to the
sound discretion of the trial court.”).
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Defendants’ Motion for
Reconsideration and alternative Motion to Dismiss for Forum Non Conveniens (Dkt. 52)
is DENIED.

DATED: July 11, 2017
_________________________
Edward J. Lodge
United States District Judge

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