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concluding that plaintiff's RICO claim fell within a forum-selection clause covering "litigation arising in connection with" services
Summary of this case from Flanagan v. Access Midstream Partners, L.P.Opinion
Civil Action No. 13-cv-02973-REB-MEH
07-08-2014
JON A. GOODWIN, an individual, directly and derivatively in the right of and for the benefit of Barra Partners, LLC, a Delaware limited liability company, Plaintiff, v. MARCIA ANN BRUGGEMAN-HATCH, an individual, SEAMUS JOHN PAUL HATCH, an individual, MICHAEL DOUGLAS BOCK, an individual, ARAN STRATEGIC FINANCE, LLC a limited liability company, DAVID MARK JARGIELLO, an individual, BARRY S. LEVIN, an individual, ROBERT A. EPSEN, an individual, MATTHEW L. LARRABEE, an individual, HELLER EHRMAN LLP, a limited liability partnership, TIMOTHY ROBBINS, an individual, THOMAS F. VILLENEUVE, an individual, KENNETH ROBERT MCVAY, an individual, IVAN ALEXANDER GAVIRIA, an individual, DANIEL JURG NIEHANS, an individual, DANIEL E. O'CONNOR, an individual, SCOTT ARMIENTI, an individual, JONATHAN M. GLEASON, SCOTT C. DETTMER, an individual, ROBERT V. GUNDERSON, JR., an individual, MICHELLE ROBERTSON, an individual, GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN, LLP, a limited liability partnership, MILES FREDERICK EHRLICH, an individual, RAMSEY & EHRLICH LLP, a limited liability partnership, DENELLE MARIE DIXON-THAYER, an individual, JOHN DANIEL SHARP, an individual, MICHAEL ALEXANDER KAHN, an individual, DIANE D. BLICK, an individual, FOLGER LEVIN KAHN, LLP, a limited liability partnership, RICHARD S. WARLEY, an individual, SAVVIS, INC., a corporation, SUE M. KAPLAN, an individual, TINA LOUISE SCATUORCHIO-GOODWIN, an individual, HARRY STORER SCOTT, an individual, NEVILLE L. JOHNSON, an individual, DOUGLAS L. JOHNSON, an individual, LAN PHOJNG VU, an individual, JOHN DALE FOWLER, an individual, JONATHAN MARTIN TURCO, an individual, VIKTORIYA CASSIS, an individual, RADINE SABLAN, an individual, ANGELA TORABYAN, an individual, SHAKE ANDREASIAN, an individual, JOHNSON & JOHNSON LLP, a limited liability partnership, PAUL WILLIAM TWEED, an individual, KATHRYN HELENA LOUISE MATHEWS, an individual, PAUL TWEED LLP, a business entity, JOHNSONS LAW FIRM, a business entity, VAL COOK, an individual, TWITTER, INC., a corporation, VENTURE LAW GROUP, a professional corporation, HELLER EHRMAN (CALIFORNIA), a professional corporation, SIMON LUK, an individual, RUSSELL A. STAMETS, an individual, JEFFREY L. SCHOTTLER, an individual, JOHN C. GONZALEZ, an individual, KANNAN P. SRINIVASAN, an individual, MAYNARD JR GAMEZ, an individual, SEAN HART, an individual, EMILY WARREN CHURCH, an individual, ARAN VENTURES, a business entity, form unknown, ARAN DEVELOPMENT, a business entity, form unknown, ERIC VAUGHN TRAUT, an individual, DIANA BIAFORA SPARAGNA, an individual, BARRA PARTNERS, LLC, actually named as nominal defendant, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
.
Before the Court is a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(2) filed by Heller Ehrman (California), a Professional Corporation, Successor in Interest by Merger to Venture Law Group, a Professional Corporation (collectively "Defendant VLG") (filed May 6, 2014; docket #271). Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the matter is referred to this Court for recommendation. Docket #272. The matter is fully briefed, and the Court finds that oral argument is not necessary for the adjudication of the motion. For the reasons that follow, the Court respectfully RECOMMENDS that the Motion to Dismiss be granted.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); Niehaus v. Kansas Bar Ass'n, 793 F.2d 1159, 1164 (10th Cir. 1986).
Defendant VLG, which was a California professional corporation, contends it has been improperly named as a defendant in this action because it merged with and into Heller Ehrman PC in 2003. Docket #271-1. A corporation's capacity to sue or be sued is determined by the law under which it was organized. Fed. R. Civ. P. 17(b)(2). Pursuant to California Corporations code §1107(a), a corporation ceases to exist upon merger into another corporation. Under California law, a corporation that has been merged into another corporation cannot be sued. Asher v. Pacific Power & Light Co., 249 F. Supp. 671, 677 (N.D. Cal. 1965).
Although Plaintiff's response to VLG's Motion to Dismiss is entitled "Opposition," he concedes that he cannot name VLG as a defendant in this action, stating,
Having reviewed [VLG's Motion to Dismiss], the [P]laintiff isDocket #306. Plaintiff presents no other statements or argument in his response, and California law supports dismissing Defendant VLG. See Heim v. Estate of Heim, No. 5:10-cv-03816 EJD, 2012 WL 993681, at *11-12 (N.D. Cal. March 23, 2012) (dismissing a corporation as a party because it was merged out of existence before lawsuit was initiated; explaining "[i]t cannot now be sued in its pre-merger form").
persuaded that Venture Law Group, a Professional Corporation, was succeeded by Defendant Heller Ehrman (California), a Professional Corporation, and will agree to stipulate accordingly.
Accordingly, the Court respectfully RECOMMENDS that the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(2) filed by Heller Ehrman (California), a Professional Corporation, Successor in Interest by Merger to Venture Law Group, a Professional Corporation (filed May 6, 2014; docket #271) be granted.
Respectfully submitted this 8th day of July, 2014, at Denver, Colorado.
BY THE COURT:
/s/
Michael E. Hegarty
United States Magistrate Judge