Anda di halaman 1dari 12

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 1 of 12 Page ID #:1029

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL

Case No. Title

CV 11-09238 MMM (JCx)

Date

April 26, 2012

VisionQwest Resource Group, Inc. v. Pacquiao, et al.

Present: The Honorable

MARGARET M. MORROW N/A Court Reporter

ANEL HUERTA Deputy Clerk

Attorneys Present for Plaintiff: None Proceedings:

Attorneys Present for Defendant: None

Order Granting Motion to Remand I. FACTUAL BACKGROUND

On October 12, 2011, VisionQwest Resource Group, Inc., dba Vision Quest Accountancy Group (VisionQwest), commenced this action in Los Angeles Superior Court against Emmanuel D. Pacquiao and MP Promotions USA, Inc (MP Promotions).1 Plaintiff asserted claims for breach of contract, account stated, open account, and unjust enrichment, as well as a claim based on alter ego liability.2 VisionQwest alleges that, on behalf of MP Promotions, Pacquiao contracted with it for accounting, tax and business advisory services.3 It contends that in addition to performing accounting, tax and advisory services, it also made personal loans to defendants.4 VisionQwest alleges that the value of the services and loans it provided was $649,016.95, and that this sum remains unpaid.5

1 2 3 4 5

Notice of Removal, Ex. 4 (Complaint), Docket No. 1 (Nov. 7, 2011). Complaint at 1. Id., 10. Id., 15. Id.

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 2 of 12 Page ID #:1030

VisionQwest asserts that Pacquiao is the alter ego of MP Promotions because he is the only shareholder of MP Promotions, MP Promotions is completely dominated and controlled by Pacquiao, no stock was ever issued by MP Promotions, MP Promotions was insufficiently capitalized by Pacquiao, and numerous banking transfers were made to foreign bank accounts.6 VisionQwest seeks damages of no less than $649,016.95, reasonable attorneys fees, costs, interest, and such other relief as the court deems just and proper.7 On November 7, 2011, defendants removed the action to this court, asserting that it fell within the courts diversity jurisdiction.8 On January 12, 2012, plaintiff filed a motion to remand.9 Defendants oppose the motion.10 The motion is currently on calendar for hearing on April 30, 2012 at 9:00 a.m. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the court finds the matter appropriate for decision without oral argument. The hearing and scheduling conference set for April 30, 2012 are therefore vacated and taken off calendar. II. DISCUSSION A. Whether Plaintiffs Motion Should Be Denied for Failure to Comply with Local Rule 7-3

Local Rule 7-3 provides, in relevant part, that counsel contemplating the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution. If the proposed motion is one which under the F.R.Civ.P. must be filed within a specified period of time . . . , then this conference shall take place at least five (5) days prior to the last day for filing the motion; otherwise, the conference shall take place at least twenty (20) days prior to the filing of the motion. CA CD L.R. 7-3 (emphasis original). Defendants assert that plaintiff failed to comply with Local Rule 73 before filing its motion. Defendants acknowledge that plaintiff discussed with them the possibility that it would file a motion

6 7 8 9

Id., 10. Id. at 8-9. Notice of Removal, Docket No. 1, Nov. 7, 2011.

Motion for Remand, Docket No. 13 (January 12, 2012). See also Reply in Support of Motion of Remand, Docket No. 23 (Apr. 4, 2012). Defendants Memorandum of Points and Authorities in Opposition to Plaintiffs Motion for Remand (Opp.), Docket No. 17 (Feb. 17, 2012).
2
10

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 3 of 12 Page ID #:1031

to remand, but contends that plaintiffs counsel did not discuss the substance of the motion.11 The court concludes that any noncompliance was so slight and unimportant that the sensible treatment is to overlook [it]. Professional Programs Group v. Dept of Commerce, 29 F.3d 1349, 1353 (9th Cir. 1994). Defendants agreed to give plaintiff an extended period to file a motion to remand; this indicates that they were well aware of the possibility that plaintiff would file such a motion.12 While defendants assert that receiving notice of the substance of plaintiffs motion would have given them time to adduce proof of their citizenship,13 they have had sufficient opportunity to submit such evidence in opposition to the motion. While the court does not condone the parties failure to comply with the Local Rules, it concludes that enforcing Rule 7-3 would not advance disposition of this litigation. Speicifically, defendants identify no cognizable injury or prejudice flowing from plaintiffs failure to comply with Local Rule 7-3. The parties clearly dispute whether remand is appropriate and have adduced factual evidence in support of their respective positions. The court can discern no reason to strike the motion under the Local Rules as it appears that the parties cannot resolve their substantive disagreements. Consequently, the court declines to deny plaintiffs motion for remand on the basis that plaintiff failed to comply with Local Rule 7-3. B. Plaintiffs Failure to File a Timely Motion to Remand

Local Rule 7-12 provides that [t]he failure to file any required paper, or the failure to file it within the deadline, may be deemed consent to the granting or denial of the motion. CA CD L.R. 7-12. As noted, the parties filed a stipulation requesting that the court grant plaintiff additional time to file a motion for remand.14 Pursuant to the stipulation, the court granted plaintiff until January 9, 2012, to seek remand.15 Plaintiff filed a motion to remand on January 9, 2012, but the filing was rejected because the case was designated for electronic filing.16 Plaintiff electronically filed the motion on January 12, 2012. Plaintiffs failure to file a timely remand motion could be grounds to deny the motion. See Borchers v. Standard Fire Ins. Co., No. 10-1706, 2010 WL 2608291 *1-2 (N.D. Cal. June 25, 2010). Failure to comply with a Local Rule, however, does not render a timely filed motion to remand untimely simply because the movant is required to amend that motion to
11 12

Opp., Ex. 6 (Declaration of Matthew Mrkonic).

Stipulation for Extension of Time to File Plaintiffs Motion to Remand, Docket No. 6 (Nov. 14, 2011).
13 14 15 16

Opp. at 2. Id. Order, Docket No. 7 (Nov. 15, 2011). Notice of Discrepancy, Docket No. 12 (Jan. 9, 2012).
3

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 4 of 12 Page ID #:1032

comply with a local rule. Bilbruck v. BNSF Railway Co., 243 Fed. Appx. 293, 295 (9th Cir. July 30, 2007) (Unpub Disp.). See also Phoenix Global Ventures, LLC v. Phoenix Hotel Associates, Ltd.. 422 F.3d 72, 76 (2d. Cir. 2005) (holding that a district court could excuse failures to comply with rules regulating its electronic case filing system for purposes of determining when a motion was filed). The court thus deems plaintiffs motion timely and addresses the merits of the motion below. C. Legal Standard Governing Removal Jurisdiction The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979). The removal statute, 28 U.S.C. 1441, allows defendants to remove when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75,000. See 28 U.S.C. 1441(a), (b); see also 28 U.S.C. 1331, 1332(a). Only state court actions that could originally have been filed in federal court may be removed. 28 U.S.C. 1441(a); see Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987); Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988). The Ninth Circuit strictly construe[s] the removal statute against removal jurisdiction, and [f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988), Takeda v. Northwestern Natl Life Ins. Co., 765 F.2d 815, 818 (9th Cir. 1985), and Libhart, 592 F.2d at 1064). The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper. Id. (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n.3 (9th Cir. 1990), and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)). D. Requirements for Diversity Jurisdiction

The district courts . . . have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. . . . 28 U.S.C. 1332(a); see also Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) ([J]urisdiction founded on [diversity] requires that the parties be in complete diversity and the amount in controversy exceed $75,000). In any case where subject matter jurisdiction is premised on diversity of citizenship, there must be complete diversity, i.e, all plaintiffs must have citizenship different than all defendants. See Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267 (1806); see also Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 & n. 3 (1996). Diversity jurisdiction is determined at the time the action commences, and a federal court is not divested of jurisdiction . . . if the amount in controversy subsequently drops below the minimum jurisdictional level. Hill v. Blind Industries and Services of Maryland, 179 F.3d 754, 757 (9th Cir. 1999) (emphasis added).

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 5 of 12 Page ID #:1033

E.

Whether the Court Lacks Jurisdiction Due to a Provision in the Parties Contract

Plaintiff argues there is no diversity jurisdiction because [d]efendants agreed that the State of California maintained jurisdiction over any dispute arising out of the service contracts. . . .17 It asserts that [d]efendants clearly accepted jurisdiction of the State of California.18 In support of this argument, it proffers copies of its contracts with Pacquiao and with MP Promotions.19 The contracts contain identical clauses that state: Law: This Contract, and the rights of the parties under this Contract, shall be interpreted according to the internal law, but not the conflict of law rules, of the State of California.20 These provision merely reflect the parties agreement that California substantive law will govern resolution of any disputes. Nowhere does the contract state that defendants waive their right to litigate in a federal forum, or that California courts have exclusive jurisdiction over all legal disputes arising out of the contracts Morever, it is a basic tenet of civil procedure that federal courts sitting in diversity jurisdiction apply state substantive law. See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980) (The task of a federal court in a diversity action is to approximate state law as closely as possible. . .). Federal courts thus apply state law as choice of law provisions require. The court therefore proceeds to consider whether the requirements for diversity jurisdiction have been met.21

17 18 19 20 21

Id. at 2. Id. at 7. Id., Exs. 1 and 2. Id., Ex. 1 at 10; Id., Ex. 2 at 10.

Plaintiff titles one section of his brief as follows: The causes of action are state court claims, not federal court causes of action; therefore, the matter should be remanded. (Motion at 9.) In that section, it argues that[t]he case must be remanded if there is even a possibility that a state court would find that the complaint stated a cause of action against a resident defendant, citing Coker v. Amoco Oil Co., 709 F.2d 1433 (11th Cir. 1983). The quotation from Coker addresses the requirements for demonstrating fraudulent joinder, which is not an issue in this case. Insofar as plaintiff asserts that the case must be remanded because the complaint alleges solely state law claims, as noted above, a federal court sitting in diversity may properly hear state law claims, and plaintiff offers no authority suggesting otherwise.
5

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 6 of 12 Page ID #:1034

F.

Whether the Court Has Diversity Jurisdiction to Hear This Case

Plaintiffs complaint seeks damages not less than $649,016.95.22 This amount clearly exceed the minimum amount in controversy required of more than $75,000. The parties primary dispute concerns the citizenship of Pacquiao and MP Productions. When removal is based on diversity of citizenship, a defendants notice of removal must state the citizenship of all parties to the action. Barahona v. Orkin , No. CV 08-04634-RGK (SHx), 2008 WL 4724054, *2 (C.D. Cal. Oct. 21, 2008). A persons domicile is [his] permanent home, where [ ]he resides with the intention to remain or to which [ ]he intends to return. A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state. Kanter v. Warner-Lambert Co. 265 F.3d 853, 857 (9th Cir. 2001) (citations omitted). For this reason, allegations of residence are not adequate to establish diversity. See Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 774 (9th Cir. 1995) (It is black letter law that, for purposes of diversity, [r]esidence and citizenship are not the same thing, quoting Mantin v. Broadcast Music, Inc., 244 F.2d 204, 206 (9th Cir.1957)); Bradford v. Mitchell Bros. Truck Lines, 217 F.Supp. 525, 527 (C.D. Cal. 1963). Absent unusual circumstances, a party seeking to invoke diversity jurisdiction should be able to allege affirmatively the actual citizenship of the relevant parties. Wingfield v. Target Corp., No. CV 09-2663 PA (MANx), 2009 WL 1068867, *1 (C.D. Cal. Apr. 21, 2009) (quoting Kanter, 265 F.3d at 857). Defendants assert that complete diversity exists because: (1) plaintiff is a California corporation that has its principal place of business in Los Angeles, California;23 (2) Pacquiao is a citizen of the Philippines;24 and (3) MP Promotions is a Nevada corporation with its principal place of business in Las Vegas, Nevada.25 As the parties do not dispute plaintiffs citizenship, the court examines their contentions regarding the citizenship of Pacquiao and MP Promotions. 1. Pacquiaos Citizenship

Pacquiao proffers a declaration stating he is a citizen of the Philippines. He notes that he is currently an elected member of Congress in that country,26 and contends that he is neither a United

22 23 24 25 26

Complaint at 8. Notice of Removal, 5(a)(i) (citing Complaint, 1). Id., 5(a)(ii). Id. Declaration of Emmanuel D. Pacquiao (Pacquiao Decl.), Docket No. 17 (Feb. 27, 2012).
6

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 7 of 12 Page ID #:1035

States citizen nor a permanent resident of this country.27 Plaintiff argues that Pacquiao has resided in California. It proffers as evidence the fact that Pacquiao has a California drivers license that reflects a California address,28 and various bank statements sent to Pacquiao at different addresses in the Los Angeles vicinity.29 Plaintiff fails to recognize that diversity jurisdiction is premised on citizenship rather than residency. Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267 (1806). In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989). Information about a partys residence does not prove a partys citizenship. See Mantin v. Broadcast Music, Inc., 244 F.2d 204, 206 (9th Cir. 1957). Plaintiffs rather thin evidence thus fails to address the relevant inquiry. Assuming arguendo that Pacquiao maintains a residence in California, that alone does not suffice to show that his domicile is in the state, especially as it is undisputed that Pacquiao is a citizen of the Phillippines, not the United States. See Kanter, 265 F.3d at 857-58 (To be a citizen of a state, a natural person must first be a citizen of the United States. The natural persons state citizenship is then determined by her state of domicile, not her state of residence. A persons domicile is her permanent home, where she resides with the intention to remain or to which she intends to return. A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state. In this case, neither Plaintiffs complaint nor Pfizers notice of removal made any allegation regarding Plaintiffs state citizenship. Since the party asserting diversity jurisdiction bears the burden of proof, Pfizers failure to specify Plaintiffs state citizenship was fatal to Defendants assertion of diversity jurisdiction (citations omitted)); Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957) (Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place ones permanent abode. . .); Baldwin v. Monier Lifetile, L.L.C., No. CIV05-1058PHXJAT, 2005 WL 3334344, *2 (D. Ariz. Dec. 7, 2005) (The parties in this case have failed to allege the Plaintiffs state of citizenship. Allegations of residency but not citizenship are insufficient to determine the existence of diversity jurisdiction (citations omitted)). For these reasons, plaintiff has failed to show that Pacquiao is a citizen of this state; his residency here does not controvert strong evidence that he maintains his domicile in the Phillippines. 2. MP Promotions Citizenship

Plaintiff also disputes MP Promotions allegations regarding its citizenship. Plaintiff notes that
27 28 29

Id. Motion for Remand, Ex. 3 Motion for Remand, Exs. 4-6.
7

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 8 of 12 Page ID #:1036

at one point, MP Productions was in default status with the Nevada Secretary of State, indicating that it had let its registered status in the state lapse.30 Plaintiff also argues that despite defendants assertions to the contrary, MP Promotions principal place of business is California.31 Plaintiffs argument regarding MP Promotions default status conflates its state of incorporation with its current status in that state. It is undisputed that MP Promotions was incorporated in Nevada.32 The court must base its determination regarding MP Promotions citizenship not on its current status with the Nevada Secretary of State, but on the state where it chose to incorporate. That state was Nevada. The court thus turns to assessing MP Promotions principal place of business. 28 U.S.C. 1332(c) states that 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. 28 U.S.C. 1332(c). Plaintiff relies on outdated tests for determining corporate citizenship, such as the place of operations test. The Supreme Court has conclusively determined that the nerve center test must be used to determine a corporations principal place of business. Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010). A corporations nerve center is typically its corporate headquarters. Id. at 1186. As the Supreme Court has stated, the principal place of business is best understood as the place where a corporations officers direct, control, and coordinate the corporations activities Id. at 1192. Plaintiff asserts it had a working relationship with MP Productions in California, access to documents and information regarding the corporation here, and direct interaction with Michael Koncz,

30 31 32

Motion for Remand at 7. Id. at 8-9.

While plaintiff contends that MP Promotions default status is relevant in assessing diversity jurisdiction, the authority it cites shows that it is actually addressing personal jurisdiction. As a Nevada corporation, Nevada laws determine whether MP Promotions can sue or be sued in federal court. See FED.R.CIV.PROC. 17(b)(2) (Capacity to sue or be sued is determine as follows: . . . (2) for a corporation, by the law under which it was organized). A Nevada corporation in default may sue and be sued in any court for up to one year after it enters default status. After the passage of a year, the corporations charter is revoked if it fails to correct its default status. NEV. REV. STAT. 78.060(2), 78.175(2). As a result, MP Promotions default status does not affect its citizenship for purposes of this suit. The court notes further that MP Promotions has apparently cured its default status with the Nevada Secretary of State. As of February 27, 2012, MP Promotions current status is Active. (See Business Entity Search, N E V . S E C Y O F S T A T E , http://nvsos.gov/sosentitysearch/CorpSearch.aspx: see also Viper Networks, Inc. v. Rates Technology Inc., Civil No. 09cv768 L(RBB), 2009 WL 4261167, *5 (S.D. Cal., Nov. 23, 2009) (holding that a Nevada corporation that cured its default status was an active corporation under state law and could sue or be sued)).
8

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 9 of 12 Page ID #:1037

a corporate representative, in the state.33 Relying on this information, it argues that MP Promotions principal place of business is California because (1) MP Promotions conducts business and owns property in California;34 (2) MP Promotions bank accounts list a California address;35 (3) MP Promotions does not have a Nevada bank account;36 (4) MP Promotions does not have a headquarters or office in Nevada;37 (5) business was rarely conducted in Nevada, and operations generally took place in California or the Philippines;38 and (6) excepting a tax return that listed another business address, and the address used for service of process, MP Promotions has no Nevada address where it regularly receives correspondence.39 The court evaluates these allegations to determine what they show about the direction, control, or coordination of MP Promotions activities. Where bank accounts are held, where physical offices are located, and which address is used to receive mail are all indicia of such control or coordination of corporate activities. The strongest evidence that MP Productions is a California citizen is the fact that Koncz conducted business for it at an office located in his California home. Plaintiff proffers the declaration of Michael Lodge, an accountant for defendants and someone who has knowledge of defendants business operations. Lodge states that Pacquiao purchased Konczs California residence in order to conduct Defendants various business enterprises.40 He also asserts that Koncz maintains a business office at his home for the sole purpose of running MP Promotions USA, Inc. and Mr. Pacquiaos other business affairs.41 Lodge contends he traveled to Konczs home to pick up business documents, lending credibility to his claim that that is where all of Defendants business records were kept.42 Plaintiffs evidence gives rise to a colorable claim that Koncz was directing MP Productions corporate activities from California.

33

Motion for Remand at 12-15. Lodges declaration was not filed as a separate document. (Id. Id. at 3. Id. at 4. Id. at 5. Id. Id. Id. at 8. Id. at 15. Id. Id.
9

at 12.)
34 35 36 37 38 39 40 41 42

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 10 of 12 Page ID #:1038

Defendants agree that their Nevada headquarters is shared with another business, but contend this does not show that the headquarters are a sham.43 Where, as here, there is a factual dispute as to whether the corporate headquarters are in fact the principal place of business of the company, however, the court must determine where the corporations officers direct, control, and coordinate the corporation's activities. Hertz Corp., 130 S.Ct. at 1192. As defendant admits that Koncz is the business manager and only compensated employee of MP Promotions,44 the court must conclude that he is the individual who directs, controls, and coordinates corporate activities. While Koncz does not dispute that he lives in California, and admits that he receives some mail in the state,45 defendants contend that he conducted no work for MP Promotions in California.46 The evidence they proffer to support this contention is more notable for its gaps than its probative weight. While Koncz states that he spends two to three months a year in Las Vegas, and four to five months a year in the Philippines,47 he does not address where he spends the balance of his time. It is thus a reasonable inference is that Koncz spends four to six months at his home in California. Moreover, Konczs geographic location during certain times of the year does not address where it is that he directs, controls, and coordinateds MP Productionss activities. This, of course, is the crucial inquiry. Koncz describes his activities on behalf of MP Promotions as promoting professional boxing matches,48 negotiating agreements, making strategic decisions for the company, and communicating with the companys boxers.49 While Koncz asserts that he makes a majority of MP Promotions
43 44

Opposition to Motion to Remand, Docket No. 17 (Feb. 27, 2012) at 8, 10-11.

Declaration of Michael Koncz (Koncz Decl.), Docket No. 17 (Feb. 27, 2012), 3. Defendants note that Pacquiao and his brother Rogelio hold officer positions in MP Promotions. (Id..) Pacquiaos declaration primarily addresses his citizenship for diversity jurisdiction purposes; it discusses where he fights and trains, but is silent as to where, if anywhere, he directs, controls, or coordinates the activities of the corporation. (Pacquiao Decl.) No information has been submitted regarding Rogelio Pacquiaos activities. Lacking any record as to either Pacquiaos or his brothers role as a corporate officer, the court limit its analysis to Konczs activities on behalf of the corporation.
45 46 47 48 49

Id., 11. Opposition to Motion to Remand at 12. Declaration of Michael Koncz, 7. Id., 4. Id., 7.
10

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 11 of 12 Page ID #:1039

strategic decisions in Las Vegas, and that seventy percent of the agreements into which the corporation enters are negotiated in Las Vegas,50 no breakdown of the other activity in which he engages as a corporate officer is provided. Nor is there any indication where this other activity takes place.51 For example, Koncz discusses various activities he undertakes for the business, such as making strategic decisions, marketing and advertising promoted fights, and conducting other promotional activities. He proffers no evidence, however, as to where these activities take place. That certain company-sponsored events take place in Las Vegas does not prove that corporate activity that led to the events was directed or controlled in that state. Nor is evidence as to where the boxing matches promoted by the corporation take place, where the corporations associated boxers reside, and where contractors who are typically used for corporate events are located probative of the location from which the corporations activities are directed, controlled or coordinated. The fact that a business contracts with third parties outside California does not demonstrate that it directs, controls or coordinates its activities from the state(s) where the third parties are located. The authority defendants cite is either inapposite or supports the courts conclusion. In LGarde, Inc. v. Raytheon Space & Airborne Sys., 805 F.Supp.2d 932 (C.D. Cal. 2011), the court found that a corporations principal place of business was where its physical headquarters were located, where five of twelve executive officers, including the CEO, worked, where other departments conducted operations, where its board met, and where official forms designated the principal place of business. Id. at 940. Here, the sole corporate employee appears to spend as much time in California as in Nevada and there is no evidence that executive officer activities, departments, or board meetings take place exclusively in Nevada. In re Hydroxycut Marketing and Sales Practices Litigation, No. 09MD2087-BTM (AJB), 2010 WL 2998855 (S.D. Cal. July 29, 2010), held that even though the business activities of a corporation that were visible to the public took place in one location, its principal place of business was located where those activities were directed. Id. at *4. This demonstrates that while MP Promotions publicly visible business activities its promoted fights might take place in Nevada, it principal place of business is determined by the location from which those activities were directed. Given the parties dispute, and defendants burden of proving that diversity jurisdiction exists, the court is compelled to resolve all doubts about where MP Promotions principal place of business is located in favor of plaintiff.52
50 51

Id.

Koncz does allow, without further specificity, that none of the strategic decisions he makes for the corporation take place in California property owned by Pacquiao. Id. The remaining cases defendants cite merely establish the general proposition that a corporations principal place of business is where its headquarters are located, where its CEO works,
11
52

Case 2:11-cv-09238-MMM-JC Document 25

Filed 04/26/12 Page 12 of 12 Page ID #:1040

The Ninth Circuit strictly resolves all doubts in favor of removal, Gaus, 980 F.2d at 566, and defendant bears the burden of proving that removal is proper. Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 n. 3 (9th Cir. 1990). As a result, other courts in this circuit have found that remand is appropriate where a genuine factual dispute exists as to whether the citizenship of the parties is completely diverse. See Goldenberg Family Trust v. Travelers Comm. Ins. Co., No. 1104312, 2011 WL 3648490, *2 (C.D. Cal. Aug 18, 2011) (remanding because there was a factual dispute regarding a corporations principal place of business); Health Facilities of California Mut. Ins. Co., Inc. v. British American Ins. Gp., Ltd., No. 10-3736, 2011 WL 97695, *3 (C.D. Cal. Jan. 11, 2011) (dismissing for lack of jurisdiction because the burden of showing complete diversity was not met); Arellano v. Vogel, No. 10-4534, 2010 WL 5148292 (N.D. Cal. Dec. 14, 2010) (competing factual showings required the court to resolve the uncertainty in favor of remand). Because a genuine factual dispute exists as to whether MP Productions is a California citizen, its presence in the case defeats complete diversity. Applying the general principle that all doubts are resolved in favor of remand, the court directs that the case be remanded.53 III. CONCLUSION For the reasons stated, plaintiffs motion to remand is granted. The court orders the clerk to remand this action to Los Angeles Superior Court forthwith.

and where other business functions are handled. See Central W. Va. Energy Co., Inc. v. Mountain State Carbon, LLC, 636 F.3d 101, 106-07 (4th Cir. 2011); Miller v. Swiss Re Underwriters Agency, Inc., No. 09-09551, 2010 WL 935697, *1 (C.D. Cal. Mar. 15, 2010). In this case, where MP Promotions headquarters are located, and where Koncz directed, controlled and coordinated MP Promotions activities are in dispute. The Ninth Circuit requires that all doubts be resolved in favor of remand. Plaintiff argues that defendants colluded by misrepresenting that this matter should be removed to federal jurisdiction. (Motion for Remand at 11.) It misconstrues the statute it cites 28 U.S.C. 1359. That statute states; A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such current defendants in its complaint. There is no evidence that any party has been improperly or collusively joined, and this statute thus does not assists plaintiff in showing that federal jurisdiction exists.
53

12