Pilger v. Potter

Paul William Pilger, Plaintiff v. Monica Potter, et al., Defendant

Case No.: 2:20-cv-01600-JAD-EJY

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

May 28, 2021

Order Dismissing Claims and Closing Case

[ECF Nos. 5, 6, 8, 12, 31, 32]

Pro se plaintiff Paul Pilger contends in this removed action that Robert and Gwynneth Weiss hired him in 2001 to administer oil and gas leases that were held by their family trust.¹ Pilger alleges that he worked for the trust for 16 years, and that over time his role evolved from administering the leases to being a "factotum, handyman, counselor, associate, and close personal friend" of the Weisses.² Pilger contends that he turned down other work based on promises that the Weisses and their daughter, Sabrina Coryell, made to him about his future employment and housing.³ According to Pilger, the Weisses asked Pilger to administer the trust's mineral rights for Pilger's life.⁴ Pilger also contends that Gwynneth agreed in writing to gift him one of the condominium homes in the Las Vegas Country Club that the Weisses owned through their trust.⁵ He further alleges that Coryell agreed with her mother's gift and offered to renovate the condo and pay the association fees for Pilger's lifetime.⁶

But, Pilger alleges, his promises of lifetime employment and free housing for life were broken when, after both Robert and Gwynneth died, Monica Potter and Kevin Dwight turned Coryell against him and caused her to "renege" on her promises.⁷ Potter is an executive with San Pasqual Fiduciary Trust Company, ⁸ which is a co-trustee of the administrative trust that arose upon Gwynneth's death.⁹ Dwight is an attorney with the law firm of Manatt, Phelps & Phillips, LLC,¹⁰ which represents the administrative trust's current trustees—Coryell and San Pasqual.¹¹ Pilger alleges that to get anything from Coryell or any of the trusts, he was required to sign agreements that Dwight drafted, which did not include terms for Pilger's lifetime employment or free housing for life.¹² So Pilger sues Coryell, Potter, Dwight, San Pasqual, and the Manatt law firm for tortious interference with contract, intentional interference with prospective economic advantage, extortion, unjust enrichment, misrepresentation, and breach of contract or promissory estoppel.¹³

The defendants move under Federal Civil Procedure Rules 9(b) and 12(b)(6) to dismiss Pilger's claims.¹⁴ They also move under 28 U.S.C. § 1404(a) to dismiss this action or, alternatively, to transfer it to the United States District Court for the Central District of California.¹⁵ Defendants additionally move for a decision on their pending motions or for astatus conference.¹⁶ And they ask me to take judicial notice of the two agreements that they contend form the basis of Pilger's claims.¹⁷

Pilger moves for remand, arguing that the notice of removal is untimely and the parties are not diverse.¹⁸ Pilger also filed two unauthorized sur-replies,¹⁹ which defendants seek leave to address with a sur-reply of their own.²⁰ In both of his sur-replies, Pilger "declare[s] to the [c]ourt that [he] does not object to [defendants'] motion for removal."²¹ But in the sur-reply aimed at addressing defendants' petition for removal, Pilger both attacks the points and authorities that defendants provide in response to his motion to remand, and he states that arguments "regarding removal are moot" because he isn't forum shopping.²²

Because Pilger's position on the issue of removal is not entirely clear,²³ I consider his motion to remand on its merits, and I deny it because the petition for removal is timely and the parties are diverse. Because the forum-selection clause here points to a nonfederal forum, I construe defendants' motion under 28 U.S.C. § 1404(a) to dismiss or transfer to another venue asa motion to dismiss under the doctrine of forum non conveniens, and I grant that relief because Pilger's claims fall within the clause's ambit. So I dismiss Pilger's claims without prejudice to his ability to assert them in a new action in the parties' agreed venue—the Superior Court of California, Los Angeles County. And I deny or overrule as moot the parties' remaining motions, objections, and requests for relief.

Discussion

I. Pilger's motion to remand [ECF No. 12]

A. Legal standard for removal based on diversity jurisdiction

28 U.S.C. § 1332 provides that federal "district courts shall 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, and is between . . . citizens of different states . . . ."²⁴ 28 U.S.C. § 1441 authorizes defendants to remove to federal court "any civil action brought in a State court of which the [U.S. District Courts] have original jurisdiction . . . ."²⁵ But "[f]ederal courts are courts of limited jurisdiction."²⁶ So removing defendants "always have the burden of establishing that removal is proper."²⁷ This is a heavy burden to carry because there is a "strong presumption against removal jurisdiction[,]" the removal statute is "strictly construe[d] 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."²⁸

28 U.S.C. § 1446 sets forth the procedure for the removal of civil actions to federal court. The statute provides that defendants must file in the relevant district court a notice "containing a short and plain statement of the grounds for removal" along with copies of "all process, pleadings, and orders" that defendants have been served with in the action.²⁹ When removability is plain from the face of the complaint, the deadline to file the notice of removal is "within 30 days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief" that the civil action or proceeding is based on.³⁰

B. Analysis

Pilger argues that I should remand this action back to state court for two reasons: (1) defendants did not timely file their notice of removal, and (2) subject-matter jurisdiction is lacking because the parties are not diverse.³¹ I begin with the question of diversity jurisdiction. Despite the fact that Pilger is a citizen of Nevada and defendants are all citizens of other states,³² Pilger argues that the parties are not diverse because Potter, Dwight, and Coryell should each be considered a representative of decedent Gwynneth's estate.³³ He points out that under 28 U.S.C. § 1332(c)(2), "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent . . . ."³⁴

But Pilger makes no showing that any of these defendants has been appointed as the legal representative of Gwynneth's estate, or that any such estate exists.³⁵ Pilger does not sue Gwynneth's estate or any defendant in their alleged capacity as a legal representative of that estate. Instead, he sues Potter individually and in her capacity as the Senior Vice President and Chief Operative Officer of San Pasqual.³⁶ He sues Coryell in her individual capacity.³⁷ And he sues Dwight individually and as an employee of the Manatt law firm.³⁸ Defendants have thus carried their burden to show that the parties in this removed action are diverse.

Pilger next argues that removal is untimely because he mailed each defendant a copy of the complaint in April 2020 but defendants did not file their petition for removal until four months later.³⁹ Pilger argues that when he mailed copies of the complaint to the defendants, he was hoping to avoid litigation and did not immediately obtain summonses or serve the defendants with process, and he gave them "time to review the complaint and reconsider their disregard of [his] request to settle."⁴⁰ Pilger argues that when he did not receive a response, he mailed a request for waiver of service of process to each defendant on June 30, 2020.⁴¹ Pilger acknowledges that the defendants, through their counsel, signed and returned the waivers on July30, 2020.⁴² Pilger argues that under 28 U.S.C. § 1446(b), the removal clock began to run either when he mailed copies of the complaint to the defendants in April 2020 or, at the latest, when he mailed requests to them on June 30, 2020, to waive service of summons.⁴³

Justice Ruth Bader Ginsburg explained in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. that § 1446(b) must be interpreted "in light of [the] bedrock principle" that "[a]n individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process."⁴⁴ Guided by this principle, the United States Supreme Court held in Murphy Brothers "that a named defendant's time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, 'through service or otherwise,' after and apart from service of the summons, not by mere receipt of the complaint unattended by any formal service."⁴⁵ The Court reasoned that these are fair triggers for the removal clock because, "[i]n the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party [that] the complaint names as a defendant."⁴⁶ "[O]ne becomes a party officially, and is required to take action in that capacity," the Court continued, "only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend."⁴⁷ So "[u]nless a named defendant agrees to waive service, the summons continues tofunction as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural and substantive rights."⁴⁸

Here it is undisputed that defendants, through their counsel, each agreed to waive service of summons on July 30, 2020.⁴⁹ It was that agreement to waive service of process—not Pilger's mailing the requests for that accommodation—that started the...