Free Terminate Deadlines and Hearings - District Court of California - California

Case 3:07-cv-02732-SC

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 10
For the Northern District of California

TREVOR MOSS, Plaintiff, v. TIBERON MINERALS LTD., Defendant.

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Case No. 07-2732 SC ORDER DENYING PLAINTIFF'S MOTION TO ALTER JUDGMENT PURSUANT TO FRCP 59(e) AND MOTION FOR RELIEF FROM JUDGMENT DISMISSING FOR FORUM NON CONVENIENS PURSUANT TO FRCP 60(b)

I. INTRODUCTION 15 This matter comes before the Court on the motions by 16 plaintiff Trevor Moss ("Plaintiff" or "Moss") to Alter Judgment 17 Pursuant to Federal Rule of Civil Procedure 59(e) and for Relief 18 from Judgment Dismissing for Forum Non Conveniens Pursuant to 19 Federal Rule of Civil Procedure 60(b) (collectively "Motion"). 20 See Docket No. 44. 21 ("Defendant" or "Tiberon") filed an Opposition and Moss submitted 22 a Reply. 23 Court DENIES Moss's Motion. 24 25 II. BACKGROUND 26 The facts of this case are detailed in the Court's November 27 1, 2007, Order Granting Defendant's Motion to Dismiss for Forum 28 See Docket Nos. 53, 59. For the following reasons, the The defendant Tiberon Minerals Ltd.

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Non Conveniens ("November Order").

See Docket No. 40.

The

parties' familiarity with the facts is therefore assumed.

III. DISCUSSION A. Legal Standard

"A district court has considerable discretion when considering a motion to amend a judgment under Rule 59(e)." Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003). There are four grounds upon which a Rule 59(e) motion may be granted: 1) the motion is necessary to correct manifest errors of law or fact upon which the judgment is based; 2) the moving party presents newly discovered or previously unavailable evidence; 3) the motion is necessary to prevent manifest injustice; 4) there is an intervening change in controlling law. Id. (internal quotation marks omitted). In the present case, Moss

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asserts that the Court's Order is based on manifest errors of law and fact. A manifest error is an "error that is plain and

indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record." LAW DICTIONARY 582 (8th ed. 2004).1 Rule 60(b) provides that "a court may relieve a party . . . Moss attempts to minimize the burden for demonstrating a manifest error by stating a "party need only show 'a manifest error of law or fact.'" Mot. at 5 (emphasis added). Thus, according to Moss, he "need only" show that the Court completely disregarded controlling law or credible evidence in the record. Although such semantics are often the first tools to which a lawyer resorts, they have no place in situations such as this. Any suggestion that a party "need only" show a manifest error is nonsensical. 2 BLACK'S

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from a final judgment . . . for . . . (1) mistake, inadvertence, surprise, or excusable neglect . . . or (6) any other reason." Fed. R. Civ. P. 60(b). B. Analysis

The Court will not repeat its reasons for granting dismissal for forum non conveniens. The previous Order more than

sufficiently addressed most of the concerns Moss now raises. Nonetheless, several of Moss's claims deserve attention. To begin, Moss's allegation that the Court applied a choice of forum standard when the parties had actually agreed to a choice of law provision is simply false. reread the November Order. The Court encourages Moss to

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In that Order, the Court specifically

held that the "Clause contained in the Agreement relates to choice of law rather than forum . . . ." Order at 10. The Court also

held that it "nonetheless finds the forum-clause reasoning instructive." Id. Finding certain reasoning instructive is a far Moreover, any suggestion that

cry from applying that standard.

the Court improperly applied a forum-selection standard rather than a choice of law standard is refuted by the fact that the first half of the section dealing with choice of law cites Ninth Circuit precedent treating choice of law, rather than choice of forum. See Order at 9.

Moss asserts that the Court made several incorrect factual statements in its Order. In particular, Moss states:

In its written opinion, this Court incorrectly states that "Moss began working for Tiberon on August 1, 2005, at which point he and Tiberon signed a consulting agreement ('the Agreement')" 3

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and that "Moss alleges that after the consulting relationship was terminated he was entitled to certain bonuses pursuant to the Agreement and that Tiberon refused to pay these bonuses." Court's Order at 2:12-14, 18-21 . . . . Plaintiff Moss is not suing for breach of consulting agreement with defendant Tiberon. The consulting agreement which was breached is between plaintiff Moss and Nuiphaovica, a Vietnamese mining company. Plaintiff Moss . . . was hired by Nuiphaovica to provide consulting services . . . . Mot. at 1 (emphasis in original). Moss's contention that the Court incorrectly stated the facts is remarkable in light of the facts alleged in Moss's own Complaint. Moss takes the Court to task for suggesting that "he

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and Tiberon signed a consulting agreement" and that "Tiberon refused to pay these bonuses." Mot. at 1. Moss himself, however,

makes the following allegations in his Complaint: -- "At the time he was approached by TIBERON to perform consulting services in connection with a mining project in Vietnam, plaintiff's consulting business was located in San Ramon, California." original). -- "Prior to accepting the consulting position offered by TIBERON, Mr. Moss held positions with . . . ." (capitalization in original). -- "Mr. Moss was solicited by TIBERON to provide consulting engineering services in the spring and summer of 2005." (capitalization in original). -- "In August of 2005, after lengthy negotiations, TIBERON 4 Id. ¶ 7 Id. ¶ 6 Compl., Docket No. 1, ¶ 4 (capitalization in

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appointed Mr. Moss to the position of vice president, operations, although he continued to reside and provide his consulting services from his California office." original). -- "Mr. Moss was responsible for consulting services in the development of TIBERON's . . . property . . . ." (capitalization in original). -- "TIBERON failed and refused to make such bonus payment or any part thereof . . . ." Id. ¶ 11 (capitalization in original). Id. ¶ 8 Id. (capitalization in

-- "As an actual and proximate result of TIBERON's failure to honor its agreement . . . ." original). -- "Plaintiff is presently owed his bonus by TIBERON as a result of the Consulting Agreement and Guarantee." (capitalization in original). -- "TIBERON's failure to pay the full amount due to plaintiff upon his termination . . . ." original). At the risk of stating the obvious, the Court reminds Moss that he filed a Complaint naming Tiberon as the sole defendant and that this Complaint stated a cause of action for breach of written contract. When Moss states in his Complaint that "TIBERON failed Id. ¶ 18 (capitalization in Id. ¶ 17 Id. ¶ 15 (capitalization in

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and refused to make such bonus payment or any part thereof 'on the date that the Agreement [was] terminated' as agreed," the Court can only conclude that Moss's action is based on the underlying consulting agreement and the guarantee. and capitalization in original). 5 Compl. ¶ 11 (alteration

Moreover, Moss concedes that the

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relevant portion of the Agreement was in fact "drafted by TIBERON." Id. ¶ 12.

In light of the excerpts from the Complaint, Moss's argument that the Court's November Order was somehow factually deficient appears to be nothing more than a transparently anemic attempt to undermine, through any means necessary, an adverse ruling. Moss also attempts to argue that the "factual underpinnings" of the Court's Order are "legally insufficient." Mot. at 3.

Although unclear to the Court what exactly this means, Moss seems to argue that the Court did not accord sufficient weight to Moss's U.S. citizenship in granting the forum non conveniens dismissal. This contention, however, is contradicted by the second sentence in the Court's November Order, which outlines the deference a plaintiff's choice of forum is entitled. See November Order at 3.

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The Court was fully aware of Moss's U.S. citizenship and the resulting deference to which Moss's choice of a home forum was entitled. Nonetheless, after reviewing all of the public and

private factors and the existence of an adequate alternative forum, see Lockman Found v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991) (stating standard for forum non conveniens dismissal), the Court was, and remains, convinced that dismissal for forum non conveniens was appropriate. The Court notes that in arguing that sufficient weight was not given to Moss's U.S. citizenship, Moss cites, twice, to a legal standard from Ito v. Tokio Marine and Fire Insurance Co., Ltd., 166 Fed. Appx. 932, 2006 WL 204412, *1 (9th Cir. 2002). Mot. at 8, 9. See

As Ito is an unpublished opinion, citation to it 6

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for legal precedent is not only a violation of Civil Local Rule 34(e), but is also a violation of Ninth Circuit Rule 36-3(c) and is sanctionable. See Sorchini v. City of Covina, 250 F.3d 706, 709

(9th Cir. 2001) (per curium) (recognizing that violations of Rule 36-3 are sanctionable).2 Moss also argues that the Court improperly relied on the number of witnesses in Ontario rather than their materiality. This argument is plainly refuted by the Court's November Order. In that Order, the Court, relying on Moss's own Complaint, found that a necessary witness, Mr. Caron, lived in Ontario. November

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Order at 5; see also Pl.'s Opp'n, Docket No. 27, at 1 (stating the "only percipient witness located in Ontario is Mario Caron"). Although the Court also acknowledged that "Tiberon argues that at least three other witnesses live in or around Toronto," November Order at 5, the Court made no finding about whether these witnesses were material and thus the Court did not factor these witnesses into its final analysis of balancing the relevant public and private factors. Through tortured analysis, Moss demands that the Court rule on the merits of a possible defense, the business judgment rule, that Tiberon may assert, and thereby find that all of the witnesses in Ontario are not material. In addition, Moss directs

the Court to do this under both California and Ontario law and yet provides no helpful guidance. invitation. The Court declines such an

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The Court declines to impose any sanctions. 7

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Moss further states that "the question of whether the choice of Ontario law provision in the consulting agreement should be enforced was not adequately addressed, perhaps because this court mistakenly believed that the consulting agreement was between plaintiff and Tiberon rather than between plaintiff and Nuiphaovica." Mot. at 19. As noted above, Moss has sued Tiberon,

not Nuiphaovica.

Tiberon, according to Moss himself, "is, and at

all relevant times was, a Canadian corporation . . . with a principal place of business in Toronto, Ontario." Compl. ¶ 3.

Even assuming that the only agreement at issue is between Moss and Nuiphaovica, which is an assumption that Moss has plainly contradicted in his Complaint, that agreement also contains an Ontario choice of law provision. For the reasons stated in the

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Court's November Order, the Court finds not only that Ontario law governs this action but also that Canada is the proper forum. Moss's remaining arguments in favor of relief from the judgment are either meritless or squarely addressed by the Court's previous Order Granting Dismissal for Forum Non Conveniens. Moss has not demonstrated that the previous Order contained manifest errors of law or fact and his Rule 59(e) Motion is DENIED. Moss has also failed to persuade the Court that relief

pursuant to Rule 60(b) for mistake, inadvertence, surprise, excusable neglect, or any other reason is warranted. 60(b) Motion is therefore also DENIED. /// /// /// 8 Moss's Rule

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IV. CONCLUSION For the reasons discussed herein, Moss's Motion to Alter Judgment Pursuant to FRCP 59(e) and Motion for Relief from Judgment Dismissing for Forum Non Conveniens Pursuant to FRCP 60(b) are DENIED.

IT IS SO ORDERED.

Dated: March 11, 2008 UNITED STATES DISTRICT JUDGE

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