UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
May 1, 2007
JOHN WHALEN, JR., PLAINTIFF,
M/V MILUSKA, OFFICIAL NO. 1041971, HER ENGINES, TACKLE, ETC., IN REM; AND DAVID GEORGE HOPKINS, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.
The opinion of the court was delivered by: Hayes, Judge
(Doc. # 7)
The matter before the Court is the "Motion to Dismiss for Lack of Proper Party Pursuant to Federal Rule Code of Civil Procedure 12(b)(7)" ("Motion to Dismiss") (Doc. # 7), filed by Defendant David George Hopkins ("Mr. Hopkins").
In his Motion to Dismiss, Mr. Hopkins argues that in this action to quiet title and discharge a maritime lien, Plaintiff has failed to name a necessary party, "Whalen Holdings, LLC." In support of this argument, Mr. Hopkins submits a Declaration from his attorney stating, "I am informed and believe that the Plaintiff John Whalen, entered into an agreement to create an LLC, which LLC was to obtain title to the vessel Miluska. . . . Subsequent to the agreement to set up an LLC, the undersigned is informed and believes that an oral agreement was reached by John Whalen and David Anthony Hopkins to restore title of the vessel to refund $200,000 for the vessel." (Pascoe Decl. ¶¶ 2-3.) In his Brief, Mr. Hopkins states:
"[T]he LLC was formed and organized under the laws of the State of Oregon, but the necessary paper work was never completed to transfer title of the vessel to the LLC." (Mem. Supp. Mot. Dismiss at 1-2.)
Plaintiff John Whalen, Jr. ("Mr. Whalen") opposes the motion, submitting evidence that Whalen Holdings LLC ("Whalen Holdings") was not used to transfer title of the vessel Miluska as originally planned, Whalen Holdings never had title to the Miluska (Whalen Decl. ¶ 3), and Whalen Holdings dissolved on May 12, 2006 (Kammer Decl. ¶ 2, Ex. 1).
Mr. Hopkins brings his motion pursuant to Federal Rule of Civil Procedure 12(b)(7), which provides that a party may bring a motion to dismiss for "failure to join a party under Rule 19." Fed. R. Civ. P. 12(b)(7). "Federal Rule of Civil Procedure 19 provides a three-step process for determining whether the court should dismiss an action for failure to join a purportedly indispensable party. First, the court must determine whether the absent party is 'necessary'. . . . If the absent party is 'necessary,' the court must determine whether joinder is 'feasible.' Finally, if joinder is not 'feasible,' the court must decide whether the absent party is 'indispensable,' i.e., whether in 'equity and good conscience' the action can continue without the party." U.S. v. Bowen, 172 F.3d 682, 688 (9th Cir. 1999) (citing Fed. R. Civ. P. 19).*fn1
In this case, there has been no showing that Whalen Holdings satisfies any of the requirements of Rule 19. For instance, the "first requirement" is that Whalen Holdings is a "necessary party." Bowen, 172 F.3d at 688. "Fed. R. Civ. P. 19(a) provides that a party is 'necessary' in two circumstances: (1) when complete relief is not possible without the absent party's presence, or (2) when the absent party claims a legally protected interest in the action." Id. (citing Yellowstone County v. Pease, 96 F.3d 1169, 1172 (9th Cir. 1996)). The undisputed evidence shows that Whalen Holdings never had title to the vessel at issue, never claimed any ownership interest in it, has not asserted any maritime lien on it, and is now a dissolved entity. Even the movant, Mr. Hopkins, concedes that "the necessary paperwork was never completed to transfer title of the vessel to the LLC." (Mem. Supp. Mot. Dismiss at 2.) Yet Mr. Hopkins also states that "Whalen Holdings LLC has a colorable claim to the title of the vessel" (Mem. Supp. Mot. Dismiss at 3), without explaining the legal basis for this "colorable claim." Mr. Hopkins, as the movant, bears the burden of proving that dismissal is warranted. See Biagro Western Sales Inc. v. Helena Chem. Co., 160 F. Supp. 2d 1136, 1141 (E.D. Cal. 2001) ("A motion to dismiss for failure to join an indispensable party requires the moving party to bear the burden in producing evidence in support of the motion.") (citing Citizen Band Potawatomi Indian Tribe of Okla. v. Collier, 17 F.3d 1292, 1293 (10th Cir. 1994)); Village of Hotvela Traditional Elders v. Indian Health Serv., 1 F. Supp. 2d 1022, 1025 (D. Ariz. 1997) (same). He has failed to meet his burden of showing that Whalen Holdings is either a necessary or an indispensable party.
Mr. Hopkins also states that dismissal of this action is appropriate because "there is already pending an action by and between the parties to resolve the financial dispute as to the equitable and actual lien which was filed to protect the interest of David Hopkins." (Mem. Supp. Mot. Dismiss at 3.) To the extent Mr. Hopkins is moving for dismissal pursuant to an abstention doctrine, he has failed to identify which doctrine he is invoking, and to adequately support his motion with facts demonstrating that the requirements of that doctrine are satisfied in this case. Cf. Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800 (1976); Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil Co., 319 U.S. 315 (1943); Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941).
For the reasons discussed above, Mr. Hopkins' Motion to Dismiss (Doc. # 7) is DENIED.
WILLIAM Q. HAYES United States District Judge