Mani Subramanian v. St. Paul Fire & Marine Insuran

FILED
NOT FOR PUBLICATION OCT 19 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANI SUBRAMANIAN; et al., No. 08-17413

Plaintiffs - Appellants, D.C. No. 3:04-cv-01249-VRW

v.
MEMORANDUM*
ST. PAUL FIRE & MARINE
INSURANCE; et al.,

Defendants - Appellees.

ST. PAUL FIRE & MARINE No. 08-17414
INSURANCE and UNITED STATES
FIDELITY AND GUARANTY D.C. No. 3:04-cv-01403-VRW
COMPANY,

Plaintiffs - Appellees,

v.

MANI SUBRAMANIAN; et al.,

Defendants - Appellants.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ST. PAUL FIRE & MARINE No. 08-17415
INSURANCE COMPANY and UNITED
STATES FIDELITY ANS GUARANTY D.C. No. 3:04-cv-01818-VRW
COMPANY,

Plaintiffs - Appellees,

v.

MANI SUBRAMANIAN; et al.,

Defendants - Appellants.

MANI SUBRAMANIAN, and individual No. 08-17416
and citizen of Washington, and as a
derivative action plaintiff, D.C. No. 3:08-cv-01426-VRW

Plaintiff - Appellant,

v.

ST. PAUL FIRE & MARINE
INSURANCE, a Minnesota corporation; et
al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding

Submitted July 19, 2012**
San Francisco, California

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: HUG, FARRIS, and LEAVY, Circuit Judges.

These four consolidated appeals involve a state court insurance coverage

case twice removed to federal court and twice remanded, a 2004 federal action in

which the district court dismissed or stayed all the substantive claims and we

affirmed in a previous appeal, and a 2008 federal action based on the same factual

allegations in which the district court again dismissed all the substantive claims

with prejudice. We affirm.

1. Remand Orders in Appeals No. 08-17414 and No. 08-17415

The district court remanded the twice-removed insurance coverage case in

district court case Nos. 04-1403 and 04-1818 under 28 U.S.C. § 1447(c) because it

lacked subject matter jurisdiction. “An order remanding a case to the State court

from which it was removed is not reviewable on appeal.” 28 U.S.C. § 1447(d);

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12 (1996); Abada v. Charles

Schwab & Co., 300 F.3d 1112, 1116 (9th Cir. 2002). Accordingly, we must

dismiss appeals No. 08-17414 and No. 08-17415. Abada, 300 F.3d at 1119.

2. Motions for relief from the 2007 Judgment in Appeal 08-17413

The district court entered final orders disposing of all the substantive claims

in the 2004 case (district court case No. 04-1249). Appellants appealed before the

district court entered a separate judgment. We exercised jurisdiction and affirmed.

St. Paul Fire & Marine Ins. Co. v. Vedatech Int’l, Inc., 245 Fed. Appx. 588 (9th

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Cir. 2007). After the mandate issued, the district court entered judgment on

December 27, 2007 (“the 2007 judgment”).

Appellants filed a number of motions challenging the 2007 judgment, styled

variously as motions to correct, clarify, amend, alter, set aside, and reconsider the

2007 judgment. In addition, appellants’ first cause of action in the 2008 complaint

(district court case No. 08-1426) was another motion for relief from the 2007

judgment. Appellants contend the district court erred in denying these motions and

in dismissing the first cause of action in the 2008 complaint.

We have considered appellants’ contentions and they present no basis for

relief from the 2007 judgment. Accordingly, the district court did not abuse its

discretion. See United Nat. Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d 772,

780 (9th Cir. 2009) (denial of motion for relief from judgment under Fed. R. Civ.

P. 59(e) reviewed for abuse of discretion); Latshaw v. Trainer Wortham & Co.,

Inc., 452 F.3d 1097, 1100 (9th Cir. 2006) (denial of motion for relief from

judgment under Fed. R. Civ. P. 60 reviewed for abuse of discretion).

3. Civil RICO and Civil Rights Claims in Appeal No. 08-17416

The district court dismissed appellants’ federal causes of action for civil

RICO and violation of civil rights in the 2008 complaint because the claims were

barred by res judicata. We review de novo dismissals for failure to state a claim

based on res judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).

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Res judicata precludes lawsuits on “any claims that were raised or could have been

raised in a prior action.” Id., quoting Owens v. Kaiser Found. Health Plan, Inc.,

244 F.3d 708, 713 (9th Cir. 2001). For federal claims, a res judicata defense

requires identity of claims, a final judgment on the merits of the prior action, and

identity or privity between the parties. Tahoe-Sierra Pres. Council, Inc. v. Tahoe

Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003).

The civil RICO and civil rights claims in the 2008 complaint arose from the

same transactional nucleus of facts as the claims in the 2004 case. Although

appellants named additional defendants in the 2008 complaint, the alleged

wrongful conduct of the new defendants is limited to their direction of, control of,

or participation in the conduct of the defendants named in the 2004 case.

Accordingly, all the defendants in the 2008 case have identity or privity with

defendants in the 2004 case. The 2007 judgment therefore bars the federal claims

in the 2008 complaint. Stewart, 297 F.3d at 956.

4. Fraud and Unfair Competition Claims in Appeal 08-17416

The district court dismissed the state law causes of action for fraud and

unfair competition in the 2008 complaint under California res judicata law.

Constantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir. 1982). In

California, res judicata applies if the decision in the prior proceeding was final and

on the merits and the present proceeding is on the same cause of action as the prior

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proceeding. Citizens For Open Gov’t v. City of Lodi, 140 Cal.Rptr.3d 459, 481-82

(2012). In the 2004 proceeding, appellants asserted state causes of action for fraud

and unfair competition arising from the mediation and settlement of underlying

state litigation. In the 2008 complaint, appellants alleged fraud and unfair

competition arising from the same mediation and settlement. These claims were

therefore barred by the 2007 judgment. Citizens For Open Gov’t, 140 Cal.Rptr. 3d

at 481-82.

5. Recusal

Appellants contend the district court judge should have recused himself

under 28 U.S.C. § 455. Appellants’ allegations regarding the employment of the

judge’s former law clerk and their objections to comments made by the judge

during the course of proceedings do not provide a reasonable basis to question the

judge’s impartiality. See U.S. v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir.

1997). The district court did not abuse its discretion by refusing the appellants’

recusal challenge. Id.

6. Vexations Litigant Designation

Appellants challenge the district court’s order declaring Subramanian a

vexatious litigant and imposing prefiling restrictions under 28 U.S.C. § 1651.

This court reviews a prefiling order against a vexatious litigant for abuse of

discretion. Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1056 (9th Cir.

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2007). The district court did not abuse its discretion because it gave Subramanian

notice and the opportunity to oppose the order, created a record adequate for

review, made substantive findings of frivolousness, and tailored the order narrowly

to prevent, or at least try to curb, the abusive conduct. De Long v. Hennessey, 912

F.2d 1144, 1147-48 (9th Cir. 1990).

7. Remaining Contentions

We have reviewed appellants’ remaining contentions, including that the

district court erred by failing to consolidate five related cases, denying leave to

make additional amendments to his 2008 complaint, imposing sanctions, and

denying a motion for clarification regarding sanctions. These contentions have no

merit.

AFFIRMED.

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