Foundation of Human Understanding v. Talk Radio Network, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 5, 2024
• Docket: 23-35043
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FOUNDATION OF HUMAN No. 23-35043 UNDERSTANDING, 23-35192

Plaintiff-Appellee, D.C. No. 1:20-cv-01652-AA

v. MEMORANDUM* TALK RADIO NETWORK, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Submitted April 3, 2024** Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and SILVER,*** District Judge.

This appeal comes to us from a partial final judgment. Of the fifteen claims

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Roslyn O. Silver, United States District Judge for the District of Arizona, sitting by designation. and counterclaims in the operative pleadings, twelve remain pending in the district

court. Talk Radio Network, Inc., (“TRN”) appeals the district court’s grant of

summary judgment in favor of the Foundation of Human Understanding (“FHU”)

on the other three claims. But we lack the authority to hear “piecemeal appeals in

cases which should be reviewed only as single units,” so we dismiss the appeal for

lack of appellate jurisdiction. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,

10 (1980).

1. We have jurisdiction over appeals from “final decisions of the district

courts.” 28 U.S.C. § 1291. “A ‘final decision’ generally is one which ends the

litigation on the merits and leaves nothing for the court to do but execute the

judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945).

Federal Rule of Civil Procedure 54(b) “relaxes ‘the former general practice

that . . . all the claims’” in a case “‘had to be finally decided before an appeal could

be entertained from a final decision upon any of them.’” Gelboim v. Bank of Am.

Corp., 574 U.S. 405, 409 (2015) (quoting Sears, Roebuck & Co. v. Mackey, 351

U.S. 427, 434 (1956)). But “[n]ot all final judgments on individual claims should

be immediately appealable, even if they are in some sense separable from the

remaining unresolved claims.” Curtiss-Wright Corp., 446 U.S. at 8.

When a party appeals a partial final judgment, we review de novo “whether

the certified order is sufficiently divisible from the other claims such that the ‘case

2 would [not] inevitably come back to this court on the same set of facts.’” Jewel v.

Nat’l Sec. Agency, 810 F.3d 622, 628 (9th Cir. 2015) (alteration in original)

(quoting Wood v. GCC Bend, LLC, 422 F.3d 873, 879 (9th Cir. 2005)). “This

inquiry does not require the issues raised on appeal to be completely distinct from

the rest of the action, ‘so long as resolving the claims would streamline the ensuing

litigation.’” Id. (quoting Noel v. Hall, 568 F.3d 743, 747 (9th Cir. 2009)). If those

“juridical concerns have been met,” we give “substantial deference” to the district

court’s weighing of the equities involved in entering a partial final judgment.

Curtiss-Wright Corp., 446 U.S. at 10.

The claims and counterclaims in this case are roughly divisible into two

categories: claims concerning debts purportedly owed by TRN to FHU (which

remain pending before the district court) and claims concerning control over FHU

and its property (which are at issue in this appeal). Those two categories of claims

pose different legal questions. But they involve overlapping facts, such that

hearing separate appeals would require judges of this court to familiarize

themselves with substantially the same set of facts twice. To give just one

example, the parties dispute whether TRN’s assertion that it controls FHU is barred

by the doctrine of claim preclusion, a question that involves one court proceeding

in Oregon state court and another in California state court. Meanwhile, one claim

still pending before the district court seeks a declaration that Mark Masters, who

3 controls TRN, is a vexatious litigant. Any appeal of that claim would again require

this court to study the litigation in Oregon and California.

Furthermore, hearing an appeal from a partial final judgment is especially

disfavored where, as here, the outcome of the appeal could not remove any party

from the litigation. See Jewel, 810 F.3d at 630.

We therefore lack jurisdiction over this appeal.1

2. We leave another jurisdictional issue to be considered in the first instance

by the district court on remand: Although this action has proceeded thus far under

the assumption that the district court has subject matter jurisdiction under 28

U.S.C. § 1332, it appears that the parties may not be completely diverse. We need

not decide this question because we conclude that we lack appellate jurisdiction.

See Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 4 (2023) (courts may decide

jurisdictional questions “in any order”). But we briefly explain our concern so that

the district court may address it, including by engaging in any relevant factfinding.

The parties believe that they are completely diverse. FHU is a nonprofit

organized in California with a principal place of business in Oregon. TRN is a

Delaware corporation. TRN contends that it previously had a principal place of

1 We deny as moot TRN’s motion for judicial notice and to supplement the record. No. 23-35043, Dkt. No. 30; No. 23-35192, Dkt. No. 24. We also deny FHU’s request to impose sanctions related to that motion. No. 23-35043, Dkt. No. 32; No. 23-35192, Dkt. No. 26.

4 business in Oregon but that it no longer has a principal place of business there or

anywhere else.

It does appear that TRN has ceased its main business operations. But we

know of no binding authority setting forth circumstances in which a corporation

might have no principal place of business at all, much less circumstances that

apply to TRN. See Co-Efficient Energy Sys. v. CSL Indus., Inc., 812 F.2d 556,

558-59 (9th Cir. 1987) (holding that limited actions by a corporation’s sole

shareholder and director, including litigation decisions, can establish a principal

place of business); 3123 SMB LLC v. Horn, 880 F.3d 461, 468 (9th Cir. 2018)

(concluding that in some circumstances an inactive holding company has a

principal place of business “where it has its board meetings, regardless of whether

such meetings have already occurred”). Here, the record suggests that TRN may

have been engaged in limited activity when this case was filed in state court and

removed to federal court. And the record suggests Mark Masters may have been

directing that activity from California. If, at the time this suit was filed and

removed, TRN’s principal place of business were in either Oregon (where it had

been previously) or in California (where Mark Masters may have been at the time),

the parties would not have been completely diverse and the action would now need

5 to be remanded to state court based on a lack of subject matter jurisdiction.2 See

Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d 1129, 1131 (9th Cir. 2002)

(diversity jurisdiction “is determined (and must exist) as of the time the complaint

is filed and removal is effected”); 28 U.S.C. § 1447(c) (providing that “[i]f at any

time before final judgment it appears that the district court lacks subject matter

jurisdiction” in a removed case, “the case shall be remanded”).

DISMISSED.

2 We express no view on the answer to this question and our brief discussion here is not the law of the case.