Paula Thomas v. Thomas Wylde, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 13, 2022
• Docket: 21-55069
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 13 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAULA THOMAS, et al., No. 21-55069

Plaintiffs-Appellants, D.C. Nos. 2:17-cv-04158-JAK-PJW v. 2:20-cv-01740-JAK-PJW 2:20-cv-11599-JAK-AS THOMAS WYLDE, LLC, et al.,

Defendants-Appellees. MEMORANDUM*

PAULA THOMAS, et al., No. 21-55124

Plaintiffs-Appellants, D.C. Nos. 2:17-cv-04158-JAK-PJW v. 2:20-cv-01740-JAK-PJW 2:20-cv-11599-JAK-AS STEPHEN CHOI, AKA Hillshore Investment, S.A. (Dummy Corporation), et al.,

Defendants-Appellees.

Appeals from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted December 6, 2021** Pasadena, California

Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.

Plaintiffs-Appellants Paula Thomas, PDTW, LLC, and Thomas Wylde, LLC

(Appellants), appeal from the district court’s order denying Appellants’ ex parte

application for a temporary restraining order (Appeal No. 21-55124). Appellants

also challenge the orders granting a stay under Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800 (1976)1; denying Appellants’ ex parte

application to prohibit Richard Peddie, Esq. from representing Thomas Wylde,

LLC; and denying Appellants’ motion to disqualify Judge Kronstadt (Appeal No.

21-55069).

As discussed below, we lack jurisdiction over the denials of Appellants’ ex

parte applications. We have jurisdiction under 28 U.S.C. § 1291 to decide the two

remaining issues.

“Whether the facts of a particular case conform to the requirements for a

Colorado River stay or dismissal is a question of law which we review de novo.”

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 A Colorado River stay is usually granted when a parallel state court proceeding is pending. See R.R. St. & Co. Inc. v. Transport Ins. Co., 656 F.3d 966, 978-79 (9th Cir. 2011). 2 United States v. State Water Res. Control Bd., 988 F.3d 1194, 1202 (9th Cir. 2021)

(citation omitted). “If we conclude that the Colorado River requirements have

been met, we then review for abuse of discretion the district court’s decision to

stay or dismiss the action. . . .” Id. (citation omitted). We also review for abuse of

discretion a “decision not to disqualify a judge.” Thomassen v. United States, 835

F.2d 727, 732 (9th Cir. 1987) (citation omitted). Applying these standards of

review, we DISMISS Appellants’ appeals in part and AFFIRM the district court’s

order in part.

Appeal No. 21-55124

We lack jurisdiction to consider the appeal of the district court’s denial of

Appellants’ ex parte application for a temporary restraining order. The denial of

an application for a temporary restraining order may only be appealed if the denial

is “tantamount to the denial of a preliminary injunction.” Religious Techn. Center,

Church of Scientology Int., Inc. v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989)

(citations omitted). The district court’s denial of the temporary restraining order in

this case did not amount to the denial of a preliminary injunction because: (1) the

denial did not follow a full adversarial hearing, and; (2) the denial did not

“effectively foreclose[]” Appellants “from pursuing further interlocutory relief.”

3 Environmental Defense Fund, Inc. v. Andrus, 625 F.2d 861, 862 (9th Cir. 1980)

(order). This appeal is DISMISSED for lack of jurisdiction.

Appeal No. 21-55069

1. We lack jurisdiction to review the district court’s decision denying

Appellants’ ex parte application to remove Richard Peddie as attorney for

Appellee-Defendant Thomas Wylde, LLC. See Firestone Tire & Rubber Co. v.

Risjord, 449 U.S. 368, 379 (1981) (so holding); see also Aguon-Schulte v. Guam

Election Comm’n, 469 F.3d 1236, 1239 (9th Cir. 2006) (same). Appeal of this

decision is DISMISSED for lack of jurisdiction.

2. The district court conducted a thorough analysis of each of the eight

Colorado River factors before imposing the stay. See R.R. St., 656 F.3d at 978-79

(articulating the factors). Having properly considered the factors, the district court

acted within its discretion and we AFFIRM the imposition of the stay. See

Nakash v. Marciano, 882 F.2d 1411, 1417 (9th Cir. 1989).

3. Appellants maintain that Judge Kronstadt “engaged in behavior that is

harassing, abusive, prejudiced, or biased.” This argument completely lacks merit.

No “reasonable person with knowledge of all the facts would conclude that [Judge

Kronstadt’s] impartiality might reasonably be questioned.” Yagman v. Republic

Ins., 987 F.2d 622, 626 (9th Cir. 1993) (citations omitted). An “adverse ruling is

4 not sufficient cause for” disqualification. United States v. Studley, 783 F.2d 934,

939 (9th Cir. 1986) (citation omitted). We AFFIRM the denial of Appellants’

motion to disqualify Judge Kronstadt.

Appeal No. 21-55124 is DISMISSED; Appeal No. 21-55069 is

DISMISSED in part and AFFIRMED in part.