Charles Kinney v. Carolyn Cooper

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 28 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES G. KINNEY, No. 16-55343
Plaintiff-counter-claimant- D.C. No. 2:15-cv-08910-PSG-JC
Appellant,
v. MEMORANDUM*
CAROLYN COOPER,
Defendant,
and
MICHELE R. CLARK; et al.,
Counter-defendants-
Appellees.
CHARLES G. KINNEY, No. 16-55347
Plaintiff-counter-claimant- D.C. No. 2:15-cv-09022-PSG-JC
Appellant,
v.
CAROLYN COOPER,
Defendant,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and
MICHELE R. CLARK; et al.,
Counter-defendants-
Appellees.
Appeals from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
In these consolidated appeals, Charles G. Kinney appeals pro se from the
district court’s orders in two cases that Kinney removed from state court. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the
district court’s order declaring Kinney a vexatious litigant and imposing a pre-
filing review order. Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057,
1062 (9th Cir. 2014). We affirm.
The district court did not abuse its discretion by declaring Kinney a
vexatious litigant and imposing a pre-filing review order. See id. & n.2 (setting
forth standard of review and factors district court must consider before issuing a
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Kinney’s request for oral
argument, set forth in the opening brief, is denied.
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pre-filing review order, and rejecting contention that “filing a notice of appeal
divested the district court of jurisdiction to issue the vexatious litigant order”).
The district court did not abuse its discretion by striking Kinney’s first
amended counterclaims and third-party complaints, his motions to withdraw the
bankruptcy reference, and his amended notice of removal. See El Pollo Loco, Inc.
v. Hashim, 316 F.3d 1032, 1038 (9th Cir. 2003) (setting forth standard of review).
The district court did not abuse its discretion by awarding attorney’s fees to
appellees because Kinney lacked an objectively reasonable basis for seeking
removal. See 28 U.S.C. § 1447(c) (“An order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as
a result of the removal.”); Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005) (“Absent unusual circumstances, courts may award attorney’s fees under
§ 1447(c) only where the removing party lacked an objectively reasonable basis for
seeking removal.”); Gardner v. UICI, 508 F.3d 559, 560-61 (9th Cir. 2007)
(setting forth standard of review).
We lack jurisdiction to review the district court’s orders remanding these
cases to state court, and denying Kinney’s motions to vacate. See 28 U.S.C.
§§ 1447(d), 1452(b); see also Things Remembered, Inc. v. Petrarca, 516 U.S. 124,
127-29 (1995) (concluding that 28 U.S.C. §§ 1447(d) and 1452(b) bar appellate
review of certain remand orders).
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In his opening brief, Kinney fails to address how the district court abused its
discretion by awarding sanctions, and has therefore waived his challenge to the
sanctions award. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n
appeal, arguments not raised by a party in its opening brief are deemed waived.”);
see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We will not
manufacture arguments for an appellant . . . .”).
The district court did not abuse its discretion by denying Kinney’s motion to
recuse Judge Gutierrez. See Glick v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015)
(setting forth standard of review).
We reject as meritless Kinney’s contentions that the district court erred by
transferring Kinney’s cases from the Southern Division of the United States
District Court for the Central District of California to the Western Division of that
court, transferring Kinney’s cases to the docket of Judge Gutierrez, and failing to
rule on Kinney’s motions to withdraw the bankruptcy reference.
We reject as unsupported by the record Kinney’s contention that Judge
Gutierrez was biased and should have recused himself.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Appellees’ request that the court entertain awarding damages and double
costs against Kinney under Federal Rule of Appellate Procedure 38 is denied.
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All pending requests for judicial notice are granted.
AFFIRMED.
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