Case 2:18-cv-05052-SJO-FFM Document 18 Filed 07/02/18 Page 1 of 27 Page ID #:309

1 BLAKELY LAW GROUP

BRENT H. BLAKELY (CA Bar No. 157292)
1334 Parkview Avenue, Suite 280
3 Manhattan Beach, California 90266
Telephone: (310) 546-7400
4
Facsimile: (310) 546-7401
5 Email:
BBlakely@BlakelyLawGroup.com
2

6

Attorneys for Defendant
7 MICHAEL COHEN
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

STEPHANIE CLIFFORD (AKA
STORMY DANIELS), an individual,

13

Plaintiffs,

14

v.

15
16
17
18
19
20
21

KEITH M. DAVIDSON, an individual,
MICHAEL COHEN, an individual, and
DOES 1 through 10, inclusive,

Case No. 2:18-CV-05052-SJO-FFM
DEFENDANT MICHAEL COHEN’S
OPPOSITION TO PLAINTIFF’S
MOTION TO REMAND; REQUEST
THAT THE CASE BE DISMISSED
FOR LACK OF PERSONAL
JURISDICTION
Assigned for All Purposes to the
Hon. S. James Otero

Defendants.
Date:
July 23, 2018
Time:
10:00 a.m.
Location: Courtroom 10C

22
23

Action Filed: June 7, 2018

24
25
26
27
28
OPPOSITION TO MOTION FOR REMAND

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1

TABLE OF CONTENTS

2 I.

INTRODUCTION ........................................................................................... 1

3 II.

FACTUAL AND PROCEDURAL BACKGROUND .................................... 3

4 III.

PLAINTIFF’S ACTION SHOULD BE DISMISSED FOR LACK OF
PERSONAL JURISDICTION OVER MICHAEL COHEN .......................... 5

5

IV.

6
7
8
9

V.

10
11 VI.
12

IV.

U.S.C. § 1441(b) SHOULD NOT BAR REMOVAL ..................................... 7
A.

The Standard ......................................................................................... 7

B.

The Circuit Spit ..................................................................................... 7

C.

Keith Davidson is a Sham Defendant ................................................. 10

THIS COURT HAS SUPPLEMENTAL SUBJECT MATTER
JURISDICTION OVER THIS CASE ........................................................... 15
THIS COURT SHOULD EXERCISE ITS INHERENT POWERS AND
EITHER DISMISS OR STAY THIS LAWSUIT ......................................... 16
CONCLUSION ............................................................................................. 19

13
14
15
16
17
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21
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1

TABLE OF AUTHORITIES

2
3
4

Cases
Abrahams v. Hard Drive Productions, Inc.,
2012 U.S. Dist. LEXIS 75025 (N.D. Cal. May 30, 2012) ........................... 19

5
6

Adams v. Johnson,
355 F.3d 1179 (9th Cir. 2004) ...................................................................... 12

7

Allen v. Eli Lilly & Co.,
8
2010 U.S. Dist. LEXIS 92089 (S.D. Cal. Sept. 2, 2010) ............................... 9
9 Alltrade, Inc. v. Uniweld Prods., Inc.,
946 F.2d 622 (9th Cir. 1991) ........................................................................ 18
10
11 Arizona v. Manypenny,
12

451 U.S. 232 (1981) ....................................................................................... 5

13 Ashcroft v. Iqbal,
14

556 U.S. 662 (2009) ......................................................................... 11, 12, 13

15 Barnhart v. Sigmon Coal Co., Inc.,

534 U.S. 438 (2002) ................................................................................. 7, 10

16
17

Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ..................................................................................... 11

18

Benasra v. Mitchell Silberberg & Knupp LLP
19
123 Cal.App.4th 1179 (2004) ....................................................................... 11
20

Black v. Monster Bev. Corp.,
2016 U.S. Dist. LEXIS 1881 (C.D. Cal 2016) ............................................... 9
21
22 Brown v. Pacific Life Ins. Co.,
23

462 F. 3d 384 (5th Cir. 2006) ........................................................................ 16

24 Canton Fitzgerald, L.P. v. Yagi Euro (Hong Kong) Ltd.,
25

88 F.3d 152 (2d Cir. 1996) ......................................................................... 5, 6

26 Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ....................................................................................... 16

27
28

Church of Scientology v. United States Dep't of the Army,
611 F.2d 738 (9th Cir. 1979) ........................................................................ 18
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1 City of Chicago v. International College of Surgeons,
2

522 U.S. 156 (1997) ..................................................................................... 15

3 Commissioner of Internal Revenue v. Brown,
4
5

380 U.S. 563 (1965) ....................................................................................... 7
Cooper v. McDermott Int'l, Inc.,
62 F.3d 395 U.S. App. LEXIS 21253 (5th Cir. July 6, 1995).................... 5, 6

6
7

Disabled Rights Action Committee v. Las Vegas Eventss, Inc.,
375 F. 3d 861 (9th Cir. 2004) ........................................................................ 16

8

Evans v. Rare Coin Wholesalers, Inc.,
9
2010 U.S. Dist. LEXIS 13973 ........................................................................ 9
10 Fayer v. Vaughn,
649 F.3d 1061 (9th Cir. 2011) ...................................................................... 12
11
12 Grogan v O'Neil.,
13

292 F. Supp. 2d 1282 (D.C. Kan. 2003) ...................................................... 16

14 Haseko Homes, Inc. v. Underwriters Ins. Co.,
15

2010 U.S.Dist. LEXIS 5061 (S.D. Cal. Jan. 22, 2010) .................................. 9

16 Henderson v. JPMorgan Chase Bank,

2011 U.S. Dist. LEXIS 103552 (C.D. Cal. 2011) ........................................ 19

17
18

International Shoe Co. v. State of Washington,
326 U.S. 310 (1945) ....................................................................................... 5

19

Intervet, Inc. v. Merial, Ltd.,
20
535 F. Supp. 2d 112 (D.D.C. 2008) ............................................................. 19
21

Jiangmen Kinwai Furniture Decoration Co. v. Int'l Mkt. Ctrs., Inc.,
719 Fed. Appx. 556 (9th Cir. 2017) .............................................................. 18
22
23 Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc.,
24

787 F.3d 1237 (9th Cir. 2015) ................................................................. 18, 19

25 Link v. Wabash R. Co.,
26

370 U.S. 626 (1962) ..................................................................................... 16

27 Lively v. Wild Oats Mkts., Inc.,

456 F.3d 933 (9th Cir. 2006) .................................................................... 7, 10

28
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1 Mahana v. Enerplus Res. U.S.A. Corp.,
2

2012 U.S. Dist. LEXIS 75050 (D. Mont. May 30, 2012) .............................. 9

3 May v. Haas,
4
5

2012 U.S. Dist. LEXIS 148972 (E.D. Cal. Oct. 15, 2012) ............................ 8
Michaelson v. United States,
266 U.S. 42 (1924) ....................................................................................... 17

6
7

Mirabito v. Liccardo
4 Cal.App.4th 41 (1992) ............................................................................... 13

8

Morris v. Princess Cruises Inc.,
9
236 F. 3d 1061 (9th Cir. 2001) ...................................................................... 11
10 Noble v. Sears, Roebuck & Co.
33 Cal.App.3d 654 (1973) ............................................................................ 13
11
12 Olin Corp. et al. v. Cont'l Cas. Co. et al,
13

2011 U.S. Dist. LEXIS 41685 (D. Nev. Apr. 6, 2011) ................................ 19

14 Ott v. Consolidated Freightways Corp. of Del.,
15

213 F.Supp. 2d 662 (S.D. Miss. 2002) ........................................................... 9

16 Pacesetter Systems, Inc. v. Medtronic, Inc.,

678 F.2d 93 (9th Cir. 1982) .......................................................................... 18

17
18

Pennoyer v. Neff,
95 U.S. 714 (1877) ......................................................................................... 5

19

Perez v. McNamee,
20
2006 U.S. Dist. LEXIS 89820 (N.D. Cal. Nov. 30, 2006) ............................. 9
21

Pierce v. Lyman
1 Cal.App.4th 1093 (1991) ........................................................................... 11
22
23 Planned Parenthood of Idaho, Inc. v. Wasden,
24

376 F.3d 908 (9th Cir. 2004) .......................................................................... 8

25 Regal Stone Ltd. v. Longs Drug Stores Cal., L.L.C.,
26

881 F.Supp.2d 1123 (N.D.Cal. 2012) ............................................................ 8

27 Republic Western Ins. Co. v. InternationalIns. Co.

765 F.Supp. 628 (N.D.Cal. 1991) .................................................................. 9

28
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1 Ritchey v. Upjohn Drug Co.,
2

139 F. 3d 1313 (9th Cir. 1998) ...................................................................... 11

3 Ruhgras AG v. Marathon Oil Co.,
4
5

526 U.S. 574 (1999) ................................................................................... 3, 7
TeleVideo Systems, Inc. v. Heidenthal,
826 F.2d 915 (9th Cir. 1987) ......................................................................... 17

6
7

Thompson's Point v Safe Harbor Dev. Corp.,
862 F Supp 594 (DC Me 1994) .................................................................... 16

8

Tosco Corp. v. Cmtys. for a Better Env't.,
9
236 F.3d 495 (9th Cir. 2001) .................................................................... 7, 10
10 Travis v. Irby,
326 F. 3d 644 (5th Cir. 2003) ........................................................................ 11
11
12 United States v. Hudson,
13

11 U.S. 32 (1812) ......................................................................................... 16

14 Villar v. Crowley Maritime Corp.,
15

990 F.2d 1489 (5th Cir. 1993) ........................................................................ 5

16 Waldon v. Novartis Pharms. Corp.,

2007 U.S. Dist. LEXIS 45809 (N.D. Cal. June14, 2007) .............................. 9

17
18

Wallerstein v. Dole Fresh Vegetables, Inc.,
967 F. Supp. 2d 1289 (N.D. Cal. 2013) ....................................................... 18

19

Watanabe v. Lankford,
20
684 F.Supp.2d 1210 (D.Haw. 2009) .............................................................. 9
21
22

Statutes

23
24

28 U.S.C. §1332...................................................................................................... 15

25 28 U.S.C. §1332(a) ................................................................................................... 7
26 28 U.S.C. §1367(a) ................................................................................................. 15
27 28 U.S.C. §1441(a) ................................................................................................... 7
28

28 U.S.C. §1441(b) ............................................................................................... 2, 7
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1 28 U.S.C. §1441(b)(2) .............................................................................................. 8
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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24
25
26
27
28
-viiOPPOSITION TO MOTION FOR REMAND

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1 I.

INTRODUCTION

2

This newly filed lawsuit filed by Plaintiff further demonstrates she and her

3 counsel’s utter contempt for this Court’s Stay Order. The Stay Order could not
4 have been any clearer: Because there is a large potential factual overlap between
5 the Clifford v. Trump litigation and the criminal proceedings involving Mr. Cohen,
6 Mr. Cohen’s Fifth Amendment rights are heavily implicated. Accordingly, this
7 Court held that the five Keating factors all favored a stay. [Request for Judicial
8 Notice (“RJN”), ECF No. 53] Since the Stay Order was issued on April 27, 2018,
9 not only has Ms. Clifford and her controversial counsel continued their
10 unprincipled publicity tour, they have now filed two new lawsuits, both designed
11 to circumvent and otherwise undermine this Court’s Stay Order.
12

Plaintiff and her counsel’s first end-run around the Stay Order occurred

13 when they filed a defamation action against Mr. Trump in the Southern District of
14 New York (the “Clifford SDNY Action”) one court day after issuance of the Stay
15 Order. Plaintiff’s defamation claim against Mr. Trump falls squarely within the
16 arbitration provision at issue in the Clifford v. Trump case, and substantially
17 overlaps with the facts and issues against Mr. Cohen. This blatant attempt at
18 judge-shopping and forum shopping, and effort to evade the Stay Order, is
19 confirmed in public statements made by Mr. Avenatti before the Stay Order was
20 issued, wherein he stated during an interview on CNN that he planned to file
21 Plaintiff’s defamation claim against Mr. Trump in the Clifford v. Trump action.
22

This present lawsuit, wherein Ms. Clifford has sued Mr. Cohen for allegedly

23 aiding and abetting Keith Davidson in breaching Mr. Davidson’s fiduciary duty to
24 Ms. Clifford, is yet another attempt at judge and forum shopping, and an effort to
25 circumvent the Stay Order. As with Clifford v. Trump, there is significant overlap
26 between this case, which again involves the communications underlying the
27 creation of the Confidential Settlement Agreement and subsequent performance
28 thereof, and the ongoing criminal investigation involving Mr. Cohen. Because the
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1 cases are closely related, Plaintiff should have brought these claims as part of the
2 Clifford v. Trump litigation. In a maladroit ploy to circumvent the Stay Order by
3 filing a claim against Cohen in State Court, Plaintiff has sued Davidson as a sham
4 defendant.
5

There is an existing split between the Central District of California and the

6 Northern and Eastern Districts of California regarding the interpretation of 28
7 U.S.C. §1441(b) – while the majority view gives the §1441 service language a
8 literal interpretation and permits removal so long as the local defendant has not yet
9 been served, the Central District has declined to literally interpret the statute in
10 situations where it deemed doing so would lead to an absurd result. While this
11 split ultimately needs to be decided by the Ninth Circuit, it is unlikely to occur in
12 this case due to the simple fact that the authority cited in Plaintiff’s motion is
13 distinguishable from the present case. None of the Central District cases cited by
14 Plaintiff involved a situation where, as here, there was a pre-existing lawsuit
15 containing the same questions of fact and law, along with a violation of a stay
16 order. Additionally, the Central District cases typically involved a California
17 resident defendant removing a case to federal court prior to service. Like the
18 Northern and Eastern District authority giving strict interpretation to §1441(b),
19 Cohen, an out-of-state defendant, has removed the case.
20

This Court also has the inherent authority to either dismiss, stay, or refuse to

21 remand this duplicative lawsuit. This Court issued the Stay Order to prevent
22 Cohen from being placed in the predicament of having to choose between his Fifth
23 Amendment privilege and defending himself in a civil action. Notwithstanding the
24 clear meaning of this Court’s ruling, Plaintiff and her counsel, by design, have
25 attempted to do just that with this subsequent litigation. Whether to enforce its
26 order or pursuant to the first-to-file rule, this Court should stop Plaintiff’s
27 shenanigans in their tracks.
28

As a threshold matter, this Court can, and should first determine the very
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1 straightforward issue of whether there is personal jurisdiction over Michael Cohen.
2 Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999). If this Court first
3 determines there is no personal jurisdiction, that inquiry ends there with the
4 dismissal of this lawsuit.
5 II.

FACTUAL AND PROCEDURAL BACKGROUND

6

Plaintiff filed her Complaint in the Clifford v. Trump action on March 6,

7 2018. [RJN, ECF No. 1.] Plaintiff filed her First Amended Complaint (“FAC”) in
8 Clifford v. Trump on March 26, 2018. [RJN, ECF No. 14.]
9

On March 28, 2018, Plaintiff filed her Motion for Expedited Jury Trial and

10 For Limited Expedited Discovery (“Motion to Expedite”). [RJN, ECF No. 16.]
11 This court denied the Motion to Expedite, without prejudice, on March 29, 2018.
12 [RJN, ECF No. 17.] EC filed the Motion to Compel Arbitration, which was joined
13 by Mr. Trump, on April 2, 2018. [ECF Nos. 20, 21.]
14

On April 8, 2018, Plaintiff filed a Renewed Motion to Expedite. [RJN, ECF

15 No. 29.]
16

On April 9, 2018, Plaintiff filed her opposition to the Motion to Compel

17 Arbitration. [RJN, ECF No. 30.] Also on April 9, 2018, Mr. Cohen filed an Anti18 SLAPP Motion to strike the second claim in the FAC. [RJN, ECF No. 31.] That
19 same day, the FBI raided Mr. Cohen’s residence, office and hotel room, located in
20 New York. [RJN, ECF No. 38-1.] In the course of this raid, the FBI sought
21 documents in Mr. Cohen’s possession relating to several topics, including the
22 payment of $130,000 to Plaintiff, which is at issue in the Clifford v. Trump action.
23 Id.
24

On April 13, 2018, Defendants in Clifford v. Trump filed their Joint Ex Parte

25 Application for a stay of this matter (the “Stay Application”). [RNJ, ECF No. 38.]
26 Plaintiff filed her opposition to the Stay Application on April 16, 2018. [RJN,
27 ECF No. 39.]
28
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1

On April 18, 2018, Mr. Avenatti stated on CNN that Plaintiff intended to

2 bring a claim for defamation against Mr. Trump in Clifford v. Trump:
3

AVENATTI: We’re likely going to be amending our

4

complaint. We’re looking at doing that now to add a

5

defamation claim directly against the president… And

6

we’re likely to file it in the same case that we’re already

7

in, and we’re going to add a claim.

8

BLITZER: And file it in California?

9

AVENATTI: Correct.

10 [RJN, ECF 57-3, Blakely Decl., Ex. F.] (Emphasis added.)
11

This Court conducted the hearing on the Stay Application on April 20, 2018

12 and issued the Stay Order on Friday, April 27, 2018, at 2:04 pm. [RJN, ECF No.
13 53.]
14

Two minutes after the Court issued the Stay Order, at 2:06 p.m. on Friday,

15 April 27, 2018, Mr. Avenatti announced on Twitter that Plaintiff intended to file
16 an appeal of the Stay Order, stating: “While we certainly respect Judge Otero’s 90
17 day stay order based on Mr. Cohen’s pleading of the 5th, we do not agree with it.
18 We will likely be filing an immediate appeal to the Ninth Circuit early next week.”
19 [RJN, Blakely Decl., ¶ 9, Ex. G.]
20

Instead of filing an appeal, on the next court day, Monday, April 30, 2018,

21 Plaintiff and her counsel reversed course and filed the Clifford SDNY Action.
22 [RJN, ECF 57-3, Blakely Decl., Ex. E.] Plaintiff’s sole claim for defamation
23 against Mr. Trump in the Clifford SDNY Action falls squarely within the
24 arbitration provision that is the subject of the Motion to Compel Arbitration. [Id.;
25 RJN, ECF No. 20.] The facts underlying Plaintiff’s defamation claim against Mr.
26 Trump also heavily overlap with her defamation claim against Mr. Cohen in the
27 Clifford v. Trump action, as they both arise out of statements that allegedly accuse
28 Plaintiff of lying about circumstances relating to “her relationship with Mr.
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1 Trump.” [FAC, ECF No. 14, ¶ 67; Blakely Decl., Ex. E, ¶¶ 6, 28.]
2

Plaintiff filed this present action on June 6, 2018. [ECF No. 1.] This action

3 was removed to Federal court the following day, on June 7, 2018. [Id.]
4

Plaintiff will be filing a Motion to Dismiss for Lack of Jurisdiction

5 concurrently with this opposition.
6 III.

PLAINTIFF’S ACTION SHOULD BE DISMISSED FOR LACK OF

7

PERSONAL JURISDICTION OVER MICHAEL COHEN

8

In order to proceed with Clifford’s case against Mr. Cohen in California,

9 Plaintiff must first establish that this Court has in personam jurisdiction over Mr.
10 Cohen. Pennoyer v. Neff, 95 U.S. 714, 720-722 (1877). Mr. Cohen, a resident of
11 New York, has not consented to jurisdiction in California. 1 Furthermore, he does
12 not have the requisite minimum contacts with the State of California.
13 International Shoe Co. v. State of Washington, 326 U.S. 310, 316 (1945).
14

Many Courts have faced challenges to personal jurisdiction intertwined with

15 motions to remand. In those cases, as in this one, the courts are presented with
16 both a motion to remand by the plaintiff and a motion to dismiss for lack of
17 personal jurisdiction by the defendant. The cases consistently hold that, when
18 faced with both a motion for lack of personal jurisdiction and a motion to remand,
19 the district court has the discretion to decide which to take up first. See, e.g.,
20 Canton Fitzgerald, L.P. v. Yagi Euro (Hong Kong) Ltd., 88 F.3d 152 (2d Cir.
21 1996); Cooper v. McDermott Int'l, Inc., 62 F.3d 395, 1995 U.S. App. LEXIS
22 21253 (5th Cir. July 6, 1995) (unpublished); Villar v. Crowley Maritime Corp.,
23 990 F.2d 1489,1494-95 (5th Cir. 1993).
24

In Canton Fitzgerald, the United States Court of Appeals for the Second

25
26

In removing this case to federal court, Mr. Cohen in no way consented to
27 personal jurisdiction. Arizona v. Manypenny, 451 U.S. 232, 242 n.17 (1981) ("[I]f
the state court lacks jurisdiction over the subject matter or the parties, the federal
28 court acquires none upon removal. . . .")
1

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1 Circuit held that the district court properly exercised its discretion in granting the
2 defendants' motion to dismiss for lack of personal jurisdiction before considering
3 the plaintiffs' motion to remand to state court for lack of subject-matter
4 jurisdiction. See Canton Fitzgerald at 157 (stating that "the District Court must be
5 allowed some discretion regarding the order in which it is to consider any question
6 which will dispose of the litigation in the federal courts.").
7

In Cooper, the plaintiff argued that the district court failed to consider his

8 motion to remand before considering the 12(b)(2) motion, as it "saddled [the
9 plaintiff] with the burden of proving a prima facie case of personal jurisdiction,
10 rather than requiring [the defendant] to prove no possibility of personal
11 jurisdiction." Cooper, 62 F.3d 395, 1995 U.S. App. LEXIS 21253, at *2. The
12 Fifth Circuit found this argument "wrong factually and legally." Id. The Fifth
13 Circuit explained: "Analyzing the contacts [the defendant] had with Texas, the
14 [district] court found them insufficient and concluded that [the defendant] had
15 been fraudulently joined. Contrary to [the plaintiff's] assertion, there is no
16 indication that the district court applied anything but the 'no possibility' standard
17 appropriate for claims of fraudulent joinder." Id. The Fifth Circuit found that the
18 district court was not required to decide the plaintiff's motion to remand before
19 considering the motion to dismiss. Id. The Fifth Circuit affirmed the order
20 granting the 12(b)(2) motion to dismiss, stating that "judicial economy favors
21 affording district courts the latitude first to evaluate the motion to dismiss because
22 if the district court remands the proceeding, then the state court will probably have
23 to decide the same motion to dismiss for lack of personal jurisdiction that the
24 district court avoided." Id.
25

Where, as here, a district court has before it a straightforward personal

26 jurisdiction issue presenting no complex question of state law, the court does not
27 abuse its discretion by turning directly to personal jurisdiction. Ruhgras AG v.
28 Marathon Oil Co., 526 U.S. 574, 588 (1999). Accordingly, Cohen respectfully
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1 requests that this Court first consider Cohen’s Motion to Dismiss for Lack of
2 Personal Jurisdiction.
3 IV.

U.S.C. § 1441(b) SHOULD NOT BAR REMOVAL

4

A. The Standard

5

When a civil lawsuit is brought in state court a defendant may remove the

6 case to the United States District Court for the district where the state case was
7 filed, if the case falls within the "original jurisdiction" of the federal court. 28
8 U.S.C. § 1441(a). However, when the removal is based on a federal court's
9 diversity jurisdiction under 28 U.S.C. § 1332(a): 2 such actions "shall be removable
10 only if none of the parties in interest properly joined and served as defendants is
11 a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)
12 (Emphasis added.) This is commonly referred to as the "forum defendant" rule.
13 See Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 939 (9th Cir. 2006).
14

The face of the statute is time and action sensitive. The trigger to

15 precluding removal is the joinder and service of the complaint on the forum
16 defendant. When the words of a statute are unambiguous, judicial inquiry is
17 complete. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 461-62 (2002). The
18 only exception to giving statutory language its plain meaning is where doing so
19 “would lead to absurd results . . . or would thwart the obvious purpose of the
20 statute.” Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 571, (1965)
21

B. The Circuit Spit

22

Many District courts throughout the Ninth Circuit have followed the

23 guidelines set forth by the Supreme Court in Barnhart v. Sigmon and denied
24
25
2

Removal based on diversity jurisdiction is intended to protect out-of-state

26 defendants from possible prejudices in state court. See Tosco Corp. v. Cmtys. for a
27 Better Env't., 236 F.3d 495, 502 (9th Cir. 2001) ("The purpose of diversity

jurisdiction is to provide a federal forum for out-of-state litigants where they are

28 free from prejudice in favor of a local litigant.”).

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1 motions for remand based on diversity jurisdiction when removal by a non-forum
2 defendant is made prior to service of the complaint on a forum defendant. For
3 instance, in May v. Haas, 2012 U.S. Dist. LEXIS 148972 (E.D. Cal. Oct. 15, 2012)
4 plaintiffs, who were citizens of Colorado and Kansas, filed a personal injury claim
5 in state court. Prior to service of the complaint, the matter was removed to federal
6 court pursuant to diversity jurisdiction by the non-California defendant. Id.
7 Plaintiffs filed a motion for remand claiming that removal was improper based
8 upon the “forum defendant rule” set forth in 28 U.S.C. §1441(b)(2). Holding that
9 the removal was proper, the Court held that:
10

It is undisputed that Defendant Haas had not been served at the time

11

Schneider National removed the case to this Court. It is also undisputed

12

that complete diversity continues to exist between the parties after Haas

13

has been served. Because no local defendant was served at the time of

14

removal, removal of this action was proper. Therefore, Plaintiffs’

15

Motion to Remand is denied. Id. at *8-9.

16

Similarly, in Regal Stone Ltd. v. Longs Drug Stores Cal., L.L.C., 881

17 F.Supp.2d 1123 (N.D.Cal. 2012), the Court held:
18

The Court disagrees with Plaintiffs. Their proposed reading would

19

improperly discard pivotal parts of the statute as mere surplusage. See

20

Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 928-29

21

(9th Cir. 2004). Section 1441 applies to forum defendants “properly

22

joined and served,” but Plaintiffs would disregard the words “and

23

served.” Plaintiffs urge the Court to follow out-of-district cases that

24

have adopted just this reading. However, the Northern District has

25

consistently followed the alternate view, which gives effect to those

26

words. The Court is not persuaded that it would be appropriate to depart

27
28
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1

from that position now and thereby disrupt the settled expectations of

2

litigants in this district. Id. at 1128. 3

3

In Black v. Monster Bev. Corp., 2016 U.S. Dist. LEXIS 1881 (C.D. Cal

4 2016), Judge Fitzgerald acknowledged the split of authority between the Central
5 District of California, which has chosen not to give §1441(b) a strict interpretation,
6 with the other District Courts which have. Id. at *10; See e.g., Massachusetts
7 Mut. Life Ins. Co. v. Mozilo, 2012 U.S. Dist. LEXIS 91478 (C.D. Cal. June 28,
8 2012); Michael Richard Marsh v. Monster Beverage Corp., 2016 U.S. Dist.
9 LEXIS 771 (C.D. Cal. Jan. 4, 2016). As Judge Fitzgerald concluded:
10

Ultimately, the debate among the district courts is for the Ninth Circuit

11

to settle. The consensus in the Northern District of California would

12

favor Defendants, and Defendants understandably rely on the Eastern

13

District opinion in May, quoted above. For now, however, the Court

14

follows the consensus in this District—if only because "in most matters

15

it is more important that the applicable rule of law be settled than that

16

it be settled right.”

17 Id. at *12.
18

In Black v. Monster Bev. Corp, the Court noted that all of the cases

19 supporting a literal interpretation involved non-forum defendants who removed the
20
21
3

22
23
24
25
26
27
28

See also Waldon v. Novartis Pharms. Corp., 2007 U.S. Dist. LEXIS 45809 (N.D.
Cal. June14, 2007); Allen v. Eli Lilly & Co., 2010 U.S. Dist. LEXIS 92089 (S.D.
Cal. Sept. 2, 2010); Haseko Homes, Inc. v. Underwriters Ins. Co., 2010 U.S.Dist.
LEXIS 5061 (S.D. Cal. Jan. 22, 2010); Perez v. McNamee, 2006 U.S. Dist. LEXIS
89820 (N.D. Cal. Nov. 30, 2006); Republic Western Ins. Co. v. InternationalIns.
Co. 765 F.Supp. 628 (N.D.Cal. 1991) Watanabe v. Lankford, 684 F.Supp.2d 1210,
1218 (D.Haw. 2009); Mahana v. Enerplus Res. U.S.A. Corp., 2012 U.S. Dist.
LEXIS 75050 (D. Mont. May 30, 2012); Evans v. Rare Coin Wholesalers, Inc.,
2010 U.S. Dist. LEXIS 13973; Ott v. Consolidated Freightways Corp. of Del., 213
F.Supp. 2d 662, 666 (S.D. Miss. 2002).
-9OPPOSITION TO MOTION FOR REMAND

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1 case before a forum defendant could be served and distinguished those cases from
2 the situation before it where the removing defendants were citizens of California.
3 The court reasoned that "[t]he rationale underlying the forum defendant rule is
4 most clearly contravened when a forum defendant itself removes the action before
5 being served" given that there "is no fear of local bias." Id. at 11.
6

Unlike Black v. Monster Bev. Corp., and analogous to the District Courts

7 that give §1441(b) a strict interpretation, Cohen is not a citizen of California.
8 Rather, he is a resident of New York who has been sued in California state court,
9 despite there being no personal jurisdiction, as part of a scheme by Plaintiff to
10 circumvent the Stay Order in the related Clifford v. Trump action. Far from
11 leading to an absurd result, the prompt removal of this action to District Court by
12 Mr. Cohen is consistent with the very purpose of §1441(b): “to provide a federal
13 forum for out-of-state litigants where they are free from prejudice in favor of a
14 local litigant." Tosco Corp. v. Cmtys. for a Better Env't., 236 F.3d 495, 502 (9th
15 Cir. 2001); See also Lively v. Wild Oats Mkts., Inc., 456 F.3d 933, 940 (9th Cir.
16 2006). As candidly stated by the Supreme Court, the statute means what it is and
17 says what it means. Barnhart, supra, 534 U.S. at 461-62. Mr. Cohen respectfully
18 submits that this court should apply the plain language of the statute as mandated
19 by the U.S. Supreme Court and the Ninth Circuit. Rather than leading to an absurd
20 result, under the present circumstances strict interpretation of §1441(b) is
21 consistent with the underlying purpose of the forum defendant rule.
22

C. Keith Davidson is a Sham Defendant

23

It is abundantly clear that Clifford filed this present lawsuit for the sole

24 purpose of circumventing this Court’s Stay Order. Clifford’s claim against Mr.
25 Davidson is a clumsy ploy to continue to litigate against Mr. Cohen, while at the
26 same time avoiding this Court’s wrath by keeping the case in State Court.
27 Clifford’s claim against Davidson is devoid of merit and has no chance of success.
28
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1 Thus, Davidson was fraudulently joined, and he should be disregarded for the
2 purpose of determining diversity jurisdiction.
3

A nondiverse party named in a state court action may be disregarded if the

4 federal court determines that party’s joinder is a “sham” or “fraudulent” so that no
5 possible cause of action has been stated against that party. Morris v. Princess
6 Cruises Inc., 236 F. 3d 1061, 1067 (9th Cir. 2001). Fraudulent joinder exists where
7 there is no possibility that the plaintiff will be able to establish liability against the
8 party in question. Ritchey v. Upjohn Drug Co., 139 F. 3d 1313, 1318-1319 (9th
9 Cir. 1998). In determining fraudulent joinder, a trial judge may “pierce the
10 pleading” and consider summary judgment-type evidence in the record. Travis v.
11 Irby, 326 F. 3d 644, 649 (5th Cir. 2003). In doing so, courts properly consider the
12 allegations of the complaint and facts presented by defendant in its notice of
13 removal. Ritchey at 1318.
14

Plaintiff’s first cause of action alleges that Mr. Davidson breached his

15 fiduciary duty to Ms. Clifford through alleged communications with Mr. Cohen
16 concerning mainly the arrangement of a media appearance. [Complaint, ¶ 19, ECF
17 No. 1.] To establish a cause of action for breach of fiduciary duty, a plaintiff must
18 demonstrate the existence of a fiduciary relationship, breach of that duty, and
19 damages. Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th
20 1179, 1183;  Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101.
21

In determining whether a plaintiff has a possibility of recovery, it is helpful

22 to consider the authority governing motions to dismiss. In that context, if a
23 plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its
24 face," the complaint may be dismissed for failure to state a claim upon which relief
25 may be granted. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim
26 has facial plausibility when the plaintiff pleads factual content that allows the court
27 to draw the reasonable inference that the defendant is liable for the misconduct
28 alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard
-11OPPOSITION TO MOTION FOR REMAND

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1 is not akin to a probability requirement, but it asks for more than a sheer
2 possibility that a defendant has acted unlawfully." Id. Nor is the court required to
3 "'assume the truth of legal conclusions merely because they are cast in the form of
4 factual allegations.'" Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011). Mere
5 "conclusory allegations of law and unwarranted inferences are insufficient to
6 defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.
7 2004). Thus, courts must identify which statements in the complaint are factual
8 allegations, which are legal conclusions, and disregard the latter. Ashcroft at 681.
9

Plaintiff’s allegations are a product of complete invention. From a mere

10 “Call me,” Plaintiff then leaps to the conclusion that Mr. Davidson and Mr. Cohen
11 “hatched a plan” to the disadvantage of Ms. Clifford with no evidence of the true
12 subject matter of the phone call. [Complaint ¶¶ 18-19.] There is no logical way to
13 extrapolate a conspiracy to circumnavigate Ms. Clifford’s interests from the words
14 “call me.” Plaintiff continues through her allegations to put forward the existence
15 of facts that do not exist. The use of language like “apparently” and “the clear
16 purpose” are used to prop up their imagined inventions of misconduct and are
17 entirely conclusory. [Id. at ¶ 34.] Many of these unsupported allegations are made
18 under “information and belief” for the simple reason that there is no factual basis
19 to support same. [Id. at ¶¶19, 20, 40, 49.]
20

Examples of Plaintiff’s conclusory allegations that should be disregarded

21 include, but are not limited to:
22

- Davidson and Cohen acted in concert to benefit Mr. Trump [Id. at ¶16];

23

- Davidson and Cohen attempted to manipulate Clifford [Id. at ¶17];

24

- Mr. Cohen, with the assistance of Sean Hannity, tried to convince Clifford

25

to lie to the public [Id. at ¶22];

26

- “[W]ise men” referred to Mr. Trump [Id. at ¶29];

27

- The purpose of the exchange was to provide a false interview [Id. at ¶34];

28
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1
2
3

- Mr. Davidson abdicated his role as an advocate and fiduciary of Clifford,
and was a puppet of Mr. Cohen [Id. at ¶35];
- Mr. Davidson secretly tipped Mr. Cohen off to Ms. Clifford’s plan to

4

publicly disclose her purported relationship with Trump and lawsuit [Id. at

5

¶¶ 37, 39);

6
7
8
9
10
11
12

- Mr. Davidson disclosed to Mr. Cohen during a phone call that Clifford was
filing a lawsuit [Id. at ¶40];
- Mr. Cohen met with Melania Trump to convince her that Clifford was a liar
[Id. at ¶41];
- The purported conversation between Mrs. Trump and Mr. Cohen and the
subject matter thereof [Id. at ¶49];
- Davidson’s actions demonstrate he was more interested in being Mr. Cohen

13

and Mr. Trump’s “puppet”. [Id. at ¶50.]

14

Plaintiff clearly has no idea what was discussed over the telephone between

15 Mr. Davidson and Mr. Cohen, or between Mr. Cohen and President and Mrs.
16 Trump. Plaintiff is simply manufacturing facts to support her frivolous claims and
17 here entire complaint is simply a series of unsupported legal conclusions cast as
18 facts. As the Supreme Court has instructed, such conclusory allegations must be
19 disregarded. Ashcroft at 681; Twombly at 570.
20

Moreover, Plaintiff’s claim fails because Ms. Clifford was not damaged. A

21 violation of the Rules of Professional Conduct does not, in and of itself, render an
22 attorney liable for damages. Rule 1-100; Noble v. Sears, Roebuck & Co. (1973) 33
23 Cal.App.3d 654, 658; Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 46, fn. 2.)
24 Rather, Plaintiff is required to establish a reasonable basis for the conclusion that it
25 was more likely than not that the conduct of the defendant was a substantial factor
26 in the result of some tangible injury. Here, Plaintiff fails to provide any grounds
27 for her alleged damages.
28
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1

Plaintiff asserts blindly that, “Ms. Clifford had been damaged by Mr.

2 Davison’s various breaches in an amount to be proven at trial, but which exceeds
3 $100,000”. [Complaint ¶ 60, ECF No. 1.] This allegation, on its own, is merely a
4 legal conclusion to be disregarded. Nowhere in the complaint does Plaintiff
5 suggest a theory of how Ms. Clifford had actually been damaged by anything
6 Davidson did or did not do - not to mention to the tune of $100,000.
7

Even assuming for argument’s sake that Plaintiff could somehow support

8 her sham allegations, whether Mr. Davidson and Mr. Cohen discussed Ms.
9 Clifford potentially appearing on Mr. Hannity’s program does not automatically
10 equate to damages. Ms. Clifford never appeared on this program, there is no
11 causation to any invented harm Ms. Clifford believes she may have suffered.
12 [Complaint, ¶¶19-35, ECF No. 1.]
13

The same holds true regarding the unsupported allegation that in early

14 March 2018, Mr. Davidson tipped off Mr. Cohen about Ms. Clifford intending on
15 filing a lawsuit against him and Mr. Trump. [Complaint, ¶¶40-48, ECF No. 1.]
16 Ms. Clifford went ahead and filed her lawsuit in California on March 6, 2018.
17 [RJN, ECF No. 1.] Plaintiff fails to demonstrate how the purported breach of
18 fiduciary duty caused her any harm whatsoever.
19

Plaintiff’s claim that she was somehow damaged in the amount of $100,000

20 for Mr. Davidson’s alleged breach of fiduciary duty is not only unsupported, it is
21 contrary to the facts. As this Court observed during the April 20, 2018 hearing in
22 the Clifford v. Trump matter, Ms. Clifford has been undeterred by anything Mr.
23 Cohen or anyone else has said and/or done. She has now filed three frivolous
24 lawsuits, appeared on 60 Minutes, The View and in a skit on Saturday Night Live,
25 and her career as a stripper/porn actress is more lucrative than ever. Plaintiff has
26 not even come close to satisfying the requirement of demonstrating a causal
27 connection between anything Mr. Davidson has done and any actual harm to her.
28
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1 V.

THIS COURT HAS SUPPLEMENTAL SUBJECT MATTER

2

JURISDICTION OVER THIS CASE

3

If the Court decides to first consider subject matter jurisdiction before

4 moving on to personal jurisdiction, remand should be denied for the additional
5 reason that this Court has supplemental subject matter jurisdiction over Plaintiff’s
6 claims. Unlike this authority cited in Plaintiff’s motion, in the present case there
7 already existed a pending lawsuit involving the same issues of fact and law,
8 Clifford v. Trump. Furthermore, Plaintiff filed this case in a blatant attempt to run
9 an end-around this Court’s ruling staying the Clifford v. Trump litigation.
10

Defendant Cohen removed this case pursuant to 28 U.S.C. §1332.4

11 Pursuant to 28 U.S.C. §1367(a):
12

“In any civil action of which the district courts have original

13

jurisdiction, the district court shall have supplemental jurisdiction over

14

all other claims that are so related to claims in the action within such

15

original jurisdiction that they form part of the same case or controversy

16

under Article III of the U.S. Constitution.”

17 The Supreme Court has held that §1367(a) “applies with equal force to cases
18 removed to federal court as to cases initially filed there; a removed case is
19 necessarily one ‘of which the district courts … have original jurisdiction [within
20 the meaning of §1367(a)].” City of Chicago v. International College of Surgeons,
21 522 U.S. 156, 165 (1997).
22

As set forth in the Notice of Related case filed by Mr. Cohen in this action,

23 Clifford v. Davidson involves the same questions of fact and law as Clifford v.
24 Trump. [ECF No. 4.] These claims should have been brought as part of Clifford
25 v. Trump, but that would not have served Plaintiff’s purpose, to circumvent the
26
27
4

(Michael Cohen resides in New York, Mr. Davidson resides in California,

28 and Ms. Clifford resides in Texas. (Complaint))

-15OPPOSITION TO MOTION FOR REMAND

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1 Stay Order. Now that Clifford v. Davidson has been removed, this Court can
2 exercise supplemental jurisdiction and order joinder of Keith Davidson pursuant to
3 FRCP 19, as he is necessary to the just adjudication of the newly filed claims
4 against Cohen. Disabled Rights Action Committee v. Las Vegas Eventss, Inc., 375
5 F. 3d 861, 867, fn. 5 (9th Cir. 2004); Brown v. Pacific Life Ins. Co., 462 F. 3d 384,
6 393-394 (5th Cir. 2006) (noting that Rule 19 inquiry is highly practical and fact
7 based); Thompson's Point v Safe Harbor Dev. Corp., 862 F Supp 594, 599 (DC
8 Me 1994) (the court had supplemental jurisdiction over breach of fiduciary duty
9 claim despite parties living in same state, where it had original jurisdiction over
10 dissolution claim involving diverse parties); Grogan v O'Neil., 292 F. Supp. 2d
11 1282 (D.C. Kan. 2003).
12
13
14

VI.

THIS COURT SHOULD EXERCISE ITS INHERENT POWERS
AND EITHER DISMISS OR STAY THIS LAWSUIT

It has long been held that "certain implied powers must necessarily result to

15 our Courts of justice from the nature of their institution." Chambers v. NASCO,
16 Inc., 501 U.S. 32, 41 (1991); citing United States v. Hudson, 11 U.S. 32, 7 (1812).
17 For this reason, "Courts of justice are universally acknowledged to be vested, by
18 their very creation, with power to impose silence, respect, and decorum, in their
19 presence, and submission to their lawful mandates." Id. These powers are
20 "governed not by rule or statute but by the control necessarily vested in courts to
21 manage their own affairs so as to achieve the orderly and expeditious disposition
22 of cases." Id., citing Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962). It is
23 firmly established that the power to punish for contempt is inherent in all courts
24 which reaches both conduct before the court and that beyond the court's confines.
25 Id.
26

Courts have inherent equitable powers to dismiss actions or enter default

27 judgments for failure to prosecute, contempt of court, or abusive litigation
28 practices. TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 916 (9th Cir.
-16OPPOSITION TO MOTION FOR REMAND

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1 1987). These inherent powers are necessary to enable the judiciary to function.
2 Id., citing Michaelson v. United States, 266 U.S. 42, 65, 69 (1924) (recognizing the
3 inherent power of the courts to punish for contempt as essential to the
4 administration of justice).
5

Plaintiff’s new lawsuit against Cohen was calculated to circumvent this

6 Court’s Stay Order in Clifford v. Trump. This Court’s rationale for granting the
7 Stay Order was to prevent prejudice to Cohen for having to choose between his
8 Fifth Amendment rights and defending himself in a civil litigation. [RJN, ECF.
9 No. 53.] Plaintiff and her counsel have shown an utter disdain, and indeed a
10 contempt, for this Court’s Stay Order by filing this present action – attempting to
11 force Cohen to participate in yet another civil litigation while at the same time
12 being subject to a criminal investigation.
13

Plaintiff and her counsel’s conduct is aggravated by several factors. Prior to

14 filing Clifford v. Davidson, Plaintiff had already violated this Court’s Stay Order
15 by filing the Clifford SDNY Action. As discussed above, the Clifford SDNY
16 Action would necessarily involve a determination of the validity of the
17 Confidential Settlement Agreement and arbitration clause contained therein. It
18 should also not be lost on this Court that despite being closely related to Clifford v.
19 Trump, neither the Clifford SDNY Action or Clifford v. Davidson were filed in the
20 Central District of California, where Clifford v. Trump was already pending.
21

The day this Court issued the Stay Order Mr. Avenatti stated:

22

While we certainly respect Judge Otero’s 90 day stay order based on

23

Mr. Cohen’s pleading of the 5th, we do not agree with it. We will likely

24

be filing an immediate appeal to the Ninth Circuit early next week.

25

Justice delayed is justice denied. [RJN, ECF No. 57-3, Ex. 6.]

26

Likely realizing that the Ninth Circuit would deny a writ of mandamus

27 seeking to overturn the Stay Order, Plaintiff and her counsel chose instead to
28 demonstrate disrespect this Court’s authority and filed the Clifford SDNY Action
-17OPPOSITION TO MOTION FOR REMAND

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1 in another jurisdiction. Similarly, Plaintiff filed Clifford v. Davidson in California
2 State Court for the same reason - to circumvent this Court and its Stay Order.
3 There really is no other explanation for Plaintiff’s conduct.
4

In addition to enforcement of orders, Federal Courts routinely exercise their

5 inherent authority under the “first-to-file” rule. As the Ninth Circuit has
6 instructed, the first-to-file rule, which purpose is to avoid duplicative litigation,
7 was developed to "serve the purpose of promoting efficiency well and should not
8 be disregarded lightly." Church of Scientology v. United States Dep't of the Army,
9 611 F.2d 738, 750 (9th Cir. 1979); see also Pacesetter Systems, Inc. v. Medtronic,
10 Inc., 678 F.2d 93, 95 (9th Cir. 1982).
11

A district court has significant discretion to apply the first-to-file rule where

12 the record supports application. Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d
13 622, 625 (9th Cir. 1991) ("The most basic aspect of the first-to-file rule is that it is
14 discretionary; an ample degree of discretion, appropriate for disciplined and
15 experienced judges, must be left to the lower courts.”) A court analyzes three
16 factors: chronology of the lawsuits, similarity of the parties, and similarity of the
17 issues. Id. If the court determines that the first to file rule is applicable, it may, in
18 its discretion, dismiss, stay, or transfer the second filed lawsuit. Pacesetter Sys., at
19 94-95.
20

For instance, in Jiangmen Kinwai Furniture Decoration Co. v. Int'l Mkt.

21 Ctrs., Inc., 719 Fed. Appx. 556, 558 (9th Cir. 2017), the Ninth Circuit upheld a
22 dismissal under the first to file rule where the plaintiff acted in bad faith by
23 seeking disruptive, overbroad discovery, thereby multiplying court proceedings
24 and increasing court costs—the very "gamesmanship" that the first-to-file rule was
25 meant to impede. See also Kohn Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787
26 F.3d 1237 (9th Cir. 2015) (court stayed the second lawsuit). The first-to-file rule is
27 not limited to cases filed in separate districts. Wallerstein v. Dole Fresh
28 Vegetables, Inc., 967 F. Supp. 2d 1289, 1294 (N.D. Cal. 2013); see also Abrahams
-18OPPOSITION TO MOTION FOR REMAND

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1 v. Hard Drive Productions, Inc., 2012 U.S. Dist. LEXIS 75025 (N.D. Cal. May 30,
2 2012); Intervet, Inc. v. Merial, Ltd., 535 F. Supp. 2d 112, 115 (D.D.C. 2008); Olin
3 Corp. et al. v. Cont'l Cas. Co. et al, 2011 U.S. Dist. LEXIS 41685 (D. Nev. Apr. 6,
4 2011). 5
5

There is no dispute regarding the chronology of the lawsuits, Clifford v.

6 Davidson was filed after Clifford v. Trump. As set forth in the Notice of Related
7 Cases, there is also a similarity between the questions of fact and law. [ECF No.
8 4.] See Kohn Law Grp. at 1241 (to determine whether two suits involve
9 substantially similar issues, we look at whether there is "substantial overlap"
10 between the two suits.) While Davidson is not a party to Clifford v. Trump, the
11 parties are substantially similar for purposes of the first-to-file rule. Id. at 1240.
12

Whether to enforce its Stay Order or via the application of the first-to-file

13 rule, Mr. Cohen requests that the claims asserted against him in Clifford v.
14 Davidson either be dismissed or stayed, and that at a minimum this Court deny
15 Clifford’s Motion to Remand.
16 IV.

CONCLUSION

17

For the foregoing reasons, Defendants respectfully requests that the Court

18 deny Clifford’s Motion to Remand.
19 Dated: July 2, 2018

BLAKELY LAW GROUP

20

By: /s/ Brent H. Blakely
BRENT H. BLAKELY
Attorneys for Defendant
MICHAEL COHEN

21
22
23
24
25
5

While Mr. Cohen is cognizant that courts have held that the justification for the
first to file rule is reduced in actions in the same district involving the same judge
27 See Henderson v. JPMorgan Chase Bank, 2011 U.S. Dist. LEXIS 103552 (C.D.
28 Cal. 2011), it is within the sound discretion of the court whether to apply the rule
under the specific circumstances of each case. Alltrade at 625.
26

-19OPPOSITION TO MOTION FOR REMAND

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1

Pursuant to Local Rule 5-4.3.4, I Brent H. Blakely, hereby attest that all

2 other signatories to this Opposition, and on whose behalf it is submitted, concur in
3 its content and have authorized its filing.
4
5 Dated: July 2, 2018
6

/s/ Brent H. Blakely
BRENT H. BLAKELY

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-20OPPOSITION TO MOTION FOR REMAND