Charles Kinney v. Carolyn Cooper
708 F. App'x 411
| 9th Cir. | 2017Background
- Charles G. Kinney, appearing pro se, appealed district court orders in two consolidated cases he removed from California state court.
- The district court declared Kinney a vexatious litigant and imposed a pre-filing review requirement.
- The district court struck Kinney’s amended counterclaims and third-party complaints, motions to withdraw the bankruptcy reference, and an amended notice of removal.
- The district court remanded the cases to state court and awarded attorneys’ fees to appellees under 28 U.S.C. § 1447(c) for an objectively unreasonable removal.
- Kinney moved to recuse Judge Gutierrez and challenged venue transfers and other procedural rulings; the district court denied relief.
- Kinney appealed; the Ninth Circuit reviewed discretionary rulings for abuse of discretion and affirmed the district court in all respects it could review, while noting it lacked jurisdiction to review remand orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court properly declared Kinney a vexatious litigant and imposed pre-filing review | Kinney argued the order was improper (arguments not developed in opening brief) | Appellees argued history of frivolous filings supported the order | Affirmed — no abuse of discretion under Ringgold‑Lockhart standard |
| Whether district court properly struck Kinney’s amended pleadings and motions | Kinney contended strikes were improper | Appellees maintained strikes were within court’s discretion | Affirmed — striking pleadings was not an abuse of discretion (El Pollo Loco standard) |
| Whether attorneys’ fees under § 1447(c) were appropriate for removal | Kinney argued removal was proper | Appellees argued removal lacked objective reasonableness | Affirmed — fees awarded because removal lacked objectively reasonable basis (Martin standard) |
| Whether appellate court can review remand orders and denials to vacate | Kinney sought appellate review of remand/denial to vacate | Appellees argued remand orders are unreviewable on appeal | Dismissed for lack of jurisdiction — §§ 1447(d), 1452(b) and Things Remembered bar review |
Key Cases Cited
- Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057 (9th Cir. 2014) (standard and factors for pre-filing review orders)
- El Pollo Loco, Inc. v. Hashim, 316 F.3d 1032 (9th Cir. 2003) (standard of review for striking pleadings)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (U.S. 2005) (attorney’s fees under § 1447(c) only when removal lacks objectively reasonable basis)
- Gardner v. UICI, 508 F.3d 559 (9th Cir. 2007) (standard of review for fee awards under § 1447(c))
- Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (U.S. 1995) (remand orders generally unreviewable on appeal)
- Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) (arguments not raised in opening brief are waived)
- Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994) (court will not manufacture arguments for appellant)
- Glick v. Edwards, 803 F.3d 505 (9th Cir. 2015) (standard for reviewing denial of recusal)
- Padgett v. Wright, 587 F.3d 983 (9th Cir. 2009) (appellate court will not consider issues raised first on appeal)