FILED

NOT FOR PUBLICATION

FEB 27 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OKSANA BAIUL-FARINA, No. 18-56198 professionally known as Oksana Baiul, an individual, D.C. No. 2:15-cv-07325-DDP-MRW Plaintiff-Appellant,

v. MEMORANDUM*

JOSEPH CHARLES LEMIRE, an individual; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding

Argued and Submitted February 7, 2020 Pasadena, California

Before: BOGGS,** IKUTA, and LEE, Circuit Judges.

Oksana Baiul-Farina appeals the district court’s denial of her motion to

remand her lawsuit to state court and the court’s entry of judgment dismissing her

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. claims against Joseph Lemire, Olympic Champions, Ltd. (incorporated in

Delaware) (OCL), Olympic Champions, Ltd. (incorporated in the British Virgin

Islands) (OCL-BVI), and Ukraine. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

Because sovereign immunity is a “threshold grounds for denying audience to

a case on the merits,” Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549

U.S. 422, 431 (2007) (citation omitted), we may consider whether the district court

lacked subject-matter jurisdiction over Ukraine due to sovereign immunity before

addressing the district court’s denial of the motion to remand. Because it is

undisputed that Ukraine is a sovereign state, we presume it is protected by

immunity, see Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 708 (9th

Cir. 1992), and we have jurisdiction only if an exception to immunity applies, as

set forth in the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.

§§ 1602–1611. Baiul-Farina asserts that the FSIA’s commercial-activity exception

to immunity applies because her action against Ukraine is based on “an act outside

the territory of the United States in connection with a commercial activity of the

foreign state elsewhere and that act causes a direct effect in the United States.” 28

U.S.C. § 1605(a)(2). We disagree because Baiul-Farina’s complaint does not

allege that Ukraine engaged in “the type of actions by which a private party

2 engages in trade and traffic or commerce.” Embassy of the Arab Republic of Egypt

v. Lasheen, 603 F.3d 1166, 1170 (9th Cir. 2010) (emphasis omitted) (quoting

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992)). Although the

complaint alleges that defendants engaged in theft and conversion, such actions are

not commercial activity, but rather “sound[] in tort.” Randolph v. Budget Rent-A-

Car, 97 F.3d 319, 324 (9th Cir. 1996).1 Because Baiul-Farina has not carried her

initial burden of pleading sufficient factual matter to establish that the commercial-

activity exception should apply, see Terenkian v. Republic of Iraq, 694 F.3d 1122,

1131–32 (9th Cir. 2012),2 Ukraine is immune from jurisdiction in federal court.

We also affirm the district court’s denial of the motion to remand. Baiul-

Farina argues that there was a defect in diversity at the time of removal because

1 Baiul-Farina cites two cases from the D.C. Circuit to argue that theft and conversion are commercial activities, but they are inapposite. In de Csepel v. Republic of Hungary, an instrumentality of a foreign nation was deemed to have entered into contracts with the plaintiffs, who then brought claims stemming from breaches of those contracts. See 714 F.3d 591, 598 (D.C. Cir. 2013). In Gilson v. Republic of Ireland, the plaintiff and defendant entered into a contract related to a commercial enterprise in which both plaintiff and defendants were involved. 682 F.2d 1022, 1024, 1027 (D.C. Cir. 1982). Here, Baiul-Farina does not allege that Ukraine entered into any contract, nor that it was engaged in a commercial enterprise with Baiul-Farina. 2 Indeed, it is difficult to discern exactly what Baiul-Farina alleges that Ukraine did, because her complaint consists primarily of bare legal conclusions, which we do not consider while determining whether she has met her pleading burden. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 3 “diversity jurisdiction does not encompass a foreign plaintiff suing foreign

defendants,” Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20

F.3d 987, 991 (9th Cir. 1994), and she alleges that she is a citizen of Ukraine and

defendants Lemire, Ukraine, and OCL-BVI were also foreign citizens.

Considering the operative complaint at the time of removal, see Williams v. Costco

Wholesale Corp., 471 F.3d 975, 976 (9th Cir. 2006), we disagree.

Lemire has carried his burden of establishing that he is domiciled in

Louisiana. See Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986) (“To demonstrate

citizenship for diversity purposes a party must (a) be a citizen of the United States,

and (b) be domiciled in a state of the United States.”). “[D]omicile often hangs on

the slender thread of intent alone, as for instance where one is a wanderer over the

earth,” Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957), and here Lemire

testified in a sworn affidavit that he “never relinquished [his] home in New

Orleans, Louisiana and always considered it to be [his] permanent and principal

home, to which [he] always intended to return, and to which [he] did, in fact, return

when in the United States.” Lemire also testified regarding other factors weighing

in favor of concluding that his domicile is in Louisiana, including that he pays

property taxes in Louisiana, possesses a current Louisiana driver’s license, and is

licensed to practice law in Louisiana. See Lew, 797 F.2d at 750. In attempting to

4 rebut this evidence, Baiul-Farina adduced only evidence of Lemire’s ten-year-old

unsworn statements that he considered Ukraine to be his home and evidence that a

process server and a doorman stated that Lemire was “unknown” at his address in

Louisiana, which is insufficient to rebut Lemire’s sworn testimony. Nor did Baiul-

Farina ask the district court for jurisdictional discovery to develop the record

regarding Lemire’s domicile.3 Given the evidence in the record, we conclude that

Lemire is, and was at the time of removal, a domiciliary of Louisiana and therefore

qualifies as a citizen of Louisiana for diversity purposes.

OCL-BVI is a nominal party and not considered for purposes of determining

diversity jurisdiction, see Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 461 (1980)),

because it had no “stake in the outcome of this case,” Strotek Corp. v. Air Transp.

Ass’n. of Am., 300 F.3d 1129, 1133 (9th Cir. 2002). The record demonstrates that

OCL-BVI ceased conducting business around 2006, had transferred all of its assets

to OCL or its shareholders by the end of 2009, and was “struck off” the register of

companies in the British Virgin Islands in 2010. It therefore would have no ability

3 The record shows that Baiul-Farina filed discovery requests in state court, but after her action was removed to district court she filed only a motion to compel compliance with the state court discovery requests, which the district court struck as improperly filed. Baiul-Farina’s email communications with Lemire regarding discovery did not seek specific information relating to Lemire’s citizenship. 5 to satisfy a judgment against it.4 Accordingly, its citizenship is not relevant for the

purposes of determining diversity jurisdiction.

Ukraine was a fraudulently joined party at the time of removal. It therefore

is not considered for purposes of determining diversity jurisdiction, see Ritchey v.

Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998), because there is no

possibility that the operative complaint stated any cause of action against Ukraine

“according to the settled rules” of California. McCabe v. Gen. Foods Corp., 811

F.2d 1336, 1339 (9th Cir. 1987). The complaint made a breach-of-contract claim

against defendants, but did not allege that Ukraine was a signatory to the contract

at issue, and California law holds that “only a signatory to a contract may be liable

for any breach.” Clemens v. Am. Warranty Corp., 193 Cal. App. 3d 444, 452

(1987). The complaint alleged an unjust enrichment claim against Ukraine, but

“[u]njust enrichment is not a cause of action” under California law. McBride v.

Boughton, 123 Cal. App. 4th 379, 387 (2004). Finally, the complaint alleged a

claim for an accounting against Ukraine, but the “right to an accounting is

4 Baiul-Farina argues in her reply brief that OCL-BVI is not a nominal party because a state trial court determined that OCL-BVI, and not Baiul-Farina, would have standing to enforce a contract entered into by OCL-BVI. See Baiul-Farina v. Sonar Entm’t, Inc., 2016 WL 7011497, at *2 (Cal. Super. Ct. Oct. 21, 2016). OCL-BVI was not a party to that action, however, and the state trial court did not consider or rule on the question whether OCL-BVI was an existing company or whether it had assets. Therefore, we reject Baiul-Farina’s argument. 6 derivative; it must be based on other claims,” and because Baiul-Farina’s “other

claims fail, so too does the one for an accounting.” Janis v. Cal. State Lottery

Comm’n, 68 Cal. App. 4th 824, 833–34 (1998). Therefore, there is no “possibility

that a state court would find that the complaint states a cause of action against”

Ukraine. Hunter v. Philip Morris USA, 582 F.3d 1039, 1046 (9th Cir. 2009).

Because there was no foreign defendant to be considered for purposes of

determining diversity jurisdiction, the district court did not err in determining that

there was complete diversity at the time of removal.

Finally, we affirm the district court’s determination that Baiul-Farina’s

claims against Lemire, OCL, and OCL-BVI were barred by claim preclusion

because a prior decision in the Southern District of New York dismissed Baiul-

Farina’s claims against these defendants on statute-of-limitations grounds. See

Baiul v. William Morris Agency, LLC, 2014 WL 1804526, at *6–12 (S.D.N.Y. May

6, 2014). Because that district court rendered its judgment pursuant to federal-

question jurisdiction, we apply federal principles of claim preclusion, see Taylor v.

Sturgell, 553 U.S. 880, 891 (2008), which bars litigation “of any claims that were

raised or could have been raised in the prior action,” when there has been a prior

“final judgment on the merits,” among other things, Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (citation omitted). We reject

7 Baiul-Farina’s argument that the previous judgment was not “on the merits,”

because a dismissal on statute-of-limitations grounds is “a judgment on the

merits,” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995), which satisfies

federal claim-preclusion requirements, see Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1081 (9th Cir. 2003). Therefore,

the district court did not err in dismissing Baiul-Farina’s claims.5

AFFIRMED.

5 We grant Baiul-Farina’s motions to take judicial notice of various court filings. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). 8