Filed: Jul. 08, 2014
Latest Update: Jul. 08, 2014
Summary: RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE MICHAEL E. HEGARTY, Magistrate Judge. Before the Court is a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(2) filed by Heller Ehrman (California), a Professional Corporation, Successor in Interest by Merger to Venture Law Group, a Professional Corporation (collectively "Defendant VLG") ( filed May 6, 2014; docket #271 ). Pursuant to 28 U.S.C. 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the matter is referred to
Summary: RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE MICHAEL E. HEGARTY, Magistrate Judge. Before the Court is a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(2) filed by Heller Ehrman (California), a Professional Corporation, Successor in Interest by Merger to Venture Law Group, a Professional Corporation (collectively "Defendant VLG") ( filed May 6, 2014; docket #271 ). Pursuant to 28 U.S.C. 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the matter is referred to ..
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RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, Magistrate Judge.
Before the Court is a Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(2) filed by Heller Ehrman (California), a Professional Corporation, Successor in Interest by Merger to Venture Law Group, a Professional Corporation (collectively "Defendant VLG") (filed May 6, 2014; docket #271). Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the matter is referred to this Court for recommendation. Docket #272. The matter is fully briefed, and the Court finds that oral argument is not necessary for the adjudication of the motion. For the reasons that follow, the Court respectfully RECOMMENDS that the Motion to Dismiss be granted.1
Defendant VLG, which was a California professional corporation, contends it has been improperly named as a defendant in this action because it merged with and into Heller Ehrman PC in 2003. Docket #271-1. A corporation's capacity to sue or be sued is determined by the law under which it was organized. Fed. R. Civ. P. 17(b)(2). Pursuant to California Corporations code §1107(a), a corporation ceases to exist upon merger into another corporation. Under California law, a corporation that has been merged into another corporation cannot be sued. Asher v. Pacific Power & Light Co., 249 F.Supp. 671, 677 (N.D. Cal. 1965).
Although Plaintiff's response to VLG's Motion to Dismiss is entitled "Opposition," he concedes that he cannot name VLG as a defendant in this action, stating,
Having reviewed [VLG's Motion to Dismiss], the [P]laintiff is persuaded that Venture Law Group, a Professional Corporation, was succeeded by Defendant Heller Ehrman (California), a Professional Corporation, and will agree to stipulate accordingly.
Docket #306. Plaintiff presents no other statements or argument in his response, and California law supports dismissing Defendant VLG. See Heim v. Estate of Heim, No. 5:10-cv-03816 EJD, 2012 WL 993681, at *11-12 (N.D. Cal. March 23, 2012) (dismissing a corporation as a party because it was merged out of existence before lawsuit was initiated; explaining "[i]t cannot now be sued in its pre-merger form").
Accordingly, the Court respectfully RECOMMENDS that the Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(2) filed by Heller Ehrman (California), a Professional Corporation, Successor in Interest by Merger to Venture Law Group, a Professional Corporation (filed May 6, 2014; docket #271) be granted.
