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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SHERRON ASSOCIATES LOAN FUND V,

LLC, 

Plaintiff,

v.

ROBERT SAUCIER; GALAXY GAMING

CORP.; GALAXY GAMING, LLC

(NEVADA); GALAXY GAMING OF

NEVADA, LLC; GALAXY GAMING, LLC

(NEW MEXICO); GALAXY GAMING OF

BRITISH COLUMBIA, LLC; GALAXY

GAMING OF CALIFORNIA, LLC;

GALAXY GAMING OF NEW MEXICO,

LLC; GALAXY GAMING OF OREGON,

LLC; GALAXY GAMING OF

WASHINGTON, LLC,

Defendants.

 NO. C06-226JLR

 ORDER

 

I. INTRODUCTION

This matter comes before the court in the wake of Defendants’ removal of this action

from King County Superior Court. Plaintiff Sherron Associates Loan Fund V, LLC

(“Sherron”) moves to remand this action (Dkt. # 22). Defendants move to dismiss this action

(Dkt. # 2), or in the alternative to transfer it to the United States District Court for the District

of Nevada (Dkt. # 1). Having considered each motion, the parties’ briefing, and their

supporting documentation, the court GRANTS Sherron’s motion to remand.

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26 ORDER - 2

II. BACKGROUND

Sherron filed the underlying state court action to establish that the Defendant corporate

entities were the alter ego of Defendant Robert Saucier. In 1998, the Spokane County

Superior Court entered a judgment (the “Spokane judgment”) for Sherron against Mr. Saucier. 

Sherron has been unable to collect the judgment, and contends that it should be able to pierce

the corporate veil shrouding the entity Defendants in order to hold them jointly and severally

liable under the Spokane judgment.

Unfortunately, the court cannot resolve the instant motions without reciting additional

details. The court cautions the reader that the details resemble the prologue to a particularly

sadistic civil procedure professor’s final exam question, except that they are not hypothetical. 

The court will clarify the details as necessary in its later analysis. 

Sherron, a non-existent Washington Plaintiff, sued Galaxy Gaming Corporation

(“Galaxy of Washington”), a non-existent Washington defendant, in King County Superior

Court. Preceding Galaxy of Washington in the galaxy of Defendants is Defendant Robert

Saucier, a man who exists but does not live anywhere. Joining them is Defendant Galaxy

Gaming Corporation of Washington, LLC, an entity incorporated in New Mexico (naturally). 

Defendants Galaxy Gaming Corporation of Oregon, LLC and Galaxy Gaming Corporation of

California, LLC are also New Mexico entities. Defendant Galaxy Gaming Corporation of

British Columbia, LLC gives the galaxy of Defendants an exotic flair, even though it is also a

New Mexico entity. Defendant Galaxy Gaming Corporation of New Mexico, LLC is

incorporated in New Mexico as well. Galaxy Gaming of Nevada, LLC has escaped New

Mexico and is incorporated in Nevada along with Galaxy Gaming, LLC (“Galaxy of

Nevada”). 

In the state court action, Sherron tried to serve its complaint on the whole galaxy of

Defendants. It had no success using traditional methods of service, so it attempted to serve

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26 ORDER - 3

the Defendants by publication. Although the action was pending in Washington state court, it

appears that Sherron did not follow Washington law in serving the Defendants by publication. 

It also appears that they did not serve Mr. Saucier by any means. Nevertheless, Sherron

moved for a default judgment and the state court awarded one. Upon receiving notice of

Sherron’s writ of garnishment to collect on the default judgment, the entity Defendants filed a

notice of removal, and now ask this court to void the default judgment, or, in the alternative,

to transfer Sherron and the galaxy of Defendants to federal court in Nevada. Sherron

contends that this court has no subject matter jurisdiction, and that Defendants removed too

late. Defendants argue that this court has no personal jurisdiction over them, and that they

removed in time.

III. ANALYSIS

Unfortunately, the events recited above did not happen a long time ago in a galaxy (or

other forum) far, far, away. They happened in Washington, and it now falls to the court to

decide whether the galaxy of Defendants can proceed in this federal forum.

The court begins by determining whether Defendants properly removed this action.

With exceptions not applicable here, a defendant may remove any state court civil action that

could have been brought in federal court. See 28 U.S.C. § 1441. If the federal court lacks

subject matter jurisdiction over the action, remand is mandatory. In addition to establishing

federal jurisdiction, a defendant must comply with the procedure for removal set forth in 28

U.S.C. § 1446. In any event, a court must “strictly construe the removal statute against

removal jurisdiction,” and must reject jurisdiction “if there is any doubt as to the right of

removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). The

defendant “always has the burden of establishing that removal is proper.” Id. Where the

plaintiff challenges removal, the defendant may not rest on the allegations of his notice of

removal, and must meet his burden by a preponderance of evidence. Id. at 566-67; see also

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26 ORDER - 4

Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996) (clarifying that the

Gaus court imposed a preponderance of evidence standard).

A. Diversity Jurisdiction

Defendants concede that the only potential basis for this court’s subject matter

jurisdiction is diversity of citizenship. See 28 U.S.C. § 1332. Defendants must therefore

show that none of them is a citizen of the same state as Sherron. For purposes of diversity

jurisdiction, a corporation is a citizen of any state where it is incorporated and any state

where it has its principal place of business. 28 U.S.C. § 1331(c)(1). A limited liability

company, however, is a citizen of every state of which its members are citizens. Johnson v.

Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). An individual is a

citizen of the state of her domicile, which is the state in which she has permanent home,

where she resides with the intention to remain or to which she intends to return. Kanter v.

Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

1. Citizenship of Plaintiff

Establishing the citizenship of Sherron and the Defendants is no simple matter. First,

as Sherron admits, Sherron does not exist. In 2002, the Washington Secretary of State

accepted a certificate of cancellation of the Sherron limited liability company. Sherron

contends that the cancellation was improper, and that it is petitioning Washington officials to

retroactively rescind the cancellation. Nonetheless, at present and at all times relevant to this

action, Sherron, the sole Plaintiff, is and was a legal nullity. Sherron provides uncontroverted

evidence, however, that if Sherron does not exist, then ownership of the judgment passed to

Sherron Associates, Incorporated (“Sherron Associates”), a former member of the Sherron

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Defendants have moved to strike the declaration of Thomas Armstrong, an officer of Sherron

Associates (Dkt. # 28). The court denies the motion because it violates the court’s local rules

regarding motions to strike. Local Rules W.D. Wash. CR 7(g). Even if the motion were proper, the

court would not need to reach it. Defendants assert that the non-existence of Sherron is a sufficient

basis to void the King County judgment. The court cannot reach that assertion, however, unless it has

subject matter jurisdiction over this action.

ORDER - 5

limited liability company. Armstrong Decl. ¶ 7 & Ex. A.1 Sherron Associates is apparently a

going concern. See id. ¶¶ 1-8. Neither party, however, has bothered to reveal where Sherron

Associates is incorporated, or where its principal place of business is. The court notes that

the record contains a 2002 letter from Sherron Associates bearing Bellevue, Washington

letterhead. Id. Ex. A. Both parties treat the Plaintiff in this case (whether it is Sherron,

Sherron Associates, or some other person or entity with the right to enforce the Spokane

judgment) as a citizen of Washington. The court will adopt the same approach. The court

will therefore refer to the Plaintiff as Sherron and assume that Sherron is a citizen of

Washington for purposes of determining diversity jurisdiction. The King County judgment

belongs to whoever owns the Spokane judgment, and any error in naming the owner does not

affect the court’s jurisdictional analysis.

2. Citizenship of the Corporate Defendants

The parties concede that most of the Defendants are not citizens of Washington, but

Sherron insists that Galaxy of Washington and Mr. Saucier are Washington citizens. Galaxy

of Washington, however, does not exist. There is no evidence that it ever existed, at least as a

Washington entity. Although Sherron brought this action against “Galaxy Gaming

Corporation, a Washington corporation,” it provides no evidence of the existence of such a

corporation, and has remained suspiciously silent in response to Defendants’ allegation that

no such Washington entity exists. There is also no evidence that Galaxy of Washington’s

principal place of business is in Washington. For purposes of assessing diversity jurisdiction,

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That Defendants apparently never served Mr. Saucier in the underlying state court action is

unimportant. A removing defendant must show that all defendants, served and unserved, are citizens

of a different state than all plaintiffs. Clarence E. Morris, Inc. v. Vitek, 412 F.2d 1174, 1176 (9th Cir.

1969).

ORDER - 6

therefore, the court assumes that Galaxy of Washington, if it exists at all, is not now and has

never been a citizen of Washington.

3. Citizenship of Mr. Saucier

The parties concede that Mr. Saucier exists.2

 The court must now decide where he is

domiciled. An individual’s domicile is the state in which he is or was physically present, and

in which he intends to remain or return. Kanter, 265 F.3d at 867. Mr. Saucier has not lived

in Washington for seven years. Saucier Decl. ¶ 13. It is undisputed, however, that in 1998

Mr. Saucier owned a home in Spokane and resided there. Saucier Depo. at 28:25-29:4. It

seems unlikely that Mr. Saucier intends to return to Washington. Not only has he been absent

for seven years, but he testified that at one point he was attempting to gain Canadian

citizenship. Saucier Depo. at 17.

Because Mr. Saucier apparently does not seek to return to Washington, one might

expect that he has acquired a new domicile. A person acquires a new domicile when he is

simultaneously physically present in a state and intends to remain there indefinitely. Lew v.

Moss, 797 F.2d 747, 750 (9th Cir. 1986). Mr. Saucier does not contend that he has acquired

a new domicile. In a declaration accompanying Defendants’ notice of removal, he avers that

he has not lived in Washington for seven years, but does not explain where he has lived over

that period. Saucier Decl. ¶ 13. In a July 2004 deposition, he testified that he had “no

residential address,” Saucier Depo. at 9:21, and that he does not consider any place to be his

home. Id. at 27:25. He admitted to staying at a Las Vegas address when he was in that city,

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26 ORDER - 7

id. at 10:4-6, but he maintained that he “live[s] somewhat of a vagabond life.” Id. at 57:11-

12. He does not aver that he has lived in any place since 1998 with an intent to remain there. 

The court’s inquiry does not end with Mr. Saucier’s failure to expressly contend that

he has acquired a new domicile. A court may consider a number of factors in determining an

individual’s domicile, including his “current residence, voting registration and voting

practices, location of personal and real property, location of brokerage and bank accounts,

location of spouse and family, membership in unions and other organizations, place of

employment or other business, driver’s license and automobile registration, and payment of

taxes.” Lew, 797 F.2d at 750. To the extent that the record contains evidence relevant to

these factors, it shows that Mr. Saucier has not acquired a new domicile since 1998. He is

unmarried. Saucier Depo. at 29:21-24. He has no checking account or credit card. Id. at

57:8-9, 57:14. He has no accounts of any kind in the United States. Id. at 71:7-16, 72:17-24. 

He does not own a car. Id. at 59:11-23. As of 2004, his only income came from playing

poker. Id. at 60:20-21.

On these facts, the court concludes that Mr. Saucier is domiciled in Washington. A

person retains his previous domicile until he acquires a new one. Lew, 797 F.2d at 750. The

record before the court does not permit the conclusion that Mr. Saucier has been physically

present (after he left Spokane in 1998) in a state other than Washington with intent to remain

there. Mr. Saucier bears the burden of proving that he is domiciled in a state other than

Washington by a preponderance of evidence, and he has not done so.

Defendants have not established complete diversity between them and Sherron. The

court therefore lacks subject matter jurisdiction over this action.

B. Sherron’s Request for Attorneys’ Fees

Under 28 U.S.C. § 1447(c), a court remanding an action to state court “may require

payment of just costs and any actual expenses, including attorney fees, incurred as a result of

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26 ORDER - 8

the removal.” As the word “may” suggests, the court’s decision to make such an award is

discretionary. Martin v. Franklin Capital Corp., 126 S. Ct. 704, 711 (2005). Generally, a

court “may award attorney’s fees under § 1447(c) only where the removing party lacked an

objectively reasonable basis for seeking removal.” Id. Here, the court finds that Defendants

had no reasonable basis for seeking removal. Had they conducted reasonable legal research,

they would have discovered that Mr. Saucier had an obligation to prove that he was domiciled

outside Washington. Instead, they unreasonably relied on Mr. Saucier’s evasive refusal to

admit to being domiciled anywhere, which led to this court’s decision to remand. Moreover,

Defendants littered their responsive brief with unsupported accusations of Sherron’s

fraudulent conduct, and filed a motion to strike and a surreply that were improper under this

court’s local rules. Local Rules W.D. Wash. CR 7(g). Defendants used their surreply to

misstate the court’s local rules regarding briefing schedules, see Local Rules W.D. Wash CR

7(d), and to wrongly suggest that Ninth Circuit rules governing citation to its unpublished

opinions somehow apply to “unpublished” district court orders.

The court could award fees to Sherron, but it declines to do so because it does not wish

to reward Sherron’s conduct in seeking remand. Sherron continued to call Galaxy of

Washington a Washington defendant when it had no facts supporting that assertion. 

Sherron’s briefing in support of its motion to remand failed to identify case law that would

assist the court in determining Mr. Saucier’s domicile. Finally, Sherron ignored this court’s

local rules by providing an improper surreply to Defendants’ improper surreply to its motion

to remand. Under these circumstances, the court finds an award of costs and fees

inappropriate. See Martin, 126 S. Ct. at 711 (noting that “district courts retain discretion to

consider whether unusual circumstances warrant” a denial of attorneys’ fees). The court

expects better advocacy from both parties.

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IV. CONCLUSION

For the foregoing reasons, the court GRANTS Sherron’s motion to remand (Dkt. # 22). 

The clerk shall remand this action to King County Superior Court. 

The court’s disposition of this matter makes it unnecessary to consider Sherron’s

contention that Defendants’ notice of removal was untimely, as well as the Defendants’

additional motions. If any Defendant attempts to remove the underlying action again, the

Defendant must clearly designate the newly removed action as related to this one.

Dated this 12th day of April, 2006.

A 

JAMES L. ROBART

United States District Judge

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