Powell v. Rasmussen

• Docket Number: 22-35361,22-35362
• Decision Date: 31 August 2023
• Parties: DEBRA POWELL, an individual, Plaintiff-Appellee, v. JOHN DENNIS RASMUSSEN, an individual, Defendant-Appellant, and COLTON RASMUSSEN, an individual; HEIDI RASMUSSEN, an individual; IAN RASMUSSEN, an individual; TERRA- MAGIC, INC., an Oregon corporation; Nominal Defendant; TERRA-MAGIC SEEDS, LTD., an Oregon corporation; Nominal Defendant, Defendants. DEBRA POWELL, an individual, Plaintiff-Appellee, v. COLTON RASMUSSEN, an individual; HEIDI RASMUSSEN, an individual, Defendants-Appellants, and. JOHN DENNIS RASMUSSEN, an individual; IAN RASMUSSEN, an individual; TERRA-MAGIC, INC., an Oregon corporation; Nominal Defendant; TERRA-MAGIC SEEDS, LTD., an Oregon corporation; Nominal Defendant, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

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DEBRA POWELL, an individual, Plaintiff-Appellee,
v.
JOHN DENNIS RASMUSSEN, an individual, Defendant-Appellant,

and COLTON RASMUSSEN, an individual; HEIDI RASMUSSEN, an individual; IAN RASMUSSEN, an individual; TERRA- MAGIC, INC., an Oregon corporation; Nominal Defendant; TERRA-MAGIC SEEDS, LTD., an Oregon corporation; Nominal Defendant, Defendants. DEBRA POWELL, an individual, Plaintiff-Appellee,
v.
COLTON RASMUSSEN, an individual; HEIDI RASMUSSEN, an individual, Defendants-Appellants,

and. JOHN DENNIS RASMUSSEN, an individual; IAN RASMUSSEN, an individual; TERRA-MAGIC, INC., an Oregon corporation; Nominal Defendant; TERRA-MAGIC SEEDS, LTD., an Oregon corporation; Nominal Defendant, Defendants.

Nos. 22-35361, 22-35362

United States Court of Appeals, Ninth Circuit

August 31, 2023

NOT FOR PUBLICATION

Argued and Submitted August 21, 2023 Portland, Oregon

Appeal from the United States District Court for the District of Oregon D.C. Nos. 2:19-cv-01077-JR, 2:19-cv-01077-JR, Jolie A. Russo, Magistrate Judge, Presiding

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

MEMORANDUM ^[*]

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Defendant John Dennis Rasmussen (Rasmussen) appeals the district court's Limited Judgment. Rasmussen appeals the district court's decisions (i) not to apply a marketability discount in determining the fair value of Plaintiff Debra Powell's shares in Terra-Magic, Inc. and Terra-Magic Seeds, Ltd. (collectively, Terra-Magic), (ii) to reject Rasmussen's proposed terms of purchase for the purchase of Powell's shares, (iii) to appoint a custodian to liquidate Terra-Magic's assets, and (iv) to allow the custodian to retain control over Terra-Magic until the conclusion

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of all related proceedings. Rasmussen also appeals the district court's decision to allow Powell to continue litigating some of her claims after Rasmussen elected to purchase Powell's shares under Oregon Revised Statute (O.R.S.) Section 60.952. Defendants Colton Rasmussen (Colton) and Heidi Rasmussen (Heidi) also appeal the district court's Limited Judgment, although they limit their appeal to the court's decision to allow Powell to continue litigating some of her claims against Colton and Heidi after Rasmussen's election to purchase Powell's shares. We have jurisdiction under 28 U.S.C. § 1292. We affirm in part and remand in part for further proceedings consistent with this opinion.

We review questions of law and mixed questions of law and fact de novo, and we review findings of fact for clear error. Heavenly Hana LLC v. Hotel Union &Hotel Indus. of Haw. Pension Plan, 891 F.3d 839, 844 (9th Cir. 2018). "In cases where state law applies, [we] must 'ascertain from all the available data what the state law is and apply it.'" Lawson v. Grubhub, Inc., 13 F.4th 908, 913 (9th Cir. 2021) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)). We review the appointment of a custodian for abuse of discretion. Canada Life Assur. Co. v. LaPeter, 563 F.3d 837, 844 (9th Cir. 2009).^[1]

1. Under Oregon law, "in the absence of a finding of oppression, the court may, but need not, apply a marketability discount, depending on the particular

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circumstances of the case." Ybarra v. Dominguez Fam. Enters., Inc., 521 P.3d 834, 838 (Or. Ct. App. 2022). The district court therefore had discretion not to apply a marketability discount, based on Powell's lack of control and knowledge concerning Terra-Magic's management and finances.

2. Rasmussen argues that O.R.S. Section 60.952 did not provide the district court with discretion to reject his proposal to complete the share purchase in installments and instead require him to have all funds immediately available for the purchase. In his view, the district court should have accepted his proposal under subsection (5) of the statute, which specifies that "[i]f the court orders a share purchase, the court shall: . . . [s]pecify the terms of the purchase, including, if appropriate, terms for installment payments." O.R.S. § 60.952(5)(a)(C). But the text of this subsection plainly permits courts to authorize installment payments if appropriate, without requiring that they do so. Here, the district court reasonably determined that Rasmussen's installment proposal was not appropriate, based upon his failed attempt to sell assets in order to complete the share purchase independently. See O.R.S. § 60.952(5)(a)(B) (if a court orders a share purchase, it must...