The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS FOR IMPROPER VENUE
Defendants Pasani, S.A. de C.V.; Eco Pak Distributing, LLC; One Seven Props, Inc.; Alejandro Gutierrez Pederzini; and Leticia Gutierrez Pederzini move to dismiss this action for improper venue pursuant to Fed.R.Civ.P. 12(b)(3) based upon a contractual forum selection provision or, alternatively, to dismiss for lack of personal jurisdiction or for a convenience venue transfer to the District Court for the Western District of Texas. Plaintiffs Nascent Wine Company, Inc. and International Food Service Specialists, Inc. oppose all motions. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss for improper venue and denies the remainder of the motions as moot.
On June 25, 2010, Plaintiffs commenced this diversity action alleging claims for breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, unjust enrichment, conversion and specific performance. (Ct. Dkt. 1). Plaintiffs' claims arise from a series of agreements entered into between the parties from May 2007 through June 30, 2008, the date that the parties entered into a Settlement Agreement ("SA"), purportedly to resolve all disputes amongst the parties. (First Amended Complaint, "FAC" ¶23, Def. Exh. 1). The SA contains a forum selection and choice of law provision:
3.3 Choice of Law. For all related to the interpretation, fulfillment, validity, controversy and/or execution of the present agreement, the parties submit to the laws and jurisdiction of the courts of Mexico, Distrito Federal expressly waiving any other jurisdiction which may now or in the future be entitled for any reason.
(Def. Exh.1, ¶3.3). In broad brush, Plaintiffs allege "Defendants never intended to fully perform the acquisition transaction of the Settlement." (FAC ¶25).
Nascent Wine Company, Inc. ("Nascent"), and its wholly-owned subsidiary, International Food Service Specialists, Inc. ("IFSS"), are Nevada corporations with their principal places of business located in San Diego, California. (FAC ¶¶1, 2). Defendant Pasani S.A. de C.V. ("Pasani"), a corporation organized under the laws of Mexico with corporate headquarters located in San Diego and San Antonio, Texas, is in the business of buying consumer goods in the United States and distributing and selling them in Mexico. (FAC ¶3). Nascent, a distributor of food and wine products, had sold goods to Pasani who, in turn, imported them for distribution and sales into Mexico. (FAC ¶11). Defendant Eco Pak Distributing LLC ("Eco Pak") is a Texas limited liability company with corporate headquarters in San Diego, California, is also in the business of purchasing consumer goods in the United States and distributing and selling them in Mexico. (FAC ¶4). Defendant One Seven Props, Inc. ("One Seven"), incorporated and maintaining its principal place of business in Texas, is wholly owned by Defendant Mr. Pederzini. One Seven owns the trademarks used by Eco Park and Pasani in connection with the importation, distribution and sale of consumer products. (FAC ¶5).
Plaintiffs allege that Mr. Pederzini is a resident of San Antonio, Texas and Ms. Pederzini a resident of Mexico. Plaintiffs allege that, at all relevant times, the Defendants Pederzini were the controlling officers and directors of Eco Pak and Pasani. (FAC ¶¶ 5-7). The Pederzini Defendants are the alleged alter egos of the corporate entities, Pasani and Eco Pak, and "exercise such dominion and control over [the corporate entities and share] such a unity of interest with them that the separateness of the business entities do not in reality exist." (FAC ¶8).
In May 2007 Nascent agreed to purchase Pasani and Eco Park in order to expand its brands and operations in Mexico. After six months of negotiations, on May 10, 2007 the parties executed several agreements, including a Stock Purchase Agreement ("SPA"). (Def. Exh. 2). The agreement contains choice of law and forum selection provisions identifying the applicability of Mexican law to any dispute and designating Mexico City as the exclusive forum for resolving any dispute. On the same day, the parties also executed a Pledge on Shares Agreement ("PSA") in order to transfer ownership interests from Pasani to Nascent in exchange for a promissory note to be executed by Nascent. This agreement also contains the same choice of law and forum selection provisions, (Def. Exh. 3). On the same day, Nascent executed a promissory note for $1.5 million, payable to Defendants Pederzinis. The note identifies both Texas and Mexico as appropriate forums for resolving any dispute. (Def. Exh. 4). In connection with the SPA, Nascent and Eco Pak entered into a Membership Interest Purchase Agreement ("MIPA") whereby Nascent purchased all issued and outstanding stock for $100,000. The MIPA does not contain any choice of law or forum selection provision.
Three other agreements are pertinent to the parties' contractual relationship. On May 11, 2007 Nascent and One Seven entered into a Trademark License and Purchase Agreement ("TLPA") whereby Nascent would acquire use of Pasani's trademarks in Mexico. This agreement does not contain either a choice of law or forum selection provision. In connection with the SPA, on May 17, 2007 Nascent and Mr. Pederzini entered into an Employment Agreement ("EA") to define the conditions of employment during the transitional period in which Nascent intended to completely take over Pasani's operations in Mexico. This agreement contains a choice of law provision identifying the applicability of the laws of the State of California and a forum selection provision compelling the parties to arbitrate any and all disputes before the American Arbitration Association in San Diego. (FAC, Exh. D ¶21.00).
The final agreement at issue is the SA, executed on June 30, 2008. "Defendants proposed unwinding the entire transaction by paying back over time a portion of the funds to Plaintiffs in return for" the Pederzinis reacquisition of ownership of Eco Pak and Pasani. The SA required Pasani to initially repay $997,451 in working capital and $113,888 for inventory which Plaintiffs had contributed to Pasani. (FAC ¶23). Plaintiffs, as a part of the settlement, agreed to sign over their ownership interests in the corporate entities to the Pederzinis. The SA contains choice of law and forum selection provisions identifying the applicability of Mexican law to any dispute amongst the parties and designating Mexico City as the exclusive forum to resolve any dispute. The Pederzini Defendants made the initial payment of $120,000 and Plaintiffs transferred ownership of Pasani and Eco Pak back to the Pederzinis. The Pederzinis thereafter failed to make any further payments as contemplated by the SA.
Plaintiffs generally allege that "Defendants never intended to perform any of the terms of the" SA beyond the initial exchange. (FAC ¶25). Plaintiffs further allege that defendants "intended to and did take approximately ...