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Richmond Technologies, Inc., A v. Aumtech Business Solutions

July 1, 2011

RICHMOND TECHNOLOGIES, INC., A
GEORGIA CORPORATION, D/B/A EPAYWARE, PLAINTIFF,
v.
AUMTECH BUSINESS SOLUTIONS, AN 14 UNINCORPORATED ASSOCIATION; AUMTECH I-SOLUTIONS PVT. LTD, AN INDIAN CORPORATION,
DAMIAN JOSEPH POLITO, JENNIFER POLITO, SHANKAR BOSE AND ILA BOSE,
DEFENDANTS.



The opinion of the court was delivered by: Lucy H. Koh United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR TRO; GRANTING MOTION FOR SUBSTITUTED SERVICE; DENYING MOTIONS TO DISMISS

This case is before the Court for determination of the following four motions: (1) Plaintiff's motion for substituted service pursuant to Rule 4(f)(3); (2) a motion to dismiss for lack of personal 21 jurisdiction, defective summons, and defective service brought by Defendants Aumtech i-Solutions Pvt. Ltd., Shankar Bose, and Ila Bose; (3) a motion to dismiss for improper venue brought by Defendants Aumtech Business Solutions, Jennifer Polito, and Damian Joseph Polito; and (4) Plaintiff's renewed motion for a temporary restraining order and preliminary injunction. The Court 25 heard oral argument on June 23, 2011. For the reasons discussed below, the Court GRANTS

Plaintiff's motion for substituted service, DENIES Defendants' motions to dismiss, and GRANTS in part and DENIES in part Plaintiff's motion for a temporary restraining order. The Court will 2 hold a preliminary injunction hearing on August 1, 2011.

enterprise resource planning ("ERP") software for financial service companies who provide credit card terminals to merchants. Compl. ¶ 1. ePayware originally existed as a corporation 8 headquartered in San Jose, California. Compl. ¶ 23. However, on October 12, 2009, Plaintiff

I.Background

A.The Parties

Plaintiff Richmond Technologies, doing business as ePayware, is a company that provides Richmond Technologies, Inc. acquired the assets of ePayware. Compl. ¶ 25. Plaintiff contends that 10 pursuant to this acquisition, it became the successor in interest to ePayware's contracts and began 11 doing business as ePayware. Id.

Plaintiff Richmond Technologies is a Georgia corporation, with its principal place of business in Alpharetta, Georgia. Compl. ¶ 13. under the laws of India, with its principal place of business in New Delhi, India. Compl. ¶ 14. India. Id. Shankar Bose is Aumtech India's Chief Executive Officer, and Ila Bose is Aumtech India. Compl. ¶¶ 15-16. company located in Ventura, California. Compl. ¶ 13. Plaintiff describes Aumtech America as "an 21 unincorporated association consisting of Damien Joseph Polito, Jennifer Polito, and the principals 22 of Aumtech i-Solutions Pvt. Ltd (Shankar Bose and Ila Bose)." Compl. ¶ 13. However, Defendants 23 claim that Aumtech America is a newly formed limited liability company, of which Jennifer Polito 24 is the President and Aumtech India is a member. See Decl. of Jennifer Polito ISO Mot. to Dismiss 25 for Improper Venue ("Jennifer Polito Venue Decl.") ¶¶ 4-5, ECF No. 43; Decl. of Shankar Bose 26

Partner and Business Head of Aumtech America, and Ila Bose is Aumtech America's Chief Defendant Aumtech i-Solutions Pvt. Ltd. ("Aumtech India") is a corporation organized Plaintiff alleges that Defendants Shankar and Ila Bose, a married couple, own and manage Aumtech India's Chief Technology Officer. Id. Both Shankar and Ila Bose are Indian nationals residing in Defendant Aumtech Business Solutions ("Aumtech America") is a recently formed ISO Opp'n to Mot. for TRO ("Shankar Bose TRO Decl.") ¶ 4, ECF No. 52. Shankar Bose is Technology Officer. Compl. ¶¶ 15-16. Aumtech America's fictitious business name statement, 2 filed with the Ventura County Recorder, lists Defendant Damian Joseph Polito as owner. Compl. 3

¶ 13. Nonetheless, Damian Polito claims that he works as a prop maker for film production 4 companies and does not hold a position with, or perform work on behalf of, Aumtech America.

Decl.") ¶¶ 4-5. Damian and Jennifer Polito are married and reside in Ventura, California.

Decl. of Damian Joseph Polito ISO Mot. to Dismiss for Improper Venue ("Joseph Polito Venue

B.Contractual Relationships between the Parties

On January 31, 2007, when it was still based in San Jose, ePayware entered into a Memorandum of Understanding ("MoU") with Aumtech India. Compl. ¶ 23; Decl. of Sandeep Menon in Supp. of Pl's Mot. for TRO ("Menon Decl.") ¶ 4 & Ex. A. The MoU created a "Teaming Agreement" pursuant to which Aumtech India developed enterprise resource planning software for 12 ePayware and maintained the enterprise resource planning modules of ePayware's customers.

Compl. ¶ 23; Menon Decl. ¶ 5 & Ex. A at 2-3. Under the terms of the MoU, ePayware agreed to 14 pay Aumtech India a fee of $4,000 per month, to be reassessed after six months, for leasing out the services of Shankar Bose. Menon Decl. Ex. A at 6. The MoU also required Aumtech India to 16 provide weekly progress reports and monthly performance and expense reports to ePayware. Id.

The terms of the MoU limit its scope to a "specific period of twenty-four months," which could be 18 extended if both parties agreed in writing. Id. at 2. described as a Confidentiality and Non-Disclosure Agreement ("Non-Disclosure Agreement" or "NDA"). Menon Decl. ¶ 4 & Ex. B. The Non-Disclosure Agreement contains various provisions 22 that prohibit Aumtech India from disclosing or using confidential information, soliciting 23 ePayware's employees or consultants for one year following Aumtech India's term of employment, 24 or entering into any agreement with ePayware's customers or clients for one year following the term 25 of employment. Menon Decl. Ex. B at 2-3. The Non-Disclosure Agreement also contains a 26 provision by which Aumtech India agreed not to compete with ePayware "with similar product and

On September 15, 2009, ePayware and Aumtech India entered into a second contract or Service using its technology" for a period of one year following Aumtech India's term of 2 employment with ePayware. Id. at 3.

the Complaint, Jennifer Polito joined ePayware as a customer support and help desk executive on Confidentiality and Non-Disclosure Agreement that contained many of the same material terms as 7 the Non-Disclosure Agreement signed by Aumtech India.*fn1 Compl. ¶ 29. Jennifer Polito terminated 8 her employment with ePayware on March 18, 2011. Compl. ¶ 30.

Polito to market Aumtech India's software development and maintenance services directly to 13 ePayware's clients. Compl. ¶ 4. Plaintiff claims that the individual Defendants created Aumtech Compl. ¶¶ 4-5. As part of the preparations, Plaintiff alleges that Aumtech India employees ceased 16 using their ePayware email addresses to correspond with ePayware's customers and instead began 17 using their Aumtech email accounts. Compl. ¶ 6. Plaintiff also contends that Jennifer Polito used 18 three different programs to delete data from the hard drive of her ePayware-issued computer before 19 returning the computer to Plaintiff. Compl. ¶ 30. After Jennifer Polito resigned from ePayware on 20

Compl. ¶ 5. Thereafter, Aumtech America has allegedly offered the same services offered by 22 ePayware and encouraged ePayware's clients to terminate their contracts and sign up with Aumtech 23

FirstPay Solutions, LLC and encouraged FirstPay to switch to Aumtech America. Compl. ¶ 32. 25 26

ePayware also had a contractual agreement with Defendant Jennifer Polito. According to

January 17, 2007. Compl. ¶ 28. Plaintiff claims that on January 17, 2007, Ms. Polito signed a 6

C.Plaintiff's Allegations

In its Complaint, Plaintiff alleges that, beginning sometime in 2010, Defendant Aumtech

India "hatched a plan" with former ePayware employee Jennifer Polito and her husband Damian America in April 2010 and prepared to launch this competing venture over the following year.

March 18, 2011, Plaintiff alleges that she immediately joined Aumtech America as its President.

America. CompL. ¶ 7. Specifically, Plaintiff claims that Jennifer Polito contacted ePayware client

Aumtech America also marketed its services at a trade show in San Diego on May 10-12, 2011.

Compl. ¶ 8. 3

4 development and maintenance agreement with Aumtech India. Menon Decl. ¶ 7. Plaintiff then 5 demanded that Aumtech India release its software source code to Plaintiff so that Plaintiff could 6 transition its software support and development to another vendor. Compl. ¶ 36. Plaintiff claims 7 that it has paid for the software development and maintenance provided by Aumtech India and that 8 it needs the source code in order to fulfill its obligations to its customers. Compl. ¶ 37; Menon 9

On May 16, 2011, after learning of the alleged activities, Plaintiff terminated its software

Decl. ¶ 11. According to Plaintiff, Aumtech India has refused to release the source code unless 10 ePayware first provides a payment of $20,000. Compl. ¶ 36; Menon Decl. ¶ 9.

On May 20, 2011, Plaintiff filed the instant action in the United States District Court for the Northern District of California. The Complaint asserts seven claims for relief: (1) breach of written 13 contract against Aumtech India; (2) breach of written contract against Jennifer Polito; (3) violations 14 of the California Unfair Competition Law, Cal. Bus. & Profs. Code § 17200; (4) intentional 15 interference with contract; (5) negligent interference with contract; (6) declaratory relief against 16

Jennifer Polito and Aumtech India; and (7) unjust enrichment. On May 23, 2011, Plaintiff filed an 17 ex parte motion for a temporary restraining order that would (1) compel Defendant Aumtech India 18 and its principals to release the source code to ePayware, and (2) enjoin Defendants from competing 19 with ePayware in violation of the Non-Disclosure Agreement. The Court denied Plaintiff's motion 20 without prejudice on grounds that Plaintiff had not satisfied the requirements of Federal Rule 65(b) 21 for issuance of a TRO without notice to the adverse party. See Order Denying Ex Parte Motion for 22 TRO Without Prejudice, ECF No. 17. Plaintiff has now provided notice to all parties, and on June 3, 2011, Plaintiff renewed its motion for a TRO and preliminary injunction. Also on June 3, 2011, Defendants moved to dismiss for lack of personal jurisdiction and improper venue, and Plaintiff 25 moved for an order permitting it to serve the India-based defendants by substituted service on their Los Angeles-based counsel. The Court held a hearing on all four motions on June 23, 2011, and 27 will now consider each in turn.

II.Motion to Dismiss for Lack of Personal Jurisdiction

A.Legal Standard

Defendants Aumtech India, Shankar Bose, and Ila Bose (collectively, the "Indian Defendants") move to dismiss pursuant to Rule 12(b)(2) on grounds that the Court lacks personal 5 jurisdiction over each of them.*fn2 When a defendant moves to dismiss for lack of personal 6 jurisdiction, "the plaintiff bears the burden of demonstrating that jurisdiction is appropriate." 7

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Because this Court 8 has not conducted an evidentiary hearing, Plaintiff "need only make a prima facie showing of 9 jurisdictional facts." Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990). At this stage of the 10 proceeding, uncontroverted facts contained in the Complaint are taken as true, and "[c]onflicts between parties over statements contained in affidavits must be resolved in the plaintiff's favor."

Schwarzenegger, 374 F.3d at 800. 13

Where, as here, there is no federal statute that governs personal jurisdiction, the Court must apply the law of the state in which it sits. Schwarzenegger, 374 F.3d at 800. In this case, "[b]ecause California's long-arm jurisdictional statute is coextensive with federal due process 16 requirements, the jurisdictional analyses under state law and federal due process are the same." Id. 17 at 800-01. That is, for this Court to exercise personal jurisdiction over the Indian Defendants, each Defendant "must have at least 'minimum contacts' with the relevant forum such that the exercise of 19 jurisdiction 'does not offend traditional notions of fair play and substantial justice.'" Id. at 801

exercise either general or specific jurisdiction over a non-resident defendant. General jurisdiction 2 exists where a defendant has "continuous and systematic" contacts with the forum state such that 3 the defendant may be "haled into court in the forum state to answer for any of its activities 4 anywhere in the world." Schwarzenegger, 374 F.3d at 801. Specific jurisdiction is more limited in 5 scope and can be exercised where the defendant has sufficient minimum contacts with the forum 6 state, and the plaintiff's claims arise out of those contacts. Id. at 801-02.

B.Analysis

In this case, Plaintiff does not allege that the Court has general personal jurisdiction over the Indian Defendants. Accordingly, the Court need determine only whether it can exercise specific 10 personal jurisdiction over these Defendants. The Ninth Circuit has developed a three-prong test for

analyzing claims of specific personal jurisdiction:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform

some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Schwarzenegger, 374 F.3d at 802. The plaintiff bears the burden of establishing the first two prongs 18 of the test. Id. "If the plaintiff succeeds in satisfying both of the first two prongs, the burden then 19 shifts to the defendant to 'present a compelling case' that the exercise of jurisdiction would not be 20 reasonable." Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-78 (1985)).

jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or of the unilateral 24 activity of another party or a third person." Yahoo! Inc. v. La Ligue Contre Le Racisme Et Typically, a "purposeful availment" analysis is used in cases sounding in contract, while a

1.Purposeful Availment

The first prong of the Ninth Circuit's test "ensures that a defendant will not be haled into a L'Antisemitisme, 379 F.3d 1120, 1124 (9th Cir. 2004) (quoting Burger King, 471 U.S. at 475).

"purposeful direction" analysis is more often used in cases sounding in tort. Schwarzenegger, 374 F.3d at 802. Here, although some of Plaintiff's claims sound in tort, they all arise out of the 2

Defendants' contractual relationship with ePayware. Accordingly, the Court will apply a 3 purposeful availment analysis in evaluating Defendants' contacts with California. See Sher,

F.2d at 1362 (applying purposeful availment analysis where some of plaintiff's claims sounded in 5 tort, but all arose out of a contractual relationship

8 conducting activities in California by entering into a continuing contractual relationship with 9 ePayware, which was based in San Jose, California. The Court agrees that Aumtech India's 10 business relationship with ePayware establishes sufficient minimum contacts for the exercise of U.S. at 478 ("If the question is whether an individual's contract with an out-of-state party alone can 14 automatically establish sufficient minimum contacts in the other party's home forum, we believe the 15 answer clearly is that it cannot."). However, it is also true that jurisdiction "may not be avoided 16 merely because the defendant did not physically enter the forum State." Id. at 476. Rather, the 17

Court must take a "highly realistic approach" and evaluate factors such as "prior negotiations and 18 contemplated future consequences, along with the terms of the contract and the parties' actual 19 course of dealing" to determine whether the Aumtech India has sufficient contacts with California 20 to support the exercise of specific personal jurisdiction. Id. at 479. 21

contemplated ongoing obligations to ePayware, its employees, and its customers in California.

Although Aumtech India performed its obligations from its offices in New Delhi, India, the MoU 24 required weekly and monthly reports to ePayware in California. Menon Decl. Ex. A at 6. The 25

Defendants have acknowledged that at least some of ePayware's clients are based in California. See 27

a.Aumtech India's Contacts

Plaintiff argues that Defendant Aumtech India purposefully availed itself of the privilege of specific personal jurisdiction. Defendants are correct, of course, that a contract alone does not automatically establish minimum contacts supporting personal jurisdiction. See Burger King, 471 13

In this case, Aumtech India entered into a business relationship with ePayware that

MoU also required Aumtech India to provide tech support its U.S.-based clients, id. at 5, and 26

Jennifer Polito Venue Decl. ¶ 11 (stating that ePayware had clients "in Southern California, including Intuit, International Processing Solutions, Cardready and APPS"). Moreover, it appears 2 that even after ePayware was acquired by Richmond Technologies, which is based in Georgia, 3

Aumtech India continued to work closely with California-based ePayware employee Jennifer Polito 4 to identify client needs and customize software accordingly. See Compl. ¶ 28 (noting that after the 5

2009 acquisition, Jennifer Polito "interfaced with clients to gather their business and technical 6 requirements and worked with Aumtech India to customize the software to fulfill these 7 requirements"). 8

9 choice-of-law clause providing that the agreement "is governed exclusively by and construed in 10 accordance with the law of the State of California." Menon Decl. Ex. A at 3, ¶ 11. While such a 11 choice-of-law provision, standing alone, is not sufficient to conf

12 support to Plaintiff's contention that Aumtech India deliberately affiliated itself with California and 13 that the possibility of litigation in California should have been reasonably foreseeable. See Burger 14

King, 471 U.S. at 482 (finding that a choice-of-law provision, when combined with a long-standing 15 relationship with the forum state, "reinforced [the defendant's] deliberate affiliation with the forum 16

Aumtech India is alleged to have breached provisions of these contracts by joining with California 18 resident Jennifer Polito to form a company organized under California laws. Based on these facts, 19 the Court finds that Aumtech India purposefully availed itself of the privilege of conducting 20 activities in California and created "continuing obligations" to California residents sufficient to 21 establish the minimum contacts required for personal jurisdiction. See Burger King, 471 U.S. at 22

475-76 ("where the defendant . . . has created 'continuing obligations' between himself and 23 residents of the forum, he manifestly has availed himself of the privilege of conducting business 24 there") (citation omitted).

is not subject to personal jurisdiction based on acts undertaken in his or her corporate capacity.

Additionally, the Non-Disclosure Agreement signed by Aumtech India in 2009 includes a er jurisdiction, it lends further

State and the reasonable foreseeability of possible litigation there"). Finally, it is significant that 17

b.Shankar and Ila Bose's Contacts

As to Defendants Shankar and Ila Bose, Defendants are correct that generally an individual Club Car, Inc. v. Club Car (Quebec) Import, Inc.,362 F.3d 775, 784 (11th Cir. 2004), abrogated on 2 other grounds as recognized by Diamond Crystal Brands, Inc. v. Food Movers Intern., Inc.,593 3

520 (9th Cir. 1989) ("a person's mere association with a corporation that causes injury in the forum 5 state is not sufficient in itself to permit that forum to assert jurisdiction over the person"). 6

Defendants do not dispute that Shanka and Ila are the principals of Aumtech India. However, the 7 corporation has approximately 10 employees, Compl. ¶ 14, and Plaintiff has not argued that 8

Shankar. See Flynt Distributing Co., Inc. v. Harvey,734 F.2d 1389, 1393-94 (9th Cir. 1984)

Aumtech India, Ila and Shankar cannot be subject to personal jurisdiction based solely upon

(finding personal jurisdiction over corporation's president because his contacts "went beyond his 16 visits to the state as CCQ president" and because he stood to gain personally from an agreement he 17 induced by personally guaranteeing the corporation's debts). 18

On the other hand, where individual defendants are "primary participants in an alleged

19 wrongdoing," their status as employees of a corporation "does not somehow insulate them from 20 jurisdiction." Calder v. Jones, 465 U.S. 783, 790 (1984); see also Wolf Designs, Inc. v. DHR Co., 21

322 F. Supp. 2d 1065, 1072 (C.D. Cal. 2004) (stating that the corporate form may be ignored for 22 purposes of personal jurisdiction "by virtue of the individual's control of, and direct participation in 23 the alleged activities"). Here, Plaintiff has alleged that Shankar and Ila Bose were primary 24 participants in orchestrating the alleged breach and interference with Aumtech India's contracts. 25

California in order to form a new business relationship with California resident Jennifer Polito and 27 to organize a new company under California law. It is clear that Shankar and Ila hold "core

F.3d 1249, 1258 & n.7 (11th Cir. 2010); see also Davis v. Metro Productions, Inc., 885 F.2d 515, 4

Aumtech India has no separate existence such that it might be treated as the alter ego of Ila and 9

(indicating that where a corporation is the alter ego of its owners, jurisdiction over the corporation

supports jurisdiction over the owners). Thus, the Court agrees with Defendants that, absent facts suggesting that Ila and Shankar's contacts with ePayware went beyond their contacts as officers of 13

Aumtech India's contractual relationship with ePayware. See Club Car,362 F.3d at 784-85 15

More importantly, Plaintiff has alleged that Shankar and Ila Bose affirmatively reached out to management" positions in Aumtech America as Partner/Business Head and Chief Technology 2

Officer, respectively. See Decl. of Shirish Gupta ISO Mot. for TRO ¶ 4 & Ex. L. Defendants have 3 not denied that Shankar and Ila were primary participants in creating Aumtech America. Thus, by 4 taking the lead role in forming a business relationship with a California resident and forming a 5 business entity organized under California law, Shankar and Ila Bose have purposefully availed 6 themselves of the privilege of conducting activities in California and invoked the benefits and 7 protections of its laws. Based on these facts, Plaintiff has made a prima facie showing sufficient to 8 satisfy the first prong of the Ninth Circuit's test for specific personal jurisdiction.

2.Arising Out of Forum-Related Activities

As to the second prong of the test, the Court finds that Plaintiff's claims arise out of and activities. In determining whether a plaintiff's relate to the Indian Defendants' California-related 12 claims arise out of the defendant's forum-related activities, the Ninth Circuit applies a "but-for" 13 test. Menken v. Emm, 503 F.3d 1050, 1058 (9th Cir. 2007). That is, but for the Indian Defendants' 14 contacts with California, would Plaintiff's claims against Aumtech India have arisen? See Mattel, 15

Plaintiff's claims allege either breach of contract or tortious interference with contract. These 17 claims are based on the contractual relationships described above and could not have arisen but for 18

America. Had Aumtech India not entered into contracts with then California-based ePayware, the 20 basis for Plaintiff's claims simply would not exist. Likewise, had Ila and Shankar Bose not availed 21 themselves of California law in order to form a company with California resident Jennifer Polito, 22

Plaintiff would have no claims against them. Thus, Plaintiff has shown that its claims arise out of 23 the Indian Defendants' contacts with California.

personal jurisdiction, the burden shifts to Aumtech India to present a compelling case that the 27 exercise of personal jurisdiction would be unreasonable. Schwarzenegger, 374 F.3d at 802. In 28Inc. v. Greiner and Hausser GmbH, 354 F.3d 857, 864 (9th Cir. 2003). In this case, the majority of Aumtech India's contacts with California residents ePayware, Jennifer Polito, and Aumtech

3.Reasonableness

Because Plaintiff has satisfied the first two prongs of the Ninth Circuit's test for specific evaluating the reasonableness of exercising jurisdiction, courts consider factors such as "the extent 2 of defendant's purposeful interjection into the forum state; the burden on the defendant; the 3 plaintiff's interest in convenient and effective relief; the most efficient forum for judicial resolution 4 of the dispute; the forum state's interest in adjudicating the dispute; and the extent of the conflict 5 with the sovereignty of the defendant's state." Sher, 911 F.2d at 1364. 6

7 their contacts with California are not sufficient to justify the "unreasonable burden" of requiring 8 them to litigate 8,000 miles away from their place of residence. Reply ISO of Mot. to Dismiss for 9

In arguing that the exercise of jurisdiction would be unreasonable, Defendants state only that

Lack of Personal Jurisdiction at 1. However, the Ninth Circuit has recognized that "modern 10 advances in communications and transportation have significantly reduced the burden of litigating 11 in another country."

12 in order to satisfy their burden to present a "compelling case" against jurisdiction, Defendants must 13 do more than simply claim, without elaboration, that litigation in a distant country presents an 14 unreasonable burden.*fn3 Defendants have not alleged that litigation in California would present a 15 serious financial or physical hardship, nor have they suggested that India or some other state has a 16 greater interest in the litigation or would provide a more efficient forum for resolving the dispute. 17

Plaintiff's claimed interest in avoiding immediate and irreparable harm, the factors in the 19 reasonableness analysis appear to favor the exercise of jurisdiction in this case. Thus, the Court 20 finds that Defendants have not satisfied their burden to "to 'present a compelling case' that the 21 exercise of jurisdiction would not be reasonable." Schwarzenegger, 374 F.3d at 802. 22

Sinatra v. National Enquirer, Inc., 854 F.2d 1191, 1199 (9th Cir. 1988). Thus, Given the degree of purposeful interjection involved in starting a company in California, and Based on the foregoing analysis, Plaintiff has made a prima facie showing that the Indian Defendants are subject to personal jurisdiction in this Court. As the Indian Defendants have failed 3 to show that the exercise of personal jurisdiction would be unreasonable, the motion to dismiss for 4 lack of personal jurisdiction is DENIED.

8 complaint for improper venue. Once the defendant has challenged the propriety of venue in a given 9 court, the plaintiff bears the burden of showing that venue is proper. Piedmont Label Co. v. Sun 10 pursuant to Rule 12(b)(3), a court need not accept the pleadings as true and may consider facts outside of the pleadings. Murphy v. Schneider National, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004).

Pursuant to 28 U.S.C. § 1406(a), if the court determines that venue is improper, the court must 14 either dismiss the action or, if it is in the interests of justice, transfer the case to a district or division 15 in which it could have been brought. Whether to dismiss for improper venue, or alternatively to 16 transfer venue to a proper court, is a matter within the sound discretion of the district court. See 17

King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992).18

District of California, for improper venue.*fn4 Because subject matter jurisdiction in this case is based 22 on diversity of citizenship, venue is governed by 28 U.S.C. § 1391(a). Under § 1391(a), a civil 23 action may be brought: 24

III. Motion to Dismiss for Improper Venue

A.Legal Standard

Under Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss a

Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). When considering a motion to dismiss

B.Analysis

Defendants Jennifer Polito, Damian Polito, and Aumtech America (collectively, the

"American Defendants") have moved to dismiss, or in the alternative to transfer to the Central 21

only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or

omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any

defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

In addition, § 1391(d) provides that "[a]n alien may be sued in any district." This provision reflects 6 the "long-established rule" that suits against "aliens," or persons not residing in the United States,

"are wholly outside the operation of all the federal venue laws." Brunette Mach. Works, Limited v. 8

Kockum Industries, Inc., 406 U.S. 706, 714 (1972). Accordingly, the residence of foreign 9 defendants, including the Indian Defendants in this case, is typically disregarded for purposes of 10 determining venue. See 14D Wright and ...


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