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Faizal Awadan v. Davison Design & Development Inc

September 14, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


The instant action, originally filed by plaintiff Faizal Awadan in San Joaquin County Superior Court, was removed to this court by defendant Davison Design & Development, Inc. on July 31, 2012, on grounds of diversity jurisdiction. (Dkt. No. 1.)*fn1 On August 6, 2012, defendant filed a motion to dismiss the action for improper venue pursuant to Fed. R. Civ. P. 12(b)(3), noticed for hearing on September 13, 2012. (Dkt. No. 11.) Plaintiff filed an opposition to the motion, and defendant filed a reply brief. (Dkt. Nos. 14, 22.) On August 15, 2012, plaintiff also filed a motion to remand the case to state court, which was not noticed for hearing. (Dkt. No. 18.) Defendant then filed an opposition to the motion to remand. (Dkt. No. 20.)

Additionally, on September 7, 2012, plaintiff filed a motion to continue the September 13, 2012 hearing on defendant's motion to dismiss for 60 days. (Dkt. No. 24.)

At the September 13, 2012 hearing, plaintiff, who is proceeding without counsel, represented himself, and attorney James Wilkins appeared via telephone on behalf of defendant. The undersigned has fully considered the parties' briefs, the parties' oral arguments, and appropriate portions of the record.*fn2 For the reasons that follow, the court denies plaintiff's motion to continue the hearing on defendant's motion to dismiss. The undersigned also recommends that plaintiff's motion to remand be denied and that defendant's motion to dismiss the action for improper venue be granted.


The background facts are primarily taken from plaintiff's state court complaint attached to the notice of removal. (Dkt. No. 1.) Plaintiff, a resident of Stockton, California, invented a wireless stun gun named the "Faizer," which was designed to work like a Taizer, but without the use of wires and without limiting the user to a single shot. (Dkt. No. 1 at 5-6.) After obtaining a provisional patent, plaintiff submitted the idea to defendant, a Pittsburgh, Pennsylvania-based invention promotion firm, to develop a working prototype or product sample to be marketed to a third party business for manufacture and sale. (Dkt. No. 1 at 5-6, 9.) Defendant provided plaintiff with a cost estimate for developing the product sample, and the parties ultimately signed a written contract, the "New Product Sample Agreement" (a copy of which is attached to plaintiff's complaint), memorializing their agreement. (Dkt. No. 1 at 6, 42-50.) The contract contained a forum selection clause, which stated: This Agreement shall be governed by the law of the Commonwealth of Pennsylvania and is deemed to be executed, entered into and performed in Pittsburgh, Pennsylvania. For any dispute arising from this Agreement, the parties agree to seek to resolve the dispute or controversy through good faith negotiation. The sole jurisdiction for the submission of disputes not resolved through good faith negotiation is Allegheny County, Pennsylvania. (Dkt. No. 1 at 50.)

Plaintiff alleges that after he made full payment under the contract, it became difficult to reach persons at defendant's business. (Dkt. No. 1 at 6.) According to plaintiff, when he eventually received a design from defendant, defendant's design (a baton with a stun gun at the tip of the baton) was not even remotely close to plaintiff's original design (a wireless stun gun). (Dkt. No. 1 at 7-8.) Plaintiff claims that he signed the contract with the understanding that the Faizer would be built primarily according to his original design, with a few minor changes to the design. (Dkt. No. 1 at 8.) Plaintiff further alleges that when he insisted that the product be built the way plaintiff designed it, defendant's president, Frank Vescio, informed plaintiff that they would have to re-quote the work. (Dkt. No. 1 at 7.) However, plaintiff was then later allegedly notified by defendant that it could not build the product per plaintiff's original design. (Id.)

Plaintiff contends that defendant intended to defraud him from the beginning and never intended to build the Faizer as designed. (Dkt. No. 1 at 8.) Plaintiff also claims that defendant deliberately and fraudulently withheld vital information as to the design of the Faizer, which would have made plaintiff look elsewhere for prototype development. (Id.) He alleges that as a result of defendant's "scam" and unfair business practices, his provisional patent has now expired, thereby purportedly leaving his design worthless. (Id.) Defendant disputes plaintiff's interpretation of the contract and his allegations concerning defendant's performance under the contract.

In plaintiff's complaint, he asserts various claims for fraud, misrepresentation and deceit, and deceptive business practices. (Dkt. No. 1 at 9.) Plaintiff seeks dissolution of the contract, actual damages of $12,000, damages for lost profits of $100 million, punitive damages of $100 million, interest, and court costs. (Dkt. No. 1 at 9-10.)


Before turning to defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(3), the court first addresses plaintiff's motion to remand the action to state court.

Plaintiff's Motion to Remand

28 U.S.C. § 1441(a) provides that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."

In this case, the action was originally filed in the Superior Court for the County of San Joaquin, which falls within this federal district and division. (Dkt. No. 1 at 5.) As noted above, removal was premised on the court's original diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), which states that "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between --(1) citizens of different States...." 28 U.S.C. § 1332(a)(1). (Dkt. No. 1 at 2.) The operative complaint alleges an amount in controversy exceeding $75,000, plaintiff is alleged to reside in California, and defendant is alleged to be based out of Pennsylvania. (Dkt. No. 1 at 5, 9-10.) As such, the notice of removal asserted that there was complete diversity of citizenship, that the amount in controversy requirement was satisfied, and that the action was otherwise removable under 28 U.S.C. § 1441(b)(2),*fn3 because defendant is not a citizen of California. (Dkt. No. 1 at 2.) Finally, the notice of removal asserted that removal ...

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