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Nibirutech Ltd. v. Jang

United States District Court, N.D. California

December 2, 2014

ANDREW JANG, et al., Defendants

Page 1077

For Nibirutech Ltd, A China Corporation, Plaintiff: Christopher Luis Aguilar, LEAD ATTORNEY, Aguilar Legal & Business Consulting Corp., San Francisco, CA; Howard B Rockman, Yanling Jiang, PRO HAC VICE, Howard B. Rockman P.C., Chicago, IL.

For Andrew Jang, Individually and in the Official Capacity, Maggie Jang, Individually and in the Official Capacity, HJClan Inc, A California Corporation, Defendants: Michael George Wah Lee, LEAD ATTORNEY, Attorney at Law, San Francisco, CA.

Page 1078


PHYLLIS J. HAMILTON, United States District Judge.

Defendants' motion to dismiss the above-entitled action came on for hearing before this court on November 12, 2014. Plaintiff appeared by its counsel Sophia Jiang, Howard Rockman, and Christopher Aguilar; and defendants appeared by their counsel Michael Lee. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby DENIES the motion as follows.


Plaintiff NibiruTech Ltd. (" NibiruTech" ), a Chinese company located in Chengdu, Sichuan Province, People's Republic of China (" PRC" ), develops and builds mobile video games based on Android and iOS operating systems.

Defendants Andrew Jang and Maggie Jang both reside in California, and defendant HJClan, Inc. (" HJClan" ) is a California corporation with its principal place of business in Millbrae, California. NibiruTech alleges that HJClan is " owned" by Maggie Jang.

Page 1079

At some point in 2011 or 2012, NibiruTech hired Andrew Jang, a United States citizen, to serve as its marketing director in China. When he was hired by NibiruTech, Andrew Jang was enrolled in (or had just completed) an MBA program at a Chinese university.

NibiruTech alleges that Andrew Jang was authorized to select and hire third-party vendors on behalf of NibiruTech, and that he conspired with Maggie Jang to create fictitious invoices and to cause NibiruTech to issue checks to HJClan. NibiruTech asserts that Andrew Jang caused some $818,833 to be unlawfully diverted to HJClan -- money that NibiruTech had intended for its third-party vendors and service providers in the United States and Europe.

NibiruTech filed the complaint in this action on July 8, 2014, asserting four causes of action -- breach of fiduciary duty (against Andrew Jang), fraud (against Andrew Jang and Maggie Jang), civil conspiracy (against all three defendants), and conversion (against all three defendants). NibiruTech seeks recovery of the $813,833, plus $5 million in punitive damages.

Defendants now seek an order dismissing the complaint pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue, or in the alternative, dismissing the complaint for forum non conveniens.


A. Legal Standard

Rule 12(b)(3) and 28 U.S.C. § 1406(a) allow for dismissal when venue is " wrong" or " improper." Atlantic Marine Constr. Co. v. United States Dist. Court, 134 S.Ct. 568, 577, 187 L.Ed.2d 487 (2013). Whether venue is " wrong" or " improper" depends on whether the court in which the case was brought satisfies the requirements of federal venue laws; the existence of a forum selection clause does not render venue in a court " wrong" or " improper" under those rules. Id. at 578-79.

" [T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens." Id. at 580. If dismissal under forum non conveniens is appropriate, the court need not address other grounds for dismissal. See Fine v. Cambridge Int'l Sys., 584 F.App'x 695, 2014 WL 4214416 at * (9th Cir. Aug. 27, 2014) (citing Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 425, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007)). In general, " [a] district court has discretion to decline to exercise jurisdiction in a case where litigation in a foreign forum would be more convenient for the parties." Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)). Once a district court determines that the appropriate forum is located in a foreign country, the court may dismiss the case. Cheng v. Boeing Co., 708 F.2d 1406, 1409 (9th Cir. 1983).

Before dismissing an action based on forum non conveniens, district courts analyze whether an adequate alternative forum exists, and whether the balance of private and public interest factors favors dismissal. Lueck, 236 F.3d at 1142; see also Gutierrez v. Advanced Medical Optics, Inc., 640 F.3d 1025, 1029 (9th Cir. 2011).

The " private interest" factors include the plaintiff's choice of forum, the residence of the parties and witnesses, the ease of access to evidence, the availability of compulsory process, and the cost of transporting witnesses. See Boston Telecom. Group, Inc. v. Wood, 588 F.3d 1201, 1206-07

Page 1080

(9th Cir. 2009). The " public interest" factors include court congestion, imposition of jury duty on the community, local interest in resolving the controversy, the interest in having a diversity case decided in the forum familiar with the relevant law, and avoiding conflicts of law problems. See Gemini Capital Group v. Yap Fishing Corp., 150 F.3d 1088, 1094 (9th Cir. 1998).

B. Defendants' Motion

Defendants argue that the case should be dismissed pursuant to Rule 12(b)(3) for improper venue based on the forum-selection clause in Andrew Jang's employment agreement. In the alternative, they assert that the case should be dismissed under the doctrine of forum non conveniens.

In Atlantic Marine, the Supreme Court held that a party may not enforce a forum-selection agreement under 28 U.S.C. § 1406(a) or Federal Rule of Civil Procedure 12(b)(3), because the agreement to that forum means the forum is not improper. Where the proposed forum is another federal court, the appropriate mechanism is a motion to transfer under the doctrine of forum non conveniens, ordinarily analyzed under the factors applicable to a motion to transfer under 28 U.S.C. § 1404(a). Id., 134 S.Ct. at 580. Where the proposed alternative forum is another country, the court's discretion under the doctrine of forum non conveniens is limited to staying or dismissing ...

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