75 F. Supp. 3d 1076
N.D. Cal.2014Background
- Plaintiff NibiruTech Ltd., a Chinese mobile-game developer based in Chengdu, sued three California defendants (Andrew Jang, Maggie Jang, and HJClan, Inc.) for breach of fiduciary duty, fraud, civil conspiracy, and conversion, seeking ≈ $813,833 plus punitive damages.
- NibiruTech alleges Andrew Jang (hired as marketing director in China) conspired with Maggie Jang to create fictitious invoices and divert funds to HJClan.
- Defendants moved to dismiss for improper venue under Rule 12(b)(3) based on a forum-selection clause in Jang’s employment agreement, or alternatively for forum non conveniens in favor of Chinese courts.
- The employment agreement contains an Article 10 arbitration/negotiation clause in Chinese with competing English translations offered by the parties (one on the contract, one by defendants’ expert).
- Defendants submitted an expert (Prof. Anna Han) opining Chinese courts are adequate, have jurisdiction, and that Chinese law would apply; plaintiff disputed personal jurisdiction, adequacy of remedy, and applicability/scope of the forum clause.
- The court denied dismissal: it found unresolved questions about the clause’s scope and translation and concluded defendants failed to prove China is an adequate alternative forum because they did not show personal jurisdiction over all defendants or their unequivocal consent to Chinese jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability/scope of forum‑selection clause | Clause is limited, applies only to employment disputes and does not mandate Chengdu arbitration; English translation in contract governs. | Clause broadly covers disputes and points to Chengdu arbitration per expert translation. | Denied: defendants failed to meet burden; clause scope and translation unresolved, and likely does not bind all defendants. |
| Proper procedural vehicle to enforce foreign forum clause | (implicit) dismissal under forum non conveniens acceptable. | Invoked Rule 12(b)(3) and forum‑selection clause to dismiss for improper venue. | Court rejects Rule 12(b)(3) argument per Atlantic Marine; analyzes under forum non conveniens standards. |
| Adequacy of China as alternative forum | China lacks personal jurisdiction over all defendants; defendants have not consented to Chinese jurisdiction; remedy/enforceability concerns. | Chinese courts are adequate, can exercise jurisdiction, permit service abroad, and award monetary relief. | Denied: defendants did not prove China is adequate alternative because they failed to show personal jurisdiction/consent for all defendants or enforceability. |
| Forum non conveniens balancing (private & public factors) | Factors (some witnesses/documents in U.S.; California interest in fraud by its residents) favor keeping case here. | Most evidence/witnesses located in China, expense/compulsory process issues, and stronger Chinese public interest favor dismissal. | Mixed: private and public factors overall favor dismissal, but dismissal improper absent adequate alternative forum—motion denied. |
Key Cases Cited
- Atlantic Marine Constr. Co. v. United States Dist. Court, 571 U.S. 49 (2013) (forum‑selection clauses are enforced via forum non conveniens analysis when they point to a foreign forum)
- Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007) (district court may dismiss on forum non conveniens grounds without addressing merits)
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (standards for forum non conveniens and adequacy of alternative forum)
- Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001) (forum non conveniens framework and choice‑of‑law discussion)
- Dole Food Co. v. Watts, 303 F.3d 1104 (9th Cir. 2002) (forum non conveniens is exceptional and applied sparingly)
- Carijano v. Occidental Petroleum Corp., 643 F.3d 1216 (9th Cir. 2011) (standard for adequacy of alternative forum and deference to foreign plaintiff’s choice of forum)
- Boston Telecom. Group, Inc. v. Wood, 588 F.3d 1201 (9th Cir. 2009) (private‑interest factors and presumption in favor of plaintiff’s chosen forum)
- Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983) (dismissal permitted where appropriate foreign forum exists and is more convenient)