Randhawa v. Skylux, Inc., et al.

Filing 174

ORDER signed by Senior Judge William B. Shubb on 3/16/2013 ORDERING that STPL's 164 motion to dismiss for lack of personal jurisdiction is DENIED. The court DECLINES to enter final judgment in favor of defendants Puzhakkaraillath and Skylux at this time. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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MOHIT RANDHAWA aka HARPAL
SINGH, and SHANNON CALLNET PVT
LTD,

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Plaintiffs,

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NO. CIV. 2:09-02304 WBS DAD

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS AND PROPOSED
ORDER FOR FINAL JUDGMENT

v.
SKYLUX INC.; INTERACTIVE
INTELLIGENCE, INC.; MUJEEB
PUZHAKKARAILLATH; SKYLUX
TELELINK PVT LTD; and DOES 1
through 20, inclusive,
Defendants.

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----oo0oo---This matter is again before the court on defendant

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Skylux Telelink PVT, LTD’s (“STPL”) motion to dismiss plaintiff

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Shannon Callnet’s single remaining claim against it in the Sixth

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Amended Complaint (“Sixth AC”) pursuant to Federal Rule of Civil

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Procedure 12(b)(2) for lack of personal jurisdiction.

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Mujeeb Puzhakkaraillath (“Puzhakkaraillath”) and Skylux, Inc.

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(“Skylux”) have also filed a Proposed Order for Final Judgment

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seeking final judgment in their favor after the court dismissed
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Defendants

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the sole claim against them in the Sixth AC, (January 16, 2013

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Order (Docket No. 161)).

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I.

(Docket No. 162.)

Motion to Dismiss for Lack of Personal Jurisdiction

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Plaintiffs’ general allegations have been set out in

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previous orders, including the October 26, 2012 Order, (Docket

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No. 148), and will not be repeated here.

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dismissed the majority of plaintiffs’ claims in the Sixth AC,

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(January 16, 2012 Order), the only remaining claim in the case is

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a breach of implied warranty of fitness and merchantability

After the court

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asserted by Shannon Callnet against STPL.

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company, argues that the court lacks personal jurisdiction over

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it for the sale of software to Shannon Callnet, also an Indian

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company, in the setup and running of a call center business in

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India.

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Callnet argues that STPL has waived the defense of lack of

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personal jurisdiction.

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STPL, an Indian

(Pls.’ Mem. at 3 (Docket No. 164).)

In response, Shannon

(Defs.’ Opp’n at 1 (Docket No. 168).)

Federal Rule of Civil Procedure 12(h)(1) provides that

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the defense of lack of personal jurisdiction is waived by “(A)

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omitting it from a motion in the circumstances described in Rule

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12(g)(2); or (B) failing to either: (i) make it by motion under

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this rule; or (ii) include it in a responsive pleading . . . .”

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Fed. R. Civ. P. 12(h)(1).

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that makes a motion under this rule must not make another motion

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under this rule raising a defense or objection that was available

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to the party but omitted from its earlier motion.”

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Rule 12(g)(2) provides that “a party

Id. 12(g)(2).

“[A] general appearance or responsive pleading by a

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defendant that fails to dispute personal jurisdiction will waive

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any defect in service or personal jurisdiction.”
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Benny v. Pipes,

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799 F.2d 489, 492 (9th Cir. 1986).

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Federal Rules of Civil Procedure is that certain defenses under

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[Rule 12] must be raised at the first available opportunity or,

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if they are not, they are forever waived.”

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Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1106 (9th

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Cir. 2000).

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“A fundamental tenet of the

Am. Ass’n of

Here, plaintiffs first included STPL in their pleadings

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on January 6, 2010, when plaintiffs alleged various breach of

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contract, misrepresentation, and breach of warranty claims

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against STPL in their Second Amended Complaint (“Second AC”).

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(Docket No. 45.)

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dismiss a misrepresentation claim against defendants and joined

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in defendant Interactive’s motion to transfer venue.

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51.)

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time, nor did STPL assert lack of personal jurisdiction in

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subsequent motions to dismiss.

Defendants, including STPL, filed a motion to

(Docket No.

STPL did not argue a lack of personal jurisdiction at that

(Docket Nos. 90, 143, 153.)

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STPL’s argument that the defense of personal

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jurisdiction was not available to it due to the court’s December

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21, 2009 Order finding personal jurisdiction over

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Puzhakkaraillath and Skylux on similar claims, (Docket No. 37),

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is unpersuasive.

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“[p]ersonal jurisdiction over each defendant must be analyzed

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individually,” Brainerd v. Governors of the Univ. of Alberta, 873

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F.2d 1257, 1258 (9th Cir. 1989) (citing Calder v. Jones, 465 U.S.

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783, 790 (1984)), and STPL could have argued lack of personal

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jurisdiction in good faith despite the court’s holding as to

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Puzhakkaraillath and Skylux.

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defense of lack of personal jurisdiction.

This argument ignores the general rule that

STPL has accordingly waived the

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II.

Proposed Order for Final Judgment for the Remaining
Defendants

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On January 16, 2013, this court dismissed with

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prejudice plaintiff’s claim for unfair competition under

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California Business and Professions Code section 17200 against

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defendants STPL, Puzhakkaraillath, and Skylux.

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Order at 8 (Docket No. 161).)

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defendants Puzhakkaraillath and Skylux in the Sixth AC.

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54(b) counsels that in actions involving multiple claims or

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multiple parties, district courts “may direct the entry of a

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final judgment as to one or more but fewer than all of the claims

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or parties” upon a determination that there was 1) a “final

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judgment” and 2) there is “no just reason for delay.”

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Civ. P. 54(b); Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S.

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1, 7-8 (1980); Cont’l Airlines, Inc. v. Goodyear Tire & Rubber

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Co., 819 F.2d 1519, 1524 (9th Cir. 1987).

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(Jan. 16, 2013

This was the sole claim against
Rule

Fed. R.

A “final judgment” must be a judgment in the sense that

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it is a decision upon a cognizable claim for relief, and it must

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be final in the sense that it is an “ultimate disposition of an

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individual claim in the course of a multiple claims action.”

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Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956).

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January 16, 2013 Order dismissing the sole claim against

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Puzhakkaraillath and Skylux satisfies Rule 54(b)’s finality

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requirement.

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The

In evaluating whether there is any just reason for

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delay, it is the district court’s function to determine the

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proper time when each final decision is ready for appeal, given

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judicial administrative interests as well as the equities
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involved.

See Curtiss-Wright Corp., 446 U.S. at 8.

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court may consider factors such as “whether the claims under

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review were separable from the others remaining to be

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adjudicated” as well as “whether the nature of the claims already

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determined is such that no appellate court would have to decide

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the same issues more than once even if there were subsequent

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appeals.”

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the district court” to make this determination.

Id.

A district

“It is left to the sound judicial discretion of
Id.

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In their dismissed unfair competition claims,

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plaintiffs broadly alleged fraudulent action in the negotiations

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over the MOU, in the call center’s operations, and in the buying

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of the calling center software.

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Here, the sheer scope of that claim will involve factual

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allegations that are also involved in Shannon Callnet’s remaining

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claim against STPL for breach of implied warranty for the call

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center software.

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Puzhakkaraillath and Skylux is therefore not “sufficiently

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severable factually and legally from the remaining matters” to

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warrant appeal.

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the court will not enter final judgment in favor of

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Puzhakkaraillath and Skylux at this time.

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(Jan. 16, 2013 Order at 5).

The unfair competition claim against

Cont’l Ailrines, 819 F.2d at 1525.

Accordingly,

IT IS THEREFORE ORDERED that STPL’s motion to dismiss

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for lack of personal jurisdiction be, and the same hereby is,

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DENIED.

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defendants Puzhakkaraillath and Skylux at this time.

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DATED:

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The court declines to enter final judgment in favor of

March 16, 2013
_________________________________________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE

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