Randhawa v. Skylux, Inc., et al.

Filing 192

MEMORANDUM AND ORDER RE: MOTION TO DISMISS FOR FORUM NON CONVENIENS AND MOTION TO REQUIRE BOND signed by Senior Judge William B. Shubb on 7/3/13 ORDERING that defendant's motion to dismiss be, and the same hereby is, GRANTED; anddefendant's motion to require plaintiff to post a bond to secure costs associated with the litigation be, and the same hereby is, DENIED as MOOT.The Clerk of Court is ordered to enter judgment of dismissal and close the file. CASE CLOSED (Becknal, R)

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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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NO. CIV. 2:09-02304 WBS DAD

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

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Plaintiffs,

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS FOR FORUM
NON CONVENIENS AND MOTION TO
REQUIRE BOND

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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 the doctrine of forum

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non conveniens.

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court to require plaintiff to post a bond to secure the

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recoverable costs of litigation.

(Docket No. 175.)

Defendant also moves for the

(Docket No. 176.)
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Plaintiff’s 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

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asserted by Shannon Callnet against STPL for the alleged sale of

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software in the setup and running of a call center business in

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India.

After the court

STPL, an Indian company, argues that the dispute between

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it and Shannon Callnet, also an Indian company, should be settled

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in the Indian courts and the case should be dismissed under the

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doctrine of forum non conveniens.

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As explained by the Supreme Court:
A federal court has discretion to dismiss a case on the
ground of forum non conveniens when an alternative forum
has jurisdiction to hear [the] case, and . . . trial in
the chosen forum would establish . . . oppressiveness and
vexation to a defendant . . . out of all proportion to
plaintiff’s convenience, or . . . the chosen forum [is]
inappropriate because of considerations affecting the
court’s own administrative and legal problems.

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Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping Corp., 549

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U.S. 422, 429 (2007) (alterations in original) (internal

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quotation marks and citations omitted).

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conveniens reflects a court’s assessment of a ‘range of

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considerations, most notably the convenience to the parties and

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the practical difficulties that can attend the adjudication of a

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dispute in a certain locality.’”

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Allstate Ins. Co., 517 U.S. 706, 723 (1996)).

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“ha[s] characterized forum non conveniens as, essentially, ‘a

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supervening venue provision, permitting displacement of the

“Dismissal for forum non

Id. (quoting Quackenbush v.

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The Supreme Court

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ordinary rules of venue when, in light of certain conditions, the

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trial court thinks that jurisdiction ought to be declined.’”

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at 529-30 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 453

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(1994)).

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continuing application [in federal courts] only in cases where

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the alternative forum is abroad, and perhaps in rare instances

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where a state or territorial court serves litigational

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convenience best.”

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quotation marks and citations omitted).

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Id.

“The common-law doctrine of forum non conveniens has

Id. at 430 (alteration in original) (internal

“To prevail on a motion to dismiss based upon forum non

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conveniens, a defendant bears the burden of demonstrating an

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adequate alternative forum, and that the balance of private and

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public interest factors favors dismissal.”

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Occidental Petroleum Corp., 643 F.3d 1216, 1224 (9th Cir. 2011),

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cert. denied, 133 S. Ct. 1996 (2013).

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A.

Carijano v.

Adequacy of the Forum
“An alternative forum is deemed adequate if: (1) the

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defendant is amenable to process there; and (2) the other

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jurisdiction offers a satisfactory remedy.”

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circumstances in which a foreign forum offers a clearly

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unsatisfactory remedy are “rare.”

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Generally, an alternative forum is adequate if “the forum

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provides ‘some remedy’ for the wrong at issue.

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to pass; typically a forum will be inadequate only where remedy

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provided is ‘so clearly inadequate or unsatisfactory, that it is

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no remedy at all.’”

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F.3d 1163, 1178 (9th Cir. 2006) (quoting Lockman Found. v.

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Evangelical Alliance Mission, 930 F.2d 764, 768 (9th Cir. 1991)).

Id. at 1225.

The

Piper, 454 U.S. at 254 n.22.

This test is easy

Tuazaon v. R. J. Reynolds Tobacco Co., 433

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A foreign forum “may still be adequate even if it does not

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provide the same remedies or recognize the exact same causes of

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action as an American court.”

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deeply into the adequacy of foreign law, as the forum non

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conveniens doctrine was developed in part to “help courts avoid

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conducting complex exercises in comparative law.”

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Aircraft, 454 U.S. at 251.

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Id.

The court need not delve too

Piper

Multiple federal courts have found that India is an
adequate forum.

See, e.g., Best Aviation Ltd. v. Chowdry, Nos.

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2:12-cv-05852-ODW(VBKx), 2012 WL 5457439, at *5 (C.D. Cal. Nov.

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7, 2012); Farhang v. Indian Inst. of Tech., No. C-08-02658 RMW,

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2012 WL 113739, at *9 (N.D. Cal. Jan. 12, 2012); Chigurupati v.

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Daiichi Sankyo Co., LTD, Civ. No. 10-5495 (PGS), 2011 WL 3443955,

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at *3-4 (D.N.J. Aug. 8, 2011); Krish v. Balasubramaniam, No.

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1:060CV-01030 OWW TAG, 2007 WL 1219281, at *2-3 (E.D. Cal. Apr.

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25, 2007).

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Here, defendant is an Indian company and “hereby offers

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to submit to the jurisdiction of Indian courts in either

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Bangalore, where defendant is based, or Ludhiana, where plaintiff

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was based, for the resolution of the remaining claim raised in

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this action.”

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175).)

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H.S. Arunpraksh, who is a member of the Bar Council of

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Karanataka, India.

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she understands that “Shannon Callnet’s claim against STPL is

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that STPL has breached an implied warranty on commercial goods

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STPL sold to Shannon Callnet, including software,” she explains

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that “[t]he law applicable to the present case is The Indian

(Def.’s Mot. to Dismiss at 7:4-9 (Docket No.

Defendant also submits the declaration of Ambika S, W/o

(Docket No. 180.)

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After acknowledging that

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Contract Act of 1872,” and that it is her opinion that “the

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courts of India are a fair, competent, and efficient forum for

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the adjudication of such a claim to judgment.”

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5-6.)1

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(Ambika Decl. ¶¶

While plaintiff appears to question whether an implied

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warranty claim can be brought in India, a foreign forum “may

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still be adequate even if it does not provide the same remedies

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or recognize the exact same causes of action as an American

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court,” Tuazaon, 433 F.3d at 1178, and plaintiff offers nothing

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to refute Ambika’s declaration that Indian law will provide a

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remedy.

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perfunctory, providing a mere minutes per case brought before the

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bench.

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for Judicial Notice Exs. 2-3 (“RJN”) (Docket No. 185).)

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plaintiff also includes an Indian ruling in its submissions to

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the court as an example of an Indian court ruling.

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Ex. 1.)

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a legal analysis that addresses legal precedent and each party’s

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arguments.

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legal system’s remedy is not “so clearly inadequate or

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unsatisfactory, that it is no remedy at all.”

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quotation marks and citation omitted).

Plaintiff also argues that the courts of India are too

(Pl.’s Opp’n at 8:25-9:23 (Docket No. 184); Pl.’s Req.
Yet

(Pl.’s RJN

That document is over twenty-six pages long and exhibits

Looking to the evidence before the court, the Indian

Id. (internal

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Plaintiff objects to the declaration of Ambika because
it was filed approximately two weeks after defendant filed its
motion to dismiss. Due to a change in briefing schedule,
however, plaintiff’s opposition was due over a month after the
declaration was filed giving plaintiff adequate time to respond.
Because plaintiff was not prejudiced by the late filing, the
court will consider the declaration of Ambika. See Nelson v.
Lewis County, No. C11-5876 RJB, 2012 WL 4112886, at *3 n.1 (Sept.
19, 2012) (denying the defendant’s motion to strike a declaration
when the defendant showed no prejudice from untimely filing).
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India is therefore an adequate forum to resolve the
parties’ dispute.
B.

Balance of Factors

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1.

Deference to Plaintiff’s Chosen Forum

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As the Supreme Court has explained, “[a] defendant

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invoking forum non conveniens ordinarily bears a heavy burden in

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opposing the plaintiff’s chosen forum.”

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549 U.S. at 430.

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forum, however, the presumption in the plaintiff’s favor ‘applies

Sinochem Intern. Co.,

“When the plaintiff’s choice is not its home

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with less force,’ for the assumption that the chosen forum is

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appropriate is in such cases ‘less reasonable.’”

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Piper, 454 U.S. at 255-56).

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company, therefore the presumption “applies with less force.”

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Id. (internal quotation marks and citation omitted).

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not mean, however, that it is accorded no deference, as argued by

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defendant.

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not the same thing as no deference.’” (quoting Ravelo Monegro v.

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Rosa, 211 F.3d 509, 514 (9th Cir. 2000)).

Id. (quoting

Here, plaintiff is a foreign

This does

See Carijano, 643 F.3d at 1227 (“‘[L]ess deference is

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2.

Private Factors

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The private factors a court considers when conducting a

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forum non conveniens analysis include: (1) the residence of the

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parties and witnesses, (2) the forum’s convenience to the

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litigants, (3) access to physical evidence and other sources of

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proof, (4) whether unwilling witnesses can be compelled to

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testify, (5) the cost of bringing witnesses to trial, (6) the

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enforceability of the judgment, (7) any practical problems or

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other factors that contribute to an efficient resolution.

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v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1180 (9th Cir.
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Tuazon

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2006).

“In applying these factors, ‘[t]he district court should

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look to any or all of the above factors which are relevant to the

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case before it, giving appropriate weight to each.’”

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(quoting Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145 (9th Cir.

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2001)).

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possible discretion.”

Id.

“This guidance grants the district court the broadest

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Id.

Here, the claim at issue will involve the testimony of

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witnesses who worked at the now-defunct call center in India in

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order to establish if the software failed to work as allegedly

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warranted.

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resides in California, the majority of material witnesses--

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including the managing director of the defendant company,

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Niranjan Kumar V, the employees of defendant, and the former

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employees of plaintiff--appear to reside in India, (see Kumar

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Decl. ¶¶ 2, 7-9).

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focus is not on the number of witnesses or quantity of evidence

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in each locale, but rather the materiality and importance of the

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anticipated [evidence and] witnesses’ testimony . . . .”); Best

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Aviation Ltd., 2012 WL 5457439, at *5 (C.D. Cal. 2012) (“[T]he

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majority of witnesses are located in Bangladesh.

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dispute in Bangladesh–-where these important and material

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witnesses are located–-ensures that they will be accessible for

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trial.”).

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Thus, while Randhawa, who owns the plaintiff company,

See Tuazon, 433 F.3d at 1181 (“The crucial

Litigating the

The cost of bringing these witnesses to California

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greatly outweighs the cost of having Randhawa fly to India, and

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STPL asserts that visas might be required, (Kumar Decl. ¶ 10).

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See Dibdin v. S. Tyneside NHS Healthcare Trust, No. CV 12-00206

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DDP (PLAx), 2013 WL 327324, at *5 (C.D. Cal. Jan. 29, 2013)
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(“[I]f Plaintiff’s case were to continue in California, all

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Defendants would likely need to travel to the state to testify.

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Plaintiff, however, is just one person . . . . The cost of

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bringing Defendants to the United States will be greater than

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transporting Plaintiff to England, so this factor weighs in favor

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of dismissal.”)

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and communication make the burden of cross-border litigation

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lighter today than ever before, these advances do not lift the

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burden entirely.

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While it may be true that advances in technology

Although plaintiff argues that the enforceability of an

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Indian judgment is uncertain, plaintiff fails to explain how an

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Indian court judgment would not be binding on defendant,

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especially given that defendant is an Indian company.2

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it is unclear from the parties’ arguments whether witnesses in

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India could be compelled to testify in California, but defendant

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does not assert that its witnesses would be unwilling to testify

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in California.

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Inc., 308-CV-0816-G, 2009 WL 464953, at *3 (N.D. Tex. Feb. 24,

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2009) (“Ternium also does not identify any unwilling witnesses

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that would be subject to subpoena in this court but not in the

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District of South Carolina. Therefore, this factor is neutral.”).

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3.

Finally,

See Ternium Int’l U.S.A. Corp. v. Consol. Sys.,

Public Factors

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Plaintiff cites Tuazon for the proposition that a lack
of evidence as to the enforceability of an Indian judgment
counsels against dismissal. (Pl.’ Opp’n at 23:23-24:2.) That
case, however, involved an American defendant who would
presumably be subject to a foreign judgment if the case was
dismissed due to forum non conveniens. Tuazon, 433 F.3d at 1181.
Here, however, it is an Indian defendant that would be subject to
an Indian judgment if the court granted the motion to dismiss
based on forum non conveniens.
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“In addition to the private interest factors, [the

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court] must consider five public interest factors: (1) the local

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interest in the lawsuit, (2) the court’s familiarity with the

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governing law, (3) the burden on local courts and juries, (4)

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congestion in the court, and (5) the costs of resolving a dispute

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unrelated to a particular forum.”

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Tuazon, 433 F.3d at 1181.

Here, while Randhawa resides in California, he is

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technically not even a party to the remaining claim.

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Furthermore, while residing in the United States, he endeavored

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to create the plaintiff Indian company which would then establish

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a call center in India with defendant, an Indian company.

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of the business related to that call center occurred in India,

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and the loss of jobs due to the shuttering of the call center

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would affect local Indian workers.

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interest in the lawsuit is comparatively low, the citizens of

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[California] should not be forced to bear the burden of this

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dispute.”

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Inc., 586 F.3d 689, 696 (9th Cir. 2009) (“The burden on local

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courts and juries unconnected to the case and the costs of

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resolving a dispute unrelated to the forum also favor

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dismissal.”); Israel Discount Bank Ltd. v. Schapp, 505 F. Supp.

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2d 651, 661 (C.D. Cal. 2007) (“Israel has an interest in the

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integrity of a commercial transaction negotiated within its

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boundaries, to be carried out in Israel, concerning the purchase

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of an Israeli company, and allegedly fraudulently induced by an

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Israeli banking institution.”).

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Much

Thus, since “the local

Lueck 236 F.3d at 1147; see Vivendi SA v. T-Mobile USA

Furthermore, the claim currently before the court is
one for an implied warranty, rather than breach of a written
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contract with a choice of law provision, and thus the court’s

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familiarity with the governing law appears to be neutral.

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Finally, while plaintiff argues that Indian courts are overly

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burdened, “[j]udges in the Eastern District of California carry

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the heaviest caseload in the nation.”

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Packard Children’s Hosp. at Stanford, No. CV F 12-2096 LJO JLT,

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2013 WL 2930651, at *1 (E.D Cal. June 13, 2013).

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public factors overall tip toward dismissal.

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Deeths v. Lucile Slater

Thus, the

After considering the adequacy of the forum, the

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appropriate deference to the plaintiff’s choice of forum, and the

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balance of both private and public factors, the court finds that

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the considerations counsel in favor of dismissal under the

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doctrine of forum non conveniens.

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grant defendant’s motion to dismiss.

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The court will accordingly

Defendant’s motion to require a bond from plaintiff to

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secure recoverable costs associated with the litigation appears

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to rely upon the court’s finding that the action will continue to

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summary judgment and/or trial.

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at 5:8-11 (Docket No. 176) (“The background of this action

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indicates that the remaining claim for Breach of Implied Warranty

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is frivolous and that Defendant will likely prevail on summary

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judgment.”).)

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for the court to require a bond as moot.

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(See Def.’s Mot. to Secure Bond

The court will accordingly deny defendant’s motion

IT IS THEREFORE ORDERED that:
(1) defendant’s motion to dismiss be, and the same hereby
is, GRANTED; and

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(2) defendant’s motion to require plaintiff to post a bond

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to secure costs associated with the litigation be, and the same
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hereby is, DENIED as MOOT.

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The Clerk of Court is ordered to enter judgment of

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dismissal and close the file.

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DATED:

July 3, 2013

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