Zaidi v. Horton et al

Filing 27

ORDER RE REQUEST TO TRANSFER AND AMEND COMPLAINT AND VACATING HEARING [re 20 Response to Order to Show Cause filed by Sayed Hasan Arzoo Zaidi]. Signed by Judge William Alsup on 7/9/2013. (whasec, COURT STAFF) (Filed on 7/9/2013) (Additional attachment(s) added on 7/9/2013: # 1 Certificate/Proof of Service) (dt, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SYED HASAN ARZOO ZAIDI,
No. C 13-01586 WHA

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For the Northern District of California

United States District Court

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Plaintiff,
v.

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ORDER RE REQUEST TO
TRANSFER AND AMEND
COMPLAINT AND
VACATING HEARING

THOMAS HORTON and CLEM BASON,
Defendants.

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Pro se plaintiff Syed Hasan Arzoo Zaidi commenced this action against defendants

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Thomas Horton and Clem Bason, chief executive officers of American Airlines, Inc. and

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Hotwire, Inc., respectively. The complaint alleges that flight delays and the lack of disability

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accommodations by American Airlines caused plaintiff’s heart condition to flare up during

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his flight from New York to San Jose via Dallas. The captain made an emergency landing in

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Albuquerque due to the flare up. Plaintiff was rushed to an emergency room where his treatment

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allegedly resulted in a bill exceeding ten thousand dollars (Dkt. No. 1 at 3).

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On May 24, Horton moved to dismiss based upon lack of personal jurisdiction under

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Rule 12(b)(2) and Bason moved to dismiss based upon improper venue and failure to state a

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claim. Plaintiff failed to timely respond to the motions. Accordingly, an order to show cause

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was issued requiring plaintiff to respond by June 20. No response was received, so a second

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order to show cause was issued on June 24. Instead of filing an opposition to defendants’

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motions to dismiss, plaintiff (1) requested leave to amend his complaint to substitute Hotwire

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and American Airlines as defendants instead of their respective CEOs Clem Bason and Thomas

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Horton, and (2) requested that the action be transferred to the San Jose division given plaintiff’s

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medical condition. For the following reasons, defendant Clem Bason’s motion to dismiss is

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GRANTED and defendant Thomas Horton’s motion to dismiss is GRANTED. Plaintiff’s motion

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for leave to amend is DENIED and plaintiff’s motion for intradistrict transfer is HELD IN

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ABEYANCE pending

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determination of whether this action will proceed at all.

With respect to Bason, plaintiff now states that he filed his complaint against defendant

defendant. Even so, plaintiff is subject to the exclusive jurisdiction and venue clause of the

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agreement he signed with Hotwire. Before purchasing his ticket through Hotwire, plaintiff

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For the Northern District of California

Bason in error and that he meant to name Hotwire (of which defendant Bason is CEO) as

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United States District Court

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agreed to the following provision (Dkt. No. 12-2 at 9):

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The internal laws of the State of Delaware shall govern the
performance of these Terms and Conditions, without regard to
such state’s conflicts of laws principles. You consent to the
exclusive jurisdiction and venue of the courts located in Delaware,
USA, for all disputes arising out of, or relating to, the Terms and
Conditions and use of this Site.

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Under federal law, forum-selection clauses are presumptively valid and should not be set aside
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unless the party challenging enforcement of such a provision can show it is unreasonable under
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the circumstances. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972). Both the
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Supreme Court and our court of appeals have construed the “unreasonable” exception narrowly.
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A forum-selection clause is unreasonable if: (1) the inclusion of the clause in the agreement
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was the product of fraud or overreaching; (2) the party wishing to repudiate the clause would
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effectively be deprived of his day in court were the clause enforced; and (3) enforcement would
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contravene a strong public policy of the forum in which the suit is brought. Murphy v. Schneider
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Nat’l, Inc., 362 F.3d 1133, 1140 (9th Cir. 2004). Plaintiff has not and cannot demonstrate that
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the present forum-selection clause is invalid and therefore his claims against defendant Clem
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Bason as well as Hotwire are DISMISSED WITHOUT PREJUDICE to refile in the District Court for
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the District of Delaware if he so chooses.
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As to defendant Horton, no forum-selection clause is asserted. Defendant Horton moves
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to dismiss based upon lack of personal jurisdiction under Rule 12(b)(2). This order agrees that
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defendant Horton lacks the minimum contacts with California necessary to establish jurisdiction.

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See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

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After defendant Horton filed the present motion to dismiss, plaintiff filed a motion

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for leave to amend stating that he named CEO Thomas Horton in error; he intended to file suit

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against American Airlines (Dkt. No. 20).

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Defendant Horton had to pay counsel to draft a motion to dismiss based upon lack

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of personal jurisdiction under Rule 12(b)(2). Given that plaintiff alone was responsible for

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the error, this order holds that plaintiff may amend his complaint only on the condition that

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he first pay the cost of preparing the present motion to dismiss. Defendant Horton must file a
declaration stating the fees and costs associated with preparing the motion to dismiss by

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For the Northern District of California

United States District Court

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JULY 15, 2013. If plaintiff wishes to file an amended complaint naming American Airlines as

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defendant, he must do so by JULY 22, 2013, and he must append proof of payment to defendant

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Horton or show cause why he should not reimburse defendant for the attorney’s fees.

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Meanwhile, all claims against Horton are DISMISSED.

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With respect to the motion to transfer to the San Jose division, that motion will be HELD
IN ABEYANCE pending

determination of whether this action will proceed at all.

To avoid further unnecessary cost and travel, the hearing for July 11 is VACATED.

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IT IS SO ORDERED.

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Dated: July 9, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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