Farhang v. Indian institute of Technology Kharagpur et al
Filing
441
ORDER for more briefing. Signed by Judge Whyte on 9/20/2013. (rmwlc2, COURT STAFF) (Filed on 9/20/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
United States District Court
For the Northern District of California
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SAN JOSE DIVISION
Case No. C-08-02658-RMW
M.A. MOBILE LTD, a limited liability
company charted in Dominica; and
MANDANA D. FARHANG,
ORDER FOR MORE BRIEFING
Plaintiffs,
v.
[Re Docket Nos. 403, 420]
INDIAN INSTITUTE OF TECHNOLOGY
KHARAGPUR, an Indian Institute of
Technology incorporated under the “Institutes
of Technology Act, 1961”; PARTHA P.
CHAKRABARTI; and DOES 1 through 100,
inclusive,
Defendants.
In reviewing the Indian Institute of Technology’s (“IIT”) motion to vacate and dismiss, Dkt.
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No. 403, IIT appears to be distinguishing waiver under the Foreign Sovereign Immunities Act
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between claims by Farhang against IIT and claims by M.A. Mobile against IIT. IIT’s argument
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appears to rely on the fact that the non-disclosure agreement, which is one basis for plaintiffs’ claim
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of waiver of immunity, was between M.A. Mobile and IIT and not between Farhang and IIT.
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The court would like more briefing on whether Farhang can be a third-party beneficiary of
the NDA such that waiver of immunity would apply. The court would also like parties to brief what
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ORDER FOR MORE BRIEFING
Case No. C-08-02658-RMW
SW
-1-
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should happen procedurally if the court were to find immunity applies without the NDA waiver and
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that the NDA waiver only applies to M.A. Mobile’s claims against IIT, but not Farhang’s claims.
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At the hearing, the court understood defendants to represent that Chakrabarti’s subject matter
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jurisdiction challenge was a factual challenge. On factual challenges, however, “where the
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jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is
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dependent on the resolution of factual issues going to the merits, the jurisdictional determination
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should await a determination of the relevant facts on either a motion going to the merits or at trial.”
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Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). The court would like briefing on
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whether the jurisdictional and substantive issues in this case are too intertwined for resolution at this
United States District Court
For the Northern District of California
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stage.
Defendants are ordered to file a brief of no more than 8 pages by September 27, 2013.
Plaintiffs must file any response, of no more than 8 pages, by October 2, 2013.
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Dated: September 20, 2013
_________________________________
RONALD M. WHYTE
United States District Judge
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ORDER FOR MORE BRIEFING
Case No. C-08-02658-RMW
SW
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