Farhang v. Indian institute of Technology Kharagpur et al
Filing
497
ORDER by Judge Ronald M Whyte granting 493 Motion to Stay (rmwlc2, COURT STAFF) (Filed on 5/29/2014)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
United States District Court
For the Northern District of California
SAN JOSE DIVISION
11
12
13
M.A. MOBILE LTD., a limited liability
company chartered in Dominica; and
MANDANA D. FARHANG
ORDER GRANTING STAY
Plaintiffs,
14
15
16
17
18
19
Case No. C-08-02658-RMW
v.
[Re Docket No. 467]
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.
20
21
Defendants Indian Institute of Technology Kharagpur (“IIT”) and Partha P. Chakrabarti
22
(“Chakrabarti”) move for a stay of trial court proceedings pending their appeal of the court’s Order
23
Denying Motion to Dismiss. See Dkt. No. 493 (Motion to Stay); Dkt. No. 487 (Order). Having
24
reviewed the parties’ papers, the court finds this motion suitable for decision without a hearing.
25
IIT and Chakrabarti’s current appeal involves the denial of a motion to dismiss on the basis
26
of sovereign immunity. This is the second appeal in this case on the basis of sovereign immunity.
27
See Dkt. No. 349 (Notice of Appeal by IIT and TIETS). IIT first moved to dismiss plaintiffs’ first
28
amended complaint on the basis of sovereign immunity, Dkt. No. 60, which the court denied based
ORDER GRANTING STAY
Case No. C-08-02658-RMW
LRM
-1-
1
on both commercial activity and waiver exceptions to sovereign immunity. Dkt. No. 107.
2
Technology Incubation Entrepreneurship and Training Society (“TIETS”), a related Indian society,
3
then moved to dismiss on a similar basis, Dkt. No. 290, which the court also denied on the
4
commercial activity exception, Dkt. No. 341. Defendants appealed both rulings, and the Ninth
5
Circuit ordered that defendant TIETS be dismissed but did not reach IIT’s appeal because it was
6
untimely and raised different issues than TIETS. See Dkt. No. 402. In fact, IIT’s appeal was filed
7
nearly two years after the order denying its motion to dismiss. See Dkt. No. 107 (Order filed Jan. 26,
8
2010 and Dkt. No. 349 (Notice of Appeal filed Jan. 25, 2012). In light of the Ninth Circuit’s
9
decision, IIT filed another motion to dismiss arguing the application of both the commercial activity
United States District Court
For the Northern District of California
10
and waiver exceptions to plaintiffs’ claims in their third amended complaint. Dkt. No. 403. The
11
court continued to hold that the waiver exception applied. Dkt. No. 487.
12
In the context of interlocutory appeals based on qualified immunity, the district court is
13
automatically divested of jurisdiction to proceed with trial pending appeal unless the district court
14
finds that the defendants’ claim of immunity is frivolous or has been waived, and certifies such in
15
writing. See Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992); Eckert Intern., Inc. v.
16
Government of Sovereign Democratic Republic of Fiji, 834 F. Supp. 167 (E.D. Va. 1993) (staying
17
case pending FSIA appeal); accord Yates v. City of Cleveland, 941 F.2d 444, 448-49 (6th Cir.
18
1991); Stewart v. Donges, 915 F.2d 572, 576-78 (10th Cir. 1990).
19
Plaintiffs argue that the appeal is frivolous because it is essentially an appeal of the court’s
20
first order denying immunity which would make the appeal clearly untimely. Defendants respond
21
that the presently-appealed Order is based on a new complaint with new facts. A review of the two
22
motions, Dkt. Nos. 60 and 403, shows that the motions are materially different.
23
In the first Motion to Dismiss, IIT argued that the waiver exception did not apply because
24
Farhang was not an assignee or third party beneficiary to the alleged contract between IIT and M.A.
25
Mobile. Dkt. No. 60. The court agreed that Farhang was not an assignee, but held that Farhang had
26
proffered in her opposition papers sufficient evidence that she is an intended third party beneficiary
27
(such that IIT’s waiver of sovereign immunity would apply to her claims) to justify allowing her to
28
amend her complaint to attempt to assert such status. The court therefore granted plaintiffs leave to
ORDER GRANTING STAY
Case No. C-08-02658-RMW
LRM
-2-
1
amend their complaint to state that Farhang is a third party beneficiary of the NDA and to plead
2
facts sufficient to support this claim. Dkt. No. 107 at 9. Accordingly, plaintiffs amended their
3
complaint. Dkt. No. 147 (Third Amended Complaint).
4
In the currently-appealed order denying dismissal, IIT argues that the terms of the contract
5
do not support a finding a waiver, especially as to specific claims, and that Farhang is not a third
6
party beneficiary in light of the facts alleged in the Third Amended Complaint. See Dkt. No. 403.
Defendants are correct that until the March 25, 2014 Order the court did not definitively rule
8
on whether Farhang had established facts to show that she is a third party beneficiary. Dkt. No. 487
9
at 6-7 (analyzing for the first time the evidentiary dispute between the parties on whether Farhang
10
United States District Court
For the Northern District of California
7
was a third party beneficiary). Thus, the current appeal is defendants’ first challenge to this court’s
11
Order that Farhang sufficiently pleaded facts to show she is a third party beneficiary to the M.A.
12
Mobile-IIT contract and thus can take advantage of the waiver exception. Although the court is
13
concerned with the timing of IIT and Chakrabarti’s appeal and the further delay that will result in
14
this case, the court does not find that the appeal is frivolous. Therefore, the court GRANTS the
15
motion to stay pending appeal.
16
17
Dated: May 29, 2014
_________________________________
Ronald M. Whyte
United States District Judge
18
19
20
21
22
23
24
25
26
27
28
ORDER GRANTING STAY
Case No. C-08-02658-RMW
LRM
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?