Richmond Technologies, Inc v. Aumtech Business Solutions et al

Filing 45

ORDER SETTING BRIEFING AND HEARING SCHEDULE ON MOTIONS. Motion Hearing set for 6/23/2011 01:30 PM in Courtroom 4, 5th Floor, San Jose before Hon. Lucy H. Koh. Signed by Judge Koh on 6/6/2011. (lhklc1, COURT STAFF) (Filed on 6/6/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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RICHMOND TECHNOLOGIES, INC., a
Georgia corporation, d/b/a ePayware,

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Plaintiff,
v.
AUMTECH BUSINESS SOLUTIONS, an
unincorporated association; AUMTECH
ISOLUTIONS PVT. LTD, an Indian
corporation, DAMIAN JOSEPH POLITO,
JENNIFER POLITO, SHANKAR BOSE and
ILA BOSE,
Defendants.

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Case No.: 11-CV-02460-LHK
ORDER SETTING BRIEFING AND
HEARING SCHEDULE ON MOTIONS

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On May 20, 2011, Plaintiff Richmond Technologies, Inc., doing business as ePayware, filed

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the instant action against Defendants Aumtech Business Solutions (“Aumtech America”), Aumtech

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i-Solutions Pvt. Ltd. (“Aumtech India”), Damien Joseph Polito, Jennifer Polito, Shankar Bose, and

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Ila Bose. Shortly thereafter, on May 23, 2011, Plaintiff filed an ex parte motion for a temporary

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restraining order (“TRO”). The Court denied Plaintiff’s ex parte motion on grounds that Plaintiff

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had not satisfied the requirements of Federal Rule 65(b) for issuance of a TRO without notice to

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the adverse party. See Order Denying Ex Parte Motion for TRO Without Prejudice, ECF No. 17.

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The Court indicated, however, that Plaintiff might renew its TRO motion, or seek a preliminary

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injunction, after serving Defendants with the summons, Complaint, and all other filings.

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Case No.: 11-CV-02460-LHK
ORDER SETTING BRIEFING AND HEARING SCHEDULE ON MOTIONS

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On June 3, 2011, the parties filed a number of documents in response to the Court’s order.

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Plaintiff filed an ex parte motion for substituted service on Defendants Aumtech India, Shankar

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Bose, and Ila Bose, who are located in India. Defendants Aumtech America, Jennifer Polito, and

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Joseph Polito filed a motion to dismiss for improper venue or, in the alternative, to transfer on

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grounds of improper venue or convenience. Defendants Aumtech India, Shankar Bose, and Ila

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Bose filed a motion to dismiss based on defective summons, defective service, and lack of personal

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jurisdiction. Finally, Plaintiff filed a renewed motion for a temporary restraining order and

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preliminary injunction. Defendants have filed a response in opposition to Plaintiff’s motion for

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substituted service, but no other responsive briefs have yet been filed.

United States District Court
For the Northern District of California

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Defendants’ motions are currently noticed for hearing on September 1, 2011. However,

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these motions raise significant threshold issues of personal jurisdiction and venue. The Supreme

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Court has stated that “a federal court generally may not rule on the merits of a case without first

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determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction)

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and the parties (personal jurisdiction).” Sinochem Intern. Co. Ltd. v. Malaysia Intern. Shipping

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Corp., 549 U.S. 422, 430-31 (2007). Venue is also a threshold determination, which a court may

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resolve before reaching jurisdictional questions under certain circumstances. See id. at 432; see

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also Lizalde v. Advanced Planning Services, Inc., No. 10cv0834–LAB (RBB), 2011 WL 1103642,

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at *2 (S.D. Cal. Mar. 25, 2011). Thus, the Court finds that the issues of personal jurisdiction and

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improper venue raised by Defendants’ motions should be resolved in conjunction with Plaintiff’s

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renewed motion for a temporary restraining order and preliminary injunction. See Multimin USA,

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Inc. v. Walco Internation, Inc., No. CV F 06-0226 AWI SMS, 2006 WL 1046964, at *1 (E.D. Cal.

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Apr. 11, 2006) (noting court’s determination that “issues of personal jurisdiction and venue needed

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to be decided before the court addressed the motion for a temporary restraining order”).

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Accordingly, the Court will set a briefing and hearing schedule for the pending motions, as

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set forth below. Because of the more extended briefing schedule on Plaintiff’s motion for a TRO

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and preliminary injunction, the Court will treat this motion as a motion for preliminary injunction.

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Additionally, in order to narrow the issues considered on an expedited basis, the Court will not

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address transfer for convenience under 28 U.S.C. § 1404(a) at this time, and will limit
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Case No.: 11-CV-02460-LHK
ORDER SETTING BRIEFING AND HEARING SCHEDULE ON MOTIONS

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consideration of venue issues to the question of whether venue in the District is proper, pursuant to

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28 U.S.C. § 1406 and Rule 12(b)(3). Briefing and hearing will proceed as follows:

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(1) Plaintiff shall file a reply in support of its ex parte motion for substituted service by

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Wednesday, June 8, 2011. Unless otherwise indicated, the Court will resolve this motion

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without a hearing.

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(2) By Friday, June 10, 2011, the parties shall file briefs in opposition to (1) Plaintiff’s motion

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for a TRO/preliminary injunction, (2) Defendants’ motion to dismiss for lack of personal

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jurisdiction, improper service, and defective summons, and (3) Defendants’ motion to

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dismiss for improper venue pursuant to Rule 12(b)(3) and 28 U.S.C. § 1406.

United States District Court
For the Northern District of California

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(3) By Thursday, June 16, 2011, the parties shall file reply briefs in support of (1) Plaintiff’s

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motion for a TRO/preliminary injunction, (2) Defendants’ motion to dismiss for lack of

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personal jurisdiction, improper service, and defective summons, and (3) Defendants’

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motion to dismiss for improper venue pursuant to Rule 12(b)(3) and 28 U.S.C. § 1406.

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(4) The Court will hold a hearing on Plaintiff’s motion for a TRO/preliminary injunction and

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Defendants’ motions to dismiss on June 23, 2011 at 1:30 p.m.
IT IS SO ORDERED.

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Dated: June 6, 2011

_________________________________
LUCY H. KOH
United States District Judge

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Case No.: 11-CV-02460-LHK
ORDER SETTING BRIEFING AND HEARING SCHEDULE ON MOTIONS