Paradigm Solutions Group, Inc. v. Shanghai Precision Technology Corporation et al

Filing 12

ORDER (1) Remanding Case to San Diego County Superior Court and (2) Denying Motion for Attorneys' Fees and Costs. Signed by Judge Janis L. Sammartino on 6/1/2015.(jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PARADIGM SOLUTIONS GROUP,
INC.,

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vs.

Plaintiff,

CASE No. 15-CV-539 JLS (JLB)
ORDER (1) REMANDING TO SAN
DIEGO COUNTY SUPERIOR
COURT AND (2) DENYING
MOTION FOR ATTORNEYS’
FEES AND COSTS

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SHANGHAI PRECISION
TECHNOLOGY CORPORATION;
LYDIA LAI, and DOES 1–50,

(ECF No. 5)

Defendants.

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Presently before the Court is Plaintiff Paradigm Solutions Group, Inc.’s

20 (“Paradigm”) Motion to Remand to State Court and for Attorneys’ Fees and Costs.
21 (Mot. Remand, ECF No. 5.) Also before the Court is Defendant Shanghai Precision
22 Technology Corporation’s (“SPTC”) Response, (Response, ECF No. 9), and
23 Paradigm’s Reply, (Reply, ECF No. 10), to the Motion.
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The motion hearing scheduled for April 30, 2015 was vacated and the matter

25 taken under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1).
26 Having considered the Parties’ arguments and the law, the Court GRANTS Plaintiff’s
27 Motion to Remand, REMANDS the case to the San Diego County Superior Court, and
28 DENIES Plaintiff’s Motion for Attorneys’ Fees.
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BACKGROUND
Paradigm is a California Corporation based in San Diego. (Mot. Remand 6, ECF

3 No. 5-1.) SPTC is a Chinese Corporation engaged in the business of manufacturing
4 golf clubs. (Id.) The Parties entered into a written contract, whereby Paradigm agreed
5 to act as SPTC’s Chief Operating Officer for a term of seven years. (Id.) Paradigm
6 alleges that in 2013, SPTC failed to pay Paradigm as provided in the contract and
7 maintains that it is entitled to approximately $1 Million in damages. (Id. at 4.)
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The Parties’ contract contained a Binding Arbitration clause as well as a

9 Governing Law/Choice of Venue clause. (Beal Decl. 9, ECF No. 5-2.) These
10 provisions read as follows:
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Binding Arbitration. It is the intent of the parties that all
disputes controversies and claims between Contractor and
Company concerning, relating to, stemming from or arising from
this Agreement shall be fully, completely and finally resolve[d]
by binding arbitration between them.

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Governing Law; Choice of Venue. The laws of the State of
California shall govern the validity of this Agreement, the
construction of its terms, and the interpretation of the rights and
duties of the parties hereto. The parties her[e]by irrevocably
consent to the exclusive jurisdiction of, and agree that any legal
action initiated under this Agreement shall be brought only in, the
state court system of the State of California for all purposes in
connection with any action or proceeding which arises out of or
relates in any manner to this Agreement. The parties further agree
that the County of San Diego shall be the proper venue for any
legal action brought to enforce or interpret the terms of this
Agreement.

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22 (Id.)
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In December 2013, Paradigm filed an action in the San Diego County Superior

24 Court. (Not. of Removal, ECF No. 1-2, 1-3.) Paradigm moved the superior court to
25 appoint a neutral arbitrator and also requested that the court issue a right to attach order
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1 and writ of attachment or, in the alternative, a temporary protective order.1 (Id.) SPTC
2 did not oppose those motions, but rather filed a Notice of Removal one day before the
3 Superior Court hearing. (Not. Of Removal, ECF No. 1.) The Notice of Removal states
4 that removal is appropriate under 9 U.S.C. § 205, and 28 U.S.C. §§ 1441 and 1446, and
5 that this Court has jurisdiction based on the Federal Arbitration Act, 9 U.S.C. § 1, et
6 seq; the Convention on the Recognition and Enforcement of Foreign Arbitral Awards,
7 9 U.S.C. § 203; and 28 U.S.C. § 1331. (Id.)
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Paradigm argues that SPTC had no basis for removing the case and now moves

9 the Court to remand this proceeding to the San Diego County Superior Court pursuant
10 to 28 U.S.C. § 1447(c). (Mot. Remand 5, ECF No. 5-1.) In addition, Paradigm asks
11 the Court to award it reasonable attorneys’ fees and costs incurred in bringing this
12 motion. (Id.)
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LEGAL STANDARD
In cases “brought in a State court of which the district courts of the United States

15 have original jurisdiction,” a defendant may remove the case to federal district court.
16 28 U.S.C. §1441(a). The removing party bears the burden of establishing that federal
17 subject matter jurisdiction exists. Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195
18 (9th Cir. 1988).

Courts “strictly construe the removal statute against removal

19 jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations
20 omitted). Therefore, “[f]ederal jurisdiction must be rejected if there is any doubt as to
21 the right of removal in the first instance.” Id. (citing Libhart v. Santa Monica Dairy
22 Co., 592 F.2d 1062, 1064 (9th Cir. 1979)).
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When removal is based on the Convention on the Recognition and Enforcement

24 of Foreign Arbitral Awards (the “Convention”), there is a strong preference for a
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At that time, Paradigm contends that Callaway - a third party - owed SPTC $5 Million in
receivables, which comprised virtually all assets SPTC held in California and the United States. (Mot.
Remand 7, ECF No. 5-1.) Judge Lisa Schall issued a protective order directing SPTC to deposit the
first $1 Million of the Callaway receivables into a segregated account within California. (Id.) The
Notice of Removal deprived that court of jurisdiction and the protective order has since expired.

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1 federal forum. 9 U.S.C. § 205; Suter v. Munich Reinsurance Co., 223 F.3d 150, 158
2 (3d Cir. 2000). However, a party can waive its right of removal by agreeing to a
3 contractual clause that gives a clear and unequivocal waiver of that right. Ensco
4 Intern., Inc. v. Certain Underwriters at Lloyd’s, 579 F.3d 442, 443–44, 448 (5th Cir.
5 2009). One way to do so is by agreeing to a forum selection clause that designates an
6 exclusive venue. (Id.) In order for the clause to be mandatory rather than permissive,
7 it “must contain language that clearly designates a forum as the exclusive one.” N. Cal.
8 Dist. Council of Laborers v. Pittsburgh-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th
9 Cir. 1995).
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Enforcement of such a forum selection clause is a proper basis for remand.

11 Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 275, 280 (9th
12 Cir. 1984); Comerica Bank v. Whitehall Specialties, Inc., 352 F. Supp. 2d 1077, 1080
13 (C.D. Cal. 2004). And absent evidence of “fraud, undue influence, overweening
14 bargaining power, or such serious inconvenience in litigating in the selected forum so
15 as to deprive that party of a meaningful day in court,” such a clause should be enforced.
16 Pelleport, 741 F.2d at 280; M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)
17 (forum clause should be enforced unless unreasonable or unjust or invalid based on
18 fraud or overreaching).
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DISCUSSION
Paradigm contends that the Removal was defective in light of the mandatory

21 forum selection clause. SPTC contends that it has good cause to remove the case to
22 this Court, and that the Parties’ contract did not waive its right to do so.
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Remand

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Paradigm argues that this case must be remanded because the contract “clearly

25 and unequivocally requires the parties to litigate any legal action brought to enforce or
26 interpret the contract in San Diego County Superior Court.” (Mot. Remand 11, ECF
27 No. 5-1.) By entering into this valid, binding, and enforceable contract, SPTC waived
28 its right to remove any state court litigation to federal court. (Id. at 14.) Further, SPTC
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1 cannot show that enforcement of the clause would be unreasonable or unjust. (Id.)
2 Accordingly, Paradigm asks this Court to enforce the clause and to Remand the matter
3 back to the San Diego County Superior Court. (Id. at 13.)
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SPTC argues that it did not “clearly and unambiguously” waive its right to

5 removal for three reasons. (Response 5–7, ECF No. 9.) First, SPTC argues that the
6 contract did not designate an exclusive forum because there were two “exclusive
7 forums”—arbitration and San Diego County Superior Court. (Id. at 8.) Because of this
8 ambiguity, SPTC argues that the Court should find that it did not waive its rights of
9 removal. (Id. citing McDermott Int’l v. Lloyds Underwriters of London, 944 F.2d
10 1199, 1205 (5th Cir. 1991).) Second, given the ambiguity, SPTC argues that the Court
11 should consider whether SPTC intended to waive its right to removal. (Response 9,
12 ECF No. 9.) SPTC contends that it did not intend to do so because that aspect of the
13 contract was not negotiated and it did not know there were dual court systems in the
14 United States. (Id.) Third, SPTC argues that the contract would only stand for the
15 proposition that “all legal action must be ‘initiated’ in state court.” (Id. at 10.)
16 Accordingly, as long as a case was initiated in state court, as it was here, the contract
17 would not bar a defendant from subsequently removing a case. (Id. citing Green v.
18 Moore, 2006 U.S. Dist. LEXIS 38124 (W.D. Wash, June 9, 2006).)
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Paradigm responds that there is no ambiguity due to contradiction or conflict

20 between the two clauses. (Reply 3, ECF No. 10.) First, arbitration is not a “legal
21 action.” (Id.) Next, when read in conjunction with the mandatory arbitration clause,
22 the forum selection clause is an agreement to jurisdiction and venue for disputes that
23 cannot be arbitrated, such as a petition to compel arbitration, appoint an arbitrator, or
24 enforce an arbitration award. (Id. at 4.) In addition, Paradigm argues that SPTC’s
25 misunderstanding about the dual court systems in the United States is not sufficient to
26 render the clause unjust or unreasonable and that misunderstanding is not a defense to
27 enforcing the terms of the contract. (Id. at 8.) Lastly, Paradigm argues that SPTC’s
28 argument regarding “initiating” the suit is flawed because the contract contained
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1 “exclusive” language and Green has been specifically distinguished by California
2 courts. (Id. at 7, comparing Green, 2006 U.S. Dist. LEXIS 38124 with Guenther v.
3 Crosscheck, Inc., 2009 U.S. Dist. LEXIS 41470 at * 8–9 (N.D. Cal. April 30, 2009).)
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The Court finds that remand is appropriate and that Plaintiff has adequately

5 shown SPTC “clearly and unequivocally” waived its right of removal. Under the terms
6 of the contract, any legal action must take place in the state court system in San Diego
7 County. This clause is mandatory because the contract clearly designated “exclusive
8 jurisdiction” and stated that any legal action “shall be brought only in, the State Court
9 System of California,” with venue in San Diego County. There is no evidence that the
10 clause was unreasonable or based on fraud or overreaching. Further, the Court does
11 not find any ambiguity in the underlying contract that would justify finding that SPTC
12 did not waive its right to removal. The Mandatory Arbitration clause and the Choice
13 of Venue clause are complimentary and the Court finds no contradiction between
14 mandating arbitration and also designating a judicial forum should the case need to go
15 before a court. In addition, even if SPTC did not understand the difference between the
16 United States’ state and federal court systems, this is not sufficient to defeat the terms
17 of the agreement or render the agreement unreasonable or unjust.2 Lastly, the Court
18 disagrees with SPTC’s interpretation of the contract, which would only require a case
19 be “initiated” in state court. This is contrary to a plain reading of the contract which
20 states that the “exclusive jurisdiction” shall be in the state court system in the County
21 of San Diego.
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Accordingly, the Court hereby REMANDS this case to the San Diego County

23 Superior Court for all further proceedings.
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It is unclear whether SPTC and Lydia Lai had the assistance of legal counsel
27 based on discrepancies between emails and Ms. Lai’s declaration, but it seems likely
that counsel was involved. (See Lai Decl. 2, ECF No. 9-1; Supp. Beal Decl. 6–7, ECF
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1 2.

Attorneys’ Fees and Costs

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In addition, Paradigm asks this Court to award it “all attorneys’ fees and costs

3 incurred in bringing this motion because [SPTC] had no basis, whatsoever, to remove
4 this case to Federal Court.” (Mot. Remand 14, ECF No. 5-1.)
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“An order remanding the case may require payment of just costs and any actual

6 expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C.
7 § 1447(c). An award of attorney’s fees pursuant to section 1447(c) is within the
8 discretion of the district court, bad faith need not be demonstrated, and the district court
9 retains jurisdiction after remand to entertain Plaintiff’s motion for attorney’s fees.
10 Moore v. Permanente Medical Grp., Inc., 981 F.2d 443, 448 (9th Cir. 1992). Courts
11 may award attorney’s fees where the removing party lacked an objectively reasonable
12 basis for seeking removal. Martin v. Franklin Capital Corp., 546 U.S. 132, 141
13 (2005). However, “when an objectively reasonable basis exists, fees should be
14 denied.” Id.
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Paradigm argues that SPTC had no basis for removal because the forum selection

16 clause is clear, unambiguous, and reasonable, and the contract was negotiated at arms17 length by sophisticated parties. (Mot. Remand 15, ECF No. 5-1.) Further, Paradigm
18 argues that SPTC only utilized the procedure to further delay proceedings, increase
19 unnecessary expense, and garner a tactical advantage. (Id.) Accordingly, Paradigm
20 contends that SPTC should be required to pay all of Paradigm’s attorneys’ fees and
21 costs incurred in bringing this motion and otherwise opposing SPTC’s improper and
22 bad-faith attempt to remove this case to federal court.3 (Id. at 15–16.) SPTC argues
23 that it had an objectively reasonable basis for seeking removal and that it would be
24 inappropriate to award Paradigm attorneys’ fees and costs should the Court grant
25 Paradigm’s Motion for Remand. (Response 10–11, ECF No. 9.)
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To date, Paradigm has incurred over $27,000 in attorney’s fees and costs in connection with
this motion, and it offers to provide an updated and detailed calculation at the Court’s request. (Supp.
Miller Decl. 4, ECF No. 10-1.)
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In its discretion, the Court finds that an award for attorney’s fees and costs is

2 inappropriate. Although the Court ultimately agrees with Paradigm that removal was
3 improper, SPTC’s arguments for removal provided a weak, but reasonable, basis for
4 its actions. Accordingly, the Court DENIES Paradigm’s request for an award of
5 attorneys’ fees and costs.
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CONCLUSION
In light of the foregoing, the Court GRANTS Plaintiff’s Motion to Remand. The

8 Court HEREBY REMANDS this action to the San Diego County Superior Court.
9 However, the Court DENIES Plaintiff’s Motion for Attorneys’ Fees.
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IT IS SO ORDERED.

11 DATED: June 1, 2015
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Honorable Janis L. Sammartino
United States District Judge

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