Boon Global Limited v. Usdc-Caoak , 923 F.3d 643 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IN RE BOON GLOBAL LIMITED; F8 No. 18-71347
VIETNAM COMPANY LIMITED;
CALIFORNIA FITNESS & YOGA D.C. No.
CENTERS COMPANY LIMITED; RANDY 4:16-cv-07387-
DOBSON, JSW
BOON GLOBAL LIMITED; F8 OPINION
VIETNAM COMPANY LIMITED;
CALIFORNIA FITNESS & YOGA
CENTERS COMPANY LIMITED; RANDY
DOBSON,
Petitioners,
v.
UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
CALIFORNIA, OAKLAND,
Respondent,
INDYZEN, INC., a California
corporation,
Real Party in Interest.
2 IN RE BOON GLOBAL LTD.
Petition for Writ of Mandamus
to the United States District Court
for the Northern District of California
Argued and Submitted February 4, 2019
San Francisco, California
Filed May 3, 2019
Before: Richard A. Paez, Marsha S. Berzon,
and Ryan D. Nelson, Circuit Judges.
Opinion by Judge R. Nelson
SUMMARY *
Mandamus
The panel denied a petition for a writ of mandamus that
sought to direct the district court to vacate its order
compelling third parties to arbitration, arising from an
arbitration clause in a software development and licensing
agreement.
In deciding whether to grant mandamus relief, the panel
considered the five factors outlined in Bauman v. U.S. Dist.
Court, 557 F.2d 650, 654-55 (9th Cir. 1977). The panel
began with the third factor – clear error – because its absence
was dispositive. The panel held that the district court applied
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
IN RE BOON GLOBAL LTD. 3
incorrect legal tests, and did not provide sufficient
jurisdictional analysis on the current record. The panel
further held, however, that the district court’s ultimate
finding of jurisdiction was not clear error. Because the
district court’s finding of jurisdiction over the third parties
could possibly prove correct, the highly deferential clear
error standard was not satisfied, and mandamus relief was
not proper.
The panel held that the other Bauman factors likewise
supported denying mandamus relief. The panel held that the
first two Bauman factors – whether petitioner has other,
adequate means of relief, or will suffer irreversible damage
or prejudice – weighed heavily against mandamus review.
The panel also held that the remaining Bauman factors did
not support granting the petition for mandamus.
COUNSEL
Adam Wolek (argued) and Zackary R. Clark, Taft Stettinius
& Hollister LLP, Chicago, Illinois; David A. Makman, Law
Offices of David A. Makman, San Mateo, California; for
Petitioners.
Mark R. Figueiredo (argued), Ethan G. Solove (argued), and
Austin T. Jackson, Structure Law Group, LLP, San Jose,
California, for Respondent-Real Party in Interest.
4 IN RE BOON GLOBAL LTD.
OPINION
R. NELSON, Circuit Judge:
Petitioners Boon Global Limited, F8 Vietnam Company
Limited, California Fitness & Yoga Centers Company
Limited (“CFYC”), and Randy Dobson (collectively “the
Third Parties”) seek a writ of mandamus directing the district
court to vacate its order compelling the Third Parties to
arbitration, and grant the Third Parties’ motions to dismiss.
Despite the district court’s flawed jurisdictional analysis, we
deny the petition.
I
As alleged in the complaint, around 2013, Randy Dobson
began developing an online personal training platform,
which later became the “Morfit App.” Praveen Narra, CEO
of Indyzen (a software development company), pitched his
software development expertise to Dobson. Shortly
thereafter, Parkridge Limited was formed with Dobson as
CEO and Chairman, and Narra as the Chief Technology
Officer (“CTO”). As CTO, Narra oversaw the hiring of
another software company, TIBCO, to develop the Morfit
App. TIBCO ultimately did not deliver a mobile platform
app.
In 2015, Parkridge’s shareholders agreement was
executed, with Narra’s father and Mabel Mak (Dobson’s
wife) designated as shareholders. Parkridge then entered
into a software development and licensing agreement (the
“Agreement”) with Indyzen. Dobson signed the Agreement
on behalf of Parkridge as CEO and Narra signed on behalf
of Indyzen. The Agreement defined the parties subject to
arbitration: “Except for any dispute arising out of payments
due to Company, any dispute or disagreement arising
IN RE BOON GLOBAL LTD. 5
between the Company and the Customer . . . shall be referred
to arbitration . . . .” The “Company” was defined as Indyzen
and the “Customer” as Parkridge.
On December 29, 2016, Parkridge and Mak sued
Indyzen and Narra for improperly developing the Morfit
App for Parkridge, alleging breach of fiduciary duties,
breach of contract, unjust enrichment, fraudulent
misrepresentation, and fraudulent concealment. Indyzen
successfully moved to compel arbitration under the
Agreement. In arbitration, Indyzen counterclaimed and
added, as defendants to the counterclaim, the Third Parties,
all of which have or had an affiliation with Dobson and are
located in Hong Kong or Vietnam. 1 The arbitrator found he
lacked authority to determine jurisdiction over entities not
parties to the Agreement and dismissed the Third Parties,
subject to a further order from the district court or agreement
by the parties.
Indyzen petitioned the district court to compel the Third
Parties to arbitrate. The Third Parties filed separate motions
to dismiss. The district court compelled the Third Parties to
arbitration “in order that the arbitrator may decide whether
to allow counterclaims against them to proceed.” The
district court found that the “Dobson Companies and their
business dealings are sufficiently interrelated and
interdependent on conduct governed by the Morfit
Agreement that the doctrine of equitable estoppel enables the
Court to find that the nonsignatories may be bound by the
agreement despite not having signed it.” After the
1
Indyzen also sought to compel California Management Group
(“CMG”) to arbitration. Because CMG is a brand operated by CFYC,
not its own entity and not a petitioner, we do not address CMG
specifically.
6 IN RE BOON GLOBAL LTD.
arbitration analysis, the district court then found it “may
properly exercise jurisdiction over the Dobson Companies.
These companies are closely associated with Randy Dobson
and, by signing the Agreement to perform the subject work
in California, he is properly subjected to the jurisdiction of
this Court.”
II
The writ of mandamus is a “drastic and extraordinary”
remedy “reserved for really extraordinary causes.” Ex parte
Fahey, 332 U.S. 258, 259–60 (1947). “Only exceptional
circumstances amounting to a judicial usurpation of power,
or a clear abuse of discretion will justify the invocation of
this remedy. The petitioner bears the burden of showing that
its right to issuance of the writ is clear and indisputable.” In
re Van Dusen, 654 F.3d 838, 840–41 (9th Cir. 2011)
(alterations).
In deciding whether to grant mandamus
relief, we consider five factors: (1) whether
the petitioner has other adequate means, such
as a direct appeal, to attain the relief he or she
desires; (2) whether the petitioner will be
damaged or prejudiced in a way not
correctable on appeal; (3) whether the district
court’s order is clearly erroneous as a matter
of law; (4) whether the district court’s order
makes an “oft-repeated error,” or “manifests
a persistent disregard of the federal rules”;
and (5) whether the district court’s order
raises new and important problems, or legal
issues of first impression.
Id. at 841 (quoting Bauman v. U.S. Dist. Court, 557 F.2d
650, 654–55 (9th Cir. 1977)). Satisfying the third factor is
IN RE BOON GLOBAL LTD. 7
necessary for granting the writ. In re Henson, 869 F.3d
1052, 1058 (9th Cir. 2017) (per curiam). But a petitioner
need not satisfy all factors. Id. “Mandamus review is at
bottom discretionary—even where the Bauman factors are
satisfied, the court may deny the petition.” San Jose
Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099
(9th Cir. 1999).
III
We begin with the third Bauman factor, clear error,
because “the absence of the third factor is dispositive.”
Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010)
(internal quotation marks and ellipsis omitted). A writ of
mandamus “will not issue merely because the petitioner has
identified legal error.” In re Van Dusen, 654 F.3d at 841.
“Mandamus, it must be remembered, does not run the
gauntlet of reversible errors.” Will v. United States, 389 U.S.
90, 104 (1967) (internal quotation marks omitted).
The Third Parties argue that, as foreign corporations with
no contacts in the United States, the court lacks jurisdiction
over them. We agree that the district court erred in
summarily concluding that it had jurisdiction over the Third
Parties, but conclude the district court did not commit clear
error. Moreover, the remaining Bauman factors weigh
against mandamus review. Accordingly, we deny the
petition. The district court must have personal jurisdiction
over each individual third-party entity before compelling
them to arbitrate. See Sinochem Int’l Co. v. Malaysia Int’l
Shipping Corp., 549 U.S. 422, 430–31 (2007) (“[A] federal
court generally may not rule on the merits of a case without
first determining that it has jurisdiction over . . . the parties
(personal jurisdiction).”). Where no federal statute
authorizes personal jurisdiction, the law of the state in which
the district court sits applies. Mavrix Photo, Inc. v. Brand
8 IN RE BOON GLOBAL LTD.
Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011).
California’s long-arm statute authorizes personal
jurisdiction to the extent permitted by the Due Process
Clause of the United States Constitution. Cal. Civ. Proc.
Code § 410.10. “Because California’s long-arm
jurisdictional statute is coextensive with federal due process
requirements, the jurisdictional analyses under state law and
federal due process are the same.” Schwarzenegger v. Fred
Martin Motor Co., 374 F.3d 797, 800–01 (9th Cir. 2004).
Due process, in turn, requires that each party “have certain
minimum contacts” with the forum state “such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotation
marks omitted).
A party seeking to establish jurisdiction over a person or
entity can either: (1) show each defendant’s sufficient, direct
contacts with the forum state, or (2) use the alter ego theory
to “extend personal jurisdiction to a foreign parent or
subsidiary when, in actuality, the foreign entity is not really
separate from its domestic affiliate.” Ranza v. Nike, Inc.,
793 F.3d 1059, 1073 (9th Cir. 2015). The party asserting
jurisdiction bears the burden to establish jurisdictional facts.
Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.
2006). When the party invoking jurisdiction does not ask for
jurisdictional discovery (Indyzen did not), we must evaluate
whether the “pleadings and affidavits establish a prima facie
showing of jurisdictional facts.” Data Disc., Inc. v. Sys.
Tech. Assocs., 557 F.2d 1280, 1286 (9th Cir. 1977).
Although the party asserting jurisdiction is “required only to
establish a prima facie showing of jurisdictional facts,” the
standard is not toothless. Id. at 1285 n.2. The party asserting
jurisdiction “cannot simply rest on the bare allegations of its
complaint”; however, “uncontroverted allegations in the
IN RE BOON GLOBAL LTD. 9
complaint must be taken as true.” Schwarzenegger, 374 F.3d
at 800 (internal quotation marks and citation omitted).
“Conflicts between parties over statements contained in
affidavits must be resolved in the plaintiff’s favor.” Id.
Here, the district court’s analysis concerning whether
Indyzen made a prima facie showing of jurisdictional facts
was flawed. The district court exercised jurisdiction over
Dobson because he “sign[ed] the Agreement to perform the
subject work in California” and over the foreign third-party
entities because they “are closely associated with” Dobson.
“Closely associated” is not a proper jurisdictional test.
Instead, each party’s “contacts with the forum [s]tate
must be assessed individually.” Calder v. Jones, 465 U.S.
783, 790 (1984). The district court therefore erred in not
conducting an individualized jurisdictional analysis for each
third party. A three-part test controls whether non-residents
have sufficient contacts to be subject to specific personal
jurisdiction: (1) the non-resident must purposefully avail
himself of the privilege of conducting business in the forum;
(2) the claim must arise out of the forum-related activities;
and (3) “the exercise of jurisdiction must comport with fair
play and substantial justice, i.e. it must be reasonable.”
Schwarzenegger, 374 F.3d at 802. “The exact form of our
jurisdictional inquiry depends on the nature of the claim at
issue.” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir.
2015). For claims sounding in contract, a purposeful
availment test is used; for claims sounding in tort a
purposeful direction test is used. Id. at 1212.
A.
To begin, we turn to Dobson’s contacts. The district
court did not specify whether it was determining jurisdiction
based on a contract or tort claim. Rather, the district court
10 IN RE BOON GLOBAL LTD.
solely focused on Dobson’s signature on the Agreement with
Indyzen. Dobson signed the Agreement with Indyzen
specifically as CEO of Parkridge, a corporation subject to
California’s jurisdiction through the Agreement. The
district court—with no further analysis—found that
signature sufficient to exercise jurisdiction over Dobson
personally. But, Dobson’s signature on the Agreement as
CEO does not “automatically establish sufficient minimum
contacts in the other party’s home forum.” Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985). A corporate
officer does not become a party to the contract simply by
“signing it in the officer’s representative capacity.”
Restatement (Third) of Agency § 6.01, rep. n.2 (Am. Law
Inst. 2003); Forsythe v. Overmyer, 576 F.2d 779, 783–84
(9th Cir. 1978) (“[A] corporate officer who has contact with
a forum only with regard to the performance of his official
duties is not subject to personal jurisdiction in that forum.”).
Therefore, the district court erred.
Indyzen argues we should nevertheless find jurisdiction
over Dobson because he was the “guiding spirit” behind
Parkridge and used “his Additional Sham Companies to steal
the Morfit App and its intellectual property by cloning it
without authorization before renaming it and selling it out to
the world.” Corporate officers can be liable for corporate
actions where they are “the guiding spirit behind the
wrongful conduct, or the central figure in the challenged
corporate activity.” Facebook, Inc. v. Power Ventures, Inc.,
844 F.3d 1058, 1069 (9th Cir. 2016) (internal quotation
marks omitted). Indyzen does not clarify whether its claims
against Dobson sound in contract or tort. 2 Indyzen’s main
2
After the district court entered its order, Indyzen filed a “statement
of particulars on cross-claims” in the arbitration. This court applies “a
general rule against entertaining arguments on appeal that were not
IN RE BOON GLOBAL LTD. 11
complaint appears to be that it never received full payment
under the Agreement, although Parkridge seems to have paid
Indyzen a large sum in 2015. If the claim is for breach of
contract, Dobson would lack sufficient contacts with
California solely because he signed the Agreement in his
capacity as Parkridge’s CEO. See Forsythe, 576 F.2d at
783–84.
For claims sounding in tort, a corporate officer can be
subject to jurisdiction based on his own sufficient individual
contacts with the forum. See Davis v. Metro Prods., Inc.,
885 F.2d 515, 522 (9th Cir. 1989). “But a defendant’s
relationship with a plaintiff or third party, standing alone, is
an insufficient basis for jurisdiction.” Walden v. Fiore,
571 U.S. 277, 286 (2014). As such, to find jurisdiction
Parkridge’s contacts would have to be imputed to Dobson.
See Davis, 885 F.2d at 520 (“Because the corporate form
serves as a shield for the individuals involved for purposes
of liability as well as jurisdiction, many courts search for
reasons to ‘pierce the corporate veil’ in jurisdictional
contexts parallel to those used in liability contexts.”).
To be sure, Dobson, as CEO of Parkridge, had more
contacts with California than the other foreign third-party
entities. Indyzen’s lack of clarity before the district court
and this court, however, makes it difficult to assess a theory
of liability for Dobson sufficient to exercise personal
jurisdiction. For example, in Davis, we found jurisdiction
over a corporation’s only corporate officers because they
solicited business from multiple forum residents, had
presented or developed before the district court.” Peterson v. Highland
Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998) (internal quotation
marks omitted). Even so, Indyzen’s precise theory of liability, whether
sounding in contract or tort or both, remains opaque.
12 IN RE BOON GLOBAL LTD.
already defended themselves in multiple lawsuits in the
forum, and were on notice that they could be personally
liable for any securities violations they committed while
conducting business in the forum state. 885 F.2d at 522–23.
Dobson’s contacts, however, may be more analogous to
Picot, where we found that an oral agreement and one
party’s two trips to California “did not create sufficient
minimum contacts to subject him to personal jurisdiction.”
780 F.3d at 1213. If Indyzen’s claims sound in tort, we
cannot say definitively jurisdiction was wrongly exercised,
and therefore the district court did not clearly err.
B.
With respect to the other third-party petitioners, the
district court erred by failing to conduct individualized
inquiries over each third-party entity and by instead
concluding that it could assert personal jurisdiction because
they were “closely associated” with Dobson. Again,
“closely associated” is not the requisite test for jurisdiction.
Applying the proper standards, it is questionable whether
Indyzen has shown that the foreign third-party corporations
maintained sufficient direct contacts with California. To the
extent jurisdiction hinges on Boon and F8 selling apps to
California residents through iTunes and Google Plus, there
is no allegation as to whether Boon and F8 targeted their app
sales at California residents. Mavrix Photo, Inc., 647 F.3d
at 1229 (“[W]e have held that operating even a passive
website in conjunction with something more—conduct
directly targeting the forum—is sufficient.”) (internal
quotation marks omitted). We therefore doubt that Indyzen
has shown facts sufficient to find jurisdiction. Indyzen also
has not shown whether CFYC entered into direct
competition with Indyzen in the California marketplace,
another mechanism to establish jurisdiction. See
IN RE BOON GLOBAL LTD. 13
CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,
1077–78 (9th Cir. 2011) (finding jurisdiction where
company downloaded intellectual property directly off
website and republished content for purpose of directly
competing in forum state with owner of material).
Nor has Indyzen established that any other third party
purposefully directed activities at California. Indyzen
claims that “CMG and CFYC both consistently sent emails
to Indyzen regarding the Morfit Agreement throughout its
duration,” arguing that their interaction with Indyzen, a
company headquartered in California, established
jurisdiction. However, the “minimum contacts analysis
looks to the [entity’s] contacts with the forum State itself,
not with the [entity’s] contacts with persons who reside
there.” Walden, 571 U.S. at 285.
To the extent Indyzen’s evidence shows connections to
activities in California, the evidence either does not concern
the Third Parties sued in the counterclaim or appears
inadequate for jurisdictional purposes. Indyzen points to an
email from Dobson to Narra stating that R&R Holdings, a
holding company for Parkridge, would pay Indyzen for
services rendered; 3 a list of CFYC trainers, sent at Indyzen’s
request, who would beta test the Morfit App; and CFYC and
CompIndia, an Indian company, coordinating Vietnamese
visas for CompIndia employees. Noticeably absent is any
evidence concerning any third-party cross-defendant other
than CFYC. And CFYC’s limited contacts likely do not
establish CFYC purposely directed activities at California.
Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990).
“[B]oth this court and the courts of California have
3
R&R Holdings was not named as a third-party defendant in the
counterclaim.
14 IN RE BOON GLOBAL LTD.
concluded that ordinarily use of the mails, telephone, or
other international communications simply do not qualify as
purposeful activity invoking the benefits and protection of
the forum state.” Roth v. Garcia Marquez, 942 F.2d 617,
622 (9th Cir. 1991) (internal quotation marks and brackets
omitted).
Perhaps the district court meant to apply the alter ego
theory of jurisdiction for the third-party entities. If so, its
analysis was entirely inadequate to establish that the foreign
third-party entities were Parkridge’s alter egos. “California
recognizes alter ego liability where two conditions are met:
First, where there is such a unity of interest and ownership
that the individuality, or separateness, of the said person and
corporation has ceased; and, second, where adherence to the
fiction of the separate existence of the corporation would
sanction a fraud or promote injustice.” In re Schwarzkopf,
626 F.3d 1032, 1038 (9th Cir. 2010) (internal quotation
marks and ellipsis omitted); Ranza, 793 F.3d at 1073 (same
test for personal jurisdiction).
The “unity of interest and ownership” prong requires “a
showing that the parent controls the subsidiary to such a
degree as to render the latter the mere instrumentality of the
former.” 4 Ranza, 793 F.3d at 1073 (internal quotation marks
omitted). While “[t]otal ownership and shared management
personnel are alone insufficient to establish the requisite
level of control,” pervasive control can be shown where one
corporation “dictates every facet of [the affiliate’s]
4
Parkridge and the third-party entities are not parent-subsidiaries,
but the jurisdictional analysis remains the same for sister corporations.
See, e.g., Riddle v. Leuschner, 335 P.2d 107, 110–12 (Cal. 1959)
(applying same alter ego analysis for stockholders and sister
corporations).
IN RE BOON GLOBAL LTD. 15
business—from broad policy decisions to routine matters of
day-to-day operation.” Id. (internal quotation marks
omitted).
Indyzen claims that Parkridge has no physical office
space or employees, and does not observe corporate
formalities like issuing shares or holding annual board
meetings. Indyzen then points to a series of emails and
registered websites that show, at best, the Morfit App was
launched at CFYC headquarters and CFYC registered F8
Vietnam’s website. The Third Parties in turn swear with
conclusory statements in affidavits that they observe
corporate formalities. Indyzen has not presented evidence
that the third-party entities commingled funds with
Parkridge, or that the companies did not maintain corporate
formalities such as keeping their own accounting books or
paying their own taxes. We have previously held that
jurisdiction cannot lie where there is no evidence of
undercapitalization, failure to keep adequate records, or the
free transfer of company assets—all of which would
normally be signs of a sham corporate veil. See id. at 1073–
74. The fact that “[s]ome employees and management
personnel move between the entities . . . does not undermine
the entities’ formal separation.” Id. at 1074.
Further, the district court did not make a finding that
treating the Third Parties as separate corporate forms would
“result in fraud or injustice.” Id. at 1073. Conclusory
allegations that Dobson structures companies to escape
liability are insufficient to confer personal jurisdiction.
Something more is needed. See, e.g., In re Schwarzkopf,
626 F.3d at 1039–40 (alter ego theory recognized where
individual used corporation to acquire asset at time when he
was insolvent); Riddle, 335 P.2d at 112 (finding injustice
would result where jurisdictional facts showed that insolvent
16 IN RE BOON GLOBAL LTD.
company’s assets were transferred to another company as a
means of avoiding creditors). Without determining that both
prongs of alter ego jurisdiction were met, the district court’s
jurisdictional analysis concerning the Third Parties was
flawed. Ranza, 793 F.3d at 1073. 5
IV
In sum, although the district court applied the incorrect
legal tests, and did not provide sufficient jurisdictional
analysis on the current record, we cannot say the district
court’s ultimate finding of jurisdiction was clear error.
Because the district court’s finding of jurisdiction over the
Third Parties could possibly prove correct, the highly
deferential clear error standard is not satisfied, and
mandamus relief is improper.
The other Bauman factors likewise support denying
mandamus relief. Taken together, the first and second
Bauman factors—whether petitioner has other, adequate
means of relief or will suffer irreversible damage or
prejudice—weigh heavily against mandamus review. See In
re Henson, 869 F.3d at 1058 (“[w]e generally examine the
5
The Third Parties also argue the district court erred in binding them
to a contract “they never signed.” However, “nonsignatories of
arbitration agreements may be bound by the agreement under ordinary
contract and agency principles,” which includes veil-piercing/alter ego
and equitable estoppel. Comer v. Micor, Inc., 436 F.3d 1098, 1101 (9th
Cir. 2006). The district court relied on equitable estoppel to bind the
Third Parties to arbitration. But it did not engage in a complete analysis
because it did not consider whether the Third Parties “knowingly
exploit[ed] the agreement.” Mundi v. Union Sec. Life Ins. Co., 555 F.3d
1042, 1046 (9th Cir. 2009) (applying equitable estoppel arbitration
analysis). And the alter ego theory for personal jurisdiction is tied to
whether the Third Parties may be compelled to arbitrate. See supra at
14–16. Therefore, we do not address the arbitration issue separately.
IN RE BOON GLOBAL LTD. 17
first and second factors together”). While, “[a]n order
staying proceedings and compelling arbitration is not a final
decision that is subject to ordinary appeal,” any prejudice to
the Third Parties is ordinarily correctable on appeal from the
final judgment. Id. (citing Johnson v. Consumerinfo.com,
Inc., 745 F.3d 1019, 1021–23 (9th Cir. 2014)) (recognizing
instance where prejudice from district court’s error
compelling arbitration is not correctable on appeal).
The Third Parties argue they lack adequate relief on
appeal because of the “enormous” expense they will incur to
participate in the arbitration. This court, however, has said
“litigation costs are a factor weighing in favor of mandamus
relief only in the most extreme circumstances.” In re Swift
Transp. Co., 830 F.3d 913, 916 (9th Cir. 2016) (internal
quotation marks omitted); see also Bankers Life & Cas. Co.
v. Holland, 346 U.S. 379, 383 (1953) (“extraordinary writs
cannot be used as substitutes for appeals even though
hardship may result from delay and perhaps unnecessary
trial”) (internal citation omitted). Further, “the general rule
[is] that appellate courts should avoid determining
jurisdictional issues on a petition for mandamus.” In re Ivy,
901 F.2d 7, 10 (2d Cir. 1990). Here, denying mandamus
review is also consistent with the Federal Arbitration Act’s
effect of “limit[ing] appeals from orders directing
arbitration.” Bushley v. Credit Suisse First Boston, 360 F.3d
1149, 1153 (9th Cir. 2004). There is no reason to believe
this court could not review jurisdiction on direct review after
arbitration concluded.
Because it remains unclear whether the Third Parties are
subject to the court’s jurisdiction and because the merits of
the counterclaims have yet to be decided, the Third Parties
have not shown they lack an adequate remedy at law or they
will be “damaged or prejudiced in a way not correctable on
18 IN RE BOON GLOBAL LTD.
appeal.” In re Van Dusen, 654 F.3d at 841; see also Cole v.
U.S. Dist. Court, 366 F.3d 813, 822–23 (9th Cir. 2004)
(denying mandamus despite clear error where petitioners
had other adequate means of relief). 6
The remaining Bauman factors similarly do not support
granting the petition for mandamus. The Third Parties have
not shown that the “district court’s order is an oft-repeated
error, or manifests a persistent disregard of the federal
rules.” Bauman, 557 F.2d at 655. Further, while this court
has not often addressed personal jurisdiction over corporate
officers, minimum contacts and alter ego jurisdiction are not
matters of first impression. Id. Although the district court
erred in its jurisdictional analysis and likely erred in its
assertion of jurisdiction based on the record before us,
mandamus is not an appropriate remedy at this stage.
V
Because the Bauman factors do not support granting the
petition for mandamus, it is therefore
DENIED.
6
On mandamus review, we cannot order the district court to revisit
the personal jurisdiction analysis without granting the writ. Still, the
district court should “protect[] an individual’s liberty interest in not
being subject to the binding judgments of a forum with which he has
established no meaningful contacts, ties, or relations.” Burger King
Corp., 471 U.S. at 471–72 (internal quotation marks omitted).