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WESTPAC’S NOTICE OF MOTION AND MOTION TO DISMISS OR, ALTERNATIVELY,
TRANSFER VENUE
DOCS 2816888.1 CASE NO. 2:17-CV-00322 SVW (SKX)
Phillip L. Kossy (Bar No. 071543)
Erik T. Johnson (Bar No. 279940)
PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
525 B Street, Suite 2200
San Diego, CA 92101
Telephone: 619.238.1900
Facsimile: 619.235.0398
Attorneys for Defendant
WestPac Surgical, LLC
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NORMAN W. MATTHEWS, an individual;
RELYONUS MEDICAL GROUP, LLC, a
California Limited Liability Company; and
MWM MEDICAL, INC., a California
Corporation,
Plaintiffs,
v.
WESTPAC SURGICAL, LLC, an Arizona
Limited Liability Company, and DOES 1-
10, inclusive,
Defendants.
Case No. 2:17-cv-00322 SVW (SKx)
DEFENDANT WESTPAC
SURGICAL’S NOTICE OF
MOTION AND MOTION TO
DISMISS COMPLAINT UNDER
F.R.C.P. 12(b)(1), 12(b)(3), AND
12(b)(6) OR, ALTERNATIVELY,
TO TRANSFER VENUE
PURSUANT TO 28 U.S.C. §
1406(a)
Date: March 20, 2017
Time: 1:30 p.m.
Dept: 10A
Judge: Hon. Stephen V. Wilson
PLEASE TAKE NOTICE that on March 20, 2017, at 1:30 p.m., or as soon
thereafter as counsel may be heard, in Department 10A of the above-entitled court,
located at First Street Courthouse, 350 W. 1st Street, Courtroom 10A, 10th Floor,
Los Angeles, California 90012, defendant WestPac Surgical, LLC. (“WestPac”) will
and hereby does move under Federal Rule of Civil Procedure, Rules 12(b)(3) for an
order dismissing Plaintiffs’ Complaint. WestPac also will and hereby does move
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for an order dismissing
the Third Cause of Action in Plaintiffs’ Complaint for Violation of Unfair
Case 2:17-cv-00322-SVW-SK Document 17 Filed 02/15/17 Page 1 of 2 Page ID #:238
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WESTPAC’S NOTICE OF MOTION AND MOTION TO DISMISS OR, ALTERNATIVELY,
TRANSFER VENUE
DOCS 2816888.1 CASE NO. 2:17-CV-00322 SVW (SKX)
Competition Laws under California Business and Professions Code section 17200, et
seq.
If the Court is not inclined to dismiss the Complaint, the Third Cause of
Action, or both, WestPac will and hereby does move under 28 U.S.C. § 1406(a) for
an order transferring this action from this Court to the United States District Court
for the District of Arizona, Phoenix Division, on the ground that venue is improper
because the forum-selection clause in the parties’ written agreement that gives rise to
this action mandates that the parties must mandate this dispute in a forum in
Maricopa County, Arizona.
This motion is made following the conference of counsel pursuant to L.R. 7-3
which took place on February 8, 2017.
These Motions are based on this Notice of Motion, the accompanying
Memorandum of Points and Authorities, [Proposed] Order, the complete file in this
matter, and upon such additional argument as may be presented at the hearing on this
matter.
DATED: February 15, 2017 PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
By: /s/ Phillip L. Kossy
Phillip L. Kossy (Bar No. 071543)
Erik T. Johnson (Bar No. 279940)
Attorneys for Defendant WestPac
Surgical, LLC
Case 2:17-cv-00322-SVW-SK Document 17 Filed 02/15/17 Page 2 of 2 Page ID #:239
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WESTPAC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO DISMISS OR, ALTERNATIVELY, TRANSFER VENUE
DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
Phillip L. Kossy (Bar No. 071543)
Erik T. Johnson (Bar No. 279940)
PROCOPIO, CORY, HARGREAVES
& SAVITCH LLP
525 B Street, Suite 2200
San Diego, CA 92101
Telephone: 619.238.1900
Facsimile: 619.235.0398
Attorneys for Defendant
WestPac Surgical, LLC
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NORMAN W. MATTHEWS, an individual;
RELYONUS MEDICAL GROUP, LLC, a
California Limited Liability Company; and
MWM MEDICAL, INC., a California
Corporation,
Plaintiffs,
v.
WESTPAC SURGICAL, LLC, an Arizona
Limited Liability Company, and DOES 1-
10, inclusive,
Defendants.
Case No. 2:17-cv-00322 SVW (SKx)
DEFENDANT WESTPAC
SURGICAL’S MEMORANDUM
OF POINTS AND AUTHORITIES
IN SUPPORT OF ITS MOTION
TO DISMISS COMPLAINT
UNDER F.R.C.P. 12(b)(1),
12(b)(3), AND 12(b)(6) OR,
ALTERNATIVELY, TO
TRANSFER VENUE PURSUANT
TO 28 U.S.C. § 1406(a)
Date: March 20, 2017
Time: 1:30 p.m.
Dept: 10A
Judge: Hon. Stephen V. Wilson
Case 2:17-cv-00322-SVW-SK Document 17-1 Filed 02/15/17 Page 1 of 22 Page ID #:240
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DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ........................................................................................ ii
I. INTRODUCTION .............................................................................................. 1
II. PLAINTIFFS’ COMPLAINT AND PROCEDURAL HISTORY .................... 2
III. ARGUMENT ..................................................................................................... 4
A. The Court Should Dismiss the Complaint Pursuant to Federal Rule
of Civil Procedure 12(b)(3). ..................................................................... 4
1. The Forum-Selection Clause Mandates a Different Venue. .......... 4
2. The Forum-Selection Clause Is Enforceable. ................................ 6
a. The Forum-Selection Clause Is Not the Product of
Overreaching. ...................................................................... 6
b. Enforcement of the Clause Will Not Deprive Plaintiffs
of Their Day in Court. ......................................................... 8
c. Public Policy Does Not Invalidate the Agreement’s
Forum-Selection Clause. ..................................................... 9
3. The Forum-Selection Clause Is Mandatory. ................................ 11
4. The Forum-Selection Clause Is Binding on Relyonus. ............... 12
B. Plaintiffs Fail to State a Claim for Purported Violations of Business
and Professions Code Section 17200. .................................................... 14
C. Alternatively, the Court Can Transfer the Case to the Proper Forum:
the United States District Court for the District of Arizona, Phoenix
Division. ................................................................................................. 15
IV. CONCLUSION ................................................................................................ 16
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DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
AJZN, Inc. v. Yu
No. 12-CV-03348-LHK, 2013 WL 97916 (N.D. Cal. Jan. 7, 2013) ....................... 4
Argueta v. Banco Mexico, S.A.
87 F.3d 320 (9th Cir. 1996) ......................................................................... 2, 4, 6, 8
Ashcroft v. Iqbal
556 U.S. 662 (2009) .............................................................................................. 14
Bell Atlantic Corp. v. Twombly
550 U.S. 544 (2007) .............................................................................................. 14
Docksider, Ltd. v. SeaTechnology, Ltd.
875 F.2d 762 (9th Cir. 1989) ................................................................................. 11
Doe 1 v. AOL LCC
552 F.3d 1077 (9th Cir. 2009) ................................................................................. 6
E. & J. Gallo Winery v. Andina Licores S.A.
446 F. 3d 984 (9th Cir. 2006) ................................................................................ 11
E&J Gallo Winery v. Andina Licores S.A.
440 F. Supp. 2d 1115 (E.D. Cal. 2006) ................................................................. 11
Knapp v. Depuy Synthes Sales Inc.
983 F. Supp. 2d 1171 (E.D. Cal. 2013) ............................................................. 4, 13
Kukje Hwajae Ins. Co., Ltd. v. M/V Hyundai Liberty
408 F.3d 1250 (9th Cir. 2005) ................................................................................. 4
LaCross v. Knight Transportation, Inc.
95 F. Supp. 3d 1199 (C.D. Cal. 2015) ............................................................... 8, 10
M/S Bremen v. Zapata Off-Shore Co.
407 U.S. 1 (1972) ............................................................................................ 4, 6, 9
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TO DISMISS OR, ALTERNATIVELY, TRANSFER VENUE
DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
Mahoney v. Depuy Orthopedics
No. CIV F 07-1321 AWI SMS, 2007 WL 3341389 (E.D. Cal. Nov.
8, 2007) .......................................................................................................... 5, 8, 10
Manetti-Farrow, Inc. v. Gucci Am., Inc.
858 F.2d 509 (9th Cir. 1988) ....................................................................... 5, 11, 13
Meras Engineering Inc. v. CH20, Inc.
No. C-11-0389 EMC, 2013 WL 146341 (N.D. Cal. Jan. 14, 2013) ................. 4, 13
Meyer v. Howmedica Osteonics Corp.
2015 WL 728631 (S.D. Cal. Feb. 19, 2015) ......................................................... 10
Murphy v. Schneider Nat’l, Inc.
362 F.3d 1133 (9th Cir. 2004) ................................................................................. 7
N. California Dist. Council of Laborers v. Pittsburg-Des Moines Steel
Co.
69 F.3d 1034 (9th Cir. 1995) ................................................................................. 11
Paster v. Putney Student Travel, Inc.
No. CV99-2062 RSWL, 1999 WL 1074120, at *3 (C.D. Cal. June 9,
1999) ........................................................................................................................ 8
Pauma Band of Luiseno Mission Indians of Pauma & Yuima
Reservation v. California
813 F.3d 1155 (9th Cir. 2015), cert. denied, 136 S. Ct. 2511 (2016) ................... 12
Pelleport Investors, Inc. v. Budco Quality Theatres, Inc.
741 F.2d 273 (9th Cir. 1984) ................................................................................... 8
Richards v. Lloyd’s of London
135 F.3d 1289 (9th Cir. 1998) ............................................................................. 4, 6
Roberson v. Norwegian Cruise Line
897 F. Supp. 1285 (C.D. Cal. 1995) ...................................................................... 11
Rubio v. Capital One Bank
613 F.3d 1195 (9th Cir. 2010) ............................................................................... 14
Saldate v. Wilshire Credit Corp.
711 F. Supp. 2d 1126 (E.D. Cal. 2010) ................................................................. 14
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DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
Sarmiento v. BMG Entm’t
326 F. Supp. 2d 1108 (C.D. Cal. 2003) ................................................................... 4
Scherk v. Alberto-Culver Co.
417 U.S. 506 (1974) ............................................................................................ 7, 8
Spradlin v. Lear Siegler Mgmt. Servs. Co.
926 F.2d 865 (9th Cir. 1991) ............................................................................... 6, 9
Swenson v. T–Mobile USA, Inc.
415 F. Supp. 2d 1101 (S.D. Cal. 2006) ......................................................... 5, 9, 10
Universal Operations Risk Management, LLC v. Global Rescue, LLC
No. C1-5969 SBA, 2012 WL 2792444 (N.D. Cal. July 9, 2012) ......................... 13
STATE CASES
Kwikset Corp. v. Super. Ct.
51 Cal. 4th 310 (2011) ........................................................................................... 14
FEDERAL STATUTES, REGULATIONS, AND RULES
9 U.S.C. § 1 (“Federal Arbitration Act”) ...................................................................... 2
28 U.S.C.
§ 1391(b) ................................................................................................................ 16
§ 1406(a) ........................................................................................................ 1, 4, 15
Federal Rules of Civil Procedure
Rule 12(b)(3) ........................................................................................................... 1
Rule 12(b)(6) ........................................................................................................... 1
STATE STATUTES, REGULATIONS, AND RULES
California Business and Professions Code
§ 16600 .............................................................................................................. 9, 10
§ 17200 ........................................................................................................ 1, 14, 15
§ 17200 et seq. ......................................................................................................... 3
Rule 12(b)(3) ......................................................................................................... 1, 2, 4
Rule 12(b)(6) ........................................................................................................... 2, 14
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DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
OTHER AUTHORITIES
11 Williston on Contracts § 32:5 (4th Ed. 2015) ........................................................ 12
United States Constitution, Article III ........................................................................ 14
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WESTPAC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO DISMISS OR, ALTERNATIVELY, TRANSFER VENUE
DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
Defendant WestPac Surgical, LLC, an Arizona Limited Liability Company
(“WestPac”), submits the following memorandum in support of its Motion to
Dismiss Complaint for Declaratory Relief of Plaintiffs Norman W. Matthews,
Relyonus Medical Group, LLC (“Relyonus”), and MWM Medical Inc. (“MWM”) or,
alternatively, to transfer this case to the proper venue.
I. INTRODUCTION
The venue in this District Court is improper and Plaintiffs’ claims against
WestPac should be dismissed or transferred to the proper forum because, according
to the mandatory forum-selection clause in Matthews’ Sales Representative
Independent Contractor Agreement (“Agreement”) with WestPac, all disputes related
to the Agreement must be resolved in a forum in Maricopa County, Arizona. This
litigation arises from the Agreement. Plaintiffs are not entitled to pick and choose
which provisions of the Agreement apply. Matthews and MWM agreed to the
Agreement’s Arizona forum-selection provision and are bound by it. Plaintiffs—
including Relyonus—are not entitled to disregard it now.
Forum-selection clauses are presumed valid and are routinely enforced by the
courts. In light of the mandatory Arizona forum-selection clause in the Agreement
that is the subject of Plaintiffs’ claims, the Complaint against WestPac is subject to
dismissal based on improper venue under Federal Rule of Civil Procedure 12(b)(3).
Plaintiffs’ California Business and Professions Code section 17200 claim is also
subject to dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
Should the Court be disinclined to dismiss the Complaint pursuant to Rule
12(b)(3) or 12(b)(6), the Court should at least transfer the action to a proper forum—
the United States District Court for the District of Arizona, Phoenix Division—
pursuant to 28 U.S.C. § 1406(a).
/ / /
/ / /
Case 2:17-cv-00322-SVW-SK Document 17-1 Filed 02/15/17 Page 7 of 22 Page ID #:246
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DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
II. PLAINTIFFS’ COMPLAINT AND PROCEDURAL HISTORY
WestPac is a distributor of certain orthopedic medical devices, instruments,
and related products. From January 1, 2016 to January 13, 2017, Matthews worked
in California for WestPac as an independent sales representative. Complaint for
Declaratory Relief, ECF No. 1, January 13, 2017 (“Complaint”), ¶ 17.
On January 1, 2016, Matthews (on behalf of MWM) signed the Agreement.
Id. at ¶ 18. Article X, Section 10.2 of the Agreement provides, “all disputes arising
under or related to this Agreement . . . or the relationship between the Parties shall be
submitted to binding arbitration pursuant to the Federal Arbitration Act
9 U.S.C. § 1.” See Complaint, Exhibit 1, page 32.1
Section 12.3 of the Agreement provides a mandatory Arizona forum-selection
and jurisdiction consent that states:
While it is the intention of the Parties that Article X be fully enforced,
to the extent any judicial action is required in aid of Article X or
otherwise . . . the Parties hereby agree that all such judicial actions
may be filed in and decided exclusively by the state or federal courts
in Maricopa County, Arizona. The Parties hereby waive any
objection they might otherwise have to personal jurisdiction and
venue in the state or federal courts in Maricopa County, Arizona, as it
relates to disputes related to this agreement.
Id. at Exhibit 1, page 34. The Agreement also contains an Arizona governing law
provision. Id. (“This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Arizona, regardless of the laws that might otherwise
govern under applicable principles of contract law.”).
1 Courts may consider evidence outside the pleadings in deciding motions brought
pursuant to Rule 12(b)(3), and the pleadings need not be accepted as true, unlike
Rule 12(b)(6) review standards. Argueta v. Banco Mexico, S.A., 87 F.3d 320, 324
(9th Cir. 1996). For example, a court may decide venue issues by considering
affidavits or declarations and discovery materials. Id.
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WESTPAC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO DISMISS OR, ALTERNATIVELY, TRANSFER VENUE
DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
Two additional provisions in the Agreement are relevant. Section 3.2
prohibits Matthews from engaging in certain competitive activities for twelve
months following the termination or expiration of the Agreement. Complaint, ¶¶ 19-
22. Section 3.3 of the Agreement prohibits Matthews from engaging in certain
customer solicitation activities for twelve months following the termination or
expiration of the Agreement. Id. at ¶¶ 23-24.
On January 13, 2017, Matthews provided 60-day notice to WestPac of
termination of the Agreement. Id. at ¶ 26 (as modified by Second Notice of Errata to
Plaintiffs’ Complaint for Declaratory Relief, ECF No. 11, January 26, 2017).
According to the Complaint, Matthews will begin working for Defendant Relyonus
on or about March 16, 2017. Id. at ¶ 27 (as modified by Second Notice of Errata to
Plaintiffs’ Complaint for Declaratory Relief, ECF No. 11, January 26, 2017).2
Despite the mandatory choice of an Arizona venue for litigation, on January
13, 2017, Plaintiffs filed the Complaint in this Court. See Complaint. Presently,
WestPac is the only named defendant. See id. The Complaint asserts causes of
action for (1) declaratory relief on the enforceability of the Agreement;
(2) declaratory relief on the Agreement’s choice of law and venue provisions; and (3)
injunctive relief and restitution for the alleged violation of California’s unfair
competition law (Business and Professions Code § 17200 et seq.). See id.
2 Matthews’s actual start date with Relyonus is unclear. Plaintiffs originally pleaded
that Matthews started with Relyonus on January 27, 2016. See Complaint, ¶ 27.
Plaintiffs’ Notice of Errata filed on January 26, 2017 changed the start dated to
March 16, 2017. See Plaintiffs’ Second Notice of Errata to Plaintiffs’ Complaint for
Declaratory Relief, ECF No. 11, January 26, 2017. Yet, in the declaration Matthews
submitted on January 30, 2017 in support of Plaintiffs’ Ex Parte Request for
Temporary Restraining Order and Order to Show Cause Why a Preliminary
Injunction Should Not Be Issued, Matthews declared under penalty of perjury that he
would begin work for Relyonus on January 27, 2017. See Declaration of Norman
W. Matthews in support of Plaintiffs’ Ex Parte Request for Temporary Restraining
Order and Order to Show Cause Why a Preliminary Injunction Should Not Be
Issued, ECF No. 12-2, January 30, 2017, ¶ 27.
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DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
III. ARGUMENT
A. The Court Should Dismiss the Complaint Pursuant to Federal Rule
of Civil Procedure 12(b)(3).
1. The Forum-Selection Clause Mandates a Different Venue.
Federal Rule of Civil Procedure 12(b)(3) authorizes a motion to dismiss based
on “improper venue.” See also 28 U.S.C. § 1406(a) (“The district court of a district
in which is filed a case laying venue in the wrong division or district shall dismiss, or
if it be in the interest of justice, transfer such case to any district or division in which
it could have been brought.”). A party may seek to dismiss a claim for improper
venue under Rule 12(b)(3) based on the existence of the plaintiff’s agreement to
another forum to resolve the dispute. Argueta v. Banco Mexicano, S.A., 87 F.3d
320, 324 (9th Cir. 1996). Forum-selection clauses are presumptively valid and a
party challenging them “bears a heavy burden of proof’ to show that “enforcement
would be unreasonable and unjust, or that the clause was invalid for such reasons as
fraud or overreaching.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 15
(1972).
Federal courts routinely dismiss actions for improper venue where a forum-
selection clause calls for a different forum.3 Moreover, courts have upheld forum-
selection clauses and either dismissed or transferred the actions, even in disputes
involving purported restrictive covenant provisions alleged to be void under
California law.4
3 See, e.g., Kukje Hwajae Ins. Co., Ltd. v. M/V Hyundai Liberty, 408 F.3d 1250,
1255 (9th Cir. 2005) (affirming dismissal and enforcement of Korea forum-selection
clause in bill of lading); Richards v. Lloyd’s of London, 135 F.3d 1289, 1297 (9th
Cir. 1998) (affirming dismissal of claims on basis of England forum-selection
clause); Argueta, 87 F.3d at 327 (affirming enforcement of loan agreements’ Mexico
forum-selection clause and dismissal of case for improper venue); Sarmiento v.
BMG Entm’t, 326 F. Supp. 2d 1108, 1113 (C.D. Cal. 2003) (enforcing New York
forum-selection clause and dismissing case for improper venue). 4 See, e.g., Knapp v. Depuy Synthes Sales Inc., 983 F. Supp. 2d 1171, 1178 (E.D.
Cal. 2013) (dismissed); Meras Engineering Inc. v. CH20, Inc., No. C-11-0389 EMC,
2013 WL 146341 (N.D. Cal. Jan. 14, 2013) (dismissed); AJZN, Inc. v. Yu, No. 12-
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DOCS 2816421.2 CASE NO. 2:17-CV-00322 SVW (SKX)
The locale of the alleged wrongful conduct is not sufficient to overcome a
forum-selection clause. In Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509,
515 (9th Cir. 1988), the plaintiff contended that it should be permitted to prosecute
its claims in district court in California because the alleged wrongful acts were
committed principally in the United States, the harmful effects of these acts were
suffered by the plaintiff in California, and, thus, the foreign forum-selection clause
should not be enforced. The Ninth Circuit rejected the argument:
This argument overlooks several important facts. The complaint
centers on a dispute over a contract executed in Italy with an Italian
corporation. The contract involves the distribution of Italian goods.
And most important, the contract contains a forum selection clause
which designates Florence, Italy as the place for the resolution of the
disputes in this case.[¶] We conclude that the district court did not err
in enforcing the forum selection clause by dismissing Manetti-
Farrow’s complaint.
Id. at 515.
Thus, the instant action should be dismissed on the ground that it is in the
wrong venue. The Agreement allows either party to seek a judicial temporary
restraining order, preliminary injunction, or other similar short-term equitable relief
prior to the appointment of the arbitrator under Article X. But the Agreement plainly
states that, “to the extent any judicial action is required in aid of Article X or
otherwise . . . the parties hereby agree that all such judicial actions may be filed in
and decided exclusively by the state or federal courts in Maricopa County, Arizona.”
Complaint, Exhibit 1, page 34. This mandatory forum-selection clause is
CV-03348-LHK, 2013 WL 97916 (N.D. Cal. Jan. 7, 2013) (transferred to the District
of Delaware); Mahoney v. Depuy Orthopedics, No. CIV F 07-1321 AWI SMS, 2007
WL 3341389 (E.D. Cal. Nov. 8, 2007) (dismissed); Swenson v. T-Mobile United
States, Inc., 415 F. Supp. 2d 1101, 1104-05 (S.D. Cal. 2006) (dismissed).
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presumptively valid. Thus, Maricopa County, Arizona, is the sole forum for the
issues raised in the Complaint.
2. The Forum-Selection Clause Is Enforceable.
Federal courts apply federal law to determine the enforceability of a forum-
selection clause. Doe 1 v. AOL LCC, 552 F.3d 1077, 1083 (9th Cir. 2009). Forum-
selection clauses are “prima facie valid and should be enforced unless enforcement is
shown by the resisting party to be ‘unreasonable’ under the circumstances.” M/S
Bremen, 407 U.S. at 10. There are three reasons that would make enforcement of a
forum-selection clause unreasonable: (1) if the inclusion of the clause in the
agreement was the product of fraud or overreaching; (2) if the party wishing to
repudiate the clause would effectively be deprived of its day in court were the clause
enforced; and (3) if enforcement would contravene a strong public policy of the
forum in which suit is brought. Richards v. Lloyd’s of London, 135 F.3d 1289, 1294
(9th Cir. 1998) (citing and quoting Bremen, 407 U.S. at 12–13, 15, 18 (quotations
omitted)); see Spradlin v. Lear Siegler Mgmt. Servs. Co., 926 F.2d 865, 867–68 (9th
Cir. 1991) (noting that the Bremen framework applies to forum-selection clauses in
employment contracts).
a. The Forum-Selection Clause Is Not the Product of
Overreaching.
Plaintiffs allege that the forum-selection provision was “imposed on
Matthews, without negotiation; he was forced to accept or face employment; and,
thus the [forum-selection clause is] void and unenforceable because [its]
incorporation into the Agreement was the result of undue influence and
overwhelming bargaining power of Westpac.”5 Complaint, ¶ 46.
5 The Court need not accept this allegation as true. Argueta, 87 F.3d at 324. In fact,
Matthews wielded enough bargaining power to make at least two significant changes
to the Agreement. Declaration of Jim Kichler in Support of WestPac’s Motion to
Dismiss or, Alternatively, Transfer Venue (“Kichler Decl.”), ¶ 4. One was to lock in
his commission rates for two years, instead of WestPac’s standard one year. Id.
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Even if true, these allegations are insufficient to show that WestPac
overreached by including the forum-selection clause in the Agreement. “[A]
differential in power . . . on a non-negotiated contract will not vitiate a forum-
selection clause.” Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1141 (9th Cir.
2004). Instead, “[o]verreaching” is a ground “short of fraud,” and a mere showing of
“non-negotiability and power difference” does not render a forum-selection clause
unenforceable. Id. A party seeking to avoid enforcement of a forum-selection clause
because it was the product of fraud or overreaching must show that the inclusion of
the clause itself into the agreement was improper; it is insufficient to allege that the
agreement as a whole was improperly procured. See Scherk v. Alberto-Culver Co.,
417 U.S. 506, 519 n.14 (1974).
Plaintiffs have failed to carry their burden of showing that WestPac somehow
improperly included the forum-selection clause in the Agreement. Plaintiffs
insinuate that WestPac improperly procured the Agreement as a whole by alleging
that Matthews was not given an opportunity to negotiate any of the material terms,
including the forum-selection clause. Plaintiffs do not, however, allege that
inclusion of the forum-selection clause in the Agreement was the product of fraud or
overreach. Plaintiffs do not plead, for example, that WestPac misled Matthews about
the meaning of the forum-selection clause, or that WestPac fraudulently inserted the
clause after Matthews had signed the Agreement. Plaintiffs do not allege that
WestPac prevented Matthews from reading the Agreement, thereby leaving him
without knowledge of the forum-selection clause. The forum-selection clause is
clearly marked in the Agreement, and it is undisputed that Matthews is a working
professional who was savvy enough to enter into the Agreement with WestPac as a
corporation, not an individual. See Complaint, ¶ 18.
Matthews also negotiated a higher than standard commission rate with WestPac. Id.
These facts cast doubt on whether WestPac imposed the forum-selection clause on
Matthews. Id. at ¶ 5
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Further, WestPac is an Arizona Limited Liability Company whose members
are all citizens and residents of Arizona, as Plaintiffs admit. Id. at ¶ 11. The largest
concentration of WestPac’s employees and independent contractors are in Arizona.
See Kichler Decl. ¶ 3. Arizona is where WestPac maintains all of its employment,
compensation and trade secret protection agreement records, relevant documents
concerning pricing/margins, relevant profit and loss data, relevant contracts, and
individuals in WestPac’s marketing and human resources departments that Matthews
regularly interacted with during his relationship with WestPac. Id. It is therefore
neither surprising nor unreasonable that WestPac prefers and contracts to resolve its
business disputes in a forum in Arizona.
Under these circumstances, Plaintiffs have failed to carry their burden that
inclusion of the forum-selection clause in the Agreement was the product of fraud or
overreach. See LaCross v. Knight Transportation, Inc., 95 F. Supp. 3d 1199, 1204–
05 (C.D. Cal. 2015); Mahoney, 2007 WL 3341389, at *9.
b. Enforcement of the Clause Will Not Deprive Plaintiffs
of Their Day in Court.
A party objecting to the enforcement of a forum-selection clause on the
ground that the agreed-to forum is unreasonable must meet the “heavy burden of
showing that trial in the chosen forum would be so difficult and inconvenient that the
party would effectively be denied a meaningful day in court.” Argueta, 87 F.3d at
325, quoting Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273,
281 (9th Cir. 1984). “Courts have routinely rejected the notion that the expense or
inconvenience of prosecuting an action in the designated forum rises to the level of
depriving one’s day in court. Courts recognize that accepting typical arguments
about expense and inconvenience would nullify the advantages of forum selection
clauses.” Paster v. Putney Student Travel, Inc., No. CV99-2062 RSWL, 1999 WL
1074120, at *3 (C.D. Cal. June 9, 1999).
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Thus, any inconvenience Plaintiffs may experience, if any at all, in travelling
to Maricopa County, Arizona, is insufficient to overcome the strong legal
presumption in favor of enforcing an agreed upon forum-selection clause. See, e.g.,
Spradlin v. Lear Siegler Mgmt. Servs. Co., 926 F.2d 865, 869 (9th Cir. 1991)
(enforcing forum-selection clause designating Saudi Arabia as forum for suit even
though the plaintiff was located in the United States).
There are no facts, circumstances, or evidence of which WestPac is aware by
which Plaintiffs can show that litigation of their dispute with WestPac would “be so
manifestly and gravely inconvenient to [them] that [they] will effectively be deprived
of a meaningful day in court,” particularly where Matthews consented in his
Agreement specifically to personal jurisdiction of the courts in Maricopa County,
Arizona. Bremen, 407 U.S. at 19. Thus, enforcing the mandatory forum-selection
clause will not deprive Plaintiffs from any meaningful day in court.
c. Public Policy Does Not Invalidate the Agreement’s
Forum-Selection Clause.
Plaintiffs allege that enforcement of the Agreement’s forum-selection clause
will result in “manifest disregard of California law and fundamental public policy,
especially in light of the illegal and interrelated non-compete provisions that
Westpac included in the Agreement.” Complaint, ¶ 49.
Plaintiffs’ allegation is similar to that in Swenson v. T–Mobile USA, Inc., 415
F. Supp. 2d 1101 (S.D. Cal. 2006). In Swenson, the plaintiff argued that the forum-
selection clause would contravene California Business and Professions Code section
16600, and labeled the forum-selection clause as defendant’s “attempt to escape
California law and public policy barring [defendant’s] illegal employment
prohibition.” Id. at 1104. Although the forum state court’s application of the forum
state laws may lead to a result that is in conflict with the provisions of section 16600,
the Swenson court found that does not mandate finding the forum-selection clause
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invalid. Id. Thus, the Swenson court found the forum-selection clause valid on the
basis that the forum-selection clause itself did not contravene California public
policy. Id. at 1104–05.
Instead, the proper inquiry is the reasonableness of the forum-selection clause
itself, not the reasonableness of the effect of enforcing it. Meyer v. Howmedica
Osteonics Corp., 2015 WL 728631, at *11 (S.D. Cal. Feb. 19, 2015). Mere
speculation as to how another forum’s court may or may not rule on a choice of law
clause and covenant not to compete is the type of indirect attack on a forum-selection
clause that has been rejected by federal courts throughout California. See LaCross,
95 F. Supp. 3d at 1205; Swenson, 415 F. Supp. 2d at 1104-05; Mahoney, 2007 WL
3341389, at *8. The “question is not whether the application of the forum’s law
would violate the policy of the other party’s state, but rather, whether enforcement of
the forum-selection agreement would violate the policy of the other party’s state as
to the forum for litigation of the dispute.” Swenson, 415 F. Supp. 2d at 1105.
Ultimately, there is no indication that an Arizona court will not or cannot
entertain Plaintiffs’ choice of law arguments or that they cannot apply California law
if it is determined that California law governs. Plaintiffs have already acknowledged
as much in this case. See Memorandum of Points and Authorities in Support of Ex
Parte Application for Temporary Restraining Order and Order to Show Cause Re
Preliminary Injunction, ECF No. 12-1, January 30, 2017, p. 13:4-5 (“Moreover, even
if an Arizona court heard this matter, it would apply California – not Arizona law.”).
Any notion that courts in Maricopa County, Arizona, will not safeguard Plaintiffs’
rights is pure speculation.
(1) Public Policy Supports Enforcement of the
Agreement’s Forum-Selection Clause.
Multiple public policies support enforcement of forum-selection agreements.
Among other beneficial purposes, forum-selection agreements provide the parties
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with certainty as to where their disputes will be resolved. See Roberson v.
Norwegian Cruise Line, 897 F. Supp. 1285, 1287 (C.D. Cal. 1995); E. & J. Gallo
Winery v. Andina Licores S.A., 446 F. 3d 984, 992 (9th Cir. 2006) (“[forum
selection agreements] enhance certainty, allow parties to choose the regulation of
their contract, and enable transaction costs to be reflected accurately in the
transaction price”) (citation omitted); E&J Gallo Winery v. Andina Licores S.A., 440
F. Supp. 2d 1115, 1126 (E.D. Cal. 2006). As the Ninth Circuit observed in Manetti-
Farrow, forum-selection agreements also should be enforced based on comity and
the public policy in favor of upholding contracts. Manetti-Farrow, 858 F.2d at 515.
Thus, here too, the Court should respect the Arizona courts’ right to adjudicate
the dispute about the enforceability of the non-compete and termination provisions in
the Agreement because the parties designated Arizona as the forum for resolution of
such disputes.
3. The Forum-Selection Clause Is Mandatory.
Where the term “venue” is used with mandatory language, the state designated
in the forum-selection clause is the only appropriate forum. Docksider, Ltd. v.
SeaTechnology, Ltd., 875 F.2d 762, 764 (9th Cir. 1989) (holding mandatory
language that “venue shall be deemed to be in Virginia” makes clear that venue lies
exclusively in Virginia and all actions must be filed and prosecuted there). “To be
mandatory, a clause must contain language that clearly designates a forum as the
exclusive one.” N. California Dist. Council of Laborers v. Pittsburg-Des Moines
Steel Co., 69 F.3d 1034, 1037 (9th Cir. 1995). Stated differently, “[w]hen only
jurisdiction is specified the clause will generally not be enforced without some
further language indicating the parties’ intent to make jurisdiction exclusive.”
Docksider, 875 F.2d at 764.
A state or federal court in Maricopa County, Arizona, is the only appropriate
judicial forum for this case. Here, the Agreement’s forum-selection clause contains
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language that clearly designates the state or federal courts in Maricopa County,
Arizona, as the exclusive venue for any judicial action related to the Agreement.
Section 12.3 of the Agreement states the parties’ intention that the arbitration
provisions in Article X of the Agreement be fully enforced.6 However, Section 12.3
of the Agreement recognizes that judicial action may be needed to enforce Article X.
Section 12.3 also recognizes that Article X allows a party to seek short-term
equitable relief prior to the appointment of the arbitrator. Thus, Section 12.3 states,
“to the extent any judicial action is required in aid of Article X or otherwise . . . the
Parties hereby agree that all such judicial actions may be filed in and decided
exclusively by the state or federal courts in Maricopa County, Arizona.” Stated
differently, the Agreement recognizes that there may or may not be judicial action
required in aid of Article X or otherwise. But if any such judicial action is
commenced, that judicial action must be decided exclusively by the state or federal
courts in Maricopa County, Arizona.
The Agreement’s use of the word “exclusively” indicates the parties’ intent to
make the state or federal courts in Maricopa County, Arizona, the exclusive
jurisdiction for any judicial action in aid of Article X or otherwise. Any reading of
Section 12.3 to portray this forum-selection clause as permissive would render
superfluous the word “exclusively,” and ignores the canon of contract interpretation
that prefers interpretations that do not render terms superfluous, useless, or
inexplicable. See Pauma Band of Luiseno Mission Indians of Pauma & Yuima
Reservation v. California, 813 F.3d 1155, 1171 (9th Cir. 2015), cert. denied, 136 S.
Ct. 2511 (2016). (citing 11 Williston on Contracts § 32:5 (4th Ed. 2015)).
4. The Forum-Selection Clause Is Binding on Relyonus.
Forum-selection clauses apply not just to signatories, but also to related
6 Should the Court dismiss or transfer this matter, WestPac hereby reserves its right
to compel arbitration of this dispute pursuant to Article X of the Agreement.
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parties. Manetti-Farrow, 858 F.2d at 514 (“[A] range of transaction participants,
parties and non-parties, should benefit from and be subject to forum selection
clauses.”). District courts within the Ninth Circuit routinely enforce forum-selection
clauses against non-signatory parties when the non-signatory’s claims or conduct is
“closely related to the contractual relationship,” including in employment agreement
and restrictive covenant disputes. See e.g., Universal Operations Risk Management,
LLC v. Global Rescue, LLC, No. C1-5969 SBA, 2012 WL 2792444 (N.D. Cal. July
9, 2012); Meras, 2013 WL 146341, *13 (enforcing employment agreement’s
Washington forum-selection clause against former employees and their non-
signatory new employer who sought to invalidate a restrictive covenant agreement
with the former employer).
Here, Relyonus is not a complete stranger to the Agreement containing the
forum-selection clause. Instead, Plaintiffs’ entire action is based on the Agreement
containing that clause. Resolving Relyonus’s claims against WestPac necessarily
involves interpreting and determining the validity of portions of the Agreement. See
Meras, 2013 WL 146341, at *11. Moreover, the fact that Plaintiffs filed the action in
California on the same day Matthews effectuated his resignation from WestPac and
before he started working for Relyonus overwhelmingly suggests that Relyonus
reasonably foresaw that it could be required to litigate its dispute in Arizona. This
“smacks of forum shopping in light of the forum selection clause” in the Agreement.
See Knapp, 983 F. Supp. 2d at 1178.
Enforcing the forum-selection clause against Relyonus also makes practical
sense because it discourages contracting parties from using a third-party or other
non-signatory to circumvent a forum-selection clause that was initially bargained for
by the contracting parties. Thus, Plaintiff Relyonus is bound by the forum-selection
clause as a closely-related party, and Plaintiffs’ Complaint should be dismissed as to
all parties.
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B. Plaintiffs Fail to State a Claim for Purported Violations of Business
and Professions Code Section 17200.
Additionally, Plaintiffs’ Business and Professions Code section 17200 claim
should be dismissed under Federal Rule of Civil Procedure 12(b)(6) because
Plaintiffs fail to sufficiently allege an injury in fact. This cause of action is also
subject to dismissal under Rule 12(b)(1) because this court lacks subject matter
jurisdiction.
In order to state a claim for violation of Section 17200, a plaintiff must allege
that: (1) he has lost money or property sufficient to constitute an injury in fact under
Article III of the United States Constitution; and (2) there is a causal connection
between the defendant’s alleged violation and the plaintiff’s injury in fact. See
Rubio v. Capital One Bank, 613 F.3d 1195, 1203-04 (9th Cir. 2010). An absence of
facts describing the money or property allegedly lost is fatal to a plaintiff’s Section
17200 claim. Saldate v. Wilshire Credit Corp., 711 F. Supp. 2d 1126, 1137 (E.D.
Cal. 2010); Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 323 (2011) (“Proposition
64 requires that a plaintiff have ‘lost money or property’ to have standing to sue.
The plain import of this is that a plaintiff now must demonstrate some form of
economic injury.”). The complaint must provide “more than labels and
conclusions,” and “a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “mere
possibility of misconduct” is not enough to state a viable claim. Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009). Likewise, “threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Id. at 663-64.
Here, Plaintiffs have neither sufficiently alleged the existence of an injury in
fact, nor have they shown a causal connection between WestPac’s purported
violation and any damages they have suffered. There is no indication given in the
Complaint as to what actual harm Plaintiffs claim to have suffered as a result of
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WestPac’s purported section 17200 violation. Plaintiffs instead speculate that “it is
anticipated that WestPac will seek to enforce the [Agreement]” and “deprive
Matthews of his right to work in California . . . .” See Complaint, ¶¶ 28, 30. The
Complaint also anticipates that “WestPac will seek to deprive Relyonus” of its right
“to employ individuals of its choice to perform services on its behalf.” Id. at ¶ 33.
Such speculative allegations are insufficient to state a claim under section
17200, and Plaintiffs have failed to sufficiently allege any injury in fact. They also
show that there is no actual case or controversy between the parties and that the
Court lacks subject matter jurisdiction over this cause of action. Indeed, Plaintiffs
essentially admit in their Complaint that Relyonus was able to hire Matthews. See
Complaint, ¶¶ 26, 29. More importantly, there are no allegations in the Complaint
that WestPac has taken any steps to enforce the Agreement’s restrictive covenants.
The Complaint’s allegations about the mere possibility that WestPac might enforce
restrictive covenants in the Agreement is not enough to state a viable Section 17200
claim, nor is the threadbare allegation that Plaintiffs may lose property or money in
excess of $75,000 as a result of WestPac’s purported misconduct. It is hard to see
how Plaintiffs have lost any money because Plaintiffs allege in the Complaint that
Matthews will not begin working for Relyonus until March 2017. Id. at ¶ 27. Under
these circumstances, the Court should dismiss Plaintiffs’ third cause of action.
C. Alternatively, the Court Can Transfer the Case to the Proper
Forum: the United States District Court for the District of Arizona,
Phoenix Division.
Where a case is filed in an improper venue, section 28 U.S.C. § 1406(a) gives
the Court the discretion to “transfer [the] case to [the] district or division in which it
could have been brought” instead of dismissing the case, if the “interest of justice”
warrants it. Should the Court decide against dismissing the Complaint, the Court
should at least transfer the action to the proper forum—the United States District
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Court for the District of Arizona, Phoenix Division (which encompasses Maricopa,
County, Arizona)—pursuant to 28 U.S.C. § 1406(a).
Here, there are no interests of justice that dictate a transfer rather than a
dismissal. But certainly, permitting this action to remain in an improper venue that
is contrary to the Agreement is not an option. Accordingly, the Court should either
dismiss Plaintiffs’ Complaint or transfer this action to the United States District
Court for the District of Arizona, Phoenix Division. Venue would be proper there
under 28 U.S.C. § 1391(b). Not only did the parties to the Agreement waive any
objection they might otherwise have had to personal jurisdiction and venue in the
state or federal courts in Maricopa County, Arizona, but also WestPac is an Arizona
company whose members are all citizens and residents of Arizona. See Complaint,
¶ 11; Complaint, Exhibit 1, page 34.
IV. CONCLUSION
For the reasons discussed above, WestPac respectfully requests that the Court
dismiss this action or, alternatively, transfer the action to the United States District
Court for the District of Arizona, Phoenix Division.
DATED: February 15, 2017 PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
By: /s/ Phillip L. Kossy
Phillip L. Kossy (Bar No. 071543)
Erik T. Johnson (Bar No. 279940)
Attorneys for Defendant WestPac
Surgical, LLC
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DECLARATION OF JIM KICHLER
DOCS 2820250.1 CASE NO. 2:17-CV-00322 SVW (SKX)
Phillip L. Kossy (Bar No. 071543)
Erik T. Johnson (Bar No. 279940)
PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
525 B Street, Suite 2200
San Diego, CA 92101
Telephone: 619.238.1900
Facsimile: 619.235.0398
Attorneys for Defendant
WestPac Surgical, LLC
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NORMAN W. MATTHEWS, an individual;
RELYONUS MEDICAL GROUP, LLC, a
California Limited Liability Company; and
MWM MEDICAL, INC., a California
Corporation,
Plaintiffs,
v.
WESTPAC SURGICAL, LLC, an Arizona
Limited Liability Company, and DOES 1-
10, inclusive,
Defendants.
Case No. 2:17-cv-00322 SVW (SKx)
DECLARATION OF JIM
KICHLER IN SUPPORT OF
DEFENDANT WESTPAC
SURGICAL’S MOTION TO
DISMISS COMPLAINT UNDER
F.R.C.P. 12(b)(1), 12(b)(3), AND
12(b)(6) OR, ALTERNATIVELY,
TO TRANSFER VENUE
PURSUANT TO 28 U.S.C. §
1406(a)
Date: March 20, 2017
Time: 1:30 p.m.
Dept: 10A
Judge: Hon. Stephen V. Wilson
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Case 2:17-cv-00322-SVW-SK Document 17-2 Filed 02/15/17 Page 1 of 3 Page ID #:262
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DECLARATION OF JIM KICHLER
DOCS 2820250.1 CASE NO. 2:17-CV-00322 SVW (SKX)
I, Jim Kichler declare:
1. I have personal knowledge of all of the facts set forth in this declaration
and, if called and sworn as a witness at trial or any other hearing before this Court, I
would and could testify as set forth herein. I make this declaration in support of
WestPac Surgical, LLC’s (“WestPac”) Motion to Dismiss Plaintiffs’ Complaint
Under F.R.C.P. 12(b)(3) and 12(b)(6) or, Alternatively, to Transfer Venue Pursuant
to 28 U.S.C. § 1406(a).
2. At all relevant times, I am and have been a Member/Owner/Manager of
WestPac.
3. WestPac’s is an Arizona Limited Liability Company whose members
are citizens and residents of Arizona. Arizona has the largest concentration of
WestPac’s employees and independent contractors. Arizona is where WestPac
maintains all of its employment, contractor, compensation and trade secret protection
agreement records, relevant documents concerning pricing/margins, relevant profit
and loss data, relevant contracts, and individuals in WestPac’s marketing and human
resources departments that Plaintiff Norman W. Matthews regularly interacted with
during his relationship with WestPac.
4. I personally negotiated the terms of the Sales Representative
Independent Contractor Agreement (“Agreement”) with Matthews. I recall that
Matthews made two significant changes to the Agreement. One was to lock in his
commission rate for two years instead of WestPac’s standard one year. The other
was to increase his commission rate. The standard commission rate WestPac offered
was 8% on all sales of Reconstructive Products with an additional 1.5% paid on all
sales if quota is achieved. Matthews negotiated a change in the standard commission
rate from 8% to 9%.
5. I personally do not recall ever indicating in any manner to Matthews
that his relationship with WestPac would not continue if he did not accept the forum-
selection clause in his Agreement. I disagree that this clause was imposed or
Case 2:17-cv-00322-SVW-SK Document 17-2 Filed 02/15/17 Page 2 of 3 Page ID #:263
Case 2:17-cv-00322-SVW-SK Document 17-2 Filed 02/15/17 Page 3 of 3 Page ID #:264
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[PROPOSED] ORDER
DOCS 2819894.1 Case No. 2:17-cv-00322 SVW (SKx)
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NORMAN W. MATTHEWS, an individual;
RELYONUS MEDICAL GROUP, LLC, a
California Limited Liability Company; and
MWM MEDICAL, INC., a California
Corporation,
Plaintiffs,
v.
WESTPAC SURGICAL, LLC, an Arizona
Limited Liability Company, and DOES 1-
10, inclusive,
Defendants.
Case No. 2:17-cv-00322 SVW (SKx)
[PROPOSED] ORDER
GRANTING DEFENDANT
WESTPAC SURGICAL’S
MOTION TO DISMISS
COMPLAINT UNDER F.R.C.P.
12(b)(1), 12(b)(3), AND 12(b)(6)
OR, ALTERNATIVELY, TO
TRANSFER VENUE PURSUANT
TO 28 U.S.C. § 1406(a)
Date: March 20, 2017
Time: 1:30 p.m.
Dept: 10A
Judge: Hon. Stephen V. Wilson
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that Defendant WestPac Surgical, LLC’s Motion
to Dismiss Plaintiffs’ Complaint Under Federal Rules of Civil Procedure 12 (b)(1),
12(b)(3), and 12(b)(6) or, Alternatively, to Transfer Venue Pursuant to 28 U.S.C.
§ 1406(a) came on for hearing before this Court in Department 10A on March 20,
2017, at 1:30 p.m., the Honorable Judge Stephen V. Wilson, District Judge presiding.
Appearances, if any, were noted on the record.
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Case 2:17-cv-00322-SVW-SK Document 17-3 Filed 02/15/17 Page 1 of 2 Page ID #:265
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[PROPOSED] ORDER
DOCS 2819894.1 Case No. 2:17-cv-00322 SVW (SKx)
Notice having been given, the Court having considered the moving papers
filed in support of these motions, the opposition papers filed in opposition of these
motions, and having considered all records and materials on file herein, and good
cause having been shown therefor, the ruling of this Court is as follows:
_____ IT IS ORDERED that Defendant WestPac Surgical’s motion to dismiss
pursuant to Rule 12(b)(3) is GRANTED in its entirety. Plaintiffs’ Complaint for
Declaratory Relief and the action as to WestPac Surgical are hereby dismissed
without prejudice to allow Plaintiffs to refile the action in a state or federal court in
Maricopa County, Arizona, should they elect to do so.
_____ IT IS ORDERED that Defendant WestPac Surgical’s motion to dismiss
pursuant to Rules 12(b)(1) and 12(b)(6) is GRANTED in its entirety.
_____ IT IS ORDERED that Defendant WestPac Surgical’s motion under
28 U.S.C. § 1406(a) for an order transferring this action from this Court to the
United States District Court for the District of Arizona, Phoenix Division, is
GRANTED in its entirety.
IT IS SO ORDERED.
DATED: ______________ _______________________________
JUDGE OF THE DISTRICT COURT
Case 2:17-cv-00322-SVW-SK Document 17-3 Filed 02/15/17 Page 2 of 2 Page ID #:266
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PROOF OF SERVICE
CASE No. 2:17-cv-00322 SVW (SKx)
Phillip L. Kossy (Bar No. 071543)
Erik T. Johnson (Bar No. 279940)
PROCOPIO, CORY, HARGREAVES &
SAVITCH LLP
525 B Street, Suite 2200
San Diego, CA 92101
Telephone: 619.238.1900
Facsimile: 619.235.0398
Attorneys for Defendant
WestPac Surgical, LLC
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
NORMAN W. MATTHEWS, an individual;
RELYONUS MEDIAL GROUP, LLC, a
California Limited Liability Company; and
MWM MEDICAL, INC., a California
Corporation,
Plaintiffs,
v.
WESTPAC SURGICAL, LLC, an Arizona
Limited Liability Company, and DOES 1-
10, inclusive,
Defendants.
Case No. 2:17-cv-00322 SVW (SKx)
PROOF OF SERVICE
Date: March 20, 2017
Time: 1:30 p.m.
Dept: 10A
Judge: Hon. Stephen V. Wilson
I, Phillip L. Kossy, declare under penalty of perjury that I am over the age of
eighteen years, that I am not a party to the above-referenced action, and that I am
employed in the State of California, County of San Diego, where the within-
mentioned service occurred. My business address is 525 B Street, Suite 2200, San
Diego, California 92101; telephone number (619) 238.1900. On February 15, 2017,
I caused to be served the following document(s):
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PROOF OF SERVICE
CASE No. 2:17-cv-00322 SVW (SKx)
1. DEFENDANT WESTPAC SURGICAL’S NOTICE OF MOTION
AND MOTION TO DISMISS COMPLAINT UNDER F.R.C.P. 12(B)(1),
12(B)(3), AND 12(B)(6) OR, ALTERNATIVELY, TO TRANSFER VENUE
PURSUANT TO 28 U.S.C. § 1406(A);
2. DEFENDANT WESTPAC SURGICAL’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION TO DISMISS
COMPLAINT UNDER F.R.C.P. 12(B)(1), 12(B)(3), AND 12(B)(6) OR,
ALTERNATIVELY, TO TRANSFER VENUE PURSUANT TO 28 U.S.C. §
1406(A);
3. DECLARATION OF JIM KICHLER IN SUPPORT OF
DEFENDANT WESTPAC SURGICAL’S MOTION TO DISMISS
COMPLAINT UNDER F.R.C.P. 12(B)(1), 12(B)(3), AND 12(B)(6) OR,
ALTERNATIVELY, TO TRANSFER VENUE PURSUANT TO 28 U.S.C. §
1406(A); and
4. [PROPOSED] ORDER GRANTING DEFENDANT WESTPAC
SURGICAL’S MOTION TO DISMISS COMPLAINT UNDER F.R.C.P.
12(B)(1), 12(B)(3), AND 12(B)(6) OR, ALTERNATIVELY, TO TRANSFER
VENUE PURSUANT TO 28 U.S.C. § 1406(A)
on the interested parties in this action by:
BY U.S. MAIL by placing the document(s) listed above in a sealed envelope
with postage thereon fully prepaid, in the United States mail at San
Diego/Carlsbad, California addressed as set forth below. I am readily
familiar with the firm’s practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal
Service on the same day with postage thereon fully prepaid in the ordinary
course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than
one day after date of deposit for mailing an affidavit.
Case 2:17-cv-00322-SVW-SK Document 17-4 Filed 02/15/17 Page 2 of 4 Page ID #:268
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PROOF OF SERVICE
CASE No. 2:17-cv-00322 SVW (SKx)
BY OVERNIGHT DELIVERY by placing the document(s) listed above in a
sealed overnight envelope and depositing it for overnight delivery at San
Diego/Carlsbad, California, addressed as set forth below. I am readily
familiar with the practice of this firm for collection and processing of
correspondence for processing by overnight mail. Pursuant to this practice,
correspondence would be deposited in the overnight box located at 530 “B”
Street, San Diego/in Carlsbad, California the ordinary course of business on
the date of this declaration.
BY MESSENGER SERVICE by providing the above listed document(s)
addressed to the person(s) at the address(es) listed below to a professional
messenger service for personal service. [A declaration by the messenger
service to be provided upon request and/or separately filed.]
BY ELECTRONIC SERVICE based upon court order or an agreement of
the parties to accept service by electronic transmission, by electronically
mailing the document(s) listed above to the e-mail address(es) set forth below,
or as stated on the attached service list and/or by electronically notifying the
parties set forth below that the document(s) listed above can be located and
downloaded from the hyperlink provided. No error was received, within a
reasonable time after the transmission, nor any electronic message or other
indication that the transmission was unsuccessful.
(Federal) BY CM/ECF NOTICE OF ELECTRONIC FILING by causing
such document(s) listed above to be served through this Court’s electronic
transmission facilities via the Notice of Electronic Filing (NEF) and hyperlink,
to the parties and/or counsel who are determined this date to be registered
CM/ECF Users set forth in the service list obtained from this Court on the
Electronic Mail Notice List.
by delivering a true copy thereof to the following:
James W. Michalski
Relyonus Medical Group, LLC
13953 Valley View Avenue
La Mirada, CA 90638
Ph: (562) 299-0003
Fax: (562-229-0008
Email:
james.michalski@relyonusmedical.com
Attorneys for Plaintiffs, Relyonus
Medical Group, LLC, Norman W.
Matthews and MWM Medical,
Inc.
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PROOF OF SERVICE
CASE No. 2:17-cv-00322 SVW (SKx)
Dawn T. Collins
Aaron H. Cole
Ogletree, Deakins, Nash, Smoak &
Stewart, PC
400 South Hope Street, Suite 1200
Los Angeles, CA 90071
Ph: (213) 239-9800
Fax: (213) 239-9045
Email:
dawn.collins@ogletreedeakins.com
Aaron.cole@ogletreedeakins.com
Attorneys for Plaintiffs, Relyonus
Medical Group, LLC, Norman W.
Matthews and MWM Medical,
Inc.
(STATE): I declare under penalty of perjury under the laws of the
State of California that the foregoing is true and correct.
XX (FEDERAL): I declare that I am employed in the office of a member of
the bar of this court at whose direction the service was made.
Executed at San Diego, California on February 15, 2017.
/s/ Phillip L. Kossy
Phillip L. Kossy
Case 2:17-cv-00322-SVW-SK Document 17-4 Filed 02/15/17 Page 4 of 4 Page ID #:270
