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Mao v. Sanum Investments, Ltd.

United States District Court, D. Nevada

October 15, 2014

NICK MAO, Plaintiff,
v.
SANUM INVESTMENTS, LTD., et al., Defendants.

ORDER

ROBERT C. JONES, District Judge.

This proceeding arises out of an alleged breach of a settlement agreement. Pending before the Court is Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint ("SAC") (ECF No. 28). For the reasons given herein, the Court grants the motion.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff Nick Mao, a resident of Clark County, Nevada, seeks to recover sums allegedly owed to Mao by Defendants Sanum Investments, Ltd., Bridge Capital, LLC, Lao Holding N.V., and John K. Baldwin. Defendant Baldwin, a resident of of the Commonwealth of the Northern Mariana Islands ("NMI")[1] and Defendant Bridge Capital, organized under the laws of the NMI, move to dismiss Mao's claims for insufficient service of process, lack of personal jurisdiction, improper venue, and under the doctrine of forum non conveniens.

A. The Settlement Agreement

The agreement at issue ("Settlement Agreement") arose out of a failed business transaction between Mao and Baldwin. (SAC ¶¶ 14-16, ECF No. 12). Under the Settlement Agreement (ECF No. 29-1, at 19) Mao was to receive a percentage of revenues from a gambling facility in Laos.[2] (SAC ¶ 16). Over a period of time, the revenues would repay nearly $3 million owed to Mao. ( Id. ¶¶ 16, 20). Mao was mostly in Nevada while negotiating the deal but traveled to Laos in November 2010 to attempt to finalize the terms. ( Id. ¶ 17). During Mao's visit to Laos, Defendants provided Mao with financial statements and other information purporting to show that the gambling facility was generating about $100, 000 per month. ( Id. ¶ 18). Mao, Sanum Investments, and Bridge Capital executed the Settlement Agreement in December 2010. ( Id. ¶ 19). The Settlement Agreement contained a forum-selection clause, specifying that Mao would bring any dispute arising out of the agreement in a Laotian jurisdiction. (Settlement Agreement ¶ 9, ECF No. 29-1, at 24-25). As of early 2011, the promised revenues failed to materialize, and to date, Defendants have only repaid a small sum owed to Mao. (SAC ¶¶ 21-22).

B. The Present Case

Mao sued Defendants in Nevada state court for (1) fraud-misrepresentation, (2) fraud- concealment, (3) breach of contract, (4) breach of implied contractual covenants, (5) conversion, (6) deceptive trade practices under Nevada law, (7) unjust enrichment, (8) accounting, and (9) declaratory relief. Defendants removed the action to this Court. Defendants Bridge Capital and Baldwin now move to dismiss based upon (a) insufficient service of process, (b) lack of personal jurisdiction, (c) improper venue, and (d) to enforce a forum-selection clause under the doctrine of forum non conveniens.

II. LEGAL STANDARD

The Court first addresses Defendants' argument for enforcing the parties' forum-selection clause. "[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens. " Atl. Marine Constr. Co. v. United States Dist. Court, 134 S.Ct. 568, 580 (2013). If dismissal under forum non conveniens is appropriate, the court need not address other grounds for dismissal. See Fine v. Cambridge Int'l Sys., 2014 U.S.App. LEXIS 16575, at *3 (9th Cir. Aug. 27, 2014) (citing Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 425 (2007)) (noting the district court need not address whether it has personal jurisdiction over defendants if a foreign court is appropriate forum). Under a forum non conveniens analysis, the court considers "(1) whether an adequate alternative forum exists, and (2) whether the balance of private and public interest factors favors dismissal." Stellia Ltd. v. B Card Serv. GmbH, 2013 U.S. Dist. LEXIS 171632, at *5-6 (D. Nev. Dec. 5, 2013) (Navarro, J.) (quoting Lueck v. Sunstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001)). When the dispute is governed by an enforceable forum-selection clause, however, the analysis slightly changes, with less emphasis on the private interest factors. Atl. Marine Constr. Co., 134 S.Ct. at 581-82.

III. ANALYSIS

A. Enforceability of the Forum-Selection Clause

Before analyzing whether to dismiss based upon forum non conveniens, the Court must first assess the enforceability of the forum-selection clause in the Settlement Agreement. See id. at 581 n.5 (noting a motion to dismiss based upon forum non conveniens assumes the forumselection clause is enforceable). In diversity cases, federal law governs the enforceability of forum-selection clauses. Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir. 1988). "Forum selection clauses are prima facie valid, and are enforceable absent a strong showing by the party opposing the clause that enforcement would be unreasonable or unjust, or that the clause [is] invalid for such reasons as fraud or overreaching.'" Id. at 514 (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). The other limited exceptions to enforcement occur where the forum is so "gravely difficult and inconvenient" that it is essentially no forum at all, or where enforcement of the clause will contravene a strong public policy of the forum. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 325 (9th Cir. 1996). The forum-selection clause in the parties' Settlement Agreement states the following:

Each party hereto hereby unconditionally and irrevocably submits, for himself, itself and its property, to the exclusive jurisdiction of the courts of Lao PDR (collectively the "Designated Courts"), over any action arising out of or relating to this Agreement, the Certificate of the Second Certificate (a "Designated Action"). All claims with respect to any Designated Action shall be heard and determined in a Designated Court. Except as herein expressly provided to the contrary, no party hereto shall commence any Designated Action except in a Designated Court.... Notwithstanding the foregoing Bridge and/or Sanum shall have the right to bring any Designated Action in the courts of any ...

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