1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 WARREN LEGARIE, et al., 6 Case No. 21-cv-04739-JCS Plaintiffs, 7 v. ORDER GRANTING IN PART AND 8 DENYING IN PART MOTION TO NICHOLAS DAVID NURSE, DISMISS 9 Defendant. Re: Dkt. No. 17 10
11 12 I. INTRODUCTION 13 This action is brought by Plaintiffs Warren LeGarie, a California resident, and his 14 company, LeGarie Management, Inc. (“LGM”), which is a California corporation. In the 15 Complaint, Plaintiffs allege that Defendant Nicholas Nurse breached an oral agreement to pay 16 Plaintiffs a commission for a contract Nurse entered into in 2020 with a Canadian basketball 17 team—the Toronto Raptors—to serve as the team’s head coach in Toronto. Presently before the 18 Court is Defendant’s Motion to Dismiss Complaint (“Motion”) in which Nurse moves to dismiss 19 the Complaint for lack of personal jurisdiction and improper venue under Federal Rules of Civil 20 Procedure 12(b)(2) and 12(b)(3), respectively. In the Motion, Nurse also moves to dismiss Claim 21 Five, for an accounting, under Federal Rule of Civil Procedure 12(b)(6) on the basis that it fails to 22 state a claim. A hearing on the Motion was held on November 19, 2021. Following the hearing, 23 Plaintiffs supplied a supplemental declaration providing additional facts relating to venue in this 24 district. Defendant did not file a response to the supplemental declaration and the deadline to do so 25 has now passed. For the reasons stated below, the Motion is GRANTED in part and DENIED in 26 part.1 27 1 II. BACKGROUND 2 A. Factual Background 3 LeGarie is a resident of San Francisco, California and has resided in California since 1980. 4 Compl. ¶¶ 5, 9; Declaration of Warren LeGarie in Support of Plaintiffs’ Opposition to Defendant’s 5 Motion to Dismiss (“LeGarie Decl.”) ¶ 2; Supplemental Declaration of Warren LeGarie (“LeGarie 6 Supp. Decl.”) ¶ 1. He is the Founder and President of LGM, a California corporation based in San 7 Francisco, California. Comp. ¶¶ 5–6, 10; LeGarie Decl. ¶ 3. For the past 20 years, LeGarie and 8 his company have “represented top coaches, front office personnel and executives across the 9 NBA.” Compl. ¶ 16; LeGarie Decl. ¶ 4. According to LeGarie, “[a]s an agent for these 10 individuals, [his] role is to represent them in negotiating contracts with various NBA teams.” 11 LeGarie Decl. ¶ 4. He states in his declaration that “[t]o do that [he has] to build strong 12 relationships where we have confidence in one another[,]” which “always takes time.” Id. He 13 states further that “[a]s a result, [his] relationships with [his] clients are on-going, and typically 14 last for many years.” Id. 15 Nurse is the head coach for the Toronto Raptors basketball team. Compl. ¶¶ 7; Declaration 16 of Nicholas Nurse (“Nurse Decl.”) ¶ 2. He has worked with the Raptors in a coaching capacity 17 since 2013. Id. He has been a resident of Florida for the past five years and before that he was a 18 resident of Texas. Id. ¶ 3. He has never been a California resident. Id. ¶ 4. Nurse states further 19 that he has “never owned property in California, been employed in California, maintained an 20 office in California, or conducted business in California.” Id. According to Nurse, as a coach for 21 the Raptors, he spends “nearly the entirety of the year based in Toronto, Canada.” Id. 22 The relationship between LeGarie and Nurse began in 2013, when Nurse entered into 23 discussions with the Toronto Raptors about the possibility of an assistant coaching position. 24 Compl. ¶ 17; Nurse Decl. ¶¶ 5-6; LeGarie Decl. ¶ 5. At that time, Nurse was coaching the Rio 25 Grande Valley Vipers (an NBA G-League team associated with the Houston Rockets) and residing 26 in Texas. Nurse Decl. ¶ 5. Brian Colangelo, the President and General Manager of the Raptors at 27 the time, watched the Vipers play and invited Nurse to fly to Toronto to meet with the Raptors’ 1 Raptors coaches. Id. During that meeting, Nurse mentioned that he did not have an agent, and 2 asked for a recommendation. Id. It was suggested that Nurse contact LeGarie, who represented 3 other clients involved in the Raptors organization. Id. 4 From Toronto, Nurse called LeGarie to discuss his contract with the Raptors. Nurse Decl. ¶ 5 6. LeGarie was in San Francisco at the time, and Nurse reached him at a number that had a 415 6 area code. LeGarie Decl. ¶ 5; LeGarie Supp. Decl. ¶ 5. According to LeGarie, Nurse asked 7 LeGarie to be his agent and LeGarie agreed during this initial telephone conversation. Id. ¶ 7. 8 Nurse states in his declaration that following the telephone conversation “LeGarie traveled to 9 Toronto to meet with [Nurse], and he orally agreed to help [him] review the [assistant coach] 10 contract.” Nurse Decl. ¶ 6. 11 According to LeGarie, he was Nurse’s agent from 2013 to 2020 under “an open-ended 12 agreement that resulted in ongoing negotiations between [LeGarie], on behalf of Mr. Nurse, and 13 the Toronto Raptors.” LeGarie Decl. ¶¶ 8-9. There was no written contract between Nurse and 14 LeGarie. Compl. ¶ 19 (alleging there was an “oral representation contract” between LeGarie and 15 Nurse). LeGarie states in his declaration that he sent at least seven invoices to Nurse during the 16 period he represented him, between 2013 and 2020. LeGarie Decl. ¶¶ 9, 20 & Ex. 1 (copies of 17 invoices sent to Nurse between November 6, 2015 and March 1, 2018); see also Compl. ¶ 19 18 (“Plaintiffs invoiced Defendant NURSE at a four percent (4%) rate on Defendant Nurse’s 2015- 19 2016, 2016-2017 and 2017-2018 employment contracts and at a three percent (3%) rate on 20 Defendant Nurse’s 2018-2019 employment contract.”). The invoices were from LGM and listed a 21 San Francisco address for the company. LeGarie Decl. ¶. 1. They stated that checks should be 22 made out to Warren LeGarie Management and that wire transfers may be made to a Bank of 23 America branch located in Santa Monica, California. LeGarie Decl., Ex. 1. According to 24 LeGarie, Nurse paid the invoices by check at least twice and by wire transfer at least four times. 25 LeGarie Decl. ¶ 21. 26 Nurse states that he has “never traveled to California to meet with LeGarie or anyone else 27 from LGM.” Nurse Decl. ¶ 10. He has engaged in “coaching-related travel” to California, 1 sessions in Los Angeles, and attending one pro-am golf tournament.” Id. LeGarie estimates that 2 “prior to the pandemic [he] met with Nurse at least once per year in California” and that “[d]uring 3 these in-person meetings” LeGarie provided Nurse with “updates regarding the state of the 4 Raptor’s employment relationship with him” and they discussed Nurse’s “future and career.” 5 LeGarie Decl., ¶ 16. According to Nurse, LeGarie also came to Toronto “during the basketball 6 season to meet with [him] and with Raptors executives and the front office.” Nurse Decl. ¶ 11. 7 LeGarie states that 90% of the work he performed on Nurse’s behalf was performed in San 8 Francisco, California. LeGarie Decl. ¶ 19; LeGarie Supp. Decl. ¶ 7. This work included talking 9 on the phone with Toronto Raptors executives Bobby Webster and Masai Ujiri approximately 50 10 times during the period when he represented Nurse. LeGarie Decl. ¶ 14. According to LeGarie, 11 he also met with Webster and Ujiri in person in California approximately five times during that 12 period. Id. ¶ 15. LeGarie’s work on behalf of Nurse also “included talking with other NBA 13 executives, coaches, and front office personnel about Mr. Nurse, and attending basketball games 14 in which Mr. Nurse was coaching.” Id. ¶ 19. He states that “[t]he vast majority of this work was 15 performed in California.” Id. 16 In June 2019, Nurse wanted to renegotiate his contract. Nurse Decl. ¶ 12. The Raptors 17 initially were not interested but in April 2020, they contacted Nurse directly and informed him that 18 they were ready to consider a new contract. Id. At this point, Nurse decided to change agents and 19 so he called LeGarie from Toronto to tell him he did not intend to use LeGarie as his agent going 20 forward. Id. ¶ 13. Nurse states in his declaration that he believes that LeGarie was in Costa Rica 21 when Nurse spoke with him. Id. Plaintiffs have supplied a declaration from Wendy Cohn, an 22 attorney who represented Plaintiffs in pre-litigation discussions with Nurse, stating that in May 23 2021 she received a series of emails from Andrew Latack, Senior Vice President of Business and 24 Legal Affairs at Klutch Sports Group (“Klutch”) informing her that Klutch was Nurse’s agent and 25 that correspondence for Nurse should be directed to Latack at an address in Beverly Hills, 26 California. Declaration of Wendy J. Cohn in Support of Plaintiffs’ Opposition to Defendant’s 27 Motion to Dismiss (“Cohn Decl.”) ¶¶ 2-5 & Ex. 1 (emails). 1 B. The Motion 2 In the Motion, Nurse seeks dismissal of the complaint under Rule 12(b)(2) of the Federal 3 Rules of Civil Procedure based on lack of personal jurisdiction. Motion at 4-13. He contends 4 there is no general jurisdiction because he has not engaged in “continuous and systematic general 5 business contacts” in California. Id. at 4 (quoting Helicopteros Nacionales de Colombia, S.A. v. 6 Hall, 466 U.S. 408, 416 (1984)). He further asserts that Plaintiffs cannot establish personal 7 jurisdiction in California under the doctrine of specific jurisdiction because Nurse’s contacts with 8 California are “limited and infrequent” and therefore, “exercising jurisdiction over Nurse in 9 California would be manifestly unreasonable.” Id. at 5. 10 Nurse further contends venue in this district is improper and therefore seeks dismissal of 11 the complaint under Rule 23(b)(3) of the Federal Rules of Civil Procedure. Id. at 13. According 12 to Nurse, none of the criteria for venue set forth in 28 U.S.C. § 1291(b), listing the criteria for 13 venue in federal district courts, applies because: 1) he does not reside in this district; 2) none of the 14 events that gave rise to Plaintiffs’ claims occurred in this district; and 3) he is not subject to 15 personal jurisdiction in this district. Id. at 13-14. 16 Finally, Nurse argues that Plaintiffs’ claim for an accounting (Claim Five) fails to state a 17 claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Id. at 15-18. First, he argues 18 that the claim fails because accounting is a remedy rather than a standalone claim. Id. at 15-16 19 (citing Amer v. Wells Fargo Bank NA, No. 17-CV-03872-JCS, 2017 WL 4865564, at *13 (N.D. 20 Cal. Oct. 27, 2017) (quoting Batt v. City & County of San Francisco, 155 Cal. App. 4th 65, 82 21 (2007) (citation omitted), disapproved on other grounds by McWilliams v. City of Long Beach, 56 22 Cal. 4th 613 (2013)). Second, Nurse contends “a plaintiff seeking an accounting must adequately 23 plead facts indicating (1) that there was a ‘special relationship with the plaintiff, such as in cases 24 involving trusts, partnerships and domestic relations, or fiduciary relationships,’ Johnson v. Lewis, 25 No. LA CV 17-01877 JAK (Ex), 2018 WL 4998278, at *8 (C.D. Cal. May 30, 2018) (internal 26 quotations omitted); and (2) ‘that [plaintiff] is owed money and that the calculation of the amount 27 owing would be so complicated that it can only be done by means of an accounting,’ Hutchins v. 1 2017).” Id. at 16-17. According to Nurse, Plaintiffs’ allegations are not sufficient as to either of 2 these requirements. 3 III. ANALYSIS 4 A. Whether There is Personal Jurisdiction over Nurse2 5 1. Legal Standards 6 a. Rule 12(b)(2) 7 A party may move for dismissal under Rule 12(b)(2) of the Federal Rules of Civil 8 Procedure for lack of personal jurisdiction. “When a defendant moves to dismiss for lack of 9 personal jurisdiction, the plaintiff bears the burden of demonstrating that the court has jurisdiction 10 over the defendant.” Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). “Where, 11 as here, the motion is based on written materials rather than an evidentiary hearing, ‘the plaintiff 12 need only make a prima facie showing of jurisdictional facts.’” Id. (quoting Sher v. Johnson, 911 13 F.3d 1357, 1361 (9th Cir.1990)). “Although the plaintiff ‘cannot simply rest on the bare 14 allegations of its complaint,’ … uncontroverted allegations in the complaint must be taken as 15 true.” Schwarzenegger v. Fred Motor Corp., 374 F.3d 797, 800 (9th Cir. 1998) (quoting Amba 16 Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784, 787 (9th Cir.1977)). 17 “Conflicts between parties over statements contained in affidavits must be resolved in the 18 plaintiff’s favor.” Id. (citing AT & T v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 19 1996)). 20 b. Standards Governing Exercise of Personal Jurisdiction 21 “Where . . . there is no applicable federal statute governing personal jurisdiction, the 22 district court applies the law of the state in which the district court sits.” Dole Food Company, 23 Inc. v. Watts, 303 F.3d 1104, 1110 (9th Cir. 2002). “Under California’s long-arm statute, 24 California state courts may exercise personal jurisdiction ‘on any basis not inconsistent with the 25 Constitution of this state or of the United States.’” Daimler AG v. Bauman, 571 U.S. 117, 125 26
27 2 Because Plaintiffs do not dispute that there is no general jurisdiction the Court addresses only the 1 (2014) (quoting Cal. Civ. Proc. Code § 410.10). Thus, the Court must determine whether the 2 exercise of personal jurisdiction over Nurse “comports with the limits imposed by federal due 3 process.” Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464 (1985)). 4 “Opinions in the wake of the pathmarking International Shoe decision have differentiated 5 between general or all-purpose jurisdiction, and specific or case-linked jurisdiction.” Goodyear 6 Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citing Helicopteros 7 Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, nn. 8, 9 (1984)). General jurisdiction 8 may be established when a defendant’s contacts with a state are “substantial” or “continuous and 9 systematic” such that the defendant “can be haled into court in that state in any action, even if the 10 action is unrelated to those contacts.” Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 11 1082, 1086 (9th Cir. 2000). “For an individual, the paradigm forum for the exercise of general 12 jurisdiction is the individual’s domicile; for a corporation, it is an equivalent place, one in which 13 the corporation is fairly regarded as at home.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 14 564 U.S. at 924. It is undisputed that that standard is not met here. 15 A court may exercise specific jurisdiction when the following requirements are met: 16 (1) the non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident 17 thereof; or perform some act by which he purposefully avails himself of the privileges of conducting activities in the forum, 18 thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the 19 defendant’s forum-related activities; and 20 (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 21 22 Dole Food, 303 F.3d at 1111 (internal quotations and citations omitted). “The plaintiff bears the 23 burden of satisfying the first two prongs of the test.” Schwarzenegger v. Fred Martin Motor Co., 24 374 F.3d 797, 802 (9th Cir. 2004) (citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990)). 25 “If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the 26 forum state.” Id. If the plaintiff succeeds in satisfying both of the first two prongs, the burden 27 then shifts to the defendant to present a ‘compelling case’ that the exercise of jurisdiction would 1 2. Discussion 2 a. Purposeful Availment 3 Under the first prong of the Ninth Circuit’s test for specific jurisdiction, a plaintiff must 4 establish that the defendant “either purposefully availed itself of the privilege of conducting 5 activities in California, or purposefully directed its activities toward California.” Schwarzenegger, 6 374 F.3d at 802. A purposeful availment analysis “is most often used in suits sounding in 7 contract,” while a purposeful direction analysis “is most often used in suits sounding in tort.” Id. 8 Thus, the Court will apply the purposeful availment test. 9 “A showing that a defendant purposefully availed himself of the privilege of doing 10 business in a forum state typically consists of evidence of the defendant’s action in the forum, 11 such as executing or performing a contract there.” Id. (quoting Hanson v. Deckla, 357 U.S. 235, 12 253 (1958)). “[A] contract alone does not automatically establish minimum contacts in the 13 plaintiff’s home forum.” Picot v. Weston, 780 F.3d 1206, 1212 (9th Cir. 2004) (quoting Boschetto 14 v. Hansing, 539 F.3d 1011, 1017 (9th Cir. 2008)). “Rather, there must be ‘actions by the 15 defendant himself that create a “substantial connection” with the forum State.’ ” Id. (quoting 16 Burger King, 471 U.S. at 475 (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223 (1957))). 17 “Merely ‘random, fortuitous, or attenuated’ contacts are not sufficient.” Id. (quoting Burger 18 King, 471 U.S. at 475 (internal quotation marks omitted)). To determine whether this requirement 19 is satisfied, courts consider “prior negotiations and contemplated future consequences, along with 20 the terms of the contract and the parties’ actual course of dealing.” Burger King, 471 U.S. at 479. 21 i. Prior Negotiations 22 “If the defendant directly solicits business in the forum state, the resulting transactions will 23 probably constitute the deliberate transaction of business invoking the benefits of the forum states 24 laws.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986) (citation 25 omitted). “Similarly, conducting contract negotiations in the forum state will probably qualify as 26 an invocation of the forum law’s benefits and protections.” Id. (citation omitted). 27 The location of the negotiations does not support purposeful availment here because Nurse 1 16-CV-03129-JSC, 2016 WL 6024591, at *4 (N.D. Cal. Oct. 14, 2016), aff’d, 811 F. App’x 400 2 (9th Cir. 2020) (citing McGlinchy v. Shell Chem. Co., 845 F.2d 802, 816 (9th Cir. 1988)). The fact 3 that Nurse contacted LeGarie in California by telephone during the negotiations does not support 4 purposeful availment. See Roth v. Garcia Marquez, 942 F.2d 617, 622 (9th Cir. 1991) (“[U]se of 5 the mails, telephone, or other international communications simply do not qualify as purposeful 6 activity invoking the benefits and protection of the [forum] state.”) (internal quotation marks 7 omitted). 8 It is less clear whether Nurse purposefully availed himself of the privilege of doing 9 business in California by soliciting business in the forum state. Plaintiffs contend that by 10 contacting LeGarie to seek representation in connection with Nurse’s contract negotiations with 11 the Raptors, Nurse was soliciting business in California. Yet the cases Plaintiffs cite suggest 12 something more is required. In Long, for example, the court found that the defendant had solicited 13 business in California (the forum state) not only because he called the plaintiff in California and 14 entered into an oral agreement whereby the plaintiff would recruit players for the defendant but 15 also because the defendant entered into that agreement in order to develop a “presence” in 16 California. Long v. Authentic Athletix LLC, 2016 WL 6024591, at *2, 4 (holding that defendant 17 “directly solicited business in California” based on “competent evidence that Defendants solicited 18 and negotiated with Plaintiff, a California resident, to perform services on their behalf in 19 California and to help them expand their business presence in California.”). 20 Likewise, in LocusPoint, the court found that the defendant directly solicited business in 21 the forum state by sending “an offering memorandum to Plaintiff, a California resident, which 22 listed several television station assets that were for sale.” LocusPoint Networks, LLC v. D.T.V., 23 LLC, No. 3:14-CV-01278-JSC, 2014 WL 3836792, at *5 (N.D. Cal. Aug. 1, 2014). The court 24 noted that “[e]xamples of solicitation that may satisfy purposeful availment include ‘advertising in 25 the forum State’ or ‘marketing the product through a distributor who has agreed to serve as the 26 sales agent in the forum State.’ ” Id. (quoting Shute v. Carnival Cruise Lines, 897 F.2d 377, 382 27 (9th Cir.1990), rev’d on other grounds, 499 U.S. 585 (1991)). 1 availment where the defendant advertised an open position for a “Legal Counsel” in The 2 Economist, a global weekly news magazine, and the plaintiff responded to the advertisement from 3 California, providing California contact information in his cover letter and on his resume. No. C- 4 08-01911 RMW, 2009 WL 3367069, at *1 (N.D. Cal. Oct. 15, 2009), aff’d, 425 F. App’x 557 (9th 5 Cir. 2011). In affirming the district court’s dismissal of the case based on lack of jurisdiction, the 6 Ninth Circuit observed that it “was purely fortuitous that Sarkis had a California address when the 7 parties negotiated his contract,” finding that “[t]he purposeful availment requirement is intended to 8 ensure that jurisdiction is not based on such ‘random, fortuitous, or attenuated contacts.’ ” Sarkis 9 v. Lajcak, 425 F. App’x 557, 558 (9th Cir. 2011) (quoting Burger King Corp. v. Rudzewicz, 471 10 U.S. 462, 475 (1985)). 11 The facts here appear to fall somewhere between Long and LocusPoint on the one hand 12 and Sarkis, on the other. In contrast to the former, there are no facts here suggesting that Nurse 13 was attempting to promote or sell any product in California or develop his own business or career 14 opportunities in California. But unlike the defendant in Sarkis, he did not broadly solicit 15 applications for an agent to represent him via nationwide media but instead specifically contacted 16 LeGarie in California. The Court concludes, however, that merely seeking to enter into a contract 17 with a California resident is not sufficient to show that a defendant is directly soliciting business in 18 California where the agreement does not involve marketing the defendant’s product or promoting 19 its business in some way in the forum. Otherwise, any contract to hire a California resident, 20 regardless of the nature of the services to be performed under the agreement would constitute 21 purposeful availment. Such a result appears to conflict with the rule that a “contract alone does not 22 automatically establish minimum contacts in the plaintiff’s home forum.” Picot v. Weston, 780 23 F.3d at 1212. Therefore, the Court finds that Plaintiffs have not established purposeful availment 24 based on Nurse’s solicitation of business in California.
25 26 27 1 ii. Contemplated Future Consequences 2 “Parties who reach out beyond one state and create continuing relationships and 3 obligations with citizens of another state are subject to regulation and sanctions in the other State 4 for the consequences of their activities.” Burger King, 471 U.S. at 473. Thus, for example, in 5 Long, the court found that this factor favored a finding of purposeful availment based on “the 6 parties’ significant continuing obligations to each other[,]” citing evidence and allegations in the 7 complaint indicating that “the parties’ obligations . . . extended over a period of several years, as 8 the parties entered into the oral contract in June 2010 and Defendants made their last payment of 9 $31,000 to Plaintiff in February 2016.” 2016 WL 6024591, at *5. Similarly, in Vuori, the 10 undersigned found that this factor supported a finding of purposeful availment where the parties 11 envisioned that the agreement they were negotiating would lead to a long-term relationship. Vuori 12 v. Grasshopper Cap. LLC, No. 17-CV-06362-JCS, 2018 WL 1014633, at *14 (N.D. Cal. Feb. 22, 13 2018). 14 Here, the oral agreement between LeGarie and Nurse was open-ended with respect to 15 duration, LeGarie Decl. ¶ 8, but both LeGarie and Nurse state in their declarations that they 16 discussed not only the commission that LeGarie would charge for an assistant coach position 17 (the position that Nurse was seeking in 2013, when he first contacted LeGarie) but also the 18 commission that would apply if LeGarie helped Nurse obtain a head coaching job at some point in 19 the future. See LeGarie Decl. ¶ 7 (“I explained to Mr. Nurse that my fee for representing him as 20 an assistant coach would be four percent of his gross contract, and that when he became a head 21 coach it would drop down to three percent.”); Nurse Decl. ¶ 6 (“He told me he would not charge 22 any commission until he secured a head coaching job for me.”). These statements indicate the 23 parties anticipated that LeGarie would represent Nurse in his negotiations with the Toronto 24 Raptors on an ongoing basis and the oral agreement was not limited to the assistant coaching 25 position that prompted Nurse’s initial call to LeGarie. 26 Furthermore, the evidence indicates that the parties did, in fact, have an ongoing 27 relationship that lasted approximately seven years whereby LeGarie represented Nurse in a series 1 occasions in California (although Nurse’s primary purpose in coming to California was team- 2 related and not to meet with LeGarie), and invoiced Nurse, who paid commissions to Plaintiffs in 3 California. The Court concludes that the ongoing obligations between Nurse and Plaintiffs were 4 neither random nor fortuitous. 5 Nurse’s reliance on Roth v. Garcia Marquez, 942 F.2d 617, 621 (9th Cir. 1991) to support 6 a contrary conclusion is misplaced. In that case, the plaintiff (a movie producer who lived in 7 California) attempted to negotiate the movie rights to a book by Gabriel Garcia Marquez, who 8 lived in Mexico City. 942 F.2d at 619. Garcia Marquez “met with [the producer] once in 9 California, but entered the state for a social purpose[;] . . . ha[d] never owned property in the state, 10 nor ha[d] he ever conducted business on a regular basis or authorized any resident of the state to 11 do so on his behalf.” Id. at 620. He had “maintained a checking account, not his principal one, in 12 Los Angeles since 1988 for the purposes of having an account in dollars for certain transactions 13 occurring outside of California.” Id. Similarly, his agent, who lived in Barcelona Spain, had few 14 contacts with California. Id. The contract negotiations went on for approximately two years, with 15 the producer making trips to Cuba, Barcelona and Mexico City to meet with Garcia Marquez and 16 his agent, but ultimately were unsuccessful. Id. When the movie producer sued Garcia Marquez 17 in California, the Court found purposeful availment on the basis that the contract envisioned 18 production of a film, “most of the work for which would have been performed in California.” Id. 19 at 622. 20 Nurse contends that under Roth, the anticipated future consequences of the agreement do 21 not support a finding of purposeful availment because in contrast with the facts of Roth, the future 22 consequences of his agreement with LeGarie were to occur entirely in Canada and the 23 commissions he was to pay would be for his work in Canada. Motion at 8-9. Nurse’s reading of 24 Roth is too narrow, however. In that case, it was not clear if the parties to the agreement would 25 have had a long-term relationship once the rights to Garcia Marquez’s work were purchased by the 26 film producer but the evidence showed that nonetheless, the work that resulted from the contract 27 would have “centered on the forum.” Id. Nothing in Roth suggests that an agreement giving rise 1 sufficient to support purposeful availment and the Court finds that under the facts here, it is. 2 Regardless of where Nurse would work under the contracts LeGarie negotiated on his behalf, the 3 agreement that is the basis of LeGarie’s claims involved the ongoing provision of services by 4 LeGarie to Nurse and the commissions to be paid were for those services even if they came out of 5 the salary the Raptors would pay Nurse. Therefore, the Court concludes the anticipated future 6 consequences of the agreement between Nurse and LeGarie were aimed at the forum. 7 iii. Terms of the Contract 8 “Terms that provide fair notice to a defendant that he may possibly be subject to suit in the 9 forum state weigh in favor of a purposeful availment finding.” Vuori, 2018 WL 1014633, at *14 10 (citation and internal quotations omitted). While there is no written contract, the evidence before 11 the Court is that Nurse agreed to pay a commission for the contracts that LeGarie negotiated on his 12 behalf; that Plaintiffs sent Nurse at least seven invoices for LeGarie’s services that reflect a 13 company address in San Francisco, California; and that Nurse paid Plaintiffs at least two times by 14 sending checks to Plaintiffs in California and four times by wiring the payments to a California 15 bank. Courts have found such evidence supports a finding of purposeful availment. See Longyu 16 Int'l Inc. v. E-Lot Elecs. Recycling Inc., No. 2:13-CV-07086-CAS, 2014 WL 1682811, at *5 (C.D. 17 Cal. Apr. 29, 2014) (holding that where invoices reflected California address and payments were 18 from California defendants were “on reasonable notice that they could expect to be called into 19 court in California”). Therefore, the Court finds that this factor supports a finding of purposeful 20 availment. 21 iv. Course of Dealing 22 In evaluating whether the parties’ course of dealing supports a finding of purposeful 23 availment, courts look to whether the “quality and nature” of a defendant’s relationship with the 24 plaintiff can be viewed as “random, fortuitous, or attenuated.” LocusPoint Networks, LLC v. 25 D.T.V., LLC, 2014 WL 3836792, at *7 (citing Burger King, 471 U.S. at 479). Plaintiffs argue that 26 their relationship with Nurse was not random, fortuitous or attenuated, pointing to evidence that 27 the relationship lasted seven years, that they were in regular contact during that period and that 1 valued at $9 million. LeGarie Decl. at ¶¶ 12, 16, 22. They further contend LeGarie’s acts within 2 California on Nurse’s behalf support the exercise of personal jurisdiction because acts of an 3 authorized agent may be considered in determining whether a defendant has sufficient contacts 4 with the forum. Opposition at 11-12 (citing Theo. H. Davies & Co. v. Republic of Marshall 5 Islands, 174 F.3d 969, 974 (9th Cir. 1998); Mitrano v. Hawes, 377 F.3d 402, 407 (4th Cir. 2004)). 6 The Court finds Plaintiffs’ reliance on their agency relationship with Nurse to establish 7 purposeful availment unpersuasive. In Mitrano v. Hawes, which is the only case Plaintiffs cite in 8 which the actions of an agent gave rise to specific jurisdiction over the principal, the court found 9 purposeful availment where the claims arose out of a lawsuit that the plaintiff had filed in the 10 forum on the defendant’s behalf. 377 F.3d at 407. The court found that because the defendant had 11 allowed the underlying action to proceed in the forum state he had ratified the plaintiff’s choice of 12 forum and therefore purposefully availed himself of the forum state’s legal protections. Id. In 13 contrast to the facts of Mitrano, however, Plaintiffs do not point to any specific acts by Plaintiffs 14 on Nurse’s behalf that Nurse ratified and that were specifically aimed at the forum. Nonetheless, 15 the Court finds that the contacts between the parties were not random and fortuitous in light of the 16 evidence that LeGarie conducted 90% of his work on Nurse’s behalf in California, that Nurse sent 17 payment for Plaintiffs’ work to Plaintiffs’ California bank at least six times, and that Nurse and 18 Raptor executives met LeGarie in California in connection with LeGarie’s representation of Nurse 19 on numerous occasions. The parties’ course of dealing thus weighs in favor a finding of 20 purposeful availment.3 21 3 Nurse points to Fujitsu-ICL Sys., Inc. v. Efmark Serv. Co. of Illinois, No. 00-CV-0777 W (LSP), 22 2000 WL 1409760, at *4 (S.D. Cal. June 29, 2000) in support of a contrary result. In that case, the parties had entered into three sales contracts involving the sale of ATMs, software and services. 23 Although the plaintiff was a California corporation and two of the sales contracts contained a California choice of law provision – the third contained Illinois and New York choice of law 24 provisions – the court found that there was no personal jurisdiction over the defendant in California. 2000 WL 1409760, at *1, 3. In reaching that conclusion, the court relied on evidence 25 that other than the sales agreements the defendant had little or no contact with California and further observed that there was no evidence defendant had requested performance in California or 26 that the contract could not have been performed elsewhere. Id. at *4. With respect to course of dealings, the evidence showed that the parties’ communications consisted of telephone calls and 27 faxes, which are not sufficient to establish purposeful availment; the only two times the defendant v. Conclusion 1 Considering the factors discussed above, the Court concludes the purposeful availment 2 requirement is satisfied. 3 b. “Arise out of” Requirement 4 To satisfy the second prong of the test for specific jurisdiction, which requires that the 5 claims must arise out of the defendant’s forum-related activities, courts in the Ninth Circuit apply 6 a but-for test. Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). Nurse contends this test is 7 not met because Plaintiffs’ claims arise out of conduct that occurred in Canada and not California. 8 Motion at 10. Here, Nurse entered into an ongoing contract with an agent who resides in 9 California and did most of his work in California. But for that conduct, Plaintiffs’ contract claims 10 against Nurse would not have arisen. Therefore, the Court concludes this requirement is met. See 11 Long, 2016 WL 6024591, at *6 (“If Defendants had not done business with Plaintiff and 12 purposefully availed themselves of the forum state, Plaintiff would have no claims against them 13 because he would not have suffered an injury that resulted out of the alleged breach of contract”). 14 c. Whether Exercise of Jurisdiction is Reasonable 15 Because the Court concludes that Nurse has purposefully availed himself of the privilege 16 of conducting business in California and Plaintiffs’ claims arise out of Nurse’s contacts with 17 California, the burden lies with Nurse to establish that exercise of personal jurisdiction in 18 California would be unreasonable. To determine whether the exercise of jurisdiction is 19 reasonable, and therefore, “comports with fair play and substantial justice,” courts consider seven 20 factors: 21 (1) the extent of the defendants’ purposeful injection into the forum 22 state’s affairs; (2) the burden on the defendant of defending in the 23 Id. Finally, the court relied on the rule that “when a buyer orders goods from another state, the 24 buyer does not purposefully avail itself of that state’s laws where the seller controls the location of performance.” Id. at *4 (citing Republic Int’l Corp. v. Amco Eng’rs, Inc., 516 F.2d 161 (9th Cir. 25 1975)).
26 Here, the nature of the parties’ relationship was not three discrete contracts for the purchase of goods and services but an ongoing relationship that involved at least six payments 27 made to California over seven years and numerous meetings in California with both Nurse and forum; (3) the extent of conflict with the sovereignty of the 1 defendant’s state; (4) the forum state’s interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; 2 (6) the importance of the forum to the plaintiff’s interest in convenient and effective relief; and (7) the existence of an alternative forum. 3 4 Insurance Co. of North America v. Marina Salina Cruz, 649 F.2d 1266, 1270 (9th Cir. 1981). 5 Based on consideration of these factors, the Court concludes Nurse has not established that 6 exercise of jurisdiction is unreasonable. 7 In considering the first factor, “the extent of interjection is to be considered.” Core-Vent 8 Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993), holding modified by Yahoo! Inc. v. 9 La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199 (9th Cir. 2006) (emphasis added). 10 Thus, “[t]he smaller the element of purposeful interjection, the less is jurisdiction to be anticipated 11 and the less reasonable is its exercise.” Id. (quoting Insurance Company of North America v. 12 Marina Salina Cruz, 649 F.2d 1266, 1271 (9th Cir. 1981)). Here, Nurse’s contacts with the forum 13 are relatively attenuated even though they are sufficient to meet the purposeful availment 14 requirement. Therefore, this favor weighs slightly in favor of Nurse. See id. (finding that this 15 factor weighed in favor of defendant due to attenuated contacts with forum but that it did not 16 weigh “heavily” in his favor given that the court’s “assumption that [his contacts] were sufficient 17 to meet the purposeful availment prong”). 18 The second factor weighs in favor of Plaintiffs. This factor requires the court to consider 19 the burden on the defendant of litigating in the forum. Fed. Deposit Ins. Corp. v. British-Am. Ins. 20 Co., 828 F.2d 1439, 1444 (9th Cir. 1987) (citation omitted). The threshold for establishing that it 21 would be unreasonable to require the defendant to litigate in the forum is high, however. Unless 22 the inconvenience to the defendant “is so great as to constitute a deprivation of due process, it will 23 not overcome clear justifications for the exercise of jurisdiction.” Hirsch v. Blue Cross, Blue 24 Shield of Kansas City, 800 F.2d 1474, 1481 (9th Cir. 1986) (citation omitted). Nurse argues that he 25 would be “greatly inconvenienced” if he were required to litigate in California, but he provides no 26 evidence demonstrating that it would amount to a deprivation of due process. Given that Nurse 27 travels to California for coaching related activities, see Nurse Decl. ¶ 10, and is currently 1 and parties to litigate and adjudicate by remote means in response to COVID-19, the Court 2 concludes the burden on Nurse of litigating in California is not substantial enough to weigh 3 against a finding of reasonableness. 4 The third factor considers the extent of any conflict of sovereignty. “Great care and reserve 5 should be exercised when extending our notions of personal jurisdiction into the international 6 field.” Asahi Metal Indus. Co. v. Superior Ct. of California, Solano Cty., 480 U.S. 102, 115 7 (1987) (internal quotations omitted). Further, “a foreign nation presents a higher sovereignty 8 barrier than another state within the United States.” Roth v. Garcia Marquez, 942 F.2d at 623–24 9 (citing Fed. Deposit Ins. Corp. v. Brit.-Am. Ins. Co., 828 F.2d 1439, 1444 (9th Cir. 1987)( (citation 10 omitted). “Nonetheless, ‘[t]he factor of conflict with the sovereignty of the defendant’s state is not 11 dispositive because, if given controlling weight, it would always prevent suit against a foreign 12 national in a United States court.” Roth, 942 F.2d at 623-624 (citing Sinatra v. Nat’l Enquirer, 13 Inc., 854 F.2d 1191, 1200 (9th Cir. 1988)). Thus, for example, in Sinatra, “the scales tipped for 14 the plaintiff on this issue,” largely because “the defendant had an agent in the United States,” 15 unlike the defendant in Roth, whose agent lived in Spain. Here, as in Sinatra, Nurse had an agent 16 in the United States. Moreover, while Nurse’s employment contracts were with a Toronto team, he 17 states in his declaration that for the past five years he has been a resident of Florida and that before 18 that he was a resident of Texas. Nurse Decl. ¶ 3. These facts also undercut his argument that 19 exercising jurisdiction over him in California would give rise to a conflict of sovereignty between 20 California and Canada. Consequently, the Court concludes this factor slightly favors Plaintiffs. 21 The interest of California in adjudicating the dispute is neutral. Although Plaintiffs reside 22 in California, Nurse does not and Nurse’s contacts with California are attenuated, as discussed 23 above, reducing California’s interest in resolution of this dispute. See Parallel Media, LLC v. 24 D&M Cap. Grp., LLC, No. CV1005666MMMFFMX, 2011 WL 13217278, at *23 (C.D. Cal. May 25 31, 2011). However, “[i]n the Ninth Circuit, . . . courts have accorded this factor little weight.” 26 Id. (citing Roth, 942 F.2d at 624 (“There is little case law [regarding the state’s interest in 27 adjudication] in the contracts context in this circuit. . . . [T]his factor seems to be a toss-up, with 1 1997 WL 8470, at * 5 (9th Cir. Jan. 7, 1997) (Unpub. Disp.) (“Fourth, the forum state’s interest in 2 adjudication is a toss-up. As we noted in Roth, little case law exists in this circuit regarding a 3 forum’s interest in protecting its residents in the contracts context. . . . Thus, this factor favors 4 neither party”); Joe Boxer Corp. v. R. Siskind & Co., Inc., No. C 98–4899 SI, 1999 WL 429549, * 5 6 (N.D. Cal. June 28, 1999) (“With respect to the State of California’s interest in providing a 6 forum for Boxer’s action, California law is in conflict as to whether the state has an interest in 7 providing a forum for a private contractual dispute. This factor is therefore neutral” (internal 8 citations omitted))). 9 The fifth factor, which is judicial efficiency, requires the Court to evaluate where the 10 witnesses and evidence are likely to be located. Core–Vent, 11 F.3d at 1489. It is likely that 11 witnesses and evidence will be located both in California and Canada, given that Plaintiffs’ 12 representation of Nurse involved conduct that occurred in both places. Regardless, even if Nurse 13 demonstrated that most of the witnesses and evidence were located in Canada, “this factor is no 14 longer heavily weighted in light of modern technology.” Autodesk, Inc. v. Kobayashi + Zedda 15 Architects Ltd., 191 F. Supp. 3d 1007, 1020 (N.D. Cal. 2016) (citation omitted). Therefore, this 16 factor is neutral. 17 The sixth factor, the importance of the forum to the plaintiff’s interest in convenient and 18 effective relief, weighs in Plaintiffs’ favor based on convenience. It is also undisputed that the 19 seventh factor favors Nurse because Canada provides an alternative forum. 20 Balancing the factors discussed above, the Court concludes that Nurse has not made a 21 compelling case that it would be unreasonable to require him to litigate in California. 22 Accordingly, the Court concludes there is specific jurisdiction over Nurse in this case. 23 B. Whether Venue is Proper 24 A party may bring a motion to dismiss an action for improper venue pursuant to Rule 25 12(b)(3). On a motion to dismiss pursuant to Rule 12(b)(3), “the pleadings need not be accepted as 26 true, and the court may consider facts outside of the pleadings.” Murphy v. Schneider National, 27 Inc., 362 F.3d 1133, 1137 (9th Cir. 2004) (citations omitted). In evaluating the facts, “the trial 1 conflicts in favor of the non-moving party.” Id. at 1138. Where there are genuine factual 2 disputes, the district court has the discretion to hold a Rule 12(b)(3) motion in abeyance until it 3 holds an evidentiary hearing on the disputed facts. Id. at 1139. 4 Under 28 U.S.C. § 1391(b), “a civil action may be brought in: 1) a judicial district in 5 which any defendant resides, if all defendants are residents of the State in which the district is 6 located; 2) a judicial district in which a substantial part of the events or omissions giving rise to 7 the claim occurred, or a substantial part of property that is the subject of the action is situated; or 8 3) if there is no district in which an action may otherwise be brought as provided in this section, 9 any judicial district in which any defendant is subject to the court’s personal jurisdiction with 10 respect to such action.” The plaintiff bears the burden of showing that venue is proper. See 11 Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979) (“Plaintiff had 12 the burden of showing that venue was properly laid in the Northern District of California.”). 13 Here, there is no dispute that Nurse does not reside in this district and therefore, that 14 Section 1391(b)(1) does not apply. There is sufficient evidence, however, to establish that a 15 substantial part of the events or omissions that gave rise to Plaintiffs’ claims occurred in this 16 district under Section 1391(b)(2). Courts have held that § 1391 “ ‘does not require that a majority 17 of the events have occurred in the district where the suit is filed, nor does it require that the events 18 in that district predominate.’ ” Artec Group, Inc. v. Klimov, No. 15-cv-03449-RMW, 2015 WL 19 9304063, at *7 (N.D. Cal., Dec. 22, 2015) (quoting Rodriguez v. Cal. Highway Patrol, 89 20 F.Supp.2d 1131, 1136 (N.D. Cal. 2000)). “Rather, ‘for venue to be proper, significant events or 21 omissions material to the plaintiff’s claim must have occurred in the district in question, even if 22 other material events occurred elsewhere.’ ” Richmond Techs., Inc. v. Aumtech Bus. Solutions, No. 23 11-cv-02460-LHK, 2011 WL 2607158, at *10 (N.D. Cal., July 1, 2011) (quoting Gulf Ins. Co. v. 24 Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005)). In contract disputes, “courts have ‘looked to 25 such factors as where the contract was negotiated or executed, where it was to be performed, and 26 where the alleged breach occurred.’ ” Id. (quoting Gulf Ins. Co., 417 F.3d at 357). Thus, under § 27 1391, “venue may be proper in multiple districts if a ‘substantial part’ of the underlying events 1 Although many of the events relevant to Plaintiffs’ claims occurred in Canada, significant 2 events also occurred in this district. In particular, LeGarie resides in this district and his company 3 is also based here; LeGarie has also supplied a declaration stating that he performed 90 % of the 4 work on the contract in this district. LeGarie’s company, LeGarie Management, Inc. is a 5 California Corporation based in San Francisco and LeGarie and his company performed a 6 significant portion of the work under the agreement with Nurse in this district. Therefore, the 7 Court concludes that venue is proper in this district under § 1391(b)(2). 8 C. Whether the Accounting Claim Fails to State a Claim 9 1. Legal Standards Under Rule 12(b)(6) 10 A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure 11 for failure to state a claim on which relief can be granted. “The purpose of a motion to dismiss 12 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. 13 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage 14 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that a “pleading which 15 sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing 16 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 17 In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and 18 takes “all allegations of material fact as true and construe[s] them in the light most favorable to the 19 non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 20 Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that 21 would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 22 1990). A complaint must “contain either direct or inferential allegations respecting all the material 23 elements necessary to sustain recovery under some viable legal theory.” Bell Atl. Corp. v. 24 Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 25 1106 (7th Cir. 1984)). 26 2. Discussion 27 Nurse contends Plaintiffs’ accounting claim fails to state a claim because under California 1 correctly observe that courts in California have gone both ways on this question. See, e.g., 2 Dahon N. Am., Inc. v. Hon, No. 2:11-CV-05835-ODW, 2012 WL 1413681, at *12 (C.D. Cal. Apr. 3 24, 2012) (holding that accounting is an independent cause of action under California law) (citing 4 Teselle v. McLoughlin, 173 Cal.App.4th 156, 179 (2009)); Periguerra v. Meridas Cap., Inc., No. 5 C 09-4748 SBA, 2010 WL 395932, at *4 (N.D. Cal. Feb. 1, 2010) (holding that under California 6 law, an accounting is generally a remedy in equity but that a “request for an accounting can be 7 alleged as a cause of action when a defendant owes a fiduciary duty to a plaintiff which requires 8 an accounting, and that some balance is due to the plaintiff that can only be ascertained by an 9 accounting.”) (citing Teselle, 173 Cal. App. 4th at 179); cf. Mahoney v. Bank of Am., Nat. Ass'n, 10 No. 13-CV-2530-W JMA, 2014 WL 314421, at *11 (S.D. Cal. Jan. 28, 2014) (“Accounting ‘is not 11 an independent cause of action but merely a type of remedy and an equitable remedy at that.’ ”) 12 (quoting Batt v. City & Cnty. of San Francisco, 155 Cal.App.4th 65, 82 (2007)); Fradis v. 13 Savebig.com, No. CV 11-07275 GAF JCX, 2011 WL 7637785, at *8 (C.D. Cal. Dec. 2, 2011) (“A 14 number of courts have held that an accounting is merely an equitable remedy, and therefore cannot 15 be maintained as an independent cause of action.”). 16 The undersigned has found that under California law, an accounting “is not an independent 17 cause of action but merely a type of remedy.” Amer v. Wells Fargo Bank NA, No. 17-CV-03872- 18 JCS, 2017 WL 4865564, at *13 (N.D. Cal. Oct. 27, 2017) (citing Batt v. City & County of San 19 Francisco, 155 Cal. App. 4th 65, 82 (2007) (citation omitted), disapproved on other grounds by 20 McWilliams v. City of Long Beach, 56 Cal. 4th 613, 155 Cal.Rptr.3d 817, 300 P.3d 886 (2013)). 21 Likewise, the Court finds here that Plaintiffs’ request for an accounting is not properly asserted as 22 a separate cause of action. Therefore, that claim will be dismissed without leave to amend but 23 without prejudice to Plaintiffs’ seeking an accounting remedy in connection with their remaining 24 claims. The Court declines to reach Nurse’s objections that Plaintiffs have not alleged a special 25 relationship or that the determination of the amount owed to Plaintiffs is so complex as to require 26 an accounting as it finds that these objections are premature. See Amer, 2017 WL 4865564, at 27 *13. 1 || IV. CONCLUSION 2 For the reasons stated above, the Motion is DENIED as to Nurse’s challenges to personal 3 || jurisdiction and venue. The Motion is GRANTED with respect to the accounting claim (Claim 4 || Five), which is dismissed with prejudice. 5 IT IS SO ORDERED. 6 7 Dated: December 6, 2021 J PH C. SPERO 9 ief Magistrate Judge 10 11 a 12
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