Ocean Garden Products Incorporated v. Blessings Incorporated

• Court: District Court, D. Arizona
• Decided: September 27, 2019
• Docket: 4:18-cv-00322
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ocean Garden Products Incorporated, No. CV-18-00322-TUC-RM

10 Plaintiff, Consolidated with: No. CV-19-00284-TUC-RM 11 v.

12 Blessings Incorporated, et al., ORDER

13 Defendants. 14 15 Pending before the Court are four Motions to Dismiss. (Docs. 99, 110, 156, 157.)1 16 The Court held oral argument on September 16, 2019, and took the Motions under 17 advisement. (Doc. 215.) The Motions to Dismiss filed by Defendant ADAB Ocean 18 Harvest, S. De R.L. De C.V. (hereinafter “Defendant” or “ADAB Mexico”) (Docs. 99, 19 156) will be addressed below. The Motions to Dismiss filed by 20 Plaintiff/Counterdefendant Ocean Garden Products Inc. (hereinafter “Plaintiff” or “OG”) 21 (Doc. 110) and the Motion to Dismiss filed by Pacific Ocean Harvest, S. De R.L. De 22 C.V. (Doc. 157) will be resolved separately. 23 I. Background 24 ADAB Mexico is a Mexican company located in Nogales, Arizona. It was 25 originally established as a maquiladora processing shrimp on behalf of Blessings, Inc. 26 (“Blessings”), an Arizona corporation located in Tucson, Arizona. Like Blessings, 27 ADAB Mexico is wholly owned by brothers David and Abraham Mayorquin, both of

28 1 All record citations herein refer to the page numbers generated by the Court’s electronic filing system and, unless otherwise noted, the docket in CV-18-322. 1 whom are domiciled in Arizona. 2 On July 2, 2018, Plaintiff initiated a lawsuit against Blessings and David, alleging 3 breach of contract and other claims (Doc. 1) (the “Contract Action”). Plaintiff filed a 4 First Amended Complaint (“Alter-Ego FAC”), the operative pleading in the Contract 5 Action, on January 29, 2019. (Doc. 86.) The Alter-Ego FAC adds Abraham and ADAB 6 Mexico as defendants under an alter-ego theory. (Id.) On February 22, 2019, ADAB 7 Mexico filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) 8 (“Alter Ego MTD”). (Doc. 99.) The Alter Ego MTD was fully briefed on July 29, 2019. 9 (Docs. 166, 184.) 10 On May 22, 2019, Plaintiff initiated a separate lawsuit against numerous 11 defendants, including ADAB Mexico, asserting claims under Arizona’s Uniform 12 Fraudulent Trade Act (“UFTA”) (Doc. 1 in case number CV-19-284) (the “UFTA 13 Action”). After case numbers CV-18-322 and CV-19-284 were consolidated, Plaintiff 14 filed a First Amended Complaint (“UFTA FAC”), the operative pleading in the UFTA 15 Action. (Doc. 154.) On July 9, 2019, ADAB Mexico filed a Rule 12(b)(2) Motion to 16 Dismiss (“UFTA MTD”) (Doc. 156), which was directed at Plaintiff’s original UFTA 17 Complaint but which both parties agree may be treated as seeking dismissal of the claims 18 asserted against ADAB Mexico in the UFTA FAC. (Doc. 186 at 4; Doc. 197 at 3 n.2.) 19 The UFTA MTD was fully briefed on August 26, 2019. (Docs. 186, 197.) 20 In both the Alter Ego MTD and the UFTA MTD, ADAB Mexico moves for 21 dismissal under Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. 22 II. Allegations of FACs Concerning ADAB Mexico 23 With respect to ADAB Mexico, Plaintiff’s Alter-Ego FAC alleges the following: 24 ADAB and Blessings are sister companies, both of which are solely owned and 25 controlled by David and Abraham. (Doc. 86 at 2-4, 12.) David is Blessings’ President 26 and Chief Executive Officer (“CEO”), and David and Abraham are the sole officers of 27 ADAB Mexico. (Id. at 3-4.) ADAB Mexico does not have an independent board of 28 directors or any officers or directors except David and Abraham. (Id. at 12.) ADAB 1 Mexico and Blessings operate as a single enterprise, with Blessings serving as the sales 2 and marketing arm and ADAB Mexico as the processing arm. (Id. at 3-4, 11.) 3 Administrative functions of ADAB Mexico are frequently performed by Blessings’ 4 employees; ADAB Mexico uses Blessings’ trucks, equipment, and premises; and 5 Defendants produced documents of ADAB Mexico in discovery in this case as proof of 6 Blessings’ damages. (Id. at 12-13.) David and Abraham commingled the assets of 7 Blessings and ADAB Mexico in order to isolate the debts of their shrimp business with 8 Blessings and the profits with ADAB Mexico, thereby shielding the business’s assets 9 from creditors like OG. (Id. at 2, 11-12.) David and Abraham transferred money and 10 goods received by Blessings from OG to ADAB Mexico, while giving OG the impression 11 that the companies were the same. (Id.) Jurisdiction over ADAB is proper because it is 12 the alter ego of David, Abraham, and Blessings, and because it “has purposefully availed 13 itself of the privilege of doing business in Arizona.” (Id. at 3.) 14 Plaintiff’s UFTA FAC makes the following allegations with respect to ADAB 15 Mexico: At a time when Blessings was in serious financial distress and facing an 16 existential threat from a criminal investigation, David and Abraham ran up Blessings’ 17 debt to OG and transferred millions of dollars from Blessings to ADAB Mexico, thereby 18 isolating the debts of their shrimp business in Blessings and the assets in ADAB Mexico. 19 (Doc. 154 at 2, 5-8.) Blessings transferred cash to ADAB Mexico even after OG filed a 20 state-court lawsuit against Blessings in 2016. (Id. at 8.) Blessing mischaracterized the 21 cash transfers in its financial statements by implying that it had a note receivable from 22 ADAB Mexico, even though no note or other loan documents were executed between 23 Blessings and ADAB Mexico. (Id. at 9.) In addition to cash, Blessings transferred 24 know-how, trade secrets, other intangible assets, and processing equipment to ADAB 25 Mexico, and affirmatively concealed the transfers from OG. (Id. at 9-10.) Blessings is 26 now insolvent and judgment-proof, while ADAB Mexico is operational primarily thanks 27 to the millions of dollars fraudulently transferred from Blessings. (Id. at 2.) Jurisdiction 28 over ADAB Mexico is proper because it is co-owned by David and Abraham and it is not 1 a good-faith transferee of the assets transferred from Blessings. (Id. at 3.) 2 III. Legal Standard 3 “Federal courts apply state law to determine the bounds of their jurisdiction over a 4 party.” Williams v. Yamaha Motor Co., 851 F.3d 1015, 1020 (9th Cir. 2017). Arizona’s 5 long-arm statute permits the exercise of jurisdiction to the full extent permissible under 6 the United States Constitution. Ariz. R. Civ. P. 4.2(a); Davis v. Metro Prod., Inc., 885 7 F.2d 515, 520 (9th Cir. 1989). In order for the exercise of personal jurisdiction over an 8 out-of-state defendant to comport with the requirements of due process under the United 9 States Constitution, the defendant must “have certain minimum contacts” with the forum 10 state “such that the maintenance of the suit does not offend traditional notions of fair play 11 and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal 12 quotation omitted). 13 The plaintiff bears the burden of establishing that the exercise of personal 14 jurisdiction is proper. Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015). This is 15 true even though the defendant is the moving party on a Rule 12(b)(2) motion to dismiss. 16 Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002). But in the 17 absence of an evidentiary hearing, the plaintiff need only make “a prima facie showing of 18 personal jurisdiction.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 19 (9th Cir. 2004) (internal quotation omitted).2 20 Personal jurisdiction can be general or specific. General personal jurisdiction 21 exists when the defendant’s affiliations with the forum state are so “continuous and 22 systematic” that the defendant can properly be said to be “at home” in that state. 23 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal 24 quotation omitted). A corporate defendant is typically “at home” only in its state of 25 incorporation and the state in which it has its principal place of business. See id. at 924. 26 Specific personal jurisdiction exists only when “the defendant’s suit-related conduct . . . 27 2 The plaintiff must later establish the jurisdictional facts by a preponderance of the 28 evidence at a preliminary hearing or at trial. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). 1 create[s] a substantial connection with the forum State.” Walden v. Fiore, 571 U.S. 277, 2 284 (2014). Three requirements must be satisfied for a court to exercise specific personal 3 jurisdiction over a non-resident defendant: (1) the defendant must have “purposefully 4 direct[ed] his activities or consummate[d] some transaction with the forum or resident 5 thereof” or “purposefully avail[ed itself] of the privileges of conducting activities in the 6 forum, thereby invoking the benefits and protections of its laws”; (2) the claim must have 7 arisen out of or relate to the defendant’s forum-related activities; and (3) “the exercise of 8 jurisdiction must comport with fair play and substantial justice, i.e. it must be 9 reasonable.” Dole Food Co. v. Watts, 303 F.3d 1104, 1111 (9th Cir. 2002). If the 10 plaintiff meets its burden of showing sufficient minimum contacts to satisfy the first two 11 requirements for exercising specific personal jurisdiction, the burden then shifts to the 12 defendant to “present a compelling case that the exercise of jurisdiction would not be 13 reasonable.” Schwarzenegger, 374 F.3d at 802 (internal quotation omitted). 14 In evaluating a motion to dismiss for lack of personal jurisdiction under Rule 15 12(b)(2), the Court is not restricted to the four corners of the Complaint and may consider 16 extrinsic evidence, including affidavits and discovery materials. Doe v. Unocal Corp., 17 248 F.3d 915, 922 (9th Cir. 2001) (per curiam), abrogated on other grounds by Daimler 18 AG v. Bauman, 571 U.S. 117 (2014). Uncontroverted allegations of a complaint must be 19 taken as true. Ranza, 793 F.3d at 1068. Factual disputes are resolved in the plaintiff’s 20 favor. Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006).3 21 . . . . 22 . . . . 23 3 At oral argument, Defendants argued that looking only to the allegations of 24 Plaintiff’s FACs is inappropriate given the procedural history of this case, since the parties have engaged in some discovery and the Court held a three-day evidentiary 25 hearing on Plaintiff’s Motion for Preliminary Injunction. The injunction hearing places the pending jurisdictional motions in an unusual procedural posture; however, because 26 the Court has not held an evidentiary hearing specifically regarding the pending jurisdictional motions to dismiss, the Court finds that only a prima facie showing of 27 personal jurisdiction is required at this stage of the case. However, to the extent that allegations of Plaintiff’s FACs are controverted by other materials in the record, the 28 Court will not take the controverted allegations as true. Instead, the Court will look to the record evidence, resolving factual disputes in Plaintiff’s favor. 1 IV. Discussion 2 In both the Alter Ego MTD and UFTA MTD, ADAB Mexico argues that it is a 3 Mexican company operating solely in Mexico, that it does not do any business in 4 Arizona, and that it lacks minimum contacts with Arizona sufficient to establish personal 5 jurisdiction. (Doc. 99 at 3-6; Doc. 156 at 2.) 6 In the Alter Ego MTD, ADAB Mexico additionally argues that Plaintiff’s alter- 7 ego theory of liability is unsupported because (1) ADAB Mexico and Blessings are sister 8 companies rather than a parent and subsidiary; (2) ADAB Mexico and Blessings engage 9 in different businesses and have different customers; (3) Blessings has no authority or 10 control over ADAB Mexico; (4) ADAB Mexico operates separately from Blessings and 11 has its own address, telephone number, employees, bank accounts, and corporate and 12 financial records; and (5) Plaintiff has failed to show that observance of the companies’ 13 separate corporate existence would sanction a fraud or promote injustice. (Doc. 99 at 6- 14 10.) In the alternative, ADAB Mexico argues that the claims against it should be 15 dismissed based on forum non conveniens because (1) relevant documents and witnesses 16 are located in Mexico and written in or speak Spanish; (2) the issue of whether ADAB 17 Mexico is an alter ego requires interpretation of Mexican law; and (3) Arizona does not 18 have a compelling interest in resolving a dispute between OG, a California company, and 19 ADAB Mexico, a Mexican company. (Id. at 10-12.) 20 ADAB Mexico attached a declaration by Abraham as an exhibit to its Alter Ego 21 MTD. (Doc. 99-1.) It attached a supplemental declaration of David as an exhibit to its 22 Reply in Support of the Alter Ego MTD. (Doc. 184-1.) Abraham’s declaration avers that 23 ADAB Mexico maintains its own bank account, telephone number, employees, and 24 records in Mexico; that ADAB Mexico has no ownership interest in Blessings and no 25 authority or control over Blessings, and vice versa; that ADAB Mexico and Blessings are 26 engaged in different businesses and have different customers; that ADAB Mexico does 27 no business in the United States and has no presence in Arizona; and that neither 28 Abraham nor ADAB Mexico agreed to personally guarantee Blessings’ debt to OG, nor 1 is either a party to the contract at issue in the Contract Action. (Doc. 99-1 at 3-5.) 2 David’s declaration avers that he and Abraham established ADAB Mexico in the 2011- 3 2012 time-frame to increase production capacity; that all equipment exported by 4 Blessings for use by ADAB Mexico continues to be owned by Blessings; and that key 5 witnesses reside in Mexico. (Doc. 184-1 at 3-4.) 6 ADAB Mexico’s UFTA MTD incorporates the Alter Ego MTD and further argues 7 that Plaintiff’s allegations that ADAB Mexico is the recipient of assets fraudulently 8 transferred from Blessings is insufficient to satisfy the constitutional requirements for 9 establishing personal jurisdiction. (Doc. 156 at 2-5.) ADAB Mexico notes that courts 10 “have refused to institute a black letter rule that personal jurisdiction exists over the 11 alleged recipient of a fraudulent transfer in any State in which the complaining creditor 12 files suit.” (Id. at 3.) ADAB Mexico further argues that it never engaged in or directed 13 any activity at Arizona, and that no harm was suffered in Arizona or directed at Arizona, 14 as the effects of any fraudulent transfer on OG—a California business—would be felt in 15 California. (See id. at 4.) Plaintiff did not attach any affidavits in support of its UFTA 16 MTD. 17 A. General Jurisdiction 18 ADAB Mexico is not incorporated in Arizona, does not have its principal place of 19 business in this state, and does not have affiliations with Arizona that are so continuous 20 and systematic as to establish general personal jurisdiction. See Goodyear Dunlop Tires 21 Operations, 564 U.S. at 919. However, Plaintiff argues that ADAB Mexico’s act of 22 registering itself as an active company authorized to do business in Arizona, which 23 required appointing an agent to receive service of process in Arizona, renders ADAB 24 Mexico subject to jurisdiction in this state. (Doc. 166 at 2; Doc. 166-3; Doc. 186 at 8.) 25 Defendants counter that ADAB Mexico’s application for authorization to do business in 26 Arizona is insufficient to establish personal jurisdiction. (Doc. 197 at 3-4.) 27 Federal courts are split on the issue of whether a defendant consents to general 28 personal jurisdiction in a state merely by registering to do business in that state and 1 appointing an agent to receive service of process there. Compare Siemer v. Learjet 2 Acquisition Corp., 966 F.2d 179, 183-84 (5th Cir. 1992) (registration and appointment of 3 agent to receive service insufficient to establish general personal jurisdiction), and Brown 4 v. Lockheed Martin Corp., 814 F.3d 619, 633-41 (2d Cir. 2016) (same); with Bane v. 5 Netlink, Inc., 925 F.2d 637, 640-41 (3d Cir. 1991) (registration and appointment of agent 6 to receive service constituted consent to personal jurisdiction); Knowlton v. Allied Van 7 Lines, Inc., 900 F.2d 1196, 1199-1200 (8th Cir. 1990) (same). In the Ninth Circuit, 8 courts “look to state statutes and case law in order to determine whether a foreign 9 corporation is subject to personal jurisdiction in a given case because the corporation has 10 appointed an agent for service of process” in the forum state. King v. Am. Family Mut. 11 Ins. Co., 632 F.3d 570, 576 (9th Cir. 2011). “[I]n the absence of broader statutory 12 language or state court interpretations, the appointment of an agent for the service of 13 process is, by itself, insufficient to subject foreign corporations to suits for business 14 transacted elsewhere.” Id. at 575. “The simple act of appointing a statutory agent is not, 15 nor has it ever been, a magical jurisdictional litmus test.” Id. at 576. 16 The Arizona Court of Appeals has held that “foreign corporations do not impliedly 17 consent to general jurisdiction in Arizona merely by registering as foreign corporations 18 and appointing agents for service of process.” Wal-Mart Stores, Inc. v. LeMaire, 395 19 P.3d 1116, 1118 (Ariz. App. 2017). Plaintiff has failed to identify any Arizona statute or 20 case law to the contrary. Accordingly, the Court does not find that ADAB Mexico’s act 21 of registering with the Arizona Corporation Commission and appointing an agent for 22 service of process in Arizona constitutes consent to general personal jurisdiction in 23 Arizona. 24 The Court has general jurisdiction over Blessings, which is incorporated in 25 Arizona and has its principal place of business in this state. If the contacts of Blessings 26 can be imputed to ADAB Mexico under an alter-ego theory, then this Court would have 27 general jurisdiction over ADAB Mexico. See Ranza, 793 F.3d at 1070-71. However, the 28 Court does not reach this issue because it finds that it has specific jurisdiction over 1 ADAB Mexico in the UFTA action, and both parties agree that if ADAB Mexico’s 2 UFTA MTD is denied, ADAB Mexico’s Alter-Ego MTD may be denied as moot on the 3 grounds of pendent jurisdiction. 4 B. Specific Jurisdiction 5 Plaintiff argues that specific jurisdiction exists over ADAB Mexico because the 6 company, acting through David and Abraham, committed an in-state intentional tort by 7 transferring Blessings’ assets. (Doc. 186 at 8-10 (citing Freestream Aircraft (Bermuda) 8 Ltd. v. Aero Law Grp., 905 F.3d 597 (9th Cir. 2018)).) However, the evidence indicates 9 that Blessings directed the transfer of its assets from Arizona, and ADAB Mexico 10 accepted those assets in Mexico. Although this case is unique in that David and Abraham 11 are the sole shareholders and officers of both Blessings and ADAB, the Court 12 nevertheless declines to attribute the in-state initiation of the transfers to ADAB Mexico 13 without first engaging in an alter-ego analysis. Accordingly, the Court will resolve the 14 jurisdictional issue by applying the “effects” test of Calder v. Jones, 465 U.S. 783 (1984). 15 Under the Calder “effects” test, a defendant purposefully directs conduct at a 16 forum state by (1) committing an intentional act, (2) expressly aimed at the forum state, 17 (3) that causes harm that the defendant knows is likely to be suffered in the forum state. 18 Schwarzenegger, 374 F.3d at 803 (quoting Dole Food, 303 F.3d at 1111). Plaintiff 19 argues that ADAB Mexico purposefully directed conduct at Arizona by accepting 20 fraudulently transferred assets from Blessings for the purpose of shielding Blessings from 21 creditors seeking to collect in Arizona. (Doc. 186 at 10-16 (citing Best W. Int’l Inc. v. I- 22 70 Hotel Corp., No. CV11-1281-PHX-FJM, 2012 WL 2952363 (D. Ariz. July 19, 2012); 23 Donshen Textile (Holdings) Ltd. v. Rabinowitz, No. CV 13-09030 SJO (SHx), 2014 WL 24 12638883 (C.D. Cal. July 3, 2014)).) As discussed in the Court’s concurrently filed 25 Order granting Plaintiff’s Motion for Preliminary Injunction, Plaintiff had established a 26 likelihood of success in proving that Blessings fraudulently transferred assets to ADAB 27 Mexico. By knowingly accepting those assets, ADAB Mexico committed an intentional 28 act, thereby satisfying the first element of the Calder “effects” test. 1 As Defendants point out, Courts have expressed skepticism regarding whether a 2 non-resident defendant’s receipt of fraudulently transferred assets automatically 3 establishes specific personal jurisdiction in the state in which a complaining creditor 4 resides. There is good reason for such skepticism, as the jurisdictional analysis is focused 5 on the defendant’s contacts rather than the plaintiff’s residence. See Mullins v. 6 TestAmerica, Inc., 564 F.3d 386, 401 (5th Cir. 2009); cf. Walden, 571 U.S. at 283-86 7 (defendant’s connections with forum, rather than plaintiff’s, form basis for personal 8 jurisdiction). However, in the present case, Plaintiff does not argue that personal 9 jurisdiction would exist in any forum in which a creditor of Blessings happens to reside; 10 instead, Plaintiff argues that personal jurisdiction exists in Arizona, where Blessings is 11 subject to general personal jurisdiction in any collection action filed. The Court rejects 12 Defendants’ alternative argument that any harm from the transfer of assets from 13 Blessings to ADAB Mexico would be felt only in California, where OG resides. “Harm 14 sufficient to establish personal jurisdiction may be felt in multiple forums,” and harm 15 from a plaintiff’s inability to collect on a judgment is felt in the location of the action as 16 well as the residence of the plaintiff. Best Western Int’l, 2012 WL 2952363, at *4. 17 Because interfering with a creditor’s ability to obtain a collectable judgment against 18 Blessings in a court in Arizona constitutes harm felt in Arizona, and the current record 19 supports an inference that ADAB Mexico knew that such harm would occur in Arizona 20 as a result of its receipt of assets from Blessings, the Court finds that all three elements of 21 the Calder “effects” test have been sufficiently satisfied for purposes of a Rule 12(b)(2) 22 motion to dismiss resolved without an evidentiary hearing. 23 The Court also notes that ADAB Mexico has other contacts with Arizona that are 24 related to this litigation. ADAB Mexico was, according to Defendants, established for 25 the purpose of processing shrimp for Blessings—an Arizona corporation. For years, 26 Blessings was ADAB Mexico’s sole customer. ADAB Mexico’s sole owners and 27 officers are domiciled in Arizona and the current record indicates they have taken actions 28 on behalf of ADAB Mexico while located in Arizona. The current record also indicates 1 that Blessings’ employees in Arizona have performed training and other services for 2 ADAB Mexico. And, as noted above, ADAB Mexico is registered to conduct business in 3 Arizona and has appointed an agent for service of process in this state. These contacts, 4 when considered alongside ADAB Mexico’s receipt of allegedly fraudulently transferred 5 assets from a company subject to general jurisdiction in Arizona, are sufficient to 6 establish a prima facie case of specific jurisdiction over ADAB Mexico. 7 C. Pendent Personal Jurisdiction 8 “If personal jurisdiction exists over one claim, but not others, the district court 9 may exercise pendent personal jurisdiction over any remaining claims that arise out of the 10 same ‘common nucleus of operative facts’ as the claim for which jurisdiction exists.” 11 Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015) (quoting Action Embroidery Corp. 12 v. Atl. Embroidery, Inc., 368 F.3d 1178, 1181 (9th Cir. 2004)). The Court finds that 13 Plaintiff’s alter-ego allegations against ADAB Mexico arise out of the same common 14 nucleus of operative facts as its UFTA allegations. Furthermore, Defendants conceded at 15 oral argument that ADAB Mexico’s Alter-Ego MTD would be moot if the Court were to 16 deny ADAB Mexico’s UFTA MTD. Accordingly, the Court finds that it has pendent 17 personal jurisdiction over ADAB Mexico with respect to the Contract Action and will 18 deny the Alter-Ego MTD as moot. 19 D. Forum Non Conveniens 20 ADAB Mexico’s Alter-Ego MTD—but not its UFTA MTD—argues that even if 21 this Court has personal jurisdiction against ADAB Mexico, the Contract Action should be 22 dismissed under the doctrine of forum non conveniens. Because ADAB Mexico failed to 23 raise this argument in its UFTA MTD, and the Court is denying the UFTA MTD, the 24 Court will deny the forum non conveniens argument as moot. Even if the Court were to 25 resolve the argument on its merits, Defendants have not shown that Mexico is an 26 adequate alternative forum, as Plaintiff will not consent to jurisdiction in Mexico with 27 respect to Defendants’ counterclaims in the Contract Action. See Gutierrez v. Advanced 28 Med. Optics, Inc., 640 F.3d 1025, 1029 (9th Cir. 2011) (an adequate alternative forum || exists “when the entire case and all parties can come within the jurisdiction of that 2|| forum” (internal quotation omitted)). Furthermore, Defendants have not met their heavy 3|| burden of showing that dismissal based on forum non conveniens is appropriate. 4|| Nogales, Mexico, is located within driving distance of Tucson, Arizona, and given the 5 || unique facts of these consolidated actions, the parties will incur translation costs and 6 || contend with out-of-country witnesses and choice-of-law issues whether this case is tried 7|| in Arizona or in Mexico. See Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1229-34 (9th Cir. 2011). 9 IT IS ORDERED that ADAB Mexico’s Motion to Dismiss the UFTA Action (Doc. 156) is denied. 11 IT IS FURTHER ORDERED that ADAB Mexico’s Motion to Dismiss the || Contract Action (Doc. 99) is denied as moot. 13 Dated this 27th day of September, 2019. 14 15 16 wf) Honorable Rostsiary □□□□□□□ 18 United States District □□□□□ 19 20 21 22 23 24 25 26 27 28

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