Friday, May 18, 2018

Case of the Day: Shao v. Beta Pharma, Inc., 2018 U.S. Dist. LEXIS 65735 (D. Conn. Apr. 19, 2018)

Summary:

Plaintiffs, who are Chinese nationals, sought to join additional defendants, one of whom is a Hong Kong corporation. The joinder was unopposed. The court examined whether a Hong Kong corporation would be considered a Chinese corporation, and determined that it was. Because the joinder would destroy diversity jurisdiction, the court ordered the plaintiffs to further explain the jurisdictional basis for adding the Hong Kong corporation as an additional defendant.

Takeaway:

I always love cases that clarify small points. There we have it: a Hong Kong corporation is a Chinese corporation under U.S. law, at least for the purpose of diversity jurisdiction.

Tuesday, May 15, 2018

Case of the Day: Ye Olde Time Keepers, Inc. v. C.R. Martin Auctioneers, Inc., 2018 U.S. Dist. LEXIS 64537 (E.D.N.Y. Apr. 17, 2018)

Summary:

Plaintiff, a New York corporation, sued in New York the defendant auctioneers for allegedly selling an antique Chinese clock that was a counterfeit. Defendant, a California corporation, moved to dismiss for lack of personality jurisdiction.

The court denied the motion to dismiss. The court considered a number of theories for long-arm jurisdiction and rejected most of them. The court found there was no transaction conducted in New York, since "the center of gravity of the transaction was clearly California." Importantly, the defendant's website was not sufficiently interactive, especially because the actual auction occurs on a different site. However, the court found that the defendant's tortious act (i.e. the alleged misrepresentation as to the authenticity of the clocks) occurred in New York. The court found the defendant did not regularly solicit business in New York, as it derived less than 5 percent of its revenue from New York. But the court found the defendant regularly engaged in interstate commerce, and should have expected its actions would have consequences in New York because the defendant was aware that the plaintiff was in New York.

Takeaway:

Admittedly the connection to Asia is pretty tenuous in this case, but it is worth going over the New York test for long arm jurisdiction, especially because it is not very often you see a case in which the court grants long arm jurisdiction over a transaction with as thin a connection to New York as this one.

Monday, May 14, 2018

Case of the Day: Tiwari v. Mattis, 2018 U.S. Dist. LEXIS 61942 (W.D. Wash. Apr. 11, 2018)

Summary:

Plaintiffs, who are variously nationals of India, China and Kosovo, are enlisted to the U.S. Army through Military Accessions Vital to the National Interest (MAVNI) program, which recruits non-U.S. citizens who have particular skills necessary for the military. Because they are not U.S. citizens, however, the plaintiffs were not able to obtain the requisite security clearance, which caused setbacks in their careers. Plaintiffs applied for preliminary injunction to obtain the security clearance at the same level as U.S. citizen equivalents.

The court granted preliminary injunction, finding that the plaintiffs are likely to prevail on the Equal Protection challenges.

Takeaway:

Although it must not have been easy for the plaintiffs to take this route, it is gratifying to see the court stepping into straighten out the mismatch in the various laws that prohibited the military personnel from serving effectively.

Friday, May 11, 2018

Case of the Day: Creel v. Johnson, 2018 U.S. Dist. LEXIS 60919 (W.D. La. Mar. 12, 2018)

Summary:

Plaintiffs sued the defendant in a state court based on a motor accident, and the defendant removed to the federal court based on diversity of jurisdiction. Plaintiffs filed a motion to remand, based on the argument that one of the plaintiffs was a resident of South Korea although she is a U.S. citizen. The plaintiff who was a South Korean resident initially went to Korea to teach English, then got married to a Korean citizen. She was undecided as to whether she and her husband would stay in Korea permanently, but the couple had purchased a home in Korea and she was learning Korean more intensively to find a permanent job in Korea. 

Based on these facts, the court found that the plaintiff was domiciled in South Korea rather than Louisiana. Because diversity jurisdiction cannot apply to U.S. citizen residing abroad, the court granted the motion to remand to state court.

Takeaway:

Strangely enough, this fact always surprises me a little every time I see it: there is no diversity jurisdiction over a U.S. citizen domiciled abroad. Determining domicile is a fact-intensive exercise, which could be an interesting lawyering point if a war of attrition appears necessary.

Tuesday, May 8, 2018

Case of the Day: Allianz Global Risks US Ins. Co. v. Latam Cargo USA, 2018 U.S. Dist. LEXIS 59965 (E.D.N.Y. Mar. 31, 2018)

Summary:

Plaintiff insurance company, acting on a subrogated claim, sued cargo companies based an erroneous shipping of fresh cherries that was supposed to be delivered from Chile to Taiwan via Miami. In actuality, the cherries were delivered from Chile to Argentina to Brazil to New York, then Taiwan. Because of the longer time for delivery, the cherries suffered total loss due to decay and mildew. Defendants moved to dismiss based on lack of subject matter jurisdiction, because Warsaw Convention of 1929 governed the suits arising from carriage of goods. If the Warsaw Convention applies, the suit cannot be brought in the United States.

The court found that the Warsaw Convention did not apply. The dispute was whether China's accession to the Warsaw Convention means Taiwan, which became independent thereafter, is also a signatory to the treaty. Based on the amicus brief submitted by the United States submitted in a similar case in the 9th Circuit, the court determined the executive branch deems Taiwan as not a signatory to the Warsaw Convention, and the court must follow the executive branch's determination.

Takeaway:

Adventure times with Taiwan's legal status continues! With all these sovereign states talking about splitting off or coming together--like Brexit, Scottish independence, Korean reunification--it wouldn't be a bad idea to brush up on the treaty status of the sovereigns in these situations.

Monday, May 7, 2018

Case of the Day: Hawkins v. Bank of Am., N.A., 2018 U.S. Dist. LEXIS 57758 (S.D. Cal. Apr. 4, 2018)

Summary:

Plaintiff alleges his daughter transferred $600,000 in life savings from Bank of America to her own account. The defendant daughter resides in Japan, and allegedly converted the funds while visiting in San Diego, California. After having attempted to serve via Hague Service Convention and failed to receive confirmation that the service was effectuated, the plaintiff moved ex parte to obtain leave for an alternative method of service.

The court granted the motion. The court modified the method of service from FedEx to USPS international express mail, because Japan objected to FedEx service. The court also granted leave to serve on the defendant's attorney via email, but denied the leave for service via email to the defendant directly via email because there was insufficient basis that the email belonged to the defendant.

Takeaway:

Shout out to our friends at Viking Advocates, who make an appearance in this opinion! While Hague Service Convention is nothing to be scared of, it is worth remembering that alternative method of service is available if the Hague Service fails.

Friday, May 4, 2018

Case of the Day: Ramirez v. World Mission Soc'y Church of God, 2018 U.S. Dist. LEXIS 58098 (D.N.J. Apr. 5, 2018)

Summary:

Plaintiff sued for fraud a Korea-based cult operating in New Jersey, which allegedly forced its members to give up their possession which were "used to create, train, and maintain a slave labor force." Defendant church demurred, claiming a New Jersey Appellate Division previously ruled in its favor on the claims arising from the same set of events.

The court denied the motion to discuss, noting New Jersey's unpublished decision has no precedential value, particularly because the New Jersey court made its decision based on its interpretation of the federal law, to which the federal court owes no deference.

Takeaway:

No huge groundbreaking bit of law here, but the facts! The World Mission Church of God is more commonly known as the Saviorist cult, which has recently been embroiled in a major ferry disaster in South Korea back in 2014. In the last few days, allegations surfaced that K-pop legend JYP was a part of the cult. JYP angrily denied the allegation. Also, I like having cases like this that affirm the obvious principles of American law, as it makes excellent teaching material.