Free Motion to Dismiss/Lack of Jurisdiction - District Court of California - California

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SCHIFF HARDIN LLP Robert B. Mullen (CSB 136346) Yakov P. Weigmann (CSB 245783) One Market, Spear Street Tower --Thirty-Second-Floor San Francisco, CA 94105 Telephone: (415)901-8700 Facsimile: (415) 901-8701 [email protected] Attorneys for Defendant DAVID MORRIS INTERNATIONAL LTD. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

S. H. SILVER COMPANY, INC., Plaintiff, v. DAVID MORRIS INTERNATIONAL LTD., Defendant.

Case No. 08-3550 CRB DEFENDANT DAVID MORRIS INTERNATIONAL LTD.'S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT FOR LACK OF PERSONAL JURISDICTION PURSUANT TO F.R.C.P. RULE 12(b)(2), AND IN THE ALTERNATIVE PURSUANT TO THE DOCTRINE OF FORUM NON CONVENIENS; BRIEF IN SUPPORT OF MOTION Date: September 5, 2008 Time: 10:00a.m. Courtroom: 8 Judge: Honorable Charles R. Breyer

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Case No. 08-3550 CRB

DEFENDANT DAVID MORRIS 1NTERNATIONAL LTD.'S NOTICE OF MOTION AND MOTION TO DISMISS

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TABLE OF CONTENTS NOTICE TO PLAINTIFF SUMMARY OF ARGUMENT BRIEF IN SUPPORT OF MOTION TO DISMISS I. A. B. C. D. E. II. A. STATEMENT OF FACTS The Dispute Silver's False Contention There Is a Contractual Forum-Selection Provision DM Lacks Minimum Contacts With California The Alleged Transactions Took Place In London The Key Witnesses Except Mr. Silver Live in London LEGAL ARGUMENT This Court Lacks Personal Jurisdiction Over DM 1. 2. 3. 4. B. DM does not have the necessary continuous contacts with California to support general jurisdiction 1 I 2 2 2 3 4 4 5 6 6

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The exercise of specific jurisdiction over DM is not warranted by the facts of this case 8 The Court must be especially careful in exercising jurisdiction over foreign corporations The forum selection language contained in plaintiff's alleged "consignment agreement" does not subject DM to personal jurisdiction in California 10 11 12 12 14 15

The Court Also Should Dismiss This Case Under The Doctrine Of Forum Non Conveniens Private interest factors call for a British forum Public interest factors call for a British forum

2. III.

CONCLUSION

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DEFENDANT DAVID MORRIS iNTERNATIONAL LTD.'S NOTICE OF MOTION AND MOTION TO DISMISS

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TABLE OF AUTHORITIES Page FEDERAL CASES American Tel. & Tel. Co. v. Companie Bruxelles Lambert 94 F.3d 586 (9th Cir. 1996) Bancroft & Masters, Inc. v. Augusta National, Inc. 223 F.3d 1082 (9th Cir. 2000) Burger King Corp. v. Rudzewicz 471 U.S.462(1985) Colombia, S.A. v. Hall 466U.S. 408 (1984) Data Disc, Inc. v. Sys. Tech. Assoc, Inc. 557 F.2d 1280 (9th Cir. 1977) Federated Rural Elec. Ins. Corp. v. Inland Power and Light Co. 18F.3d389(7thCir. 1994) Gray & Co. v. Firstenberg Machinery Co., Inc. 913 F.2d 758 (9th Cir. 1990) Hunt v. Erie Ins. Group 728 F.2d 1244 (9th Cir. 1984) Hunt Wesson Foods, Inc. v. Supreme Oil Co. 817 F.2d 75 (9th Cir. 1987) International Shoe Co. v. State of Wash., Office of Unemployment Comp. and Placement 326U.S.310(1945) Lockman Found. v. Evangelical Alliance Mission 930 F.2d 764 (9th Cir. 1991) Lueck v. Sundstrand Corp. 236F.3d 1137 (9thCir.2001) Mattel, Inc. v. Greiner and Housser GmbH 354 F.3d 857 (9th Cir. 2003) McGlinchy v. Shell Chemical Co. 845 F.2d 802 (9th Cir. 1988) Nagrampa v. MailCoups, Inc. 469 F.3d 1257 (9th Cir. 2006) Pacific Atlantic Trading Co., Inc. v. M/VMain Express 758 F.3d 1325 (9th Cir. 1985) Piper Aircraft Co. v. Reyno 454U.S.235(1981) Reebok Intern. Ltd. v. McLaughlin 49 F.3d 1387 n.7 (9th Cir. 1995) Roth v. Garcia Marquez 942 F.2d 617 (9th Cir. 1991) Case No. 08-3550 CRB i

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TABLE OF AUTHORITIES (continued) Page 1, 7, 8 10, 11 8 6

3-- --Schwarzenegger-v---Ford-Motor-u. 374 F.3d 797 (9th Cir. 2004) Sinatra v. National Enquirer 854F.2d 1191 (9thCir. 1988) 5 US. Vestor, LLC v. Biodata Info. Tech. AG 290 F.Supp.2d 1057 (N.D. Cal. 2003) 6 Ziegler v. Indian River County 64 F.3d 4703 (9th Cir. 1995) 8 America Online, Inc. v. Super. Ct. 90 Cal.App.4th 1 (2001) 10 California Code of Civil Procedure California Civil Code 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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STATE CASES 11 STATE STATUTES

§ 410.10
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1646

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Federal Rule of Civil Procedure 1 2(b)(2)

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TO PLAINTIFF S. H. SILVER, INC. AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 5, 2008, at 10:00 a.m., defendant David

3-- --Morris-Intemational-Lt&-("DM") will, and hereby does, move the Court to dismiss the complaint 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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without prejudice based on lack of personal jurisdiction pursuant to F.R.C.P. Rule 12(b)(2); and in the alternative, to dismiss the complaint without prejudice pursuant to the doctrine offorum non conveniens. The motion will be heard before the Honorable Charles R. Breyer at the United States District Court, 450 Golden Gate Avenue, Courtroom 8, 19th Floor, San Francisco, California. This motion will be based upon this notice of motion and brief in support thereof, on the declarations of Jeremy Morris and Lynn Tabor, on the request for judicial notice, on the pleadings and records on file in this action and on such argument as may be presented at the hearing of the motion.

SUMMARY OF ARGUMENT Defendant David Morris International, Ltd. ("DM") moves for dismissal under Rule 12(b)(2) of the Federal Rules of Civil Procedure because this Court does not have personal jurisdiction over DM, an English family-owned private company. The declaration of DM's managing director, Jeremy Morris, establishes DM lacks sufficient contacts with California, as required by Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). The Court may not exercise general jurisdiction over DM because DM does not have "continuous and systematic general business contacts' that `approximate physical presence" in California. Schwarzenegger v. Ford Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) (citations omitted). The Court may not exercise specific jurisdiction over DM because plaintiffs claim does not arise from acts or transactions by DM in California in which DM purposefully availed itself of the privilege of conducting activities here, and the exercise ofjurisdiction over DM would not be reasonable. Id. at 802. The alleged contracts were negotiated, entered and performed in London; and the alleged fraudulent acts were performed in London or France. Plaintiff S. H. Silver, Inc. ("Silver") must, but cannot, meet its burden of alleging and evidencing grounds for personal jurisdiction over DM. Case No. 08-3550 CRB
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In the alternative, DM moves for dismissal under the doctrine offorum non conveniens because London, England is the most convenient forum for this dispute. The "private interest

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1145-47 (9th Cir. 2001) favor the English forum. The bulk of the evidence and witnesses gerniane to this dispute are in London and Europe; and the laws of England will likely govern most issues. The alleged business deals were conducted in London. The mere fact Silver is located in Menlo Park does not justify suit here. California's courts and citizens have little interest in this dispute, and should not shoulder the expense. It would not be fair to require DM to incur the expense of litigation in this forum and to suffer unnecessary inconvenience and disruption to its business. Under both doctrines, this case should be dismissed without prejudice to refiling in the appropriate forum. BRIEF IN SUPPORT OF MOTION TO DISMISS I. STATEMENT OF FACTS A. The Dispute

In June and July, 2007, plaintiff S. H. Silver, Inc.'s ("Silver") owner Stephen Silver, a jeweler, went to London and sold a precious blue diamond and two Cabochon (uncut) sapphires to defendant David Morris International Ltd. ("DM"), also a jeweler, through its managing director Jeremy Morris. DM paid Silver approximately $5.5 million for the diamond and made the first of two $474,000 payments for the sapphires. DM did not make the second payment because gem labs would not certify the sapphires as being of Kashmir origin, as represented by Silver. In its complaint, Silver alleges that Silver and DM entered two oral agreements while Mr. Silver was in London, one for purchase of the sapphires (Silver calls this the "Earring Agreement") and the other for purchase of the diamond. Silver alleges DM has breached the Earring Agreement by not making the second sapphire payment, and does not allege breach of the diamond agreement because Mr. Silver received what he bargained for, the sum of $5.5 million. Instead, Silver tries to fashion claims for fraud and breach of fiduciary duty relating to the Case No. 08-3 550 CRB
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diamond, contending DM misled him as to the amount of money DM received for the diamond from DM's customer in France. As discussed in the Declaration of Jeremy Morris ("Morris

3- --Dec9-submitted with this brief, these allegations-are-false--See-Morris-Dec-J-1.4.
4 B. Silver's False Contention There Is a Contractual Forum-Selection Provision

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Silver has tried to justify filing suit in California by alleging the existence of yet another agreement, the so-called "Consignment Agreement." See Complaint, Request for Judicial Notice 1, at ¶f 5, 8 and 9. Silver alleges this document contains a provision "providing exclusive venue in San Mateo County" (Complaint, ¶ 5). Silver does not allege DM breached the Consignment Agreement. Silver does not even attach the Consignment Agreement to the complaint. However, the alleged Consignment Agreement is attached as Exhibit A to the Declaration of Stephen Silver filed in support of Silver's Application for Writ of Attachment and Right to Attach Order. (Request for Judicial Notice 2.) An inspection of this one-page document (titled "S. H. Silver Company-Menlo Park, Memorandum") reveals it is an applicable jurisdiction or venue clause. The subject memorandum is not an agreement because, quite simply, DM did not agree to it. There is a statement at the bottom of the memorandum that reads, "Please sign below and return a copy of this memorandum to our office." However, no signature appears below the statement or anywhere else, and indeed no one from DM agreed to or signed this memorandum. See Jeremy Morris Dec., an agreement at all, and does contain

¶ 18, and Declaration of Lynn Tabor, ¶J 3-5.

Silver does not even

allege that the subject sales were made pursuant to the memorandum. Instead, Silver alleges (1) that Mr. Silver "delivered the jewelry to David Morris
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per the Consignment Agreement"

(Complaint, ¶ 9), though Mr. Silver's declaration makes clear that this did not occur and instead he carried the gems to London with him (Declaration of Stephen H. Silver,

¶ 6, RJN 2); (2) that ¶J 6, 7);
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DM bought the blue diamond from Silver under "a new agreement" (Complaint, ¶ 10), which Mr. Silver's declaration makes clear was entered while he was in London (Silver Dec.,

(3) that while he was in London, Mr. Silver negotiated the sale of the sapphires to DM pursuant to the "Earring Agreement" (Complaint, ¶ 12). Elsewhere in the complaint, Silver alleges that the memorandum (the so-called Consignment Agreement) gave rise to fiduciary duties by DM (see, Case No. 08-3550 CRB
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e.g., third and fourth causes of action) but Silver does not allege facts showing the memorandum played any role in the subsequent London transactions upon which Silver sues DM. Even-if the memorandum were an enforceableagreementtheallegedvenueprovisioiron its face does not apply to this lawsuit. The provision is a sentence in the middle of a line-print paragraph, stating: In case suit is instituted to collect this merchandise or any portion thereof the customer promises to pay such additional sum as the court may adjudge reasonable as attorney's fees in said suit, and that jurisdiction shall be in California and venue in San Mateo County of that state. (Underline added.) However, Silver does not seek merchandise in this suit. Silver seeks only money damages. Silver has never asked DM to return any of the gems. Morris Dec.,

¶ 18. ¶

In

fact, DM offered to return the sapphires to Silver with compensation for weight removed from the sapphires when DM cut and polished them, but Silver refused to take them. Mon-is Dec., 17.

Finally, DM's evidence shows the alleged venue provision was not negotiated by the parties, that DM was not aware of it, and that Silver never brought it to the attention of anyone at DM or otherwise discussed the idea that Silver might sue DM in California or in San Mateo County. Morris Dec., ¶ 17; Lynn Tabor Dec., ¶ 6. Therefore, DM has not submitted to the jurisdiction of California, and there is no forumselection clause applicable to this case. C. DM Lacks Minimum Contacts With California.

The Declaration of Jeremy Morris establishes that DM lacks "minimum contacts" with California that are necessary for the Court to exercise "general" jurisdiction over DM. DM is a private family-owned company incorporated in England and Wales, and its owners and directors are citizens of the United Kingdom and live in and around London, except for Mr. Moms' parents who live in Monaco. DM has no California presence, or any continuous or systematic business relationship with California persons or entities. Jeremy Morris Dec., ¶J 2-12. D. The Alleged Transactions Took Place In London.

Similarly, the facts of this dispute do not give rise to "specific" jurisdiction over DM because the two relevant agreements are alleged to have been negotiated, entered and breached in Case No. 08-3550 CRB -4
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London; and the conduct by DM alleged to be fraudulent took place in London and/or France. No DM employee set foot in California. Jeremy Morris Dec., ¶ 13. No DM merchandise was

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payments to Silver's bank in Redwood City, and that a few phone calls and emails went between California and London. On the other hand, Mr. Silver acknowledges he traveled to England with the diamond and sapphires, and while in England, negotiated and completed sale of them to DM. Silver Dec.,

¶J 6, 7; Complaint, ¶J 9-12.

DM paid Silver for the diamond while Mr. Silver was

still in London. Moms Dec., ¶ 14. These facts are woefully inadequate to extend California's long-arm jurisdiction to DM. E. The Key Witnesses Except Mr. Silver Live in London.

Key witnesses are located in London. Rami Okuniew, a diamond dealer, was present in the David Morris store in London when Messrs. Silver and Morris negotiated their sapphire agreement. Moms Dec.,

¶ 15.

Mr. Okuniew lives and works in London. Id. DM sales director

William Holbech also was present during these discussions. Id. Messrs. Okuniew and Holbech will likely confirm that the sapphire purchase was conditioned on their certifiability as of Kashmir origin. Mr. Holbech also was at Jeremy Morris' side when he called Mr. Silver by telephone from France and negotiated the purchase of the blue diamond. Morris Dec., ¶ 14. Mr. Holbech will likely corroborate Mr. Morris' account that he simply asked Mr. Silver if he would sell DM the diamond for $5.5 million, not, as Silver alleges, that Mr. Morris promised that DM would make a 10% commission on the sale. (See Complaint, ¶ 10: Jeremy Morris Dec., 15). Like Mr. Okuniew, Mr. Holbech lives and works in London. Morris Dec., ¶ 7. As a separate matter, Jeremy Morris sent the sapphires to two Swiss gemological laboratories to attempt to have them certified as being of Kashmir origin, as Mr. Silver assured him they are. Morris Dec., ¶ 15-17. Mr. Morris had informed Mr. Silver he would seek certification from Gubelin Gem Lab, located in Lucerne, Switzerland. Morris Dec., Gubelin refused to certify them. Morris Dec.,

¶f 14,

¶ 15.

¶ 16.

The other Swiss lab, SSEF, had previously

certified the sapphires as Kashmir but subsequently would not certify one of them. Morris Dec.,

¶ 17.

Representatives of these labs are possible witnesses, to the extent they either cooperate or
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can be compelled to attend deposition or trial. The courts of the United States cannot compel them to attend deposition or trial here. Insumnothing about this case suggests it should be triediirSaiFtaiicisco. Jthiii1db tried in London. II. LEGAL ARGUMENT A. This Court Lacks Personal Jurisdiction Over DM.

It is the plaintiffs burden to prove that the forum state's long-arm statute confers personal jurisdiction over a nonresident defendant and that this exercise ofjurisdiction comports with federal due process. American Tel. & Tel. Co. v. Companie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996); Gray & Co. v. Firstenberg Machinery Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990). Plaintiff in this case cannot meet its burden of demonstrating this Court has jurisdiction over DM. As there is no federal statute governing personal jurisdiction in this matter, the Court looks to the state personal jurisdiction statute. Reeboklntern. Ltd. v. McLaughlin, 49 F.3d 1387, 1393 n.7 (9t Cir. 1995); see also Hunt v. Erie Ins. Group, 728 F.2d 1244, 1246 (9th Cir. 1984). California's long-arm statute extends jurisdiction to the limits of due process incorporated in the federal Constitution. Cal. Code of Civ. Pro.

§ 410.10; Mattel,

Inc. v. Greiner and Housser

GmbH, 354 F.3d 857, 863 (9th Cir. 2003). Constitutional due process is satisfied when a nonresident defendant has "certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. State of Wash., Office of Unemployment Comp. and Placement, 326 U.S. 310, 316 (1945) (citation omitted). Where a nonresident defendant purposefully avails himself of the benefits of conducting significant activities within the forum state, it is presumatively reasonable to require that he "submit to the burdens of litigation in that forum" when the lawsuit arises out of or relates to those forum-related activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 47576 (1985). Under this "minimum contacts" framework, a federal court may obtain either general or specific jurisdiction over the defendant. Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995). Case No. 08-3 550 CRB -6DEFENDANT DAVID MORRIS INTERNATIONAL LTD.'S NOTICE OF MOTION AND MOTION TO DISMISS

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DM does not have the necessary continuous contacts with California to support general jurisdiction.

If-the-defendant has continuous and systematic general business contacts that approximate a physical presence in the forum state, a federal court may exercise general jurisdiction, and the defendant may be subject to suit even on matters that do not arise out of or relate to his activities in the forum. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004) citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.s. 408, 416 (1984) and Bancroft & Masters, Inc. v. Augusta National, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). "This is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world." Schwarzenegger, 374 F.3d at 801. Mere purchase of goods and/or services in the forum state, even on a regular basis, is not enough, nor is it sufficient that a defendant works with other businesses or individuals based in the forum. Id. The ownership of a subsidiary located in the forum does not suffice for personal jurisdiction. American Tel. & Tel. Co., supra, 94 F.3d at 59091. In determining whether a defendant corporation has "continuous and systematic" business contacts with the forum state, courts consider a variety of factors such as whether the company maintains an office in the forum state, has employees in the forum state, uses bank accounts in the forum state, or markets or sells products in the forum state. See, e.g., Helicopteros Nacionales, supra, 466 U.S. at 414-15 (discussing Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952)). Here, as set forth in Mr. Morris' declaration, DM cannot be said to "approximate a physical presence" in California. DM is not incorporated in, or qualified to do business in California. Morris Dec., ¶ 4. DM does not have a bank account or other assets in California. Id.,

¶ 8.

DM has no employees in California, and DM does not market its services to California

residents. Id.,

¶J 6, 9.

Silver does not plead, and cannot evidence facts that justify the exercise of

general jurisdiction.

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2.

The exercise of specific jurisdiction over DM is not warranted by the facts of this case.

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nonresident defendant if the suit arises out of or relates to his activities in the forum. The Ninth Circuit has established a three-part test for specific jurisdiction that incorporates the Supreme Court's analysis in Burger King, supra. See Data Disc, Inc. v. Sys. Tech. Assoc `s, Inc., 557 F.2d 1280, 1287 (9th Cir. 1977); Schwarzenegger, 374 F.3d at 802.' First, the nonresident defendant must do some act or consummate some transaction with the forum by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; second, the claim must arise out of or result from the defendant's forum-related activities; and third, the exercise ofjurisdiction must be reasonable. Data Disc, 557F.2dat1287. Purposeful availment requires something more than the mere foreseability of a defendant being haled into court in the forum state. Pacific Atlantic Trading Co., Inc. v. M/VMain Express, 758 F.3d 1325, 1329 (9th Cir. 1985). The unilateral activity of the plaintiff or a third person is not enough to subject defendant to personal jurisdiction. Helicopteros, 466 U.S. at 416-17. A mere business contact with the forum also is not sufficient. See US. Vestor LLC v. Biodata Info. Tech. AG, 290 F.Supp.2d 1057, 1063-65 (ND. Cal. 2003). In US. Vesto, for instance, the court held that a German corporation's acquisition of a California subsidiary, filing of suit in California, and a business trip to California undertaken by the corporation's officers did not support the exercise of California jurisdiction over the corporation. Id. Similarly, in McGlinchy v. Shell Chemical Co., 845 F.2d 802, 816
(9t1

Cir. 1988), the court held that the mere

act of signing a contract in California did not subject a London-based company to California
`The Supreme Court has outlined another test for specific jurisdiction. If the forum is the focal point and the hub of the wrongful act and the harm suffered, jurisdiction may be proper "based on the effects of their [out-of-state] conduct in California." Calder v. Jones, 465 U.S. 783, 784-85 (1984) (citations omitted). However, as the Ninth Circuit has concluded, the reach of the "effects test" is limited. It generally applies only in the context of tort. Schwarzenegger, supra, 374 F.3d at 806. The Ninth Circuit has expressly rejected its application in a contract dispute. McGlinchy v. Shell Chemical Co., 845 F.2d 802, 817 (9th Cir. 1988). In any event, the focal point and hub of the alleged fraud in this case is London, where Mr. Silver was when he negotiated and consummated the sale of the diamond he brought to London. Complaint, 10, 11; Silver Dec. 16; Morris Dec., 13, 14. DEFENDANT DAVID MORRIS Case No. 08-3550 CRB 8 1NTERNATIONAL LTD.'S NOTICE OF MOTION AND MOTION TO DISMISS
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jurisdiction. Finally, "[s]everal courts have held that making telephone calls and mailing payments into the forum state alone is an insufficient foundation upon which to assert personal

3-- --jurisdiction." Federated Rural Elec. Ins. Corp. v. Inland Power and LightCo18-F:3d-389395 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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th 7 (

Cir. 1994) (citations omitted) (holding that non-resident electric cooperative which had

bought insurance from resident insurer was not subject to forum state's jurisdiction, even though cooperative acquired insurer's stock, sent premium payments to forum state, and communicated with insurer's forum state office by phone and mail). Silver does not allege that DM has done any act or conducted any transaction within California that has given rise to this dispute, with the exception of two wire transfers DM sent to Silver's bank in Redwood City, perhaps a couple of phone calls, and later, an offer of compromise DM sent in writing to Silver. These allegations do not come close to establishing DM "availed itself the privilege of conducting activities" in California, let alone that this dispute "arose out of' DM's forum-related activities. Therefore, plaintiff cannot satisfy either of the first two requirements for specific jurisdiction. Nor can plaintiff meet the third requirement, that exercise ofjurisdiction be reasonable. In determining whether the exercise ofjurisdiction over a nonresident defendant is reasonable, the Ninth Circuit has outlined seven non-exclusive factors: 1) 2) 3) 4) 5) 6) relief; and 7) the existence of an alternative forum.); Core- Vent Corp. v. Nobel Industries AR, 11 the extent of the defendants' purposeful interjection into the forum state's affairs; the burden on the defendant of defending in the forum; the extent of conflict with the sovereignty of the defendants' state; the forum state's interest in adjudicating the dispute; the most efficient judicial resolution of the controversy; the importance of the forum to the plaintiffs interest in convenient and effective

F.3d 1482, 1487-88 (9th Cir. 1993). No single factor is dispositive. Core-Vent at 1488. The court should balance all of them, and some may be more significant than others in context. Id. at 1487-88. Case No. 08-3550 CRB
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Here, none of the seven "reasonable" factors supports jurisdiction over DM. These factors are similar to factors governing DM'sforum non conveniens argument, discussed in greater depth

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defending in California is substantial and unnecessary; England has a greater interest in adjudicating this dispute than this Court; the most efficient judicial resolution of this controversy is in London, where the bulk of witnesses reside; the only importance of this forum to Silver is geographical convenience; and the courts of England provide a reasonable alternative forum. 3. The Court must be especially careful in exercising jurisdiction over foreign corporations.

Both the United States Supreme Court and the Ninth Circuit have made clear that, when the nonresident defendant is a corporation from another country, as DM is here, the district court must be especially careful in its exercise of personal jurisdiction. Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 115 (1987); Core-Vent v. Nobel, 11 F.3d at 1488. In Asahi, the question confronting the Supreme Court was whether a California state court may exercise jurisdiction over a Taiwanese supplier in a tort action arising out of the sale of a component to a Japanese manufacturer. 480 U.S. at 105-06. Though the subject accident took place in California, the Court determined there were insufficient contacts between the supplier and the forum, noting, "[T]he unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders." Id. at 114. See also PacUic Atlantic Trading, 758 F.2d at 1330 ("The burden of defending in California appears considerable
... .

The distance

between California and Malaysia is substantial, and potential witnesses to the execution of the indemnity contract are most likely in Port Kelang."). The Ninth Circuit has gone so far as to state that "litigation against an alien defendant creates a higher jurisdictional barrier than litigation against a citizen from a sister state because important sovereignty concerns exist." Core-Vent, supra, 11 F.3d at 1489, quoting Sinatra v. National Enquirer, 854 F.2d 1191, 1199 (9th Cir. 1988). Core-Vent concerned libel and antitrust claims arising from articles published in international medical journals. The court stated: Case No. 08-3550 CRB
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Requiring the [defendants] to submit to the jurisdiction of the court would impose substantial burdens on them and would interfere with the sovereignty of a foreign nation. The Supreme Court in Asahi indicated that a plaintiff seeking to hale a foreign citizen beforea-court-in-the-United-Statesmustmeeta-higherurisdktiona[tbreshGldthanis required when the defendant is a United States citizen. Indeed, commentators have suggested that the international factors were determinative in Asahi.0 This case raises similar concerns. It would not be reasonable to require DM to defend, in the United States, a case that allegedly stems from its activities in London. This Court should not exercise jurisdiction over DM.
4. The forum selection language contained in plaintiff's alleged "consignment agreement" does not subject DM to personal jurisdiction in California.

5
6

7 8
9

10 11 12 13 14
15

As discussed above in Part I.B., plaintiff may argue that jurisdiction and venue lie in California because of certain fine print in the "memorandum" faxed by plaintiff to DM before Mr. Silver went to London. Exh. A to Silver Dec., RJN 2. This fine print does not subject DM to personal jurisdiction in California for several reasons. First, DM did not negotiate or agree to the memorandum or to the forum selection clause. Morris Dec.,
th 9 (

¶ 18, Tabor Dec., ¶J 3-5.

See Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1293

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Cir. 2006) (forum selection clause unenforceable where not entered into freely and

voluntarily); America Online, Inc. v. Super. Ct., 90 Cal.App.4th 1, 12 (2001) (the law favors forum selection agreement "only so long as they are procured freely and voluntarily"). Second, a plain reading of the memorandum indicates that the forum selection language only applies to suits seeking to "collect this merchandise or any portion thereof." In construing forum selection clauses, courts apply the general rule of contract interpretation that words are given their "common or normal meaning." Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77
th 9 (

Cir. 1987). Moreover, where the language of a forum clause is ambivalent, courts

construe it against the drafter of the contract. Id. at 78. This suit does not involve collection of any merchandise; plaintiff has actually refused to take back the sapphires. Morris Dec.,

¶ 18.

Plaintiff seeks only monetary damages. Complaint,

¶J

12-13. Thus, even if it were enforceable, the alleged forum selection provision does not apply 11
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to this lawsuit. B. The Court Also Should Dismiss This Case Under The Doctrine Of Forum Non Conveniens.

"A party moving to dismiss on grounds of forum non conveniens must show two things: 1) the existence of an adequate alternative forum, and 2) that the balance of private and public interest factors favors dismissal." Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991). The private interest factors are: 1. 2. 3. 4. 5. 6. 7. the residence of the parties and witnesses; the forum's convenience to the litigants; access to physical evidence and other sources of proof whether unwilling witnesses can be compelled to testify; the cost of bringing witnesses to trial; the enforceability of the judgment; and all other practical problems that make trial of a case easy, expeditious, and

inexpensive.). The public interest factors are: 1. 2. 3. 4. 5. Id.at 1147. Unquestionably there is an adequate alternative forum for this case: London, where DM and most witnesses are located. Morris Dec., 1. the local interest of the lawsuit; the court's familiarity with governing law; the burden on local courts and juries; congestion in the courts; and the costs of resolving a dispute unrelated to the forum.

¶J 4, 7,

14, 15.

Private interest factors call for a British forum.

The first five private interest factors call for a British forum. Private interest factors 6 and 7 appear to be neutral.
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a.

The residence of the parties and witnesses

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This factor overwhelmingly favors England. DM witnesses Jeremy Morris, William _Holbech and Lynn Tabor reside-in-London--Mr-Holbech-is-a-w·itness-to-the-negotiation-of-both----- alleged contracts, diamond and sapphires. Rami Okuniew, a third party, also resides in London. He witnessed the negotiation of the sapphire purchase. Third-party witnesses employed by SSEF Gemological Institute and Gubelin Laboratory reside in Switzerland. To the extent DM's confidential customer who purchased the blue diamond is required to be disclosed and/or testify, that person resides in France. The only party or witness that appears to reside in California is Mr. Silver.
b. The forum's convenience to the litigants

ii 12 13 14 15
16

This California forum is extremely inconvenient to DM's management and its employee witnesses, all of whom live in or around London. It would be time-consuming and expensive for them to travel to California and confer with lawyers and others to defend this lawsuit. DM's witnesses outnumber those of Silver, so the inconvenience to DM of litigating in California outweighs the inconvenience to Mr. Silver of litigating in London.
c. Access to physical evidence and other sources of proof

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Relevant documents and information likely are in the possession of SSEF and Gubelin, the Swiss gemological laboratories that have examined the subject sapphires and certified or declined to certify them as being of Kashmir origin. Courts in the United States cannot compel foreign entities to produce documents or appear for deposition. The courts of London are more likely to secure the cooperation of European entities. d.
Whether unwilling witnesses can be compelled to testify

Non-party witnesses include Rami Okuniew, who witnessed the negotiation between Messrs. Silver and Morris for the purchase of the two sapphires in the DM store in London. Mr. Okuniew lives and works in London. He cannot be compelled to testify at deposition or trial in California. Potential witnesses from SSEF and Gubelin similarly cannot be compelled to testify at deposition or trial in California. Because of geographical proximity, they are more likely to cooperate by traveling to London than to California. Case No. 08-3550 CRB
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e.

The cost of bringing witnesses to trial

2 3 4 5 6 7 8 9
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It would be far more expensive for DM to bring its several company witnesses to trial in SanFranciscothanitwould.be.Sor.Mr. Silver-to-travel-to-London-for-a-triaL---Further-to-the-extent DM is able to secure the cooperation of third-party witnesses including Mr. Okuniew (London) and gem lab witnesses (Switzerland), the cost to bring them to San Francisco would far exceed the cost to bring them to London for trial. f.
The enforceability of the judgment

At this time, we are not aware of any relevant differences concerning enforceability of a judgment.
g. All other practical problems that make trial of a case easy, expeditious, and inexpensive

11 12 13 14 15 16
17

At this time, we are not aware of any other practical problems, except those associated with the problems discussed above, such as the expense of lodging foreign witnesses and the imposition on their work schedules that would be caused by travel to California. 2.
Public interest factors call for a British forum.

The public interest factors also clearly favor England over California.
a. The local interest of the lawsuit

18 19 20 21 22 23
24

If any locality has an interest in this dispute, the interest of England is greater. DM rarely engages with any California person or entity. See Morris Dec., ¶6. As DM is regulated by the English government and is located in London, England's regulatory interests logically include the determination whether DM has committed the fraud and breaches of contract alleged by Silver. California has less interest in adjudicating the claims of a company such as Silver which travels abroad to engage foreign companies.
b. The Court's familiarity with governing law

25 26 27 28
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The laws of England will apply to this case, as the alleged contracts were entered and performed in England and the alleged fraud and breach of fiduciary duty was allegedly committed by DM in England and/or France. California Civil Code section 1646 states:

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A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made. All acts of performance of the alleged contracts were to occur in London, and did occur in London. Mr. Silver gave DM the gems while in London, and DM paid for them (or did not pay) in London. To the extent these oral agreements are deemed not to "indicate a place of performance," then it is undisputed the agreements were made in London. Complaint, (RIN 1); Silver Dec., ¶J 6, 7 (RJN 2); Morris Dec.,

¶f 10,

12

¶fJ 13-15.

The United States Supreme Court has said, "The doctrine offorum non convenience.. .is designed in part to help courts avoid conducting complex exercises in comparative law.. .the public interest factors point towards dismissal where the court would be required to `untangle problems in conflict of laws, and in law foreign to itself." Piper Aircraft Co. v. Ruyno, 454 U.S. 235, 251, 102 Supreme Court 252, 263 (1981). This Court need not entangle itself in choice of law issues, nor interpret and apply the laws of England. c. Public interest factors 3, 4 and 5

The burden on this Court and the local jury pool is not justified by plaintiffs dispute with a London defendant that has no ties to California. U.S. taxpayers should not pay the cost of resolving a dispute which is fundamentally centered in London.
III.

CONCLUSION For the foregoing reasons, defendant David Morris International Ltd. respectfully requests

the Court to dismiss this action without prejudice pursuant to F.R.C.P. 12(b)(2), and in the alternative, pursuant to the forum non conveniens doctrine. Dated: July 2008 SCHIFF HARDIN LLP

By:

i4L
Robert B. Mullen Attorneys for Defendant DAVID MORRIS INTERNATIONAL LTD.
DEFENDANT DAVID MORRIS INTERNATIONAL LTD.'S NOTICE OF MOTION AND MOTION TO DISMISS

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SCHIFF HARDEN LLP ROBERT B. MULLEN (CSB 136346) 2 YAKOV P. WIEGMANN (CSB 245783) One Market, Spear Street Tower -3- --Thirty-Second-Floor San Francisco, CA 94105 4 Telephone: (415)901-8700 Facsimile: (415) 901-8701 5 [email protected] 6 7 8 9 10 11 12 13 14 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28
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SAN FRANCSCC)

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Attorneys for Defendant DAVID MORRIS INTERNATIONAL LTD. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

S. H. SILVER COMPANY, INC., Plaintiff, v. DAVID MORRIS INTERNATIONAL LTD.,

Case No. 08-03550 CRB DECLARATION OF JEREMY MORRIS IN SUPPORT OF DEFENDANT DAVID MORRIS INTERNATION LTD.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION PURSUANT TO F.R.C.P. RULE 12 (b)(2), AND IN THE ALTERNATIVE PURSUANT TO THE DOCTRINE OF FORUM NON CONVENIENS Date: Time: Courtroom: Judge: September 5, 2008 10:00 a.m. 8

Honorable Charles R. Breyer

I, Jeremy Morris, declare as follows: 1. I am managing director of defendant David Morris International Ltd. ("David

Morris"), and have personal knowledge of all matters stated herein. 2. David Morris is a family-owned limited liability company, incorporated in

England and Wales. Its principal place of business is the David Morris store located at 180 New Bond Street, London, England. It is engaged in the business of selling high quality jewelry. 3. David Morris is not authorized to transact business in California, is not
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incorporated in California and has no physical presence in California. David Morris has no California agent for service of process. David Morris jewelry is sold from additional stores

3-- --located-in-Palm Beach, Florida;DubaiTUAE;-MoscowRussia(a-franchise);-andDoha;Qatar-- 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SCHIFF HARDIN
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(a concession). David Morris does not have an affiliate, subsidiary, parent or related entity that is authorized to transact business in California, or incorporated in California. 4. The owners of David Morris are myself and my sister Claudia, through a

settlement trust; my father, David Morris; and my mother, Suzette Morris. All owners of David Morris are citizens of the United Kingdom. My sister and I reside in London. David and Suzette Morris reside in Monaco. None of the owners of David Morris resides in California, or is a citizen of California. Neither David Morris nor any of the owners of David Morris has any ongoing business relationship with a California-based person or entity. 5. David Morris owns a subsidiary holding company named Elmtop, Ltd. Elmtop

is incorporated in England and Wales. Elmtop owns a subsidiary named David Morris International Inc., which owns only our Palm Beach, Florida store and is incorporated in the state of Florida. 6. I have operated and managed David Morris for approximately the last five

years. In that time period, I recall doing business with just two California persons aside from Mr. Silver. Last year, we sold two items ofjewelry to a woman living in Beverly Hills, and several years ago, our Florida store sold an item of jewelry to a gentleman living in Los Angeles.
7.

David Moms' directors include myself; Wayne Pond, Finance Director, a

resident of Surrey, England and a citizen of the United Kingdom; William Holbech, Sales Director, a resident of London, England and citizen of the United Kingdom; Cyril Freedman, a non-executive director who resides in Wiltshire, England and is a citizen of the United Kingdom; Suzette Morris, director; and David Morris, Chairman of the Board. Another David Morris employee identified in the pleadings, import/export manager Lynn Tabor, also resides in London and is a citizen of the United Kingdom. I am not aware of any David Morris employee globally who is a citizen or resident of California.
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8.

The settlement trust referred to above is a family trust of which I and my sister

are beneficiaries. To the best of my knowledge, the trustees are my mother, Mr. Freedman andatondonattorneynamed-Haroid-Paisner. 9. David Morris does not have a bank account or any assets in California. David

Morris owns no tangible personal or real property in California. None of the owners of David Morris has any California assets. 10. David Morris does not direct any of its advertising toward California residents,

and does not advertise in any California publication. David Morris' advertising in the United States is relatively limited and directed primarily to the New York and Florida markets. 11. David Morris does not sell or lease property outside of California for use

within California. David Morris has no warranty or service facilities within California through independent contractors. David Morris performs no sales or marketing within California, and has no office within California. David Morris has no telephone within California. David Morris has made no loan applications within California. David Morris does not hold meetings of its directors or owners within California, and does not attend trade shows or conventions within California. David Morris does not make consignment shipments for purchase within California. To the best of my knowledge, prior to this lawsuit, David Morris had never been engaged in a lawsuit against a California person or entity, and David Morris has never made use of a court system within California as a litigant. 12. David Morris' website is www.davidmorris.com. It is accessible to persons all

over the world. It is a passive, not interactive, website. 13. No employee or representative of David Morris went to California in

connection with the transactions alleged in this lawsuit. Rather, Stephen Silver spoke with our sales director, William Holbech, and then arranged with me to travel to London to meet with me. I understood the purpose of Mr. Silver's trip was to show me the subject blue diamond and try to sell it. He also mentioned the subject sapphires and other items prior to traveling to London, but I did not agree before his trip to buy the sapphires or take them on consignment, only to consider them. Mr. Silver came to London with the gems in late June,
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2007, and stayed in London at least several days. With the exception of one day during Mr. Silver's visit when I traveled to France, Mr. Silver met with me each day he was in London at -the-David Morris store on New Bond Street. 14. I traveled to France during Mr. Silver's visit to London for the purpose of

showing the blue diamond to a customer whose identity I have agreed to keep confidential. I managed to sell the diamond together with other gems, and returned to London. Mr. Silver's allegation that I defrauded him is incorrect. While I was with the customer in France, I telephoned Mr. Silver in London to ask him if he would sell me the diamond for $5.5 million, with the understanding I would earn an undisclosed profit from my sale to the customer. He agreed. Mr. Holbech was with me and heard my end of the conversation. I did not, as Mr. Silver alleges, tell Mr. Silver I was calling from the David Morris store in London. When I returned to London, Mr. Silver appeared extremely pleased with the sale, for which he received the bargained-for sum of $5.5 million less expenses of $9,000. We wired this payment to his bank while he was still in London. At no time did Mr. Silver ask me how much money I made from the diamond sale, or say anything to suggest he held a belief as to the amount of money I received. 15. Mr. Silver's allegation that I agreed to purchase the two Cabochon sapphires

without regard to a further gemological certification is incorrect. According to a report Mr. Silver provided, in 2004 the two sapphires were certified as being of Kashmir origin by SSEF Swiss Gemmological Institute, located in Basel, Switzerland. I reached agreement with Mr. Silver to purchase the two sapphires (rather than take them on consignment, as he originally proposed) in the David Morris store. The agreement was oral. During our negotiation, I informed Mr. Silver I would send the sapphires to Gubelin Gem Lab, with whom I customarily work, and which I believe has a better reputation internationally than SSEF. I anticipated marketing the sapphires to my Asian clients, who expect a Gubelin certificate. Mr. Holbech was present during my negotiation with Mr. Silver about the sapphires, as was Rami Okuniew, a consultant of David Morris. Gubelin is located in Lucerne, Switzerland. Mr. Holbech and Mr. Okuniew both reside and work in or around
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London, and are citizens of the United Kingdom. The name of Mr. Okuniew's business is Okuniew Levy Diamonds, Ltd., known as OLD. OLD is located in London. 16. After-MrESilver-lefttondoni-sentthetwo-sapphires-to-GubelinOn-orabout--

August 27, 2007, Gubelin reported to me that it could not certify the sapphires as being of Kashmir origin. Mr. Silver suggests that by cutting facets on the stones, I somehow made it more difficult for them to be certified as Kashmiri. That is incorrect. I understand from numerous discussions with reputable laboratories that cutting facets on a sapphire is unlikely to change the properties of the stone relevant to their analysis. Further, I estimate that only approximately 7% of the subject sapphires were removed by cutting facets. 17. After Gubelin gave its report, I sent the sapphires back to SSEF. SSEF then

certified only one of the two sapphires as Kashmir. After receiving the SSEF report, I sent SSEF its original 2004 certificate in which SSEF found both stones to be of Kashmir origin. SSEF then changed its latest analysis and re-certified both sapphires to be of Kashmir origin. I then sent the sapphires to American Gemological Laboratories (AGL), located in New York City. Like Gubelin, AGL would not certify either stone as being of Kashmir origin. 18. Plaintiff Silver's complaint alleges that the subject gems were originally

provided to David Morris pursuant to a consignment agreement which contained a provision providing jurisdiction in California and venue in San Mateo County. That is incorrect. David Morris did not enter the alleged consignment agreement (the attached document titled "SH Silver Company
--

Menlo Park, Memorandum," Exhibit A to the Declaration of Stephen H.

Silver in support of S.H. Silver Company, Inc.'s Application for a Right to Attach Order and Writ of Attachment), and David Morris did not agree to jurisdiction of any dispute in California or to venue of any dispute in San Mateo County. This memorandum is not an agreement. Neither I nor any David Morris representative signed this memorandum beneath the statement which says, "Please sign below...." None of the subject gems was sold pursuant to this memorandum. Further, the fine print containing the statement about jurisdiction and venue does not refer to a dispute such as this one. It states: "In case suit is instituted to collect this merchandise or any portion thereof, the customer promises.
Case No. 08-03 550 CRB
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jurisdiction shall be in C 2 3
4 5 6 7 8

ornia and jenue in San Mateo County of that state--In-this

lawsuit, Silver does not seek to collect merchandise, and Mr. Silver has never asked me for any of the gems. In fact, I offered to return the sapphires to him with compe nsation for the weight removed from the sapphires when we cut and polished them. Mr. Silver has refused

to

9
10

take them back. Finally, I had never before read the fine print in this memo randum before reading the legal papers Silver delivered to us in this lawsuit. To my knowl edge, neither Mr. Silver nor anyone employed by him ever brought to the attention of David Morris, or discussed with anyone at David Morris, the fine print here or the idea that Silver might sue David Morris in California or in San Mateo County. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this3J. day of July, 2008 at London, England.

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EXHIBIT "A"

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SCHIFF HARDIN LLP Robert B. Mullen (CSB 136346) Yakov P. Wiegmann (CSB 245783) One Market, Spear Street Tower ThirtySecondFloor San Francisco, CA 94105 Telephone: (415)901-8700 (415) 901-8701 Facsimile: [email protected] Attorneys for Defendant DAVID MORRIS INTERNATIONAL LTD. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

S. H. SILVER COMPANY, INC., Plaintiff, v. DAVID MORRIS INTERNATIONAL LTD., Defendant.

Case No. 08-03 550 CRB DECLARATION OF LYNN TABOR IN SUPPORT OF DEFENDANT DAVID MORRIS INTERNATIONAL LTD.'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION PURSUANT TO F.R.C.P. RULE 12 (b)(2), AND IN THE ALTERNATIVE PURSUANT TO THE DOCTRINE OF FORUM NON CONVENIENS September 5, 2008 Date: 10:00 a.m. Time: Courtroom: 8 Judge: Honorable Charles R. Breyer

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I, Lynn Tabor, declare as follows. 1. I am import/export manager of defendant David Morris International Ltd.

("David Morris"), and have personal knowledge of all matters stated herein. 2. I reside in London, England and am a citizen of the United Kingdom. My

place of work is the David Morris store at 180 New Bond Street, London, England. 3. I have been provided the attached Exhibits A and B for my review. Exhibit A
--

is a one-page document titled, "S. H. Silver Company

Menlo Park, Memorandum." Exhibit

B is a copy of an email I sent to Emily Teeter of S. H. Silver Company on June 22, 2007. 4. I spoke to Stephen Silver on the phone on or about June 22, 2007. He asked
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ietoenfirm our receipt of the one-page memorandum (Exhibit A). This is thereascni emailed confirmation to Ms. Teeter (Exhibit B). I did not agree to a consignment with S. H. Silver Company at that time, or at any time. The memorandum states, "Please sign below and return a copy of this memorandum to our office." I did not sign the memorandum.

5
6 7 8 9 10 11 12 13 14 15

5.

I have been asked to review the following sentence contained in the fine print

at the top of the memorandum: "In case suit is instituted to collect this merchandise or any portion thereof the customer promises to pay such additional sum as the court may adjudge reasonable as attorney's fees in said suit, and that jurisdiction shall be in California and venue in San Mateo County of that state." I do not recall reading this sentence, at any time. Neither Mr. Silver nor his employee Emily Teeter, with whom I also spoke over the phone, ever brought this sentence to my attention or ever discussed with me the idea that the S. H. Silver Company might sue David Morris in California or in San Mateo County. 1 declare under the penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this j'day of July, 2008 at London, England.

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Lynn Tabor
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Filed 07/31/2008

Page 3 of 6

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Case 3:08-cv-03550-CRB

Document 7-3

Filed 07/31/2008

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Case 3:08-cv-03550-CRB

Document 7-3

Filed 07/31/2008

Page 5 of 6

EXifiBIT "B"

Case 3:08-cv-03550-CRB

Document 7-3

Filed 07/31/2008

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Wednesday, AIl 2,2008 .3:S PM

Subject 2pae fa,d received Date: Fr1daç Jane ZZ, 2007 3;33 PM Frorn Lynn Tabor ynndavIdmon1s.com [email protected]>

Hi Emily Just to confirm that we have received your 1-pages by fax (Invoice and cover sheet. Many thanks Lynn Lynn Tabor Import/Export Manager

DAVID MORRIS
180 New Bond Street London WIS 4RL

T:+44 207 399 4166 F; +44 207 499 3249 N: +44 (0) 7764 977870

Page 1 QI 1

____________________________________

Case 3:08-cv-03550-CRB

Document 7-4

Filed 07/31/2008

Page 1 of 41

I 2

4 5 6 7 8 9 10 11 12 13 14 15

SCHIFF HARDIN LLP Robert B. Mullen (CSB 136346) Yakov P. Weigmann (CSB 245783) One Market, Spear Street Tower --Thirty-Second-Floor San Francisco, CA 94105 Telephone: (415)901-8700 (415) 901-8701 Facsimile: [email protected] Attorneys for Defendant DAVID MORRIS INTERNATIONAL LTD. U1'TITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

5. H. SILVER COMPANY, INC., Plaintiff, v. DAVID MORRIS INTERNATIONAL LTD., Defendant.

Case No. 08-3550 CRB DEFENDANT DAVID MORRIS INTERNATIONAL LTD.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS COMPLAINT FOR LACK OF PERSONAL JURISDICTION AND IN THE ALTERNATIVE PURSUANT TO THE DOCTRINE OF FOR UM NON CONVENIENS Date: Time: Courtroom: Judge: September 5, 2008 10:00 a.m. 8 Hon. Charles R. Breyer

16 17 18 19 20 21 22 23 24 25 26 27 28
SCHIFF HAROIN LLP
AiTogNFvsATLw SN FRANCISCO

Pursuant to Rule 201 of the Federal Rules of Evidence, defendant David Morris International Ltd. hereby requests the Court to take judicial notice of the following matters filed by plaintiff S. H. Silver Company, Inc. in the Superior Court of California for the County of San Mateo, prior to defendant's removal of the action to this Court: 1. and Plaintiff S.H. Silver Company, Inc.'s Complaint for Damages, filed June 17, 2008;

Case No. 08-3550 CRB

DEFENDANT `S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS

Case 3:08-cv-03550-CRB

Document 7-4

Filed 07/31/2008

Page 2 of 41

1 2

2.

Declaration of Stephen H. Silver in Support of S.H. Silver Company, Inc.'s

Application for a Right to Attach Order and Writ of Attachment, filed June 26, 2008. -vtdrJuly"2008 SCHIFF HARDINLEP

5 6

By:___________ Robert B. Mullen Attorneys for Defendant DAVID MORRIS INTERNATIONAL LTD.
SF\9199301.1

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
ScHIFF HARDIN
AT SAN FRANCISCO

LLP

LAw

Case No. 08-3550 CRB

-

2

-

DEFENDANT `S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS

Case 3:08-cv-03550-CRB

Document 7-4

Filed 07/31/2008

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Exhibit 1

_________2_

Case 3:08-cv-03550-CRB

Document 7-4

Filed 07/31/2008

Page 4 of 41 )C

Scott D. Baker (SBN 84923) Email: [email protected] _Jqna1tDMitche1I (SBN 2035.11) Email: [email protected] REEDSMITHLLP 3 Two Embarcadero Center, Suite 2000 San Francisco, CA 9411 1-3922 4 1

AN

ILED FMATEOCOUNTY
JUN 172008

5
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Mailing Address: P.O. Box 7936 San Francisco, CA 94120-7936 Telephone: Facsimile: +1 415 543 8700 +1 415 391 8269

,s.

Attorneys for Plaintiff S.H. Silver Company, Inc.

ii 12 13 14 15 16 vs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATED

S.H. SILVER COMPANY, iNC.