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InfoSpan, Inc. v. Emirates NBD Bank PJSC

United States Court of Appeals, Ninth Circuit

September 7, 2018

InfoSpan, Inc.; InfoSpan (Gulf) Inc., Plaintiffs-Appellees,
v.
Emirates NBD Bank PJSC, Defendant-Appellant.

          Argued and Submitted July 11, 2018 Pasadena, California

          Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding D.C. No. 8:14-cv-01679-JVS-AN

          Daniel Scott Schecter (argued) and Nima H. Mohebii, Latham & Watkins LLP, Los Angeles, California; Stephanie N. Grace, Latham & Watkins LLP, San Diego, California; Kathryn H. Ruemmler and J. Scott Ballenger, Latham & Watkins LLP, Washington, D.C.; for Defendant-Appellant.

          William A. Isaacson (argued), Sandra M. Calhoun, Jonathan Shaw, and David Boyd, Boies Schiller Flexner LLP, Washington, D.C.; David L. Zifkin, Boies Schiller Flexner LLP, Santa Monica, California; Terry Bird, Bird Marella Boxer Wolpert Nessim Drooks Licenberg & Rhow, Los Angeles, California; for Plaintiffs-Appellees.

          Before: Marsha S. Berzon and N. Randy Smith, Circuit Judges, and P. Kevin Castel, [*] District Judge.

         SUMMARY [**]

         Personal Jurisdiction

         The panel reversed the district court's judgment compelling arbitration of claims concerning a contract and remanded for dismissal on the ground that the district court lacked personal jurisdiction over the defendant.

         The panel reversed the district court's determination that the defendant waived its personal jurisdiction defense through its litigation conduct. The panel concluded that the defendant preserved the defense by timely asserting it and litigating it to an adverse ruling, and did not waive the defense by litigating other defenses and counterclaims in a related matter between similar parties.

         The panel held that the district court lacked personal jurisdiction over plaintiffs' claims for declaratory and injunctive relief because the defendant, a United Arab Emirates bank, lacked sufficient contacts with the United States.

          OPINION

          N.R. SMITH, Circuit Judge

         A defendant that timely asserts that the district court lacks personal jurisdiction and litigates the issue to an adverse decision from the district court does not waive the personal jurisdiction defense by vigorously litigating defenses to the merits, including by asserting counterclaims against other parties. Emirates NBD Bank PJSC (the "Bank") was entitled to litigate its defenses and counterclaims in a related matter between similar parties without waiving the issue of personal jurisdiction, because the Bank had timely asserted the personal jurisdiction defense and received an adverse ruling (that jurisdiction was proper) from the district court. Accordingly, we reverse the district court's waiver determination, and remand for dismissal because the district court lacked personal jurisdiction over the Bank.

         I.

         The underlying dispute in this matter concerns a contract between InfoSpan (Gulf), Inc. ("InfoSpan Gulf"), a Cayman Islands corporation, and the UAE Bank. Early in 2007, InfoSpan Gulf approached Emirates Bank International (which later merged with the National Bank of Dubai to become the Bank) in Dubai with a proposal to provide stored value cards to customers in the United Arab Emirates ("UAE"). In May 2007, the parties reached an agreement and entered a contract (the "SVC Agreement"). All negotiations took place in Dubai. Under the SVC Agreement, InfoSpan Gulf would provide the Bank with innovative prepaid stored value cards . The cards would help the Bank provide a better banking solution for migrant workers by allowing the workers to transmit money internationally via short message service ("SMS") text messages, receive direct deposits, and make purchases. InfoSpan Gulf and the Bank would each share in the fees associated with the cards. The cards would be processed by ...


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