not just many people excited about th convenience the district court erred and dismissing this case in favor of arbitration in mexico because mexico is not an adequate alternative for him to hear this dispute and adequate alternative form generally requires two things first that all defendants be subject to service of process in the alternative jurisdiction and second that the entire case and all parties come within that forms jurisdiction counsel if you have you tried serving the other side we reached out to them and asked city second is consent we were not able to get that and third is that the events occur in mexico we don't have that in this case it was california based open gate that purchased the property and then sold it to friends without  some claims about who are the real party and interests and you've got some piercing of bail from things like that because you've got a you got a fairly complex corporate structure there on the other side but but you haven't i just i'm not sure that i've seen where and say well these these guys may not be the signatories on this consent to jurisdiction here but these are the real parties and interest we have no evidence that mexico will actually exercisers you haven't tried it yet we did ask them to consent your honor and if i mean no you haven't tried it in mexico you haven't you haven't thought that the assistance of the of the of the mexican courts well your honor even if we were to consent there are three problems even if open get word to consent there would be at least three problems first is that we have to mandatory and conflicting form selection causes one which requires purported least related claims to be sent to tom a leap is courts and one which requires purported guarantee related claims to be sent to mexico city arbitration this place is the court in the position of the honor claims to be brought in mexico city arbitration the equivalent of washington d c from mexico and the least requires claims to be brought in tonally this court which is in the state of reinoso mexico so it's a complete they're both in mexico th negotiated this deal and open get selected the mexican subsidiary to sign the agreements and i know that opened its strongest argument for mexican jurisdiction is that the mexican subsidiary signed two of these three agreements but there are four problems with that argument the first is that sure i would i would think that if you actually went to the mexican courts and made the allegations that you made here we have no way of knowing whether your allegations are correct but if they're correct is there some horrendous fraud that's going on here you think i just my intuition fails never having appeared in a mexican court for mexico might have a great deal of interest in trying to sort out fraud in mexico you're right your honor but here is a huge hurdle that we face in order for things i to get relief against open gate now remember open gate has fifteen million dollars it has declared all of its u s subs bankrupt and we know from the bankruptcy filings that they only have forty dollars to their name we would have to be able to go to mexico and seek some sort of piercing of the corporate veil  recognition of finn's us fraud claims and it was opened get burden to prove that all of that is available in mexico and they did not make that showing the district court said that the opening did not make that easily based on the atlantic marine analysis but is that it shifts the burden to the party resisting enforcement to prove why transfer to its own pre selected form is unwarranted the theory being that if it were bargained for and received consideration in exchange for a form selection clause it should have to prove  transfers and i wanted the second way atlantic learning tinge is the analysis which is relevant here is a it allows a court to bypass private interest considerations in the form known convenience analysis the theory being that if a party bargains for a form selection clause it waived the right to argue the inconvenience for itself when it's witnesses but here we do not have the fundamental prerequisite which is the existence of a contract between these parties finn's seeks to recoup its fifteen million dollars that lies with open uses the california address that's in the record at the r one thirteen one ninety seven two zero seven and two sixteen the second problem with that argument is that the person who executed all agreements on behalf of the mexican subsidiary was  bit like you to tell me why if we were to affirm the district court that the district court still has tools available for your client to be able to and to to make it's it's for a non judgement affective the best tool the district court would have had although it denied it was a conditional dismissal then why aren't you asking us to tell the district court we did actually and part of our appeal your honor is an appeal of the district court's denial of a conditional dismissal even under the generous abuse of discretion standard it was an abuse of discretion to deny a conditional dismissal in light of fences unwillingness to cooperate when we asked them to stipulate to jurisdiction so does a conditional dismissal requiring  the defendant to accept service of process in mexico solve all your problems no it does not solve all of the problems your honor there is only meets the consent element of mexican law honor but there are several problems still the first is that at the end of the day forming on convenience is about fairness to the parties all of the witnesses and all of the evidence that finns and needs to prove its claims are in california they are open to employees it's open gate documents that's not mexico second even if open get consented to mexican jurisdiction it has not satisfied the two tests that it identified for non signatory enforcement those tests were alter ego and equitable from the ninth circuit two thousand and seventeen the second thing is that in order to rely on alter ego doctrine there needs to be a court finding that the non signatory is an alter ego we don't have that here the cite for that is benaroya verse as well as twenty three the problem with that theory is that finns as claims against open gate do not rely on a more incorporate any underlying contractual obligations or not relying on their obligations under the contract to assert our claims our claims are based on their fraudulent conduct leading up to and even after the sale leaseback transaction including but not limited to placing all of their subsidiary corporations in bankruptcy placing them beyond the reach of us in court and the second problem is that  itself is not invent corrupting correct your honor and the second problem with if you brought this case in mexico seeking the test jurisdiction you would have to be bringing the case in mexico and saying in the bird on behalf of the open gate of police you're out of the district your honour's district court was well within its discretion in ordering arbitration and dismissing the opponent's complaint there certainly nobody supposed which to find an abuse of discretion there was a condition placed on in the motion for the order on the most of reconsideration the court at the very end of its order said in denying the motion for reconsideration appropriately said in the event that the appellant cannot confer jers diction upon open gate in mexico they were entitled to come back to the central district and really gave their claims why is that a conditional dismissal as to service on opening the court didn't characterize it that way your honor how many more things than it would be covered under the guarantee clause right correct just so they were would you know would you object to what would happen if the district court actually did condition dismissal on accepting service in mexico i guess we would have had to make a decision on whether or not we were willing to consent to consent as part of the court's order that was not that was not with the court and if you want then  stay in the us no i don't believe so your honor because i think that there is a there is an obligation and you could district court was pretty clear and obligation on the part of the parents to at least attempt to could to confer jurisdiction in mexico which they have never have the be clear the record  motion for reconsideration which we saw coming the answer that we were not obligated and when i say we open gate and under the purchase and lease agreements as a form selection clause as opposed to arbitration or vision and and they were not obligated to submit their claims arbitration they were entitled to their day in court pursuant to the agreement of the parties in mexico and that's what the open gate intended or if if if in so were to serve open gate would open gate accept the service and proceed to court proceedings in mexico if if what your honor is asking me is whether we would have well certainly they could serve us whether we would challenge personal jurisdiction in mexico i don't know it depends on what the facts are and further investigation we never got that far so it's related but this point you're not making any any properties to the court as to how your client would respond to proper service in a mexican court oh we're not and i think what the court said was that you that the proper the proper play for this case to be filed given that it's mexican and he's mexican real estate mexican law was to comply with the agreements the parties agreed to which was bargain for serve open gate in mexico and in the event that the  night circuit law given the closeness of the relationship between between the gate the parents and the claims here which are alter ego claims and purely simply by the way that and for the record is important to note there are no all are all alter ego and control issues so they are not directly or indirectly there's certainly enough in the complaint that if if the allegations are true your client and its subsidiaries have behaved very very you won't tell us today that you'll accept your us diction in mexico but you have said well if we don't agree to jurisdiction of course on exercise that jurisdiction we can come back to the district court which is who you told in the first place didn't have jurisdiction over you so you've you put  just a little bit you've told you tell that you've told the federal courts in the united states that they can't exercise jurisdiction a cent of the mexico you won't tell us what the mexican courts have jurisdiction and that if you fight it then they might be able to come back successfully to the united states and i understand  way sins of the appellant insisted on having form selection and arbitration provisions in mexico presumptively because that was their choice they bargained for that and so we sought to enforce their own provisions why they sit here today and the reason is obvious because the because the parties with which they contracted are now are now bankrupt they're not worth anything the only thing they can do is get to the parent corporation that they didn't have a contract with who is in the united states and i understand that and given the nature  as well as the fact that mexico has a vested interest in it as much as california got more in this litigation from a public interest perspective so we have certain all we have done as is is look to the cap to the us supreme court to give us guidance on how it is that these at these clauses should be analyzed they are valid in forcible form selection clauses and arbitration provision against against the parties that were signatories that's if the subsidiary was sham ventidius open game the parent that is responsible if open gate was in charge of the alleged fraud i mean here you're flipping i think what provision by fraud they can't because they drafted them and they insisted on no no i mean the underlying alleged frontalot transactions yes and so you're still i guess i'm if you that you're you're you're trying to prevent open gate from having to go back to from having to be hauled into into court in mexico i mean actually your courage the district court to send open gate to mexico and then and then test this crap that really only works if you willing to concede and you may have you may have a stop yourself traditionally from denying that open gate is the proper successor in interest to the signatories i don't know i respectfully disagree i understand that you're going to disagree because there's a lawyer on what you call the disregard because if you're not if you are not the successor in interest if they can't pierce the veil then they ought to be able to come into the united states because they're not because they're there their country their contractual their form selection clause arbitration provisions are not with you there with your base form selection and arbitration on the allegations of the complaint so all we did was go to court and say here are the allegations here are the provisions this under let me bring it requires you to send as well as other authorities send the case the cases to the proper bargain for accountable in the courts in in in mexico that's a separate issue you know whether or not there will be personal jurisdiction of the court of taking that into account before deciding the form non i don't believe so i don't think it's one of the elements and i don't think it let affirmative defense is yes or no no of course not and it was a fourteen zero for a transfer it has to be done pursuant to a motion to dismiss which is what we did the court granted the motion denied their rights we saw their motion for reconsideration because there were any new facts or law and then we find ourselves for before you fine so what would the district court had in with in its authority to condition the dismissal for for a man convenience on the defendant excepting service a process in mexico i'm not i'm not sure i have actually seen any authority that route that addresses that issue specifically i don't believe any of the authorities we did see or the court to consider would require that of the court now that was that my question could the court i think that's a question that i can't answer i don't i don't know the answer you know and if the case were sent back to have that condition imposed would have been ok gate resist that i don't i don't have the answer for your honor and that would be a discussion i would have to have my client we never we never had that conversation because it wasn't germane to the motion and it wasn't necessary based on the records ruling so i don't know the answer to that that's an honest answer i just don't know i think the issue i think the issue before us or your honour's is is why didn't they make do they not why did they not attempt to go to mexico why did they not attempt it which by the way that was their selected forum in the first place why did they try they were given they were told all multiple times to try and they refused to try i understand they think that all the witnesses are here i would beg to differ with them the issues the events which took place were all in mexico this is regarding a production facility that was in reynosa where there's allegedly witnesses potentially here but nothing nothing extraordinary and again underlining marine when you have valid foreign selection provisions in private interests that are deemed to have been negotiated at the time of the contract they are not a relevant commercial rules the issues of arbiter of realty are left to the arbitrator and the court properly refused to go any farther than that so as to scope of the of the non signatory is being met by being bound by the arbitration agreement as well as the and by the way the evidence before the court is that the the that there is nothing wrong with the judicial system mexico it provides appropriate remedies and the idea that somehow we wouldn't be i'm not this is not a stipulation my part but i don't believe that there's anything in the record in fact of th order is that there is no condition on the form non dismissal that's my understanding that does that does that are there any cases in that that would allow the district court to reopen or re even though it has not put on the record or as some kind of a reservation i've never seen any authority that suggests that the court could do that each of the district courts or this court the district court i've never seen the cases it's just that again oh i think the court made  accommodation for the plaintiffs the appellant's in this case by allowing them in the event they couldn't vergers diction in mexico to come back to center district and and they have there and they'd have their day in court but i think that's all for what happens down the line i don't think that's where here's a side today analysis the second issue i'd like to revisit is an issue that we discussed earlier judged by the which is that we would still need proof that mexican law would recognize the types of claims that finns are wants to bring against open gate that was open gates burden to present that information to the district court and they did not meet that burden and thirdly as to the evidence being in mexico versus the united states we have alleged and the documents show including the judicial records the judicial notice records that that facility has been shuttered it's completely shut down all of the evidence and all of the witnesses that finds a need to prove the claims are in the united states the second point i'd like to go to is arbitration the district court compel held that the parties have delegated ar to an arbitrator in general a court decides whether or not there is an agreement to arbitrate and the scope of that arbitration agreement and it is true that parties can delegate even those two issues with clear and unmistakable evidence of an intent to do so most courts including this one have held that incorporating the american arbitration association rules is clear and unmistakable evidence of an intent to do so but those rules on their face only speak to what happens to parties that's in the record at one forty they are silent as to what happens with non parties under this court's decision in kramer that is not sufficient to delegate to hold that the party's delegated arbiter billeted to an arbitrator and the next point i'd like to make is the district court here in balancing the public interest factors which are required even under atlantic marine as to the first factor the local interest in hearing the dispute california has a significant interest in providing a form for non residents like then such who are harmed by the actions of its corporate california forum there is no controlling choice of law provision here because open gate is not a signatory to a contract containing one and even if it were we have conflicting choice of law provisions so a court would arbitrarily have to decide which one  controlling choice of law provision federal courts will apply state law choice of law rules in this case california's governmental interest test under that test open gate was required to identify all potentially a political laws show how they differ from california law and show why the alternative jurisdiction has an interest in having its law apply that outweighs california's interest in the state in this case open gate never made that showing as to the question of whether one eighty seven through two thirty one which contain all of the e mails back and forth when the parties were negotiating the transaction and just to sort of hit the high level point open gate is the first is the entity that purchased and then sold there were no so facility without disclosing the ongoing litigation it negotiated the deal via e mail from its headquarters in los angeles it signed the non disclosure agreement it circulated a letter of intent outlining the deal terms and then shows a mexican subsidiary to finally execute that deal as i mentioned the mexican subsidiary operates out of a california address and a california based employee signed the agreements on behalf of that sub so open get selected that sub and at the end of the day it was open gate that made the fraudulent representations and omissions that are