a good morning my name is paul marks on behalf of appellant i call farms and if the court please i'd like to reserve any time i have remaining after my first round with you for a rebuttal to your honor's in a reported opinion that made its way into the briefing by the appellee is the ninth circuit court of appeal described the burden that the defendant needs to meet for inconvenient form analysis as a quote almost impossible burden close quote unquote almost impossible burden to deny a united states citizen of its right to try a case in a federal district court here in the united states and that's the music c case which is at five fifty six f second at page nine seventy seven and there are other cases that were briefed of course which indicated on both sides that the defendant meets a very heavy burden and if i may use a baseball analogy what that means tie which goes to the runner in baseball goes to the plaintiff in these types of analyses and i would what do we do about the fact that that court determined that virtually all of the conduct in this case occurred outside of california that witnesses were located elsewhere the documents your client was and even didn't have a physical presence in the state until after the lawsuit was filed based on my reading of the record that i think your reading of the record is accurate but if i may say we don't we look at the state of residency at the time the complaint is filed and we're we basically discourage people from doing what what you're urging us to do which is to say well if you open a business in san juan or an office in san juan capistrano after the lawsuit is filed that's enough to show that you're doing business here now i think you do discourage that but you also encourage us plaintiffs to have their forum in the united states so that the question is where in the united states it does not appear to be the central district of california might be one of the districts in texas it might be one of the districts in florida but i'm having a hard time seeing where the district court errored in deciding it didn't belong in the central district but i think in that situation right now what we do is we go to the  what i think are very similar facts that are in the boston telecom case there you had a new hampshire investor who allege that he was defrauded by a group of slovakian residents and he filed suit in the northern district of california and the northern district judge found that the in can after one round in the court of appeals found on remand the district on the  defendants the argument would have been stronger start that the plaintiffs argument would have been stronger if they'd been a resident of california which they weren't and you got the exact same situation right which i mean there's some sort of scale here and it seems like you're asking for total deference but doesn't that vary case show that you don't get total deference i'm not suggesting total deference to what i'm sorry on well sure your choice of forum so you're saying we chose california we should get to have california you said it's virtually impossible or however you started your argument but that the inconvenient form factors based on the fact that the plaintiff there was a u s citizen and not simply a in that case in new hampshire a citizen where the case was in the courts are important are said the district court should have given some deference but not as much as if they'd been a california resident but here you don't have any factors favoring california as far as i can tell you what can you tell us what shows us that california is the convenient form for this case well i think judge tolman hit the nail on the head when he spoke about the fact that before this case was filed we were in the process of setting up a california outpost and we have now done so so is that in the record the fact that we have done so is not in the record per se which is one of the reasons why i'm pushing very hard here for a man and i'm not suggesting any case that says that we consider actions taken after the filing of the complaint to figure out the convenience i don't your honor but i think that there was an indication in the papers that were filed with the district court that we were in the process of doing that so there was that connection to telephony and the other did in response to my earlier question that we have to look at the state of the facts at the time that the complaint was filed and that as a matter of policy we don't want to encourage what you're urging us to do which is to encourage defendants to improve their factual standing for a forum on convenience are you wanted there are competing policies and one of the facts that is absolutely crystal clear in the record is whereas the plaintiff may not have had a citizenship or residency in california we know based on the evidence submitted to the district court that the defendant mr rodriguez took multiple trips to california on behalf of the entity that he es well the form not convenience factor looks to specific issues in the one that we are basing our appeal on are the public and private interest factors so residence is certainly one of those but it's not exclusive and i think and so what other factors on any of those lists are public and private factors favor california your honor my my general argument is that the district court erred by finding that for essentially all of the factors that there was a heavy shelling on behalf of the defendants on each of the those factors justifying a mexican form as opposed to a california form now what i would energy rep response to your question what i'd like to focus on are three other factors and the first is one we've talked about a little bit and that's the us versus california citizenship and i've talked about the boston telecom case so boston telecom says that some deference at least should be given to the u s parties choice of forum but does it say that we look then at convenience by looking at the country as a whole if you have any case that does what you're saying which is like look at the convenience of the whole country compared to the actual forums and again i think that beyond boston telecom i don't your hon but i think that that case which is strikingly similar on some of the facts is a case that i would urge the court compels this court to send the case back to the district court counsel yes can i direct you to excerpt of record forty six which is a third of the district court's order i'm looking specifically at line eighteen where she says it doesn't even matter in the ninth circuit case the case two weeks ago says you are  a citizen you get the strong presumption i mean this isn't the court recognizing what we said in boston i think that the court is recognizing it but then not acting upon it  is so do we review that determination under an abuse of discretion standard that the court didn't properly weigh it heavily enough in the analysis i think you do your honor and how do i conclude that she abused  discretion in so doing i can that and the answer to that question your honor is that the court should look at the way that the district court analyzed each of the part private and public interest factors and determine if there was even an exercise of discretion but all of the facts are terse favored a forum outside of california so we know the district court said you get the strong presumption and then the district looked at all the factors concluded that none of them favored california so where's the abuse of discretion your honor i think the abuse of discretion lies in the fact that you know to me the three factors which the court did not properly exercise it discretion that are most salient are the one that we talked about which is the united states versus california citizenship i believe that under boston telecom you've sent me back to that but you're right but you're not helping us with your answer and trying to figure out how the district court went astray i mean we have a series of cases starting with the end bank decision in the united states versus hanks and where we talk about what the abuse of discretion standard means and it essentially says that we have to conclude that the district courts inferences drawn from the record are illogical implausible or not drawn from facts in the record and yet both the oral transcript and then the later written ruling in my judgment seems that she carefully went through each factor and explained why she came out the way that she did so it seems to me you have to convince us that that determination was implausible not supported by the facts in the record or illogical before we can declare that she abused her discretion i understand and i think that for example so i pointed out that there were three main areas i won't say the first one to have talked about a lot the second one is the issue of the witnesses and i think that there is both implausibility illogic and a lack of showing in the record when it comes to the issue she found and i think the record bears this out that this whole case is about establishing a mexican partnership in mexico and that the bulk of the witnesses to that contract formation or perhaps to the breach of that contract if it was in fact a valid forcible contract or all located in mexico she did find that and that was error and the reason it was error is why because they know it was error because the only record evidence with respect to those witnesses is the statement by the appellee is that there were twelve people who i don't think any of them were named in mexico who can provide evidence relating to this whereas we presented a number of witnesses mr bakker mr chang the west coast distributing all income in the united states  california not in california that is true but what you know what happened here in the united states is the most important thing that happened and what happened here is the central district of california i mean i guess i guess where i'm having a hard time following your argument is you want us to draw a very expansive reading that once a person is a united states citizen and they are empowered to file lawsuits in any federal district court in the country and i just don't read the case law that well i mean you got it was stablish some connection to the district in which you bring the lawsuit what i would have a much stronger case if we were sitting in the eleventh circuit and you file the action in the southern district of florida what i'm suggesting your honor is that well where is the district court viewed this as a mexican dispute if you look at the purpose behind the alaska i believe we could have sued any place that we serve the defendants where we were doing business of i don't know if we're doing business trade conference i've been in a group with your argument have been the same when mr rodriguez got served because i understand he was attending a trade conference in anaheim when the processor was found that's correct your honor i don't know the answer to that question because i don't know if we sell into alaska and i don't know if we were if you are just got all ask and he wants i went there and they found we were sure if we had evidence of selling into alaska if we had a perspective and in the works office being opened up in california which has now been opened up then i would say and if mr rodriguez were served there then i would say the answer to the question is you confusing jurisdiction with forum nine convenience i mean the doctrine is not a refutation of the fact that no united states district court has jurisdiction it is a  from a case management standpoint a prudent doctrine as to which united states district court is the most appropriate forum and this particular forum the central district of california is not convenient because of all the factors that the district court in i'm running out of time but i would sometimes say it's precisely confinement because the gentleman who is represented by a pelleas counsel came to the central district of california on multiple occasions on behalf of his company o p s precisely to breach the contract that he entered into down in mexico sure things happened in mexico but what the whole purpose of the contract in the purpose of the lawsuit was for us to protect our clients our customers and our markets in the united states and they have done what they did by coming to california being served in california at a trade show and that to me is in farming operation we more can really litigated in mexico no reason twenty nine page order just stanton before i go the proper level of deference carefully weigh the evidence presented by the parties and eyes all twelve private and public interest factors so can you tell me what the status is of the mexican litigation your honor the reason of got an update from our client that all the documents had worked their way through the process as in mexico and in august he is a resident of want to hunt to mexico and we provide that ration of mr pena in support of a motion to dismiss who was himself an attorney and want to hunt to mexico and provided details about the courts as in one hundred to mexico how the laws would be applied there so it was a fair comparison between the central district and the specific form in mexico where the case would be proceeding so we tell that from the district court opinion or just the district or just talk about mexico you're on our believe that the district outside of its home form like to point out to distinctions between boston telecom in this case first the court in boston telecom she's me identified connections between the plaintiff's case and california the pla they want to california resident allege that they had received certain misrepresentations in california that certain documents pertaining to their agreement of their claims were in california hello and here is not done that  as your owners recognize earlier there is no evidence of any misconduct taking place in california well that's not quite right i mean he did he did address the fact that the conduct by mr rodriguez which is in breach of the contract included soliciting customers here in california for distribution of the produce that should have been funneled through honor i don't believe that's what the record evidence shows well isn't that the relevance of i can remember the names of all the companies here on and west coast distributing and those are the companies agreement from the contract signed in mexico correct but there is no evidence of that conduct took place in california was it in texas i mean your honor we don't contend that misconduct took place anywhere but the record shows that he was in because he was dealing with i don't know what they're called sales agents representatives of those companies located outside of california even though the produce itself might actually be distributed  ends up is not material to deciding which forms have a connection to this case how do you respond to their argument that they could have sued in florida and california is actually more convenient than florida doesn't that create a bit of a logic for me if i could brought the case in florida it be an entirely different analysis between where the witnesses are where they have been says where misconduct took place so i don't think just the fact that they might have brought the suit in florida which i think tensely presented jurisdictional issues for them and as you saw in some of the other lawsuits they tried to bring florida just in the case might have been brought in florida does not change the fact that the court found mexico to be more convenient than centredness california a case that i think is more instructive than the boston telecom case of the gemini capital versus yap fishing corp case another ninth circuit case found that the witnesses in the state of the app which is the form that the sentence resided in the defendants were saying was more convenient or more significant more materials of the case than the us witnesses of the plaintiff identified in in from hawaii to guam is a ten hour flight and then from guam to yap is another multiple hour flight so we're talking about places that for practical purposes are much further away than a quick plotted world but not literally been blessed with that good scuba diving yet and my second point your honour's is that again getting back to this issue of the convenience of witnesses and whether the trial court adequately performed its exercise of discretion the only record evidence that i see as to the witnesses that the a pelleas would bring forth in this matter appears in excerpts of brecker do three twenty six and unless i'm mistaken this is yet and  it's so short i'm going to read into the record if the court allows me to paragraph eleven all of o p s officers and employees reside in mexico to require these individuals to travel to the united states to serve as witnesses for this lawsuit will impose great difficulties and hardships on o business and operations and in the briefing what the appellee is dead was to move away from the evidence and argue that the record evidence of witness is that justified the trial court's order with satisfied by the allegations of the complaint i briefed that issue i don't think that it is persuasive you know the witnesses there are witnesses in the united states who have travelled to california unless the court has any further questions i would s you both very much the case just argued is submitted thank you and we will be adjourned until tomorrow morning