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Adam Wolek (pro hac vice) 

Taft Stettinius & Hollister LLP 

111 E. Wacker Drive, Suite 2800 

Chicago, Illinois 60601 

Tel: 312.836.4063 

Fax: 312.966.8598 

awolek@taftlaw.com 

DAVID A. MAKMAN (SBN 178195) 

david@makmanlaw.com 

LAW OFFICES OF DAVID A. MAKMAN 

655 Mariner’s Island Blvd, Suite 306 

San Mateo, CA 94404 

Telephone: (650) 242-1560 

Facsimile: (408) 716-3052 

Attorneys Appearing in a Limited Capacity for 

Counter-Defendants Boon Global Limited, F8 

Vietnam Company Limited, California Fitness 

& Yoga Centers, California Management 

Group, and Randy Dobson 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA

PARKRIDGE LIMITED, a Hong Kong corporation, by 

Mabel Mak, and MABEL MAK, an individual, 

Plaintiffs, 

v. 

INDYZEN, INC., a California corporation, and PRAVEEN 

NARRA KUMAR, an individual, 

Defendants. 

Case No. 16-cv-07387 

BOON GLOBAL LIMITED’S 

MOTION TO DISMISS 

INDYZEN’S PETITION TO 

COMPEL ARBITRATION 

PURSUANT TO FRCP 12(b)(2), 

12(b)(3), AND (12)(b)(6) 

Date: February 16, 2018 

Time: 9:00 AM 

Dept.: Courtroom 5, 2nd Floor 

Judge: Hon. Jeffrey S. White

INDYZEN, INC., a California corporation, and PRAVEEN 

NARRA KUMAR, an individual, 

Counter-Plaintiffs, 

v. 

PARKRIDGE LIMITED, a Hong Kong corporation, 

BOON GLOBAL LIMITED, a Hong Kong corporation, F8 

VIETNAM COMPANY LIMITED, a Vietnam company, 

CALIFORNIA FITNESS & YOGA CENTERS, an entity 

of unknown form, CALIFORNIA MANAGEMENT 

GROUP, an entity of unknown form, and RANDY 

DOBSON, an individual, 

Counter-Defendants. 

Case 4:16-cv-07387-JSW Document 44 Filed 01/18/18 Page 1 of 23
Boon’s Mot. to Dismiss - i - No. 16-cv-07387 

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MOTION TO DISMISS PETITION TO COMPEL ARBITRATION 

Counter-Defendant Boon Global Limited (“Boon”), pursuant to Federal Rules of Civil 

Procedure 12(b)(2), 12(b)(3), and 12(b)(6), moves to dismiss the Petition to Compel Arbitration (the 

“Petition”) filed by Counter-Plaintiff Indyzen (“Indyzen”), for the reasons set forth below. Boon 

notices this Motion for February 16, 2018 at 9:00 A.M., which is the date set by this Court for hearing 

on the Petition. See Status Report, ECF No. 42. 

 Boon seeks that this Court dismiss with prejudice the Petition pursuant to Federal Rules of 

Civil Procedure 12(b)(2) and 12(b)(3) because this Court does not have personal jurisdiction and 

venue over Boon. Furthermore, to the extent that this Court has jurisdiction, Boon seeks a dismissal of 

the Petition pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to properly state a claim, 

and because Indyzen’s claims against Boon falls outside the scope of the arbitration clause agreed to 

by Indyzen and Parkridge Limited (“Parkridge”).

Case 4:16-cv-07387-JSW Document 44 Filed 01/18/18 Page 2 of 23
Boon’s Mot. to Dismiss - ii - No. 16-cv-07387 

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TABLE OF CONTENTS 

SUMMARY OF THE ARGUMENT .............................................................................................. vi

I. INTRODUCTION .......................................................................................................................... 1

II. STATEMENT OF FACTS ............................................................................................................ 1

A. Background ................................................................................................................ 1

B. Procedural History ..................................................................................................... 2

III. ARGUMENT ............................................................................................................................... 3

A. There Is No Basis for Personal Jurisdiction over Boon Because It Did Not 

Consent to Jurisdiction and Has No Contacts with California. ................................. 3

1. This Court Does Not Have General Jurisdiction over Boon. ......................... 3

2. Specific Jurisdiction Does Not Exist over Boon. ........................................... 4

B. The Petition Should Be Dismissed for Improper Venue. .......................................... 6

C. Indyzen’s Allegations to Compel Boon to Arbitration Do Not Meet 

Pleadings Standards. .................................................................................................. 6

D. The Petition Fails Because Boon Was Not a Party to the Morfit Agreement 

and Never Agreed to Arbitration. .............................................................................. 7

1. Indyzen Erroneously Claims There Is a Presumption in Favor of 

Compelling Non-signatories to Arbitration. .................................................. 8

2. Boon Cannot Be Compelled to Arbitrate Because It Is Not a 

Signatory to the Morfit Agreement or any Agreement to Arbitrate 

with Indyzen. .................................................................................................. 8

3. The Morfit Agreement’s Arbitration Clause Is Narrow and Only 

Applies to Disputes “Between” Parkridge and Indyzen, Not Nonsignatories. ..................................................................................................... 8

4. Arbitration Cannot Be Compelled Against Boon Under an Alter Ego 

Theory. ........................................................................................................... 9

5. Indyzen’s Narrow Equitable Estoppel Argument Should Be 

Rejected Because Boon Did Not Exploit the Morfit Agreement. ................ 11

6. Boon Is Not the Agent of Parkridge. ........................................................... 13

7. Boon Is Not a Third Party Beneficiary of the Morfit Agreement. ............... 13

E. The Arbitrator Does Not Have the Authority to Decide Whether NonParties to an Arbitration Agreement Are Within Its Jurisdiction. ........................... 13

 

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TABLE OF AUTHORITIES 

Cases

Adobe Sys. Inc. v. Trinity Software Distrib., Inc., No. C. 12-1614 SI, 

2012 WL 3763643 (N.D. Cal. Aug. 29, 2012) ........................................................................... 4, 5 

Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 

751 F.3d 796 (7th Cir. 2014) .......................................................................................................... 4 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 12 

AT&T Techs., Inc. v. Commc’ns Workers,

475 U.S. 643 (1986) ................................................................................................................. vi, 8 

Bell Atl. Corp. v. Twombly, 

550 U.S. 544 (2007) ..................................................................................................................... 12 

Benasra v. Marciano, 

112 Cal. Rptr. 2d 358 (Cal. Ct. App. 2001) .................................................................................. 13 

Burger King Corp. v. Rudzewicz, 

471 U.S. 462 (1985) ....................................................................................................................... 5 

Cape Flattery Ltd. v. Titan Mar., LLC, 

647 F.3d 914 (9th Cir. 2011) .................................................................................................. 12, 14 

Comer v. Micor, Inc., 

436 F.3d 1098 (9th Cir. 2006) ...................................................................................................... 11 

Exigen Properties, Inc. v. Genesys Telecommunications Laboratories, Inc., No. A140081, 

2016 WL 520283 (Cal. Ct. App. Feb. 9, 2016) ............................................................................ 12 

First Options of Chi., Inc. v. Kaplan, 

514 U.S. 938 (1995) ..................................................................................................................... 14 

Frank Gari Prods., Inc. v. Smith, CV 12-248-GHK (FFMx), 

2012 WL 12895672 (C.D. Cal. June 15, 2012) ........................................................................ vi, 6 

Fresno Motors, LLC v. Mercedes-Benz USA, LLC, No. 1:10CV012 AWI DLB, 

2010 WL 1136192 (E.D. Cal. Mar. 22, 2010) ................................................................................ 9 

Fund Raising, Inc. v. Alaskans for Clean Water, Inc., No. CV 09-4106 AHM (VBKx), 

2009 WL 3672518 (C.D. Cal. Oct. 29, 2009) ................................................................................ 6 

Goodyear Dunlop Tires Operations, S.A. v. Brown, 

564 U.S. 915 (2011) ....................................................................................................................... 3 

Grey v. Am. Mgmt. Servs., 139 Cal. Rptr. 3d 210 (Cal. Ct. App. 2012) ...................................... 8, 14 

Howsam v. Dean Witter Reynolds, Inc., 

537 U.S. 79 (2002) ....................................................................................................................... 14 

Levy v. State Farm Mut. Auto. Ins., 

58 Cal. Rptr. 3d 54 (Cal. Ct. App. 2007) ........................................................................................ 7 

Marsch v. Williams, 

28 Cal. Rptr. 2d 398 (Cal. Ct. App. 1994) ...................................................................................... 7 

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Boon’s Mot. to Dismiss - iv - No. 16-cv-07387 

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Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Hous. Metroplex, P.A., 

623 F.3d 440 (7th Cir. 2010) .......................................................................................................... 4 

Mundi v. Union Sec. Life Ins., 

555 F.3d 1042 (9th Cir. 2009) ........................................................................................ vi, 8, 9, 11 

Nielson v. Union Bank of Cal., N.A., 

290 F. Supp. 2d 1101 (C.D. Cal. 2003) .................................................................................. 10, 11

Pavlovich v. Super. Ct., 

58 P.3d 2 (Cal. 2002) ...................................................................................................................... 3 

Peralta v. Cal. Franchise Tax Bd., 

124 F. Supp. 3d 993 (N.D. Cal. 2015) ........................................................................................ 5, 7 

Pestmaster Franchise Network, Inc. v. Mata, No. 16-cv-7268-EMC, 

2017 WL 1956927 (N.D. Cal. May 11, 2017) ................................................................................ 3 

Purdue Research Found. v. Sanofi-Synthelabo, S.A., 

338 F.3d 773 (7th Cir. 2003) .......................................................................................................... 4 

Riddle v. Leuschner, 

335 P.2d 107 (Cal. 1959) .............................................................................................................. 10 

Sandoval v. Ali,

34 F. Supp. 3d 1031, 1040 ................................................................................................ vi, 10, 11 

Schwarzenegger v. Fred Martin Motor Co., 

374 F.3d 797 (9th Cir. 2004) .......................................................................................................... 5 

Sonora Diamond Corp. v. Super. Ct., 

99 Cal. Rptr. 2d 824 (Cal. Ct. App. 2000) .................................................................................... 10 

Spinks v. Equity Res. Briarwood Apts, 

90 Cal. Rptr. 3d 453 (Cal. App. Ct. 2009) .................................................................................... 13 

Tracer Research Corp. v. Nat’l Env. Servs. Co.,

42 F.3d 1292 (9th Cir. 1994) ........................................................................................................ 12 

United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 

363 U.S. 574 (1960) ..................................................................................................................... 14 

Wistron Corp. v. Phillip M. Adams & Assocs., LLC, 10-cv-4458 EMC, 

2011 WL 4079231 (N.D. Cal. Sept. 12, 2011) ............................................................................... 7 

Statutes

28 U.S.C. § 1391 ................................................................................................................................ 6 

9 U.S.C. § 4 ........................................................................................................................................ 6 

9 U.S.C. § 6 ........................................................................................................................................ 1 

Rules

Civil L.R. 7.3(c) ................................................................................................................................. 1 

Federal Rules of Civil Procedure 12(b)(2) ................................................................................... vi, 1 

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Federal Rules of Civil Procedure 12(b)(3) ................................................................................... vi, 1 

Federal Rules of Civil Procedure 12(b)(6) ................................................................................... vi, 1 

 

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SUMMARY OF THE ARGUMENT 

Indyzen brought its Petition to Compel Arbitration in order to force Boon—a Hong Kong 

entity—to arbitrate claims under an agreement Boon never signed (the “Morfit Agreement”). This 

Court should dismiss the Petition under F.R.C.P. 12(b)(2) and (b)(3) due to lack of personal 

jurisdiction and improper venue. Boon is not a citizen of California, does not conduct business in 

California, and has nothing to do with the Morfit Agreement, a contract that does not refer to Boon 

nor provide it any substantive rights. California’s long-arm statute cannot confer jurisdiction over 

Boon under these circumstances. 

Furthermore, to the extent that jurisdiction exists, Boon nevertheless should be dismissed 

under F.R.C.P. 12(b)(6). Indyzen has not alleged any cognizable claim against Boon. See Frank Gari 

Prods., Inc. v. Smith, CV 12-248-GHK (FFMx), 2012 WL 12895672, at *4 (C.D. Cal. June 15, 2012) 

(dismissing petition to compel arbitration for failure to plead a claim). Moreover, Boon did not sign 

the Morfit Agreement’s arbitration clause. By its very terms, the clause is narrow and only applies to 

disputes “between” Indyzen and Parkridge. This express language excludes claims against Boon. See 

Mundi v. Union Sec. Life Ins., 555 F.3d 1042, 1045-47 (9th Cir. 2009) (rejecting petition to compel 

non-signatory to arbitration based upon a similar arbitration clause). Finally, Indyzen has not shown 

any equitable reason for compelling Boon to arbitration. Boon is not an alter ego of Parkridge, nor is 

Boon a third party beneficiary or agent of Parkridge, despite Indyzen’s unsupported conclusions to 

the contrary. See Sandoval v. Ali, 34 F. Supp. 3d 1031, 1040 (rejecting allegations based simply upon 

conclusions). For these reasons, this Court should dismiss Boon from this case with prejudice. See 

AT&T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 649 (1986) (“[A]rbitration is a matter of 

contract and a party cannot be required to submit to arbitration any dispute which he has not agreed 

so to submit.”). 

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I. INTRODUCTION 

Counter-Defendant Boon,1 through its undersigned counsel, submits this Motion to Dismiss 

Indyzen’s Petition. Boon brings this Motion pursuant to Federal Rules of Civil Procedure 12(b)(2), 

12(b)(3), and 12(b)(6).2 

II. STATEMENT OF FACTS 

A. Background

Parkridge was founded in 2013 to create a mobile software application combining health and 

fitness information with social media networking. Possessing limited technical expertise internally, 

Parkridge hired Praveen Narra Kumar (“Narra”), due to Narra’s self-proclaimed experience in 

software development, as Chief Technology Officer (“CTO”) to lead its mobile app development. 

After assuming his duties as CTO of Parkridge, Narra hired his own software company, Indyzen, to 

develop the mobile app. Narra helped Parkridge negotiate a contract with Indyzen, including 

providing the specifications for the mobile app and directing Parkridge as to necessary terms in the 

contract. On January 5, 2015, Parkridge signed a contract with Indyzen for development of the mobile 

app, known as the Morfit Agreement. 

The result was disastrous for Parkridge. The mobile app, which was later known as Morfit (the 

“Morfit App”), did not work and was grossly inferior to comparable apps in the industry. Moreover, 

 

1

 Boon is only appearing in a limited capacity, without prejudice to any defenses or arguments, and 

expressly reserve all rights including, but not limited to, challenging personal jurisdiction, the 

challenging personal jurisdiction, the propriety of the jurisdiction before this Court, the propriety of 

the disputes before this Court, the propriety of the process, and the sufficiency of the allegations 

made. 

2

 Indyzen incorrectly filed its Petition as a Motion to Compel, whereas Petitions to Compel 

Arbitration constitute pleadings under 9 U.S.C. § 6 of the Federal Arbitration Act (“FAA”). Because 

Indyzen’s Petition constitutes a “pleading,” Boon’s Motion to Dismiss is an initial Motion which 

under Civil L.R. 7.3(c) further permits a reply. Accordingly, Boon respectfully reserves the right to 

reply to any opposition to its Motion to Dismiss pursuant to the content and timing requirements of 

Civil L.R. 7.3(c). 

Case 4:16-cv-07387-JSW Document 44 Filed 01/18/18 Page 8 of 23
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Indyzen charged Parkridge exorbitant development prices. In short, Narra abused his position as 

Parkridge’s CTO to siphon money from Parkridge to benefit himself and his company, Indyzen. 

B. Procedural History 

Parkridge filed suit against Narra and Indyzen (collectively, “Defendants”) in the Northern 

District of California on December 29, 2016. See Compl., ECF No. 1. Defendants then moved to 

compel arbitration as to Parkridge and Mabel Mak (collectively, “Plaintiffs”), Parkridge’s sole 

shareholder, and stay the case. See Mot. to Compel Arb., ECF No. 12; Mot. to Stay, ECF No. 13. 

Plaintiffs opposed arbitration, particularly as to their claims against Narra, because the Morfit 

Agreement, which contained the arbitration provision, was only between Parkridge and Indyzen. The 

magistrate judge compelled arbitration and stayed the case, ruling that Plaintiffs’ claims against Narra 

may have arisen out of his role under the Morfit Agreement, and the Arbitrator could determine the 

extent of his jurisdiction. 

Accordingly, Plaintiffs filed a demand with the American Arbitration Association on June 8, 

2017. Defendants filed counterclaims naming five additional entities—Boon, F8 Vietnam Company 

Limited (“F8”), California Fitness & Yoga Centers, California Management Group, and Randy 

Dobson in his individual capacity (collectively, the “Non-signatories”)—who were not parties to the 

Morfit Agreement. Plaintiffs and the Non-signatories3

 moved to dismiss the counterclaims because: 

(1) they were outside the scope of the arbitration provision; (2) the Non-signatories were neither 

parties to nor bound by the Morfit Agreement; and (3) the counterclaims failed to state a claim. See 

Mot. to Dismiss Countercls., Ex. A attached. 

On November 6, 2017, the Arbitrator dismissed the five Non-signatories. See Proced. Order 

No. 2 at 11, Ex. B attached. He further noted that “[t]he allegations as to Boon...do not appear to 

 

3

 The Non-signatories appeared in the arbitration for the limited purpose of contesting the arbitral 

jurisdiction. 

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relate to the developer and customer relationship under the Morfit Agreement, and accordingly are not 

within the scope.” Id. at 16. 

Indyzen subsequently filed a Petition to Compel Arbitration against the Non-signatories in the 

stayed federal case. See Pet. to Compel Arb., ECF No. 32. As the Non-signatories are not parties to 

the pending federal litigation and never consented to the jurisdiction of the magistrate judge, at least 

one party filed a Declination to Proceed Before a Magistrate Judge, reassigning the case to this Court. 

See Declin., ECF No. 36. 

III. ARGUMENT 

A. There Is No Basis for Personal Jurisdiction over Boon Because It Did Not Consent to 

Jurisdiction and Has No Contacts with California. 

There is no basis for personal jurisdiction over Boon in California. Boon is not a citizen of 

California, does not conduct business in California, and did not sign the Morfit Agreement. Under 

California’s long-arm statute, personal jurisdiction is unable to be exerted over Boon in these 

circumstances. 

As an initial matter, Indyzen bears the burden of demonstrating facts justifying the exercise of 

personal jurisdiction over Boon such that compelling Boon to arbitration is proper. Pavlovich v. 

Super. Ct., 58 P.3d 2, 6-7 (Cal. 2002). Indyzen has not met its burden. 

1. This Court Does Not Have General Jurisdiction over Boon.

A court may find general personal jurisdiction where a defendant’s “affiliations with the state 

are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” 

Pestmaster Franchise Network, Inc. v. Mata, No. 16-cv-7268-EMC, 2017 WL 1956927, at *2 (N.D. 

Cal. May 11, 2017) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 

(2011)). Only in an “exceptional case” will general jurisdiction be available outside a corporation’s 

place of incorporation and principal place of business. See id. at *2-3. 

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It is undisputed that Boon is a Hong Kong corporation with its principal place of business in 

Hong Kong. See Aff. of Boon, Ex. C attached. Boon is not domiciled in California. Moreover, Boon 

has no employees, agents, or representatives in California. Boon has no bank accounts or real property 

in California and does not conduct business in or target or direct any of its activities towards the state. 

Id. Thus, there is no basis for the exertion of general jurisdiction over Boon. 

Indyzen nonetheless argues that this Court has general jurisdiction over Boon because it 

“marketed and sold the Morfit App in online app stores in California.” Pet. for Order Compelling Arb. 

at 3, ECF No. 32-1. Indyzen has not substantiated this conclusory allegation; but even assuming, 

arguendo, its veracity, this limited contact would be wholly insufficient to render Boon “essentially at 

home” in California. See Adobe Sys. Inc. v. Trinity Software Distrib., Inc., No. C. 12-1614 SI, 2012 

WL 3763643, at *5 (N.D. Cal. Aug. 29, 2012) (rejecting argument for general or specific personal 

jurisdiction based upon defendant’s website and sales to California residents); Purdue Research 

Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 781 (7th Cir. 2003) (“[C]ontracting with an out-ofstate party alone cannot establish automatically sufficient minimum contacts in the other party's home 

forum.”); Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 803 

(7th Cir. 2014) (“[T]he operation of a...website does not show that the defendant has formed a contact 

with the forum state....”); Mobile Anesthesiologists Chi., LLC v. Anesthesia Assocs. of Hous. 

Metroplex, P.A., 623 F.3d 440, 446 (7th Cir. 2010) (“[A] website accessible to residents of the forum 

state and alleging that the defendant caused harm through that website” is not enough to meet the 

Calder standard.). 

2. Specific Jurisdiction Does Not Exist over Boon. 

The Ninth Circuit has established a three-prong test for analyzing specific jurisdiction: 

(1) The non-resident defendant must purposefully direct activities or consummate some 

transaction with the forum or resident thereof; or perform some act by which he purposefully 

avails himself of the privilege of conducting activities in the forum, thereby invoking the 

benefits and protection of its laws; 

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(2) the claim must be one which arises out of or relates to the defendant's forum-related 

activities; and 

(3) the exercise of jurisdiction must comport with fair play and substantial justice. 

Adobe, 2012 WL 3763643, at *5 (quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 

802 (9th Cir. 2004)). The plaintiff bears the burden of establishing the first two prongs; if satisfied, the 

burden shifts to the defendant to “‘present a compelling case’ that the exercise of jurisdiction would 

not be reasonable.” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)). 

As previously established, Boon is a Hong Kong entity that does not conduct business in 

California. Boon and its activities are entirely unrelated to the allegations giving rise to the contractual 

dispute between Parkridge and Indyzen. Boon did not sign the Morfit Agreement, nor does the 

Agreement contain any explicit or implicit reference to Boon. Indyzen further fails to allege that Boon 

had any role in contract negotiations or in any activities related to development of the Morfit App. 

Rather, Indyzen alleges F8 is owned by Boon, and F8 offers the F8Fit App while supposedly using 

“intellectual property” allegedly owned by Indyzen. Indyzen does not identify specific intellectual 

property that has been stolen nor demonstrate how such intellectual property was allegedly stolen; 

stark omissions given the Morfit Agreement states that any intellectual property developed by Indyzen 

related to the Morfit App is the property of Parkridge. See Compl., Ex. B at 4-5, ECF No. 1-2. 

Moreover, Indyzen has not sufficiently pled this allegation and has not given adequate notice 

to a claim, or shown how this allegation relates to the contractual duties between Parkridge and 

Indyzen under the Morfit Agreement. See Peralta v. Cal. Franchise Tax Bd., 124 F. Supp. 3d 993, 

1001 (N.D. Cal. 2015) (noting that the “infringement claim also fails because [plaintiff] has not put 

defendants on notice of the alleged infringement in any meaningful detail”). Because Indyzen has not 

shown any evidence or allegations of how Boon allegedly “targeted its infringing activities” to 

California, nor any contractual provision it had violated, there is no personal jurisdiction over Boon. 

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B. The Petition Should Be Dismissed for Improper Venue. 

Under 9 U.S.C. § 4, venue is proper on a petition to compel arbitration in “any United States 

district court which, save for such agreement, would have jurisdiction under title 28, in a civil action 

or in admiralty of the subject matter of a suit arising out of the controversy between the parties.” 

9 U.S.C. § 4; also 28 U.S.C. § 1391 (venue statute). Because this Court lacks personal jurisdiction 

over Boon for the reasons stated above, venue in the Northern District of California is also improper. 

C. Indyzen’s Allegations to Compel Boon to Arbitration Do Not Meet Pleadings Standards. 

Indyzen’s petition has not met basic pleadings standards required under the Federal Rules of 

Civil Procedure and therefore should be dismissed. Fundamentally, Indyzen neither puts this Court 

nor Boon on notice of exactly what claims are to be decided against Boon in arbitration. Indyzen 

chose not to file a complaint or counterclaim against Boon and instead petitioned this Court to compel 

arbitration under the FAA without specifying its asserted allegations. A petition to compel arbitration 

must still meet basic pleading standards under the Federal Rules of Civil Procedure, however. See 

Frank Gari, 2012 WL 12895672, at *4 (“Plaintiffs set forth no factual allegations in the Petition to 

support their conclusory statement that they have claims against [Defendant]. While Plaintiffs need 

not articulate their claims against Defendant in as detailed a fashion as they would in a complaint, 

they must provide sufficient factual allegations about their purported claims for us to determine 

whether the claims fall within the scope of the arbitration clause.”); Fund Raising, Inc. v. Alaskans for 

Clean Water, Inc., No. CV 09-4106 AHM (VBKx), 2009 WL 3672518, at *4 (C.D. Cal. Oct. 29, 

2009) (concluding Petitioner failed to allege “sufficient non-conclusory facts that would enable it to 

establish alter ego”). 

Neither the allegations raised in the Petition against Boon nor in the arbitration meet basic 

pleadings standards for purposes of deciding Indyzen’s Petition. First, the breach of contract 

counterclaim fails to allege facts to give sufficient notice as to how the Morfit Agreement was 

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Boon’s Mot. to Dismiss - 7 - No. 16-cv-07387 

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conceivably breached by Boon. See Levy v. State Farm Mut. Auto. Ins., 58 Cal. Rptr. 3d 54, 57 (Cal. 

Ct. App. 2007) (“Facts alleging a breach, like all essential elements of a breach of contract cause of 

action, must be pleaded with specificity.”). No such facts alleging a breach of the Morfit Agreement 

were pled by Indyzen against Boon. 

The arbitration counterclaims also allude to a vague “misappropriation of intellectual 

property” claim against Boon. Boon is unable to discern whether Indyzen is raising a patent 

infringement, trade secret misappropriation, copyright infringement, or any other claim related to 

intellectual property. Regardless of Indyzen’s past and future characterizations, the claim falls well 

short of pleadings requirements. Notably, Indyzen fails to identify the intellectual property, the scope 

of Indyzen’s alleged rights to the intellectual property, how its rights were somehow misappropriated, 

who specifically wrongfully used the intellectual property, and the circumstances of any alleged 

wrongful use. See Peralta, 124 F. Supp. 3d at 1000 (dismissing individuals because plaintiff had “not 

alleged a sufficient nexus between them and the alleged infringement”); Wistron Corp. v. Phillip M. 

Adams & Assocs., LLC, 10-cv-4458 EMC, 2011 WL 4079231, at *4 (N.D. Cal. Sept. 12, 2011) 

(generic descriptions of accused product, i.e., “computer chips, motherboards, computers” were 

insufficient to state infringement claim). Indyzen further fails to provide this Court with a proper basis 

for ascertaining whether such a claim falls within the Morfit Agreement’s arbitration clause. 

D. The Petition Fails Because Boon Was Not a Party to the Morfit Agreement and Never 

Agreed to Arbitration. 

Indyzen’s Petition ignores a fundamental legal principle: a party cannot compel another party 

to arbitration where those entities never signed an agreement with an arbitration clause. See Marsch v. 

Williams, 28 Cal. Rptr. 2d 398, 400 (Cal. Ct. App. 1994) (“[A] party can be compelled to submit a 

dispute to arbitration only where he has agreed in writing to do so.”). 

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1. Indyzen Erroneously Claims There Is a Presumption in Favor of Compelling 

Non-signatories to Arbitration. 

As an initial matter, Indyzen incorrectly argues that there is a presumption in favor of 

arbitration regarding Boon. See Mem. in Supp. of Pet. at 4, ECF No. 32-2 (Indyzen claiming that the 

“burden of proof” is on the parties “resisting arbitration”). To the contrary, the “general principle [is] 

that only those who have agreed to arbitrate are obliged to do so.” Mundi, 555 F.3d at 1046; Grey v. 

Am. Mgmt. Servs., 139 Cal. Rptr. 3d 210, 214 (Cal. Ct. App. 2012) (“[F]undamentally, a party is not 

obligated to arbitrate unless he or she has expressly agreed to do so by entering into a valid and 

enforceable written contract with the party who seeks arbitration.”) 

2. Boon Cannot Be Compelled to Arbitrate Because It Is Not a Signatory to the 

Morfit Agreement or any Agreement to Arbitrate with Indyzen. 

Boon did not sign the Morfit Agreement, did not agree to arbitrate any disputes with Indyzen, 

and is not a signatory or a party. See Compl., Ex. B, ECF No. 1-2; see also AT&T, 475 U.S. at 649 

(“[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any 

dispute which he has not agreed so to submit.”). Rather, the software development agreement to 

develop the Morfit App was between two parties: Indyzen, Inc. and Parkridge, Ltd. Zero language in 

the Morfit Agreement explicitly or implicitly refers to Boon. Indeed, Indyzen has not identified any 

contract between Indyzen and Boon, let alone one with an arbitration clause. Moreover, Boon has 

never conducted business with Indyzen, nor does Indyzen allege as much. These facts are dispositive. 

Because Boon did not agree to arbitrate the claims and counterclaims with Indyzen, it cannot be 

required to arbitrate them. 

3. The Morfit Agreement’s Arbitration Clause Is Narrow and Only Applies to 

Disputes “Between” Parkridge and Indyzen, Not Non-signatories. 

The Morfit Agreement has a very narrow arbitration clause that by its terms does not apply to 

Boon. The arbitration clause is expressly limited to “any dispute or disagreement between the 

Company and the Customer....” See Compl., Ex. B, ECF No. 1-2 (emphasis added). Under the Morfit 

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Agreement, “Company” is defined as “Indyzen[ ]Inc.,” and “Customer” is defined as “Parkridge 

Limited.” Id. The arbitration clause contains no language to show any intent to arbitrate matters other 

than disputes between the defined parties. See Fresno Motors, LLC v. Mercedes-Benz USA, LLC, No. 

1:10CV012 AWI DLB, 2010 WL 1136192, at *4 (E.D. Cal. Mar. 22, 2010) (“The public policy 

favoring arbitration does not apply to disputes the parties have not agreed to arbitrate.”). 

In Mundi, the Ninth Circuit addressed a very similar arbitration clause to the one at issue here 

that was also limited to disputes “between” defined parties. 555 F.3d at 1047. The Ninth Circuit 

rejected the argument that a non-signatory should be compelled to arbitration because the arbitration 

agreement at issue was “premised on a disagreement between Wells Fargo and the borrower.” Id. at 

1045, 1047 (emphasis added) (“[A]ny disagreement between the borrower and a third party...is simply 

not within the scope of the arbitration agreement, even if it is related in some attenuated way to the” 

subject of the agreement.). The Morfit Agreement’s arbitration clause contains the same qualifying 

language as in Mundi, limiting arbitration disputes “between” defined parties: Indyzen and Parkridge. 

Despite the Morfit Agreement’s explicit language and clear intentions, Indyzen argues this 

Court should force Boon into arbitration based upon vague theories of alter ego, agency, equitable 

estoppel, or third party beneficiary status. While on rare occasions courts have applied these principles 

to require a non-signatory to participate in arbitration, these exceptions do not apply here, and any 

notions of fairness and equity further prevent Boon from being forced into an arbitration that it did not 

agree to. 

4. Arbitration Cannot Be Compelled Against Boon Under an Alter Ego Theory. 

Indyzen first argues that Boon should be compelled into arbitration, alleging it is Parkridge’s, 

Dobson’s, and the remaining Non-signatories’ alter ego. Indyzen seeks an order from this Court 

disregarding Boon’s corporate structures and binding it to Parkridge’s contractual obligations based 

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on nothing more than allegations that all entities related to Dobson are “one and the same.” This 

argument is meritless. 

Boon is a legal entity that is separate and distinct from its stockholders, officers and directors 

and that has its own distinct liabilities and obligations. Aff. of Boon at 1, Ex. C; and see Sonora 

Diamond Corp. v. Super. Ct., 99 Cal. Rptr. 2d 824, 836 (Cal. Ct. App. 2000). Under California law, 

for a court to disregard a corporate identity, a plaintiff must establish: (1) such a unity of interest and 

ownership exists that the personalities of the corporation and individual are no longer separate, and (2) 

an inequitable result will follow if the acts are treated as those of the corporation alone. See Sandoval,

34 F. Supp. 3d at 1040. A plaintiff must establish both of these elements by facts supporting each. See 

Nielson v. Union Bank of Cal., N.A., 290 F. Supp. 2d 1101, 1115 (C.D. Cal. 2003); Sandoval, 34 F. 

Supp. 3d at 1040 (finding that plaintiff’s alter ego allegations were “too conclusory to survive a 

motion to dismiss”). 

Indyzen does not allege unity of interest or fraud. The crux of Indyzen’s argument is that 

Boon, Parkridge, and the other Non-signatories all have common ownership, and therefore should all 

be treated as a single entity. “Common ownership alone,” however, “is insufficient to disregard the 

corporate form.” Sandoval, 34 F. Supp. 3d at 1040 (dismissing alter ego claims because common 

ownership is insufficient to treat two separate entities as the same entity); see also Riddle v. 

Leuschner, 335 P.2d 107, 109-10 (Cal. 1959) (rejecting alter ego claim based upon the same person 

having roles or positions in different companies). The Petition also labels Boon and the Nonsignatories as “sham companies,” “one and the same,” and corporate “fronts.”4

 Mem. in Supp. of Pet. 

at 6, ECF No. 32-2. Indyzen’s recitation of these unsupported adjectives does not establish the 

existence of an alter ego relationship between Boon and Parkridge, as no facts are provided to show 

Boon disregarded corporate formalities or operated as a fraud, allegations that would have been 

 

4

 Boon takes exception to the characterizations used by Indyzen; they are defamatory, untrue, and 

unsupported in fact. 

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required to be pled with particularity under F.R.C.P. 9(b) and were not. See Sandoval, 34 F. Supp. 3d 

at 1040 (imposing a heightened pleading standard and noting that a party “must allege specifically 

both of the elements of alter ego liability, as well as facts supporting each”). 

Furthermore, Indyzen has not shown (or even alleged) that Boon is underfunded, disregards 

corporate formalities, lacks corporate records, or shares identical officers and employees with any of 

the other entities—all relevant factors for establishing alter ego liability. See Nielson, 290 F. Supp. 2d 

at 1115 (party must allege facts supporting each element of alter ego relationship). Indeed, such 

allegations could not, in good faith, be made against Boon; the evidence shows that it maintains 

corporate formalities, i.e., has separate bank accounts, is adequately funded, is separately owned and 

managed, maintains corporate records, and is located in different places than Parkridge. See Aff. of 

Boon, Ex. C. Indyzen has not provided a basis to compel arbitration under the alter ego doctrine. 

5. Indyzen’s Narrow Equitable Estoppel Argument Should Be Rejected Because 

Boon Did Not Exploit the Morfit Agreement. 

To bind a non-signatory to an arbitration clause under an equitable estoppel theory, a party 

must demonstrate the non-signatory “knowingly exploit[ed] the agreement containing the arbitration 

clause despite having never signed the agreement.” Comer v. Micor, Inc., 436 F.3d 1098, 1101 (9th 

Cir. 2006). Furthermore, the Ninth Circuit construes the equitable estoppel exception narrowly in the 

context of a signatory seeking to compel a non-signatory into arbitration. See Mundi, 555 F.3d at 1046 

(labeling the equitable estoppel exception as within “very narrow confines” in light of the “general 

principle that only those who have agreed to arbitrate are obliged to do so”). 

Applying the Ninth Circuit’s Comer test, Indyzen’s allegation of equitable estoppel fails 

because it has not shown that Boon knowingly exploited the Morfit Agreement. Boon is not connected 

in any way to the contractual dispute between Parkridge and Indyzen. The Morfit Agreement neither 

refers to Boon nor expressly or impliedly confers any contractual rights upon Boon. The Petition 

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notably omits any allegations that Boon received any revenue, product code, or anything else of value 

from Indyzen or the Agreement, important factors under an equitable estoppel analysis. 

Indyzen’s claim of equitable estoppel further fails because their allegations that Boon 

misappropriated Indyzen’s intellectual property does not meet the Twombly or Iqbal standards, and 

nevertheless falls outside of the arbitration clause. See Mem. in Supp. of Pet. at 10, ECF No. 32-2; 

Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). As stated 

above, Indyzen’s “misappropriation” claim fails basic pleadings standards and is factually 

underdeveloped. But even if properly alleged, such a tort claim is not the proper subject of arbitration 

when the Morfit Agreement’s arbitration clause expressly is limited to claims between Parkridge and 

Indyzen. See Cape Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 914, 924 (9th Cir. 2011) (holding that 

tort claim was not arbitrable under the parties’ arbitration clause); Tracer Research Corp. v. Nat’l 

Env. Servs. Co., 42 F.3d 1292, 1295 (9th Cir. 1994) (finding that misappropriation claim was not a 

proper subject for arbitration where the arbitration clause was narrow). 

Indyzen cites to an unpublished opinion, Exigen Properties, Inc. v. Genesys 

Telecommunications Laboratories, Inc., in support of its position, but it is distinguishable. No. 

A140081, 2016 WL 520283 (Cal. Ct. App. Feb. 9, 2016). First, the arbitration clause at issue in 

Exigen had significantly different scope than present here, and applied to “any” disputes “arising out 

of or in connection with” the contract, which is substantially broader than the Morfit Agreement’s 

arbitration clause. Id. at *1-2. Furthermore, the non-signatory in Exigen received direct benefits from 

the contract in the form of marketing, pricing discounts, promotion, and maintenance of shared 

confidential information. Id. at *9. In contrast, Indyzen has not shown that Boon received anything 

from Indyzen. 

Indyzen also claims that Boon is “inextricably intertwined” with Parkridge without providing 

any facts or case law in support of this argument. Indyzen accordingly cannot establish an equitable 

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Boon’s Mot. to Dismiss - 13 - No. 16-cv-07387 

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estoppel basis to compel Boon into arbitration, as Boon did not knowingly exploit the Morfit 

Agreement, and the allegations are insufficiently pled and would nevertheless fall outside of the 

arbitration clause if true. 

6. Boon Is Not the Agent of Parkridge. 

Indyzen’s Petition provides zero factual allegations linking Boon to Parkridge or Mak. Rather, 

Indyzen alleges Boon is an agent of Parkridge merely because Dobson signed the Morfit Agreement. 

Under California law, signing an arbitration agreement as an agent for a disclosed principal does not 

bind the agent to arbitrate claims brought against him personally. Benasra v. Marciano, 112 Cal. Rptr. 

2d 358, 361-62 (Cal. Ct. App. 2001) (stating agent was “not the one who wants to be bound by the 

arbitration provision in a contract that he signed only in a representative capacity”). Indyzen’s agency 

argument should be rejected, as Boon did not sign the Morfit Agreement, and even if Boon did, it is 

not bound to arbitrate claims brought against it personally under California law. 

7. Boon Is Not a Third Party Beneficiary of the Morfit Agreement. 

In order to determine whether a contract was made for the benefit of a third person, a court 

must look at whether the parties’ intent to benefit a third person appears from the terms of the 

contract. Spinks v. Equity Res. Briarwood Apts, 90 Cal. Rptr. 3d 453, 468-69 (Cal. App. Ct. 2009). 

Here, Boon is not named in the Morfit Agreement, nor is there clear intent in the terms of the Morfit 

Agreement to benefit Boon. Rather, the contract was to benefit Parkridge by Indyzen developing a 

mobile app for it, and not for Boon. Thus, Boon is not a third party beneficiary of the Morfit 

Agreement. 

E. The Arbitrator Does Not Have the Authority to Decide Whether Non-Parties to an 

Arbitration Agreement Are Within Its Jurisdiction. 

Indyzen’s request for the Court Order to empower the Arbitrator “to decide whether additional 

parties can be added to the arbitration in the future” without court review is patently contrary to basic 

principles of contract, arbitration and due process. See Indyzen’s Mem. in Supp. of Pet. at 13, ECF 

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No. 32-2. Arbitration is a “matter of contract,” and “a party cannot be required to submit to arbitration 

any dispute which he has not agreed so to submit.” United Steelworkers of Am. v. Warrior & Gulf 

Navigation Co., 363 U.S. 574, 582 (1960); see also Grey, 139 Cal. Rptr. 3d at 212-15. Disputes about 

whether a party is bound by a given arbitration clause “raises a ‘question of arbitrability’ for a court to 

decide.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002). A court “should not assume 

that the parties agreed to arbitrate arbitratibility unless there is clear and unmistakable evidence that 

they did so.” Cape Flattery, 647 F.3d at 920 (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 

938, 944 (1995)). Because any currently unidentified additional companies have clearly not signed the 

Morfit Agreement, zero evidence supports Indyzen’s request to provide the Arbitrator with boundless 

authority to decide which parties are within its jurisdiction. 

Case 4:16-cv-07387-JSW Document 44 Filed 01/18/18 Page 21 of 23
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DATED: January 18, 2018 Respectfully submitted, 

 

 By: /s/ Adam Wolek 

 Adam Wolek (pro hac vice) 

Taft Stettinius & Hollister LLP 

111 E. Wacker Drive, Suite 2800 

Chicago, Illinois 60601 

Tel: 312.836.4063 

Fax: 312.966.8598 

awolek@taftlaw.com 

DAVID A. MAKMAN (SBN 178195) 

david@makmanlaw.com 

LAW OFFICES OF DAVID A. MAKMAN 

655 Mariner’s Island Blvd, Suite 306 

San Mateo, CA 94404 

Telephone: (650) 242-1560 

Facsimile: (408) 716-3052 

 

Attorneys Appearing in a Limited Capacity for 

Counter-Defendants Boon Global Limited, F8 

Vietnam Company Limited, California Fitness 

& Yoga Centers, California Management 

Group, and Randy Dobson

 

Case 4:16-cv-07387-JSW Document 44 Filed 01/18/18 Page 22 of 23
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CERTIFICATE OF SERVICE 

The undersigned certifies that, on January 18, 2018, she caused this document to be 

electronically filed with the Clerk of Court using the CM/ECF system, which will send 

notification of filing to counsel of record for each party. 

DATED: January 18, 2018 Taft Stettinius & Hollister LLP 

 

 By: /s/ Adam Wolek 

Case 4:16-cv-07387-JSW Document 44 Filed 01/18/18 Page 23 of 23