Boon Global Limited v. Usdc-Caoak

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE BOON GLOBAL LIMITED; F8 No. 18-71347

VIETNAM COMPANY LIMITED;

CALIFORNIA FITNESS & YOGA D.C. No.

CENTERS COMPANY LIMITED; RANDY 4:16-cv-07387-

DOBSON, JSW

BOON GLOBAL LIMITED; F8 OPINION

VIETNAM COMPANY LIMITED;

CALIFORNIA FITNESS & YOGA

CENTERS COMPANY LIMITED; RANDY

DOBSON,

Petitioners,

v.

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF

CALIFORNIA, OAKLAND,

Respondent,

INDYZEN, INC., a California

corporation,

Real Party in Interest.

2 IN RE BOON GLOBAL LTD.

Petition for Writ of Mandamus

to the United States District Court

for the Northern District of California

Argued and Submitted February 4, 2019

San Francisco, California

Filed May 3, 2019

Before: Richard A. Paez, Marsha S. Berzon,

and Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson

SUMMARY *

Mandamus

The panel denied a petition for a writ of mandamus that

sought to direct the district court to vacate its order

compelling third parties to arbitration, arising from an

arbitration clause in a software development and licensing

agreement.

In deciding whether to grant mandamus relief, the panel

considered the five factors outlined in Bauman v. U.S. Dist.

Court, 557 F.2d 650, 654-55 (9th Cir. 1977). The panel

began with the third factor – clear error – because its absence

was dispositive. The panel held that the district court applied

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

IN RE BOON GLOBAL LTD. 3

incorrect legal tests, and did not provide sufficient

jurisdictional analysis on the current record. The panel

further held, however, that the district court’s ultimate

finding of jurisdiction was not clear error. Because the

district court’s finding of jurisdiction over the third parties

could possibly prove correct, the highly deferential clear

error standard was not satisfied, and mandamus relief was

not proper.

The panel held that the other Bauman factors likewise

supported denying mandamus relief. The panel held that the

first two Bauman factors – whether petitioner has other,

adequate means of relief, or will suffer irreversible damage

or prejudice – weighed heavily against mandamus review.

The panel also held that the remaining Bauman factors did

not support granting the petition for mandamus.

COUNSEL

Adam Wolek (argued) and Zackary R. Clark, Taft Stettinius

& Hollister LLP, Chicago, Illinois; David A. Makman, Law

Offices of David A. Makman, San Mateo, California; for

Petitioners.

Mark R. Figueiredo (argued), Ethan G. Solove (argued), and

Austin T. Jackson, Structure Law Group, LLP, San Jose,

California, for Respondent-Real Party in Interest.

4 IN RE BOON GLOBAL LTD.

OPINION

R. NELSON, Circuit Judge:

Petitioners Boon Global Limited, F8 Vietnam Company

Limited, California Fitness & Yoga Centers Company

Limited (“CFYC”), and Randy Dobson (collectively “the

Third Parties”) seek a writ of mandamus directing the district

court to vacate its order compelling the Third Parties to

arbitration, and grant the Third Parties’ motions to dismiss.

Despite the district court’s flawed jurisdictional analysis, we

deny the petition.

I

As alleged in the complaint, around 2013, Randy Dobson

began developing an online personal training platform,

which later became the “Morfit App.” Praveen Narra, CEO

of Indyzen (a software development company), pitched his

software development expertise to Dobson. Shortly

thereafter, Parkridge Limited was formed with Dobson as

CEO and Chairman, and Narra as the Chief Technology

Officer (“CTO”). As CTO, Narra oversaw the hiring of

another software company, TIBCO, to develop the Morfit

App. TIBCO ultimately did not deliver a mobile platform

app.

In 2015, Parkridge’s shareholders agreement was

executed, with Narra’s father and Mabel Mak (Dobson’s

wife) designated as shareholders. Parkridge then entered

into a software development and licensing agreement (the

“Agreement”) with Indyzen. Dobson signed the Agreement

on behalf of Parkridge as CEO and Narra signed on behalf

of Indyzen. The Agreement defined the parties subject to

arbitration: “Except for any dispute arising out of payments

due to Company, any dispute or disagreement arising

IN RE BOON GLOBAL LTD. 5

between the Company and the Customer . . . shall be referred

to arbitration . . . .” The “Company” was defined as Indyzen

and the “Customer” as Parkridge.

On December 29, 2016, Parkridge and Mak sued

Indyzen and Narra for improperly developing the Morfit

App for Parkridge, alleging breach of fiduciary duties,

breach of contract, unjust enrichment, fraudulent

misrepresentation, and fraudulent concealment. Indyzen

successfully moved to compel arbitration under the

Agreement. In arbitration, Indyzen counterclaimed and

added, as defendants to the counterclaim, the Third Parties,

all of which have or had an affiliation with Dobson and are

located in Hong Kong or Vietnam. 1 The arbitrator found he

lacked authority to determine jurisdiction over entities not

parties to the Agreement and dismissed the Third Parties,

subject to a further order from the district court or agreement

by the parties.

Indyzen petitioned the district court to compel the Third

Parties to arbitrate. The Third Parties filed separate motions

to dismiss. The district court compelled the Third Parties to

arbitration “in order that the arbitrator may decide whether

to allow counterclaims against them to proceed.” The

district court found that the “Dobson Companies and their

business dealings are sufficiently interrelated and

interdependent on conduct governed by the Morfit

Agreement that the doctrine of equitable estoppel enables the

Court to find that the nonsignatories may be bound by the

agreement despite not having signed it.” After the

1

Indyzen also sought to compel California Management Group

(“CMG”) to arbitration. Because CMG is a brand operated by CFYC,

not its own entity and not a petitioner, we do not address CMG

specifically.

6 IN RE BOON GLOBAL LTD.

arbitration analysis, the district court then found it “may

properly exercise jurisdiction over the Dobson Companies.

These companies are closely associated with Randy Dobson

and, by signing the Agreement to perform the subject work

in California, he is properly subjected to the jurisdiction of

this Court.”

II

The writ of mandamus is a “drastic and extraordinary”

remedy “reserved for really extraordinary causes.” Ex parte

Fahey, 332 U.S. 258, 259–60 (1947). “Only exceptional

circumstances amounting to a judicial usurpation of power,

or a clear abuse of discretion will justify the invocation of

this remedy. The petitioner bears the burden of showing that

its right to issuance of the writ is clear and indisputable.” In

re Van Dusen, 654 F.3d 838, 840–41 (9th Cir. 2011)

(alterations).

In deciding whether to grant mandamus

relief, we consider five factors: (1) whether

the petitioner has other adequate means, such

as a direct appeal, to attain the relief he or she

desires; (2) whether the petitioner will be

damaged or prejudiced in a way not

correctable on appeal; (3) whether the district

court’s order is clearly erroneous as a matter

of law; (4) whether the district court’s order

makes an “oft-repeated error,” or “manifests

a persistent disregard of the federal rules”;

and (5) whether the district court’s order

raises new and important problems, or legal

issues of first impression.

Id. at 841 (quoting Bauman v. U.S. Dist. Court, 557 F.2d

650, 654–55 (9th Cir. 1977)). Satisfying the third factor is

IN RE BOON GLOBAL LTD. 7

necessary for granting the writ. In re Henson, 869 F.3d

1052, 1058 (9th Cir. 2017) (per curiam). But a petitioner

need not satisfy all factors. Id. “Mandamus review is at

bottom discretionary—even where the Bauman factors are

satisfied, the court may deny the petition.” San Jose

Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1099

(9th Cir. 1999).

III

We begin with the third Bauman factor, clear error,

because “the absence of the third factor is dispositive.”

Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th Cir. 2010)

(internal quotation marks and ellipsis omitted). A writ of

mandamus “will not issue merely because the petitioner has

identified legal error.” In re Van Dusen, 654 F.3d at 841.

“Mandamus, it must be remembered, does not run the

gauntlet of reversible errors.” Will v. United States, 389 U.S.

90, 104 (1967) (internal quotation marks omitted).

The Third Parties argue that, as foreign corporations with

no contacts in the United States, the court lacks jurisdiction

over them. We agree that the district court erred in

summarily concluding that it had jurisdiction over the Third

Parties, but conclude the district court did not commit clear

error. Moreover, the remaining Bauman factors weigh

against mandamus review. Accordingly, we deny the

petition. The district court must have personal jurisdiction

over each individual third-party entity before compelling

them to arbitrate. See Sinochem Int’l Co. v. Malaysia Int’l

Shipping Corp., 549 U.S. 422, 430–31 (2007) (“[A] federal

court generally may not rule on the merits of a case without

first determining that it has jurisdiction over . . . the parties

(personal jurisdiction).”). Where no federal statute

authorizes personal jurisdiction, the law of the state in which

the district court sits applies. Mavrix Photo, Inc. v. Brand

8 IN RE BOON GLOBAL LTD.

Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011).

California’s long-arm statute authorizes personal

jurisdiction to the extent permitted by the Due Process

Clause of the United States Constitution. Cal. Civ. Proc.

Code § 410.10. “Because California’s long-arm

jurisdictional statute is coextensive with federal due process

requirements, the jurisdictional analyses under state law and

federal due process are the same.” Schwarzenegger v. Fred

Martin Motor Co., 374 F.3d 797, 800–01 (9th Cir. 2004).

Due process, in turn, requires that each party “have certain

minimum contacts” with the forum state “such that the

maintenance of the suit does not offend traditional notions

of fair play and substantial justice.” Int’l Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945) (internal quotation

marks omitted).

A party seeking to establish jurisdiction over a person or

entity can either: (1) show each defendant’s sufficient, direct

contacts with the forum state, or (2) use the alter ego theory

to “extend personal jurisdiction to a foreign parent or

subsidiary when, in actuality, the foreign entity is not really

separate from its domestic affiliate.” Ranza v. Nike, Inc.,

793 F.3d 1059, 1073 (9th Cir. 2015). The party asserting

jurisdiction bears the burden to establish jurisdictional facts.

Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir.

2006). When the party invoking jurisdiction does not ask for

jurisdictional discovery (Indyzen did not), we must evaluate

whether the “pleadings and affidavits establish a prima facie

showing of jurisdictional facts.” Data Disc., Inc. v. Sys.

Tech. Assocs., 557 F.2d 1280, 1286 (9th Cir. 1977).

Although the party asserting jurisdiction is “required only to

establish a prima facie showing of jurisdictional facts,” the

standard is not toothless. Id. at 1285 n.2. The party asserting

jurisdiction “cannot simply rest on the bare allegations of its

complaint”; however, “uncontroverted allegations in the

IN RE BOON GLOBAL LTD. 9

complaint must be taken as true.” Schwarzenegger, 374 F.3d

at 800 (internal quotation marks and citation omitted).

“Conflicts between parties over statements contained in

affidavits must be resolved in the plaintiff’s favor.” Id.

Here, the district court’s analysis concerning whether

Indyzen made a prima facie showing of jurisdictional facts

was flawed. The district court exercised jurisdiction over

Dobson because he “sign[ed] the Agreement to perform the

subject work in California” and over the foreign third-party

entities because they “are closely associated with” Dobson.

“Closely associated” is not a proper jurisdictional test.

Instead, each party’s “contacts with the forum [s]tate

must be assessed individually.” Calder v. Jones, 465 U.S.

783, 790 (1984). The district court therefore erred in not

conducting an individualized jurisdictional analysis for each

third party. A three-part test controls whether non-residents

have sufficient contacts to be subject to specific personal

jurisdiction: (1) the non-resident must purposefully avail

himself of the privilege of conducting business in the forum;

(2) the claim must arise out of the forum-related activities;

and (3) “the exercise of jurisdiction must comport with fair

play and substantial justice, i.e. it must be reasonable.”

Schwarzenegger, 374 F.3d at 802. “The exact form of our

jurisdictional inquiry depends on the nature of the claim at

issue.” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir.

2015). For claims sounding in contract, a purposeful

availment test is used; for claims sounding in tort a

purposeful direction test is used. Id. at 1212.

A.

To begin, we turn to Dobson’s contacts. The district

court did not specify whether it was determining jurisdiction

based on a contract or tort claim. Rather, the district court

10 IN RE BOON GLOBAL LTD.

solely focused on Dobson’s signature on the Agreement with

Indyzen. Dobson signed the Agreement with Indyzen

specifically as CEO of Parkridge, a corporation subject to

California’s jurisdiction through the Agreement. The

district court—with no further analysis—found that

signature sufficient to exercise jurisdiction over Dobson

personally. But, Dobson’s signature on the Agreement as

CEO does not “automatically establish sufficient minimum

contacts in the other party’s home forum.” Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 478 (1985). A corporate

officer does not become a party to the contract simply by

“signing it in the officer’s representative capacity.”

Restatement (Third) of Agency § 6.01, rep. n.2 (Am. Law

Inst. 2003); Forsythe v. Overmyer, 576 F.2d 779, 783–84

(9th Cir. 1978) (“[A] corporate officer who has contact with

a forum only with regard to the performance of his official

duties is not subject to personal jurisdiction in that forum.”).

Therefore, the district court erred.

Indyzen argues we should nevertheless find jurisdiction

over Dobson because he was the “guiding spirit” behind

Parkridge and used “his Additional Sham Companies to steal

the Morfit App and its intellectual property by cloning it

without authorization before renaming it and selling it out to

the world.” Corporate officers can be liable for corporate

actions where they are “the guiding spirit behind the

wrongful conduct, or the central figure in the challenged

corporate activity.” Facebook, Inc. v. Power Ventures, Inc.,

844 F.3d 1058, 1069 (9th Cir. 2016) (internal quotation

marks omitted). Indyzen does not clarify whether its claims

against Dobson sound in contract or tort. 2 Indyzen’s main

2

After the district court entered its order, Indyzen filed a “statement

of particulars on cross-claims” in the arbitration. This court applies “a

general rule against entertaining arguments on appeal that were not

IN RE BOON GLOBAL LTD. 11

complaint appears to be that it never received full payment

under the Agreement, although Parkridge seems to have paid

Indyzen a large sum in 2015. If the claim is for breach of

contract, Dobson would lack sufficient contacts with

California solely because he signed the Agreement in his

capacity as Parkridge’s CEO. See Forsythe, 576 F.2d at

783–84.

For claims sounding in tort, a corporate officer can be

subject to jurisdiction based on his own sufficient individual

contacts with the forum. See Davis v. Metro Prods., Inc.,

885 F.2d 515, 522 (9th Cir. 1989). “But a defendant’s

relationship with a plaintiff or third party, standing alone, is

an insufficient basis for jurisdiction.” Walden v. Fiore,

571 U.S. 277, 286 (2014). As such, to find jurisdiction

Parkridge’s contacts would have to be imputed to Dobson.

See Davis, 885 F.2d at 520 (“Because the corporate form

serves as a shield for the individuals involved for purposes

of liability as well as jurisdiction, many courts search for

reasons to ‘pierce the corporate veil’ in jurisdictional

contexts parallel to those used in liability contexts.”).

To be sure, Dobson, as CEO of Parkridge, had more

contacts with California than the other foreign third-party

entities. Indyzen’s lack of clarity before the district court

and this court, however, makes it difficult to assess a theory

of liability for Dobson sufficient to exercise personal

jurisdiction. For example, in Davis, we found jurisdiction

over a corporation’s only corporate officers because they

solicited business from multiple forum residents, had

presented or developed before the district court.” Peterson v. Highland

Music, Inc., 140 F.3d 1313, 1321 (9th Cir. 1998) (internal quotation

marks omitted). Even so, Indyzen’s precise theory of liability, whether

sounding in contract or tort or both, remains opaque.

12 IN RE BOON GLOBAL LTD.

already defended themselves in multiple lawsuits in the

forum, and were on notice that they could be personally

liable for any securities violations they committed while

conducting business in the forum state. 885 F.2d at 522–23.

Dobson’s contacts, however, may be more analogous to

Picot, where we found that an oral agreement and one

party’s two trips to California “did not create sufficient

minimum contacts to subject him to personal jurisdiction.”

780 F.3d at 1213. If Indyzen’s claims sound in tort, we

cannot say definitively jurisdiction was wrongly exercised,

and therefore the district court did not clearly err.

B.

With respect to the other third-party petitioners, the

district court erred by failing to conduct individualized

inquiries over each third-party entity and by instead

concluding that it could assert personal jurisdiction because

they were “closely associated” with Dobson. Again,

“closely associated” is not the requisite test for jurisdiction.

Applying the proper standards, it is questionable whether

Indyzen has shown that the foreign third-party corporations

maintained sufficient direct contacts with California. To the

extent jurisdiction hinges on Boon and F8 selling apps to

California residents through iTunes and Google Plus, there

is no allegation as to whether Boon and F8 targeted their app

sales at California residents. Mavrix Photo, Inc., 647 F.3d

at 1229 (“[W]e have held that operating even a passive

website in conjunction with something more—conduct

directly targeting the forum—is sufficient.”) (internal

quotation marks omitted). We therefore doubt that Indyzen

has shown facts sufficient to find jurisdiction. Indyzen also

has not shown whether CFYC entered into direct

competition with Indyzen in the California marketplace,

another mechanism to establish jurisdiction. See

IN RE BOON GLOBAL LTD. 13

CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066,

1077–78 (9th Cir. 2011) (finding jurisdiction where

company downloaded intellectual property directly off

website and republished content for purpose of directly

competing in forum state with owner of material).

Nor has Indyzen established that any other third party

purposefully directed activities at California. Indyzen

claims that “CMG and CFYC both consistently sent emails

to Indyzen regarding the Morfit Agreement throughout its

duration,” arguing that their interaction with Indyzen, a

company headquartered in California, established

jurisdiction. However, the “minimum contacts analysis

looks to the [entity’s] contacts with the forum State itself,

not with the [entity’s] contacts with persons who reside

there.” Walden, 571 U.S. at 285.

To the extent Indyzen’s evidence shows connections to

activities in California, the evidence either does not concern

the Third Parties sued in the counterclaim or appears

inadequate for jurisdictional purposes. Indyzen points to an

email from Dobson to Narra stating that R&R Holdings, a

holding company for Parkridge, would pay Indyzen for

services rendered; 3 a list of CFYC trainers, sent at Indyzen’s

request, who would beta test the Morfit App; and CFYC and

CompIndia, an Indian company, coordinating Vietnamese

visas for CompIndia employees. Noticeably absent is any

evidence concerning any third-party cross-defendant other

than CFYC. And CFYC’s limited contacts likely do not

establish CFYC purposely directed activities at California.

Sher v. Johnson, 911 F.2d 1357, 1362 (9th Cir. 1990).

“[B]oth this court and the courts of California have

3

R&R Holdings was not named as a third-party defendant in the

counterclaim.

14 IN RE BOON GLOBAL LTD.

concluded that ordinarily use of the mails, telephone, or

other international communications simply do not qualify as

purposeful activity invoking the benefits and protection of

the forum state.” Roth v. Garcia Marquez, 942 F.2d 617,

622 (9th Cir. 1991) (internal quotation marks and brackets

omitted).

Perhaps the district court meant to apply the alter ego

theory of jurisdiction for the third-party entities. If so, its

analysis was entirely inadequate to establish that the foreign

third-party entities were Parkridge’s alter egos. “California

recognizes alter ego liability where two conditions are met:

First, where there is such a unity of interest and ownership

that the individuality, or separateness, of the said person and

corporation has ceased; and, second, where adherence to the

fiction of the separate existence of the corporation would

sanction a fraud or promote injustice.” In re Schwarzkopf,

626 F.3d 1032, 1038 (9th Cir. 2010) (internal quotation

marks and ellipsis omitted); Ranza, 793 F.3d at 1073 (same

test for personal jurisdiction).

The “unity of interest and ownership” prong requires “a

showing that the parent controls the subsidiary to such a

degree as to render the latter the mere instrumentality of the

former.” 4 Ranza, 793 F.3d at 1073 (internal quotation marks

omitted). While “[t]otal ownership and shared management

personnel are alone insufficient to establish the requisite

level of control,” pervasive control can be shown where one

corporation “dictates every facet of [the affiliate’s]

4

Parkridge and the third-party entities are not parent-subsidiaries,

but the jurisdictional analysis remains the same for sister corporations.

See, e.g., Riddle v. Leuschner, 335 P.2d 107, 110–12 (Cal. 1959)

(applying same alter ego analysis for stockholders and sister

corporations).

IN RE BOON GLOBAL LTD. 15

business—from broad policy decisions to routine matters of

day-to-day operation.” Id. (internal quotation marks

omitted).

Indyzen claims that Parkridge has no physical office

space or employees, and does not observe corporate

formalities like issuing shares or holding annual board

meetings. Indyzen then points to a series of emails and

registered websites that show, at best, the Morfit App was

launched at CFYC headquarters and CFYC registered F8

Vietnam’s website. The Third Parties in turn swear with

conclusory statements in affidavits that they observe

corporate formalities. Indyzen has not presented evidence

that the third-party entities commingled funds with

Parkridge, or that the companies did not maintain corporate

formalities such as keeping their own accounting books or

paying their own taxes. We have previously held that

jurisdiction cannot lie where there is no evidence of

undercapitalization, failure to keep adequate records, or the

free transfer of company assets—all of which would

normally be signs of a sham corporate veil. See id. at 1073–

74. The fact that “[s]ome employees and management

personnel move between the entities . . . does not undermine

the entities’ formal separation.” Id. at 1074.

Further, the district court did not make a finding that

treating the Third Parties as separate corporate forms would

“result in fraud or injustice.” Id. at 1073. Conclusory

allegations that Dobson structures companies to escape

liability are insufficient to confer personal jurisdiction.

Something more is needed. See, e.g., In re Schwarzkopf,

626 F.3d at 1039–40 (alter ego theory recognized where

individual used corporation to acquire asset at time when he

was insolvent); Riddle, 335 P.2d at 112 (finding injustice

would result where jurisdictional facts showed that insolvent

16 IN RE BOON GLOBAL LTD.

company’s assets were transferred to another company as a

means of avoiding creditors). Without determining that both

prongs of alter ego jurisdiction were met, the district court’s

jurisdictional analysis concerning the Third Parties was

flawed. Ranza, 793 F.3d at 1073. 5

IV

In sum, although the district court applied the incorrect

legal tests, and did not provide sufficient jurisdictional

analysis on the current record, we cannot say the district

court’s ultimate finding of jurisdiction was clear error.

Because the district court’s finding of jurisdiction over the

Third Parties could possibly prove correct, the highly

deferential clear error standard is not satisfied, and

mandamus relief is improper.

The other Bauman factors likewise support denying

mandamus relief. Taken together, the first and second

Bauman factors—whether petitioner has other, adequate

means of relief or will suffer irreversible damage or

prejudice—weigh heavily against mandamus review. See In

re Henson, 869 F.3d at 1058 (“[w]e generally examine the

5

The Third Parties also argue the district court erred in binding them

to a contract “they never signed.” However, “nonsignatories of

arbitration agreements may be bound by the agreement under ordinary

contract and agency principles,” which includes veil-piercing/alter ego

and equitable estoppel. Comer v. Micor, Inc., 436 F.3d 1098, 1101 (9th

Cir. 2006). The district court relied on equitable estoppel to bind the

Third Parties to arbitration. But it did not engage in a complete analysis

because it did not consider whether the Third Parties “knowingly

exploit[ed] the agreement.” Mundi v. Union Sec. Life Ins. Co., 555 F.3d

1042, 1046 (9th Cir. 2009) (applying equitable estoppel arbitration

analysis). And the alter ego theory for personal jurisdiction is tied to

whether the Third Parties may be compelled to arbitrate. See supra at

14–16. Therefore, we do not address the arbitration issue separately.

IN RE BOON GLOBAL LTD. 17

first and second factors together”). While, “[a]n order

staying proceedings and compelling arbitration is not a final

decision that is subject to ordinary appeal,” any prejudice to

the Third Parties is ordinarily correctable on appeal from the

final judgment. Id. (citing Johnson v. Consumerinfo.com,

Inc., 745 F.3d 1019, 1021–23 (9th Cir. 2014)) (recognizing

instance where prejudice from district court’s error

compelling arbitration is not correctable on appeal).

The Third Parties argue they lack adequate relief on

appeal because of the “enormous” expense they will incur to

participate in the arbitration. This court, however, has said

“litigation costs are a factor weighing in favor of mandamus

relief only in the most extreme circumstances.” In re Swift

Transp. Co., 830 F.3d 913, 916 (9th Cir. 2016) (internal

quotation marks omitted); see also Bankers Life & Cas. Co.

v. Holland, 346 U.S. 379, 383 (1953) (“extraordinary writs

cannot be used as substitutes for appeals even though

hardship may result from delay and perhaps unnecessary

trial”) (internal citation omitted). Further, “the general rule

[is] that appellate courts should avoid determining

jurisdictional issues on a petition for mandamus.” In re Ivy,

901 F.2d 7, 10 (2d Cir. 1990). Here, denying mandamus

review is also consistent with the Federal Arbitration Act’s

effect of “limit[ing] appeals from orders directing

arbitration.” Bushley v. Credit Suisse First Boston, 360 F.3d

1149, 1153 (9th Cir. 2004). There is no reason to believe

this court could not review jurisdiction on direct review after

arbitration concluded.

Because it remains unclear whether the Third Parties are

subject to the court’s jurisdiction and because the merits of

the counterclaims have yet to be decided, the Third Parties

have not shown they lack an adequate remedy at law or they

will be “damaged or prejudiced in a way not correctable on

18 IN RE BOON GLOBAL LTD.

appeal.” In re Van Dusen, 654 F.3d at 841; see also Cole v.

U.S. Dist. Court, 366 F.3d 813, 822–23 (9th Cir. 2004)

(denying mandamus despite clear error where petitioners

had other adequate means of relief). 6

The remaining Bauman factors similarly do not support

granting the petition for mandamus. The Third Parties have

not shown that the “district court’s order is an oft-repeated

error, or manifests a persistent disregard of the federal

rules.” Bauman, 557 F.2d at 655. Further, while this court

has not often addressed personal jurisdiction over corporate

officers, minimum contacts and alter ego jurisdiction are not

matters of first impression. Id. Although the district court

erred in its jurisdictional analysis and likely erred in its

assertion of jurisdiction based on the record before us,

mandamus is not an appropriate remedy at this stage.

V

Because the Bauman factors do not support granting the

petition for mandamus, it is therefore

DENIED.

6

On mandamus review, we cannot order the district court to revisit

the personal jurisdiction analysis without granting the writ. Still, the

district court should “protect[] an individual’s liberty interest in not

being subject to the binding judgments of a forum with which he has

established no meaningful contacts, ties, or relations.” Burger King

Corp., 471 U.S. at 471–72 (internal quotation marks omitted).