NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MEGGITT SAN JUAN CAPISTRANO, No. 13-56843
INC., a Delaware corporation, d/b/a
Meggitt Sensing Systems, D.C. No. 8:13-cv-00239-DOC-
MLG
Plaintiff - Appellee,
v. MEMORANDUM*
NIE YONGZHONG, an individual, a.k.a.
Bill Nie, a.k.a. William Nie; et al.,
Defendants - Appellants.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted May 12, 2014**
Pasadena, California
Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.
Nie Yongzhong (“Nie”) and Xiamen Niell Electronics Co., Ltd. appeal the
district court’s order granting Meggitt San Juan Capistrano’s (“Meggitt SJC”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
motion for a preliminary injunction and expedited discovery. We affirm in part
and dismiss in part.
1. The district court’s finding that Meggitt SJC owned the trade secrets
at issue was supported by the declarations offered by Meggitt SJC and the parties’
Operations Governance Framework Agreement. The district court therefore
properly exercised diversity jurisdiction over the dispute. See 28 U.S.C. §
1332(a)(2). Subject matter jurisdiction “refers to a tribunal’s power to hear a case”
and presents a separate question from whether the California Uniform Trade
Secrets Act (“UTSA”) applies extraterritorially. Morrison v. Nat’l Austl. Bank
Ltd., 130 S. Ct. 2869, 2877 (2010) (quoting Union Pac. R.R. Co. v. Brotherhood of
Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558
U.S. 67, 81 (2009)) (internal quotation marks omitted). Thus, Appellants miss the
mark in contesting the district court’s exercise of subject matter jurisdiction based
on the extraterritorial reach of the UTSA.
2. Meggitt SJC had standing to request injunctive relief because, as
noted above, the district court correctly found that it owned the trade secrets. The
fact that those trade secrets were disclosed and treated as proprietary to Meggitt
Xiamen does not eliminate Meggitt SJC’s standing. As pleaded in its complaint,
Meggitt SJC derived independent economic value from the general lack of
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disclosure of the trade secrets to the public, and also undertook reasonable efforts
to maintain the confidentiality of those trade secrets. See Cal. Civ. Code §
3426.1(d).
Appellants’ remaining standing-related challenges are actually arguments
pertaining to Meggitt SJC’s likelihood of success on the merits. As such, those
arguments have been waived because Appellants failed to file a timely opposition
to Meggitt SJC’s motion for a preliminary injunction. They are, moreover,
unpersuasive. First, Appellants cite no state authority for the proposition that
Meggitt SJC should have identified the particular trade secrets at the pleading
stage. Rather, the authorities on which they rely simply require a plaintiff to
identify a trade secret “with reasonable particularity” prior to commencing
discovery. See Cal. Civ. Proc. Code § 2019.210; see also Silvaco Data Sys. v. Intel
Corp., 109 Cal. Rptr. 3d 27, 38 (Cal. Ct. App. 2010). Meggitt SJC has done so.
Second, Meggitt SJC adequately alleged that Appellants obtained the trade secrets
at issue through unlawful means. See Cal. Civ. Code § 3426.1(a). Meggitt SJC
contended in its complaint and in its motion for a preliminary injunction that Nie
violated his confidentiality agreement with Meggitt Xiamen. Even though Meggitt
SJC was not a party to this agreement, Appellants nonetheless acquired the trade
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secrets at issue via a “breach . . . of a duty to maintain secrecy.” Id. (emphasis
added).
3. The forum selection clause contained in Nie’s confidentiality
agreement with Meggitt Xiamen neither renders venue improper for purposes of 28
U.S.C. § 1406(a), nor provides a basis for transfer under 28 U.S.C. § 1404(a). See
Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for the W. Dist. of Tex., 134 S. Ct.
568, 579 (2013). Meggitt SJC was not a party to the agreement, and thus is not
bound by it. Moreover, the paragraph to which the forum selection clause applies
does not encompass claims involving alleged misappropriation of trade secrets.
4. Appellants’ arguments regarding federal preemption of Meggitt SJC’s
state and common law claims, and their reliance on TianRui Group Co. Ltd. v.
International Trade Commission, 661 F.3d 1322 (Fed. Cir. 2011), are misplaced.
TianRui Group involved a “distinctly federal concern as to which Congress has
created a federal remedy” within “a field of special federal concern”—namely, the
exclusion of foreign goods pursuant to § 337 of the Tariff Act of 1930 based on a
congressional policy of protecting domestic industries from unfair competition. Id.
at 1327. For that reason, “the case for applying a federal rule of decision [was]
particularly strong.” Id.
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In contrast, “issues of trade secret misappropriation are ordinarily matters of
state law.” Id. Indeed, the Supreme Court has observed that “Congress, by its
silence over these many years, has seen the wisdom of allowing the States to
enforce trade secret protection,” and thus “[u]ntil Congress takes affirmative action
to the contrary, States should be free to grant protection to trade secrets.” Kewanee
Oil Co. v. Bicron Corp., 416 U.S. 470, 493 (1974); see also Henry Hope X-Ray
Prods., Inc. v. Marron Carrel, Inc., 674 F.2d 1336, 1339 (9th Cir. 1982) (“Trade
secret protection is governed by state law.”).1
5. Appellants’ arguments regarding the scope and form of the
preliminary injunction have been waived. See Barrientos v. 1801-1825 Morton
LLC, 583 F.3d 1197, 1215–16 (9th Cir. 2009).
6. We lack jurisdiction to consider Appellants’ arguments regarding
expedited discovery. Appellants are not entitled to an interlocutory appeal as a
matter of right under 28 U.S.C. § 1292(a). The district court has not certified in an
order under 28 U.S.C. § 1292(b) that the issue presented by Appellants involves a
“controlling question of law as to which there is substantial ground for difference
1
We decline to address Appellants’ state law preemption arguments. The
district court specifically noted that the injunctive relief requested by Meggitt SJC
was “fully supported by [its] California Uniform Trade Secrets Act claim,” and
Appellants offer no argument that this decision constituted an abuse of discretion.
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of opinion.” Finally, Appellants cannot rely on pendent appellate jurisdiction, as
they fail to explain how the operation of California Civil Procedure Code §
2019.210 is either “inextricably intertwined with, or necessary to ensure
meaningful review of” the preliminary injunction at issue on appeal. Burlington N.
& Santa Fe Ry. Co. v. Vaughn, 509 F.3d 1085, 1093 (9th Cir. 2007). At best, they
suggest that § 2019.210 “assists the court and parties in defining the appropriate
scope of discovery.” Appellants’ Opening Br. 15 (quoting Soc. Apps, LLC v.
Zynga, Inc., No. 4:11-CV-04910 YGR, 2012 WL 2203063, at *2 (N.D. Cal. June
14, 2012)).
AFFIRMED IN PART; DISMISSED IN PART.
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