NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 7 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARCSONA INC.,
No. 22-15234
Plaintiff - Appellant,
D.C. No. 5:21-cv-05019-VKD
v.
MEMORANDUM*
APPIRIO INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California, San Jose
Virginia K. DeMarchi, Magistrate Judge, Presiding
Submitted December 8, 2022**
San Francisco, California
Before: GRABER, WATFORD, Circuit Judges, and BATAILLON,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska, sitting by designation.
Plaintiff Arcsona Inc. appeals the dismissal of its complaint for failure to
state a claim. We affirm.
Arcsona and Defendant Appirio Inc. (through Co-defendant Daniel M.
Lascell) entered into an “Independent Contractor Agreement.” The agreement
committed Arcsona to provide contract workers to Appirio and to litigate disputes
in either state court in Santa Clara County or federal court in the Northern District
of California. Ultimately, Appirio engaged only two such contractors. Lascell
later admitted his distaste for Arcsona’s CEO and his use of Arcsona’s services
only as a last resort. Arcsona sued for promissory fraud in Santa Clara Superior
Court, and Appirio removed the case to federal court under diversity jurisdiction.
1. Forum-Selection Clause
Forum-selection clauses are presumed valid and enforceable, unless
unreasonable under the circumstances, and are governed by federal common law
and general contract principles, even in diversity. We interpret such a clause de
novo. Yei A. Sun v. Advanced China Healthcare, Inc., 901 F.3d 1081, 1086 (9th
Cir. 2018); Docksider, Ltd. v. Sea Tech., Ltd., 875 F.2d 762, 763 (9th Cir. 1989);
Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987).
The present clause provides:
Any suit . . . arising out of . . . this Agreement shall be
commenced . . . in the Northern District of California or in state
court in Santa Clara County, California, and each party
irrevocably submits to the jurisdiction and venue of such courts.
2
Arcsona contends that Appirio waived its right of removal. We disagree.
An exclusive designation—“[v]enue . . . shall be deemed to be in Gloucester
County, Virginia”—implies waiver of removal. Docksider, Ltd., 875 F.2d at 763–
64. But a non-exclusive designation—“[t]he courts of California, County of
Orange, shall have jurisdiction”—does not. Hunt Wesson Foods, Inc., 817 F.2d at
76–77.
The apparent exclusivity here—“shall be commenced” and “irrevocably
submits”—comprises, in fact, a bargained-for choice of venue: either state or
federal. Nothing about removal offends this agreement. Consent, even
irrevocable, to one venue does not exclude another to which the parties have also
expressly consented. See id. at 77.
Neither of Arcsona’s counterarguments compels. First, forum-selection
clauses raise prudential, not jurisdictional concerns, and no one contests diversity
jurisdiction here. Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir.
2009); Kamm v. ITEX Corp., 568 F.3d 752, 754–56 (9th Cir. 2009); Manetti-
Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir. 1988). Second, no
ambiguity exists to construe against Appirio. Accordingly, the district court did
not err by denying remand.
3
2. Promissory Fraud
A complaint must allege sufficient facts, taken as true, to state a facially
plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Fraud pleadings require particularity, and we
review de novo dismissal for failure to state a claim. Khoja v. Orexigen
Therapeutics, Inc., 899 F.3d 988, 998, 1008 (9th Cir. 2018). We affirm the
dismissal of the complaint.
A promise to act implies an intent to perform, so a promise without such
intent implies misrepresentation. Lazar v. Superior Ct., 909 P.2d 981, 985 (Cal.
1996). Promissory fraud entails a lack of intent to perform a promise when made,
intent to deceive and induce reliance, deception and reliance, and resultant
damages. Fleet v. Bank of Am. N.A., 178 Cal. Rptr. 3d 18, 25 (Ct. App. 2014).
The operative complaint undermines any allegation that Appirio and Lascell
never intended to perform the underlying agreement, which merely committed
Arcsona to “provide professional services . . . [a]t the direction of Appirio” under
certain terms. Appirio could not, having agreed to consider Arcsona’s services,
categorically refuse them. See Locke v. Warner Bros., 66 Cal. Rptr. 2d 921, 925–
26 (Ct. App. 1997). Yet, as the complaint admits, Appirio: (1) engaged two
Arcsona contractors; and (2) avoided further engagement, “unless Appirio had no
choice.” In other words, the complaint contradicts the premise that Appirio
4
categorically refused Arcsona’s services: Appirio did use Arcsona’s services and
did contemplate further use, albeit as backup.
Arcsona fairly notes that Appirio could not have declined to request contract
workers in bad faith. While the implied covenant of good faith and fair dealing
limits discretion, it does not redraft a contract. The agreement did not specify the
circumstances in which Appirio would turn to Arcsona, the number of contractors
it might have needed, or the criteria for choosing. Instead of requiring minimum
engagement, it committed hiring decisions solely to Appirio. The agreement
demanded no more. See Carma Devs. (Cal.), Inc. v. Marathon Dev. Cal. Inc., 826
P.2d 710, 726–28 (Cal. 1992). Because we hold that the operative complaint failed
to state a claim, we need not decide whether Arcsona’s claim would be barred by
California’s economic loss rule.
AFFIRMED.
5