Tribank Capital Investments, Inc. v. Orient Paper, Inc.

MEMORANDUM

Appellant Tribank appeals the district court’s order granting Orient’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(3) for improper venue, pursuant to a forum selection clause contained in the Consulting Agreement. We have jurisdiction under 28 U.S.C. § 1291 . Because we conclude that the record is not sufficiently developed to make a determination as to whether the forum selection clause contained in the Consulting Agreement applies to Tribank, we reverse and remand to the district court.

As a preliminary matter, we hold that the district court did not abuse its discretion in determining that it could consider the Consulting Agreement under the incorporation by reference doctrine. The authenticity of the Consulting Agreement is uncontested, and Tribank’s complaint “necessarily relies on” the Consulting Agreement, Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir.2001) (internal quotation marks omitted); see also Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007) (per curiam), because it is key to helping the court determine the nature of the contractual relationships among Tribank, Linear, and Orient, including the question of whether the parties…