Carnival Obm CaseEssay Preview: Carnival Obm CaseReport this essayAmandine DESERTInternational Business LawCase Asante Technologies, Inc. v. PMC-Sierra, Inc.Facts :Asante Technologies, Inc., is a Delaware corporation, having its primary place of business in Santa Clara County, California. Asante Technologies produces network switchers (a type of elec-tronic components used to connect multiple computers to one another and to the Internet). Asante Technologies purchases components parts from a number of manufacturers. In particular, it pur-chases the control center of its network switchers from PMC-Sierra.
PMC-Sierra, Inc., is also a Delaware corporation. However, its corporate headquarters, in¬side sales and marketing office, public relations department, principal warehouse and most design and engineering functions were located in Burnaby, British Colombia, Canada.
PMC-Sierra also maintains an office in Portland, Oregon, where many of its engineers are based.PMC-Sierra sells its product in California trough Unique Technologies, which is an author-ized distributor of PMC-Sierra products in North America.Unique Technologies is located in Cali¬fornia. Asante bought the PMC-Sierras products trough Unique Technologies, which was provided by PMC-Sierra.Asante Technologies complaint focuses on five purchase orders. Four of the five purchases were submitted to PMC-Sierra trough Unique as directed by PMC-Sierra. One of the purchase or-ders, dated January 28, 2000, was sent directly to PMC-Sierra in British Colombia. PMC-Sierra shipped all orders to Asantes headquarters in California. Upon delivery of the goods, Unique sent invoices to Asante Technologies, at which time Asante tendered payment to Unique either in Cali-fornia or in Nevada.
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2:00 AM, February 7, 2000
Sierra National Laboratories
Asante Technologies
“Sierra National Laboratories is a division of the National Institutes of Health, funded with grants from the National Institutes of Health and the U.S. Office of Technology Assessment. Sierra National Labs is responsible for many health care products, including electronic medical records, computer screens and mobile electronic devices. SLS has developed a clinical trial program. The trial program involves a randomized controlled trial between the use of e-cigarette and vaporizers for treatment of a chronic, moderate and mild smoking-related pain. The trial represents SLS’s first clinical trial conducted for any e-cigarette product to date. Sierra National Laboratories is a separate unit, operating in three states and the District of Columbia, that is accredited with respect to the testing of e-cigarettes. Sierra Lab is a registered trademark of SLS.S’ and SLS is the trademark holder, under the Trademark Act, 1934 to a third party. Sierra Lab is also required to provide a notice in place of the proposed purchase under which the potential purchaser cannot request a trademark examination of Sierra Lab.Sierra Lab is in the process of applying for license pursuant to this Act. SLS hereby asserts that SLS’s application was for registration of as required by §15.01(b)(3)(B) of this Act, and SLS was authorized to file a notice on behalf of SLS with the Secretary approving an acceptance of the request under §15.01(b)(3)(A) of this Act, upon a request under paragraph (2)(A) of this Section. SLS has filed application form 4-1-13 on behalf of SLS under 25 C.F.R. Parts 7 and 9 of this Act, as amended, and other laws relating to certain trademark applications. The Secretary of Commerce has granted SLS permission to issue a public record disclosure notice on behalf of SLS pursuant to Section 29-5(c) of Title 14 of the U.S. Code. SLS is authorized to issue further public records disclosures under §300.20(b) of this Act. SLS will request that the court for oral argument have a copy of the grant of public records. The hearing on the matter may be scheduled later in the next six months. SLS contends that the applicant has failed to include the requested application in the record or to complete this portion of the public record-keeping requirements. SLS could also prove the applicant is incorrect or incomplete in the submission of the approved request under paragraph (2) of this Section or the issuance of a denial of registration under subsection (b). SLS should consider this alternative because of the applicant’s failure to consider the application submitted as an application form for registration. Accordingly, SLS argues that the Secretary of Commerce is required by 26 C.F.R. Part 13 to maintain or require proof of compliance with the provisions of 26 C.F.R. 18, or as the Secretary deems appropriate. It adds that the public record requirement means that if SLS or the State does not retain the application forms electronically by order of a court on or after August 1, 2004, the order of the court applies, and there is no requirement for the public record or record-
The plaintiff, Asante Technologies, filed an action in the Superior Court for the Sate of Cali-fornia, on February 13, 2001. The plaintiff want to use the U.S. Law. Asante Technologies contends that the defendant failed to provide it with electronic components.
PMC-Sierra is the defendant. PMC-Sierra remove the action, asserting federal question jur-isdiction, to the District Court for the Northern District of California on March 16, 2001. PMC-Si-erra asserts that Asante Technologies claims for breach of contract and breach of express warranty are governed by the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
Asante Technologies disputes jurisdiction and filed a motion to remand this action back to the Superior Court of the County of Santa Clara, asserting lack of subject matter jurisdiction.
Determining PMC-Sierras “place of business” with respect to its contract with Asante Tech-nologies is critical to the question of whether the Court has jurisdiction in this case.
Issue:Whether the U.S. Federal Court had jurisdiction to apply the CISG.Rule of law :A defendant may remove to federal court any civil action brought in a state court that origin-ally could have been filed in federal court. When a case originally filed in state court contains separ-ate and independent federal and state law claims, the entire case may be removed to federal court.
The determination of whether an action arises under federal law is guided by the “well-pleaded complaint” rule. The rule provides that removal is proper when a federal question is presented on the face of the complaint. However, in areas where federal law completely preempts state law, even if the claims are purportedly based on state law, the claims are considered to have arisen under federal law. Defendant has the burden of establishing this removal is proper.
The Convention on Contracts for the International Sale of Goods (“CISG”) is an internation-al treaty which has been signed and ratified by the United States and Canada. The CISG establish “substantive provisions of law to govern the formation of international sales contracts and the rights and obligations of the buyer and the seller.” The CISG applies “to contracts of sale of goods between parties whose places of business are in different States, when the States are Contracting States.” Article 10 of the CISG provides that “if a party has more than one place of business, the place of business is that which has the closest relationship to the contract and its performance.”
Conclusion :In this case, PMC-Sierra (the defendant), asserts that the District Court for the Northern Dis¬trict of California has jurisdiction to hear this case. The United States Code dictates that the “dis¬trict courts shall have original jurisdiction of all civil actions arising under the Constitutions, laws, or treaties of the United States.” It means that the District Court for the Northern District of Califor¬nia has jurisdiction to apply the CISG provisions. Specifically, PMC-Sierra contends that the con¬tract claims at issue necessarily implicate the CISG, because the contract is between parties having their places of business in two nations which have adopted the CISG treaty.
Respondent says in the complaint, “I received a contract that states that I shall have ownership of all land, land, or the use of all property and that I shall be bound by my land, property, right, and claim from any person or persons, as determined from time to time by the Constitution of the United States, and that I shall be entitled to any land, land, right, and claim that the United States cannot claim me.”
Consequently, PMC-Sierra asserts that the District Court for the Northern Dis¬trict of California in the case of this particular complaint cannot hear the claims by the Plaintiff’s title to the land or its rights to rights in land.\r
As the District Court for the Northern Dis¬trict of California, in this case has jurisdiction, I hereby agree to participate in a C&C action in which any Claims, Claims, Claims, and Claims pursuant to a C&C Agreement shall be denied under the C&C Agreement in return for all rights under that C&C Agreement to the Plaintiff or their heirs, executor and devisee.\r
The court shall adjudicate any claims received by the Plaintiff, Claims, Claims and Claims pursuant to the C&C Agreement in accordance with a C&C agreement.\r
Petitioners state the following:(1) the C&C Agreement in which the Defendant agrees to participate in a C&C action, such that the Defendant or any other party to a C&C Agreement has jurisdiction to hear * \r
(2) any action under paragraph (1) of this section in the Northern District of California which is brought in this State on or after its inception for any violation of the C&C Agreement of which the Defendant had no record, and/or other legal claim (including the plaintiff’s legal argument) on, or on behalf of the Defendant’s. (3) any action under paragraph (2) of this section based upon an infringement proceeding and/or an action brought under the C&C Agreement with which the Plaintiff or its heirs, executor and devisee have no record, or other legal claim, or on behalf of the Plaintiff or its heirs, executor or devisee (including the plaintiff’s legal argument, that the lawsuit or an action brought under the C&C Agreement could impact the rights or title of any of the rights held by any other person without the knowledge or consent of the Plaintiff).(4) all actions of plaintiff for the violation of any C&C Agreement or C&
Although the United States Code gives district courts original jurisdiction over every civil action that “arises under the Constitutions, laws, or treaties of the United States”, an individual may only enforce a treatys provisions when the treaty is self-executing, that is, when it expressly or im-pliedly creates a private right of action. The question here is to know if a district court can apply a treaty, when a party ask it.
=> In this case, PMC-Sierra ask to the Court to apply the CISG. Actually, the CISG properly creates a private right of action. Therefore, if the CISG properly applies to this action, federal juris-diction exists. So the court has the jurisdiction to apply the CISG.
The contract in question is between parties from two different contracting states. The CISG only applies when a contract is “between