IN RE ORANGE, S.A.; ANNE BENRIKHI; DIMITRI DELMAS; OLIVER GODINIAUX; GUILLAUME GUIMOND; FABRICE PETESCH; JACQUES VIEL; BARBARA BOBILLIER; BENOIT AMET; THOMAS LESENECHAL; FLORIAN DE SA; ANTOINE LECOUTTEUX, ORANGE, S.A.; ANNE BENRIKHI; DIMITRI DELMAS; OLIVER GODINIAUX; GUILLAUME GUIMOND; FABRICE PETESCH; JACQUES VIEL; BARBARA BOBILLIER; BENOIT AMET; THOMAS LESENECHAL; FLORIAN DE SA; ANTOINE LECOUTTEUX, Petitioners,
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent, TELESOCIAL, INC., Real Party in Interest
and Submitted October 19, 2015, San Francisco, California
panel denied a petition for a writ of mandamus, brought by
Orange, S.A., and several of its employees, under 28 U.S.C.
§ 1651, asking this court to direct the district court
to dismiss Telesocial, Inc.'s First Amended Complaint.
and Telesocial executed a non-disclosure agreement ("
NDA" ) concerning a custom software application named
" Call Friends." Telesocial filed an action in the
Northern District of California, alleging violations of the
Computer Fraud and Abuse Act, and California state law
claims. The district court denied Orange's motion to
dismiss Telesocial's First Amended Complaint based on
forum non conveniens.
denying Orange's petition for writ of mandamus, the panel
applied the factors in Bauman v. United States, 557
F.2d 650, 654 (9th Cir. 1977), and concluded that the
district court did not commit clear legal error in
determining that the NDA did not cover the claims at issue;
Orange had the ability on direct appeal to attain the relief
it desired; Orange would not be prejudiced in a way that was
not correctable on appeal; and the district court's
decision did not raise a novel issue that affected the
international business community.
Schimmel (argued) and Anthony D. Mirenda, Foley Hoag, New
York, New York; Michael H. Page, Durie Tangri, San Francisco,
California, for Petitioners.
L. Singer (argued) and Renee B. Bea, Colt Singer Bea, San
Francisco, California; Matthew S. Warren and Patrick M.
Shields, Warren Lex, San Francisco, California, for
J. Clifford Wallace, Dorothy W. Nelson, and Richard R.
Clifton, Circuit Judges.
Clifford Wallace, Senior Circuit Judge.
S.A. and several of its employees (collectively, Orange) ask
this court to issue a writ of mandamus under 28 U.S.C. §
1651 directing the district court to (1) vacate its order
denying Orange's motion to dismiss and (2) direct an
entry of judgment dismissing Telesocial, Inc.'s
(Telesocial) First Amended Complaint (FAC). We have
jurisdiction pursuant to the All Writs Act, 28 U.S.C. §
1651(a), and decline to issue the writ. Under 28 U.S.C.
§ 1291, we have " jurisdiction of appeals from all
final decisions of the district courts." Special
Investments, Inc. v. Aero Air, Inc., 360 F.3d 989, 993
(9th Cir. 2004). A district court's decision is
appealable under section 1291 only when the decision ends the
litigation on the merits and leaves nothing for the court to
do but execute the judgment. Confederated Salish v.
Simonich, 29 F.3d 1398, 1401 (9th Cir. 1994) (internal
quotation and citation omitted). A district court order
denying a motion to dismiss for forum non conveniens is not a
final decision for purposes of section 1291. Van
Cauwenberghe v. Biard, 486 U.S. 517, 529, 108 S.Ct.
1945, 100 L.Ed.2d 517 (1988). Nevertheless, under the All
Writs Act, if we would have the power to entertain appeals at
some stage of the proceedings, we have the power to issue
writs of mandamus in the case. United States v.
Harper, 729 F.2d 1216, 1221 (9th Cir. 1984).
is a San Francisco start-up, formed in 2008, to solve a
unique telecommunications problem: how to enable telephone
calls between users of social media without the need for
telephone numbers. To remedy the problem, Telesocial created
a custom software application (app) named " Call
Friends," which allows users of social networks (such as
Facebook) to place carrier-based phone calls directly to
a French telecommunications provider, approached Telesocial
in February 2012 about a possible agreement to acquire the
app. Over the next several months, Telesocial demonstrated
its software and arranged for Orange staff to test the
product. To test the product, Telesocial allowed Orange
personnel in the United States to download and use the
demonstration app without restriction. Because Telesocial had
to pay for its users' international calls, it required
overseas users to insert a password. On April 18, 2012,
Telesocial provided Orange with the password--"
CALLFRIENDS" --and confirmed that Orange had overseas
access to test the app.
after, on April 25, 2012, Orange and Telesocial executed a
non-disclosure agreement (NDA). The NDA specifies that the
" [p]arties desire to have certain business discussions
with regards to a possible contractual relationship" and
that they " wish to reciprocally protect and safeguard
any information they may disclose to each other during their
[d]iscussions, and intend to hold such disclosures in
confidence." The NDA protected all " confidential
information," which it defined as all non-public
information that either party disclosed during the
discussions, from being disclosed to third parties, used for
purposes beyond the discussions, or otherwise distributed.
The NDA excluded some confidential ...