Izumi OHKUBO, Plaintiff-Appellant, v. ANTARA BIOSCIENCES, INC.; et al., Defendants-Appellees, 364 F. App'x 340

MEMORANDUM Izumi Ohkubo appeals the district court’s dismissal of this action upon Defendants’ Rule 12(b)(3) motion to dismiss for improper venue. The district court held that a forum selection clause in the parties’ investment agreement designated the Tokyo District Court the exclusive forum for lawsuits related to the agreement, making venue in the Northern District of California improper. Because “the

interpretation of contractual language in [this] forum selection clause does not turn on the credibility of extrinsic evidence but on an application of the principles of contract

interpretation, we review the district court’s

interpretation de novo.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir.2009). We affirm the district court’s judgment and do not reach Defendants’ alternative argument that the case should be dismissed on forum non conveniens grounds. The district court analyzed an English translation of the parties’ investment agreement that Ohkubo attached to his complaint. “Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.” Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir.1988).

As a “factual assertion” of the correct English rendering of the parties’ Japanese-language agreement, Ohkubo’s translation was such a judicial admission. Ohkubo could have sought to amend, but did not. Nor, as counsel clarified at oral argument, did he provide the court with an alternative translation, which might have been considered a tacit motion to amend. With no alternative English translation to consider, the court was entitled to rely upon the only English version of the agreement before it.

Ohkubo’s later-submitted evidence that articles do not exist in the Japanese language is superfluous because “[judicial admissions ... have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact.” Am. Title Ins. Co., 861 F.2d at 226. Ohkubo’s translation — a judicial admission that he never attempted to amend — eliminated the need for any further evidence on how the forum selection clause should be translated.

The translated forum selection clause reads: “The Tokyo District Court shall be the court with jurisdiction regarding lawsuits related to this Memorandum.” This clause uses “language that clearly designates a forum as the exclusive one.” N. Cal. Dist. Council of Laborers v. Pitts burg-Des Moines Steel Co., 69 F.3d 1034, 1037 (9th Cir.1995). “[T]he word ‘shall’ is a mandatory term,” Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir.1987), and “the court with jurisdiction” expressly indicates exclusivity in a way that the clause at issue in Hunt Wesson did not.

Because the existing record supports our decision, Defendants’ motion for permission to file a request for judicial notice and Ohkubo’s conditional request for judicial notice are denied as moot. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.