                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



IZUMI OHKUBO,                                    No. 08-17467

              Plaintiff - Appellant,             D.C. No. 5:07-cv-06354-JW

  v.
                                                 MEMORANDUM *
ANTARA BIOSCIENCES, INC.; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                       Argued and Submitted January 14, 2010
                             San Francisco, California

Before: KOZINSKI, Chief Judge, WALLACE and CLIFTON, Circuit Judges.

       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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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


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superfluous because “[j]udicial 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. Pittsburg-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.




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