                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 27 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

YARRY FINE,                                      No. 12-56411

              Plaintiff - Appellant,             D.C. No. 3:12-cv-00165-WQH-
                                                 BGS
  v.

CAMBRIDGE INTERNATIONAL                          MEMORANDUM*
SYSTEMS, INC., a Virginia corporation;
HEATHER SUMMERS; EDWARD
HUGHES, Virginia residents,

              Defendants - Appellees.

                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                            Submitted August 8, 2014**
                               Pasadena, California

Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.

       Appellant Yarry Fine appeals from the judgment of the district court: (1)

dismissing this action for improper venue under 28 U.S.C. § 1406(a); and (2)

dismissing all claims against Heather Summers and Edward Hughes (the individual



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
defendants) for lack of personal jurisdiction. Because the parties are familiar with

the facts and procedural history of this case, we repeat only those facts necessary to

resolve the issues raised on appeal. We reverse in part, vacate in part, and remand.

      This action arises out of the termination of Fine from his employment with

Defendant-Appellee Cambridge International Systems, Inc. Fine is a citizen of

California. Cambridge is a citizen of Virginia. The individual defendants are

citizens of Virginia. Fine’s contract with Cambridge contains a forum selection

clause, stating that any dispute relating to Fine’s employment must be brought in

Virginia.

      Fine filed an action in the Superior Court of California alleging that his

employment was terminated in violation of California law. Defendants removed

the case to the United States District Court for the Southern District of California

on the grounds of diversity of citizenship, and subsequently filed: (1) a motion to

dismiss for improper venue under Rule 12(b)(3); and (2) a motion to dismiss all

claims against the individual defendants for lack of personal jurisdiction. The

district court granted both motions. The district court dismissed the complaint as to

Cambridge under Rule 12(b)(3) because the parties’ forum selection clause states

that any dispute relating to Fine’s employment must be brought in Virginia. The

court held that California does not have specific jurisdiction over the individual

defendants.

                                          2
      In Atlantic Marine Construction Company, Inc. v. United States District

Court for the Western District of Texas, 134 S. Ct. 568 (2013)—which was decided

after the district court issued its decision in this case—the Supreme Court clarified

that Section 1406(a) and Rule 12(b)(3) allow for dismissal only when venue is

“wrong” or “improper.” Id. at 577. Whether venue is “wrong” or “improper”

depends exclusively on whether the court in which the case was brought satisfies

the requirements of federal venue laws, and the existence of a forum selection

clause does not render venue in a court “wrong” or “improper” under these rules.

Id. at 578–79. The Court further held that a forum selection clause may be enforced

by a motion to transfer under 28 U.S.C. § 1404(a). Id. at 579. Accordingly, under

Atlantic Marine, the district court should have assessed the effect of the forum

selection clause only under Section 1404(a). We therefore reverse the portion of

the district court’s order dismissing the action as to Cambridge, and we remand

with instructions that the district court consider Fine’s motion to transfer under

Section 1404(a).1




      1
         We note that Fine originally filed a motion to dismiss for lack of personal
jurisdiction or for improper venue under Fed. R. Civ. P. 12(b)(3), or in the
alternative to transfer to the Eastern District of Virginia. While Fine did not specify
the statute under which he sought to transfer this case, his failure to do so does not
preclude the district court from considering his motion to transfer under 28 U.S.C.
§ 1404. Atlantic Marine calls for such a consideration. Id. at 578.

                                          3
      It was not necessary for the district court to assess whether it has personal

jurisdiction over the individual defendants, and we decline to reach this issue. See

Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 425 (2007)

(“[A] court need not resolve whether it has . . . personal jurisdiction over the

defendant if it determines that, in any event, a foreign tribunal is plainly the more

suitable arbiter of the merits of the case.”). On remand, the district court need only

address personal jurisdiction if it declines to transfer this action under Section

1404(a).2 We therefore vacate the portion of the district court’s order dismissing

the individual defendants for lack of jurisdiction.

      REVERSED IN PART, VACATED IN PART, AND REMANDED.




      2
        If the district court decides to transfer venue, the transferee district court
will determine the question of personal jurisdiction, should it be raised.

                                            4
