1. A Question of Jurisdiction Jiwon Kang 0969005 Seong Yeon Kim 0969013 Heather Wogden IES10244

2.  Facts  Background  Main IRAC  Plaintiff’s arguments

3.  Plaintiff: Asante Technologies Inc.  Defendant: PMC-Sierra, Inc.  Defendant’s authorized distributor: Unique Technologies

4.  Plaintiff’s complaint  Plaintiff filed the action in the Superior Court  Defendant removed the action to the District Court  Plaintiff now requests to remand the action back to the Superior Court ->the core issue: jurisdiction

5.  FEDERAL QUESTION “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”

6.  PROCEDURE AFTER REMOVAL GENERALLY “A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446 (a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. ….”1446(a)

7. Defendant (Federal Jurisdiction) VS. Plaintiff (lack of federal court’s subject matter jurisdiction) -> DOES FEDERAL COURT HAVE JURISDICTION OVER THIS CASE?

8.  Issue: Does federal jurisdiction apply in this case?  Rule: US code, title 28, section 1331  Apply: Federal jurisdiction applies because CISG is a treaty which US has ratified.  Conclusion: Yes, CISG does govern this case.

9.  Issue: Does CISG govern this case?  Rule: CISG only applies when a contract is between parties whose places of business are in different states.  Apply: Plaintiff- USA Defendant- also USA?  Conclude: No, CISG does not govern this case as both parties are from the same state? -> REJECTED

10.  Issue: Does CISG govern this case?  Rule: Article 6 of the CISG  Apply: “Terms and Conditions” reflect the parties’ intent to “opt out?”  Conclude: No, CISG does not govern this case as there was an intent to “opt out?” ->INADEQUATE

11.  Issue: Does CISG govern this case?  Rule: Well-Pleaded Complaint Rule  Apply: Complaint does not refer to the CISG.  Conclude: No, CISG does not govern this case as the plaintiff’s well-pleaded complaint does not raise issues of federal law? ->CISG PREEMTS!!

12.  Therefore, Plaintiff’s Motion to Remand is DENIED, and the CISG, the Federal court,has jurisdiction over this case.