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Therabionic, LLC v. Costa

United States District Court, N.D. Alabama, Southern Division

April 16, 2019




         Despite his express consent to this forum and his consent to the court's jurisdiction over him in a contract, Defendant Dr. Frederico Perego Costa asks the court to dismiss this breach of contract case for forum non conveniens and lack of personal jurisdiction. He also contends that Plaintiff TheraBionic, Inc. has failed to state a claim upon which relief can be granted. (See Doc. 31).

         Dr. Costa, a Brazilian oncologist, will no doubt suffer inconvenience from proceeding in this forum. But inconvenience alone does not support forum non conveniens and he bargained for the inconvenience. No. private or public considerations outweigh Dr. Costa's and TheraBionic's choice of this forum or compel the court to find that the parties must litigate this case elsewhere. Also, no reason exists to release Dr. Costa from his contractual consent to this court's jurisdiction over him. And, rounding out Dr. Costa's theories for dismissal, TheraBionic alleges a plausible breach of contract in this case. So the court will deny Dr. Costa's motion to dismiss.


         Given the breadth of Dr. Costa's motion to dismiss, the court must analyze his motion under three different standards of review: (1) forum non conveniens; (2) Federal Rule of Civil Procedure 12(b)(2); and (3) Rule 12(b)(6).

         A. Forum non conveniens

         The doctrine of forum non conveniens grants a district court the discretion to dismiss a case, even when venue is proper, “when considerations of convenience, fairness, and judicial economy so warrant.” Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 432 (2007). To obtain dismissal based on forum non conveniens, the moving party must demonstrate that “(1) an adequate alternative forum is available[;] (2) the public and private factors weigh in favor of dismissal[;] and (3) the plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice.” Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001).

         The court reviews a motion to dismiss for forum non conveniens under the same standard as a motion to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3). Micor Indus., Inc. v. Mazak Corp, 2018 WL 804303, at *4 (N.D. Ala. Feb. 9, 2018). So, the court accepts the facts alleged in the complaint as true, “to the extent they are uncontroverted by defendants' affidavits.” Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990). If the parties dispute the facts, the court must “give greater weight to the plaintiff's version of the jurisdictional facts” and “construe such facts in the light most favorable to the plaintiff.” Id.

         B. Rule 12(b)(2)

         A Rule 12(b)(2) motion attacks the court's jurisdiction over the defendant's person. The plaintiff initially bears the burden of making a prima facie showing in his complaint of the court's personal jurisdiction over the defendant. S & Davis Intern., Inc. v. The Republic of Yemen, 218 F.3d 1292, 1303 (11th Cir. 2000) (quotation omitted). And the court accepts the facts alleged in the complaint as true. Id.

         If the defendant challenges personal jurisdiction with affidavit evidence, “the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction.” Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). And if the “plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable inferences in favor of the plaintiff.” Id.

         As the court discusses in detail below, because of a valid and reasonable forum selection clause, the court does not need to review the sufficiency of the defendant's contacts with Alabama to determine the existence of personal jurisdiction.

         C. Rule 12(b)(6)

         Under Rule 12(b)(6), a defendant can move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” The complaint will survive the motion to dismiss if it alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         For a complaint to be “plausible on its face, ” it must contain enough “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And the court accepts as true the factual allegations in the complaint. Id.

         But not all allegations can defeat a motion to dismiss. “[L]abels and conclusions” and speculation “will not do.” Twombly, 550 U.S. at 555. So, the court will look only at well-pled facts, and if those facts, accepted as true, state a plausible claim for relief, then the complaint will survive the motion to dismiss. Iqbal, 556 U.S. at 678.


         This case involves complex subject matter spanning several years and countries. But TheraBionic's many claims rest on a simple contention-that Dr. Costa breached his contract and exploited TheraBionic's confidential information.

         From 2001 to 2007, Drs. Boris Pasche and Alexandre Barbault developed devices that transmitted electromagnetic fields at specific frequencies to treat cancer patients. In 2007, Drs. Pasche and Barbault founded TheraBionic to commercialize their proprietary cancer treatment technology.

         Dr. Costa played a pivotal role in developing TheraBionic's technology. Specifically, beginning in 2005, with Drs. Pasche and Barbault's consent, Dr. Costa tested their OncoBionic P1 device on his patients in Brazil with advanced hepatocellular carcinoma. The parties call Dr. Costa's research the “Phase II Study.” Dr. Costa conducted the Phase II Study in Brazil subject to a nondisclosure agreement executed in 2003. The NDA provided that “Dr. Costa agreed not to disclose any of Drs. Pasche and Barbault's Confidential Information and agreed that all documents and materials containing any Confidential Information shall remain the property of Drs. Pasche and Barbault.” (Doc. 14 at ¶ 18). The parties renewed the NDA in 2007 “to ensure the continued confidentiality of [Drs. Pasche and Barbault's] inventions.” (Id. at ¶ 21).

         In 2012, Dr. Costa asked TheraBionic, which was then located in Birmingham, Alabama, if he could use the OncoBionic P1 devices that remained in Brazil from the Phase II Study for further research. TheraBionic agreed and helped set up the devices for Dr. Costa in Brazil and instructed him on how to use the devices with TheraBionic's proprietary methods and procedures.

         As a prerequisite to Dr. Costa's research beginning in 2012, the parties again executed an NDA. TheraBionic's ...

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