United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
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).
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
STANDARD OF REVIEW
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).
Forum non conveniens
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).
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.”
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.
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
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.
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).
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.
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.
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.
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.
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).
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
prerequisite to Dr. Costa's research beginning in 2012,
the parties again executed an NDA. TheraBionic's ...