United States District Court, N.D. Alabama, Southern Division
ALBERT KOSTER, EUROBOOR B.V., EUROBOOR USA, INC., EUROBOOR FZC, Plaintiffs/Counterclaim Defendants,
ELENA GRAFOVA Defendant/Counterclaim Plaintiff.
OWEN BOWDRE, CHIEF UNITED STATES DISTRICT JUDGE.
case contains all the hallmarks of a Hollywood blockbuster:
divorce, deception, courtroom drama, and hundreds of
thousands of dollars exchanging hands across international
borders. Federal courts rarely involve themselves in divorce
or family proceedings, but this case more than makes up for
the lack of such cases up to this point.
the divorce action is not pending here, the case before this
court stems from the complicated relationship between Albert
Koster and Elena Grafova. The two began a romantic
relationship, eventually marrying, and quickly thereafter
developed a business relationship relating to Mr.
Koster's Euroboor entities.
Mr. Koster nor Ms. Grafova heeded the age-old advice to avoid
mixing business with pleasure. Both their marriage and their
business relationship deteriorated. Mr. Koster and his
Euroboor entities sued Ms. Grafova for accessing protected
business financial information without authorization,
disclosing confidential business data and financial records
without authorization, and trespassing Euroboor's chattel
relating to Euroboor's computer systems and files. Ms.
Grafova countersued Mr. Koster and the Euroboor entities for
fraudulent inducement to move to the United States,
conversion of her personal belongings, fraudulent inducement
to enter into an agreement to loan Euroboor FZC money, and
breach of that loan agreement.
Koster, Euroboor B.V., Euroboor USA, and Euroboor FZC
(collectively “Plaintiffs”) have filed two
motions to dismiss Ms. Grafova's counterclaims. Euroboor
B.V., Euroboor USA, and Mr. Koster raise four grounds for the
dismissal of Ms. Grafova's counterclaims: (1) the court
should dismiss Ms. Grafova's conversion claims under
forum non conveniens; (2) the court should dismiss Ms.
Grafova's conversion claim under the international
abstention doctrine; (3) the court lacks subject matter
jurisdiction over Ms. Grafova's fraudulent inducement
claims because they are not yet ripe; and (4) Ms. Grafova
failed to plead fraud with the particularity required under
Federal Rule of Civil Procedure 9(b). (Doc. 68). Euroboor FZC
raises three of the same grounds for dismissal-forum non
conveniens, ripeness, and Rule 9(b)-and no additional
grounds. (Doc. 70).
parties fully briefed the motions. The motions are now ripe for
review. For the reasons discussed below, the court will GRANT
IN PART and DENY IN PART Mr. Koster, Euroboor B.V., and
Euroboor USA's motion to dismiss, (doc. 68), and will
DENY in its entirety Euroboor FZC's motion to dismiss,
1, 2014, Ms. Grafova entered into an “Employment
Contract for an Indefinite Period of Time” with
Euroboor B.V. as Marketing Sales Manager of the Eastern
European Territories. (Doc. 56 at 4). She worked in the
Liedschendam office in The Netherlands. Ms. Grafova claims
she also performed Chief Financial Officer duties as soon as
she began working for Euroboor.
September 26, 2014, Ms. Grafova married Mr. Koster.
Grafova alleges that Mr. Koster “was looking for
cash-flow to operate his family of Euroboor companies”
and that he “was aware that Ms. Grafova had substantial
independent wealth.” (Doc. 56 at 4). In January 2015,
Mr. Koster requested that Ms. Grafova provide financial
assistance to expand Euroboor. Ms. Grafova agreed to loan
Euroboor $175, 000 with a 6% interest rate on January 15,
2015. Mr. Koster continued to solicit money from Ms. Grafova,
stating that he needed loans “to create cash flow for
his family of Euroboor companies.” (Id. at 5).
acquiring more loans from Ms. Grafova, Mr. Koster decided to
create a Euroboor entity in the United States known as
Euroboor USA. Mr. Koster used Gregory Bryant of Bryant Law
Group P.C. to apply for a State of Alabama Certificate of
Registration for Euroboor USA. Mr. Koster again sought loans
from Ms. Grafova. He offered her a 20% ownership stake in
Euroboor FZC in addition to 6% interest payments on the money
Ms. Grafova had loaned Euroboor in February
2015. In May 2015, Ms. Grafova accepted Mr.
Koster's offer and became a 20% shareholder in Euroboor
FZC. Later, Ms. Grafova learned that Mr. Koster offered her
an ownership interest because “it was a prerequisite to
obtaining further loans from her for Euroboor FZC.”
(Doc. 56 at 6).
11, 2015, Euroboor USA received its State of Alabama
Certificate of Registration, which authorized Euroboor USA to
conduct business in Alabama beginning on August 1, 2015.
summer 2015, Mr. Koster continued to seek loans from Ms.
Grafova to Euroboor FZC. Ms. Grafova alleges that Mr. Koster
offered to pay the loaned money back in full and to pay Ms.
Grafova quarterly interest payments. In exchange for
additional loans, Mr. Koster promised to give Ms. Grafova
more management responsibilities at Euroboor, particularly
with Euroboor USA. Following this offer, Ms. Grafova made two
more loans to Euroboor FZC: $560, 000 on September 26, 2015,
and $140, 000 on December 7, 2015. Both loan agreements
stated that Euroboor FZC would make quarterly payments to Ms.
Grafova with an interest rate of 6% “over the principal
sum and/or the remaining debt” to begin on January 1,
2016, with the repayment of the principal due on December 31,
early 2016, Mr. Koster, as President and CEO of Euroboor B.V.
and Euroboor USA, suggested that Ms. Grafova become the CFO
of Euroboor USA. Mr. Koster told her that Euroboor USA would
sponsor her as its CFO for three years and Euroboor B.V.
would cover her travel and relocation costs. Ms. Grafova
agreed to move to Birmingham, Alabama to work as Euroboor
early 2017, Euroboor B.V., Euroboor USA, and Mr. Koster began
the process to file a petition to obtain an L-1 work visa for
Ms. Grafova. Several months later, Ms. Grafova indicated that
she no longer wished to relocate to the United States or to
become CFO. Mr. Koster reassured Ms. Grafova that she had the
qualifications necessary to serve as CFO, that she could live
in the United States for three years, and that Euroboor B.V.
would cover her relocation expenses. Ms. Grafova again agreed
to move to Birmingham as CFO.
USA filed the petition to obtain an L-1 work visa for Ms.
Grafova on July 19, 2017. Mr. Koster signed the employer
support letter filed with the petition. On September 12,
2017, Ms. Grafova's L-1 work visa was approved. She
obtained her visa on October 26, 2017. On October 30, 2017,
Ms. Grafova entered the United States on her L-1 visa and
began working as Euroboor USA's CFO. Her visa allowed her
to remain until September 11, 2020, as long as Euroboor USA
employed her as CFO.
Grafova purchased a home in Birmingham. She packed 35 boxes
filled with her belongings at Mr. Koster's home in The
Netherlands to be shipped to the United States, which Ms.
Grafova alleges were worth over $250, 000. Ms. Grafova also
left at Mr. Koster's house a motorcycle and its
accessories and a Venetian vase, all to be shipped to the
United States. Mr. Koster and Euroboor B.V. assured Ms.
Grafova that they would ship her belongings to the United
States. Ms. Grafova coordinated this shipment with Mr. Koster
and “other Euroboor employees, including an employee
named ‘Dagmar.'” (Doc. 56 at 10). On October
31, 2017, Mr. Koster emailed Ms. Grafova to inform her that
her belongings were being shipped and would arrive the next
around November 6, 2017, Mr. Koster allegedly requested that
Ms. Grafova transfer funds from Euroboor FZC to his personal
bank account. Ms. Grafova refused. Mr. Koster then cancelled
her shipment of boxes. Further, “Mr. Koster immediately
thereafter began taking measures that made it difficult for
Ms. Grafova to successfully perform her job duties at
Euroboor USA, including refusing to provide her an adequate
work space.” (Doc. 56 at 11).
Grafova then began to worry that Mr. Koster would not honor
her loan agreements. Mr. Koster refused to pay any of the
money due to Ms. Grafova under the loan agreements. On
November 28, 2017, Ms. Grafova emailed Mr. Koster that she
was accelerating the loan agreements because of the numerous
violations of the agreements and non-payment of interest that
was due quarterly.
days later, Euroboor USA terminated Ms. Grafova as CFO.
Ms. Grafova now lacked employment, she hired an immigration
attorney to file an application so she could remain in the
United States. Ms. Grafova's son, who lives in The
Netherlands, met with Mr. Koster to reclaim Ms. Grafova's
motorcycle, accessories, and vase. Mr. Koster refused to
return the belongings and “violently forced Ms.
Grafova's son to leave his home.” (Doc. 56 at 13).
On December 1, 2017, Mr. Koster told Ms. Grafova that he had
recalled her boxes back to The Netherlands.
December 21, 2017, Euroboor B.V. placed Ms. Grafova on a
leave of absence.
December 22, 2017, Euroboor B.V. and Mr. Koster filed the
underlying action against Ms. Grafova. (Doc. 1). They
alleged ten causes of action: violation of the Federal
Computer Fraud and Abuse Act, violation of Alabama's
Digital Crime Act, trespass to chattels, tortious
interference with business and contractual relations,
defamation and defamation per se, conversion, negligence and
wantonness, breach of fiduciary duty and duty of loyalty,
fraud, and breach of contract of the relevant employment
January 4, 2018, Euroboor B.V. terminated Ms. Grafova's
June 1, 2014 indefinite employment agreement. Ms. Grafova
disputes the validity of her termination by Euroboor.
January 2018, Ms. Grafova filed for divorce from Mr. Koster
in the Rotterdam District Court in The Netherlands. (Doc. 69
point, Mr. Koster told Ms. Grafova she could pick up her
belongings on April 25, 2018. So, Ms. Grafova traveled to The
Netherlands and hired movers. The movers delivered more than
35 boxes to Ms. Grafova's home. But Ms. Grafova
immediately noticed that her most valuable
belongings-including expensive clothing, family heirlooms,
and art, worth a total exceeding $150, 000-were missing. She
also noticed that her personal documents, family pictures,
and personal diary were missing. Ms. Grafova still has not
recovered these belongings.
August 6, 2018, Ms. Grafova filed an amended counterclaim
against Euroboor B.V., Mr. Koster, Euroboor USA, Inc., and
Euroboor FZC. (Doc. 56). She alleged four causes of action.
Count One alleges that Euroboor B.V., Euroboor USA, and Mr.
Koster fraudulently induced Ms. Grafova to move to the United
States to work for Euroboor USA. Count Two alleges that
Euroboor B.V. and Mr. Koster converted Ms. Grafova's
personal belongings. Count Three alleges that Euroboor B.V.,
Mr. Koster, and Euroboor FZC fraudulently induced Ms. Grafova
to secure loans to Euroboor FZC. Count Four alleges that
Euroboor FZC and Mr. Koster breached the loan agreement
between Euroboor FZC, through Mr. Koster, and Ms. Grafova.
Standard of Review
Koster, Euroboor B.V., Euroboor USA, and Euroboor FZC raise
four arguments why Ms. Grafova's counterclaims should be
dismissed: forum non conveniens, the international abstention
doctrine, lack of subject matter jurisdiction, and failure to
plead fraud with particularity. The court will review the
standard for each ground.
Forum non conveniens
doctrine of forum non conveniens ensures that “the
trial is convenient.” Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 256 (1981). Generally, the court
respects the plaintiff's choice of forum. As the Supreme
Court noted, “unless the balance [of public and private
interest factors] is strongly in favor of the defendant, the
plaintiff's choice of forum should rarely be
disturbed.” Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508 (1947). But the court may, in its discretion,
dismiss the case “when an alternative forum has
jurisdiction to hear the case, and when trial in the chosen
forum would ‘establish . . . oppressiveness and
vexation to a defendant . . . out of all proportion to
plaintiff's convenience,' or when the ‘chosen
forum [is] inappropriate because of considerations affecting
the court's own administrative legal
problems.'” Piper Aircraft Co., 454 U.S.
at 256 (quoting Koster v. Lumbermens Mut. Cas. Co.,
330 U.S. 518, 524 (1947)).
U.S. citizen chooses to sue in the United States, “it
is reasonable to assume that this choice is
convenient.” Piper Aircraft, 454 U.S. at
256. When a foreign citizen chooses to sue in the
United States, the court gives the claimant's choice of
forum less deference. See Id. (“When the
plaintiff is foreign, however, this assumption is much less
reasonable. . . . [A] foreign plaintiff's choice deserves
to dismiss on the basis of forum non conveniens, the party
must show “(1) that an adequate alternative forum is
available; and (2) that the private and public interest
factors weigh in favor of dismissal.” Republic of
Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935,
951 (11th Cir. 1997). Courts construe adequate alternative
forums broadly. “An adequate forum need not be a
perfect forum.” Satz v. McDonnell Douglas
Corp., 244 F.3d 1279, 1283 (11th Cir. 2001). The Supreme
Court held that an alternative forum is only inadequate when
the remedy it provides “is no remedy at all.”
Piper Aircraft Co., 454 U.S. at 254. “[S]ome
inconvenience or the unavailability of beneficial litigation
procedures similar to those available in the federal district
court does not render an alternative forum inadequate.”
Satz, 244 F.3d at 1283 (quoting Borden, Inc. v.
Meiji Milk Prods. Co., 919 F.2d 822, 829 (2d Cir.
have no exhaustive list of factors exists to consider whether
an action should be dismissed under forum non conveniens.
See King v. Cessna Aircraft Co., 562 F.3d 1374,
1381- 82 (11th Cir. 2009) (“These factors are not
exhaustive or dispositive, and courts are free to be flexible
in responding to cases as they are presented.”). But in
Gilbert, the Supreme Court provided some factors for
courts to consider. See 330 U.S. at 508-09. Private
interest factors include (1) “the relative ease of
access to sources of proof, availability of compulsory
process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses;” (2) the
“possibility of view of premises, if view would be
appropriate to the action;” (3) “all other
practical problems that make trial of a case easy,
expeditious, and inexpensive”; (4) “questions as
to the enforceability of a judgment if one is
obtained”; and (5) the “relative advantages and
obstacles to a fair trial.” Id. at 508. Public
interest factors include (1) “[a]dministrative
difficulties . . . for courts when litigation is piled up in
congested centers instead of being handled at its
origin”; (2) the burden of imposing jury duty
“upon the people of a community which has no relation
to the litigation”; (3) the benefit of holding a trial
in the view of the community “[i]n cases which touch
the affairs of many persons”; (4) “a local
interest in having localized controversies decided at
home”; and (5) avoiding conflict of laws problems.
Id. at 508- 09.
motion to dismiss under forum non conveniens, courts are not
limited in the types of evidence they may consider without
converting the motion to a motion for summary judgment.
See Kolawole v. Sellers, 863 F.3d 1361, 1370 (11th
Cir. 2017) (considering expert testimony in analyzing forum
non conveniens); Vaz Borralho v. Keydril Co., 696
F.2d 379, 387 (5th Cir. 1983) (affirming the district
court's dismissal for forum non conveniens after
reviewing affidavits, deposition testimony, and pleadings).
International abstention doctrine
a federal court must exercise the jurisdiction conferred upon
it. See Turner Entm't Co. v. Degeto Film GmbH,
25 F.3d 1512, 1518 (11th Cir. 1994) (“Federal courts
have a ‘virtually unflagging obligation' to
exercise the jurisdiction conferred upon them.”
(quoting Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976))). But the Eleventh
Circuit has established principles under which “the
prudent and just action for a federal court is to abstain
from the exercise of jurisdiction” regarding some
private international disputes. Id. The three goals
of international abstention are (1) international comity, (2)
“fairness to litigants, ” and (3)
“efficient use of scarce judicial resources.”
comity refers to respecting “the acts of our fellow
sovereign nations.” Turner Entm't Co., 25
F.3d at 1518. The Supreme Court recognized international
comity as “the recognition which one nation allows
within its territory to the legislative, executive, or
judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its
own citizens, or of other persons who are under the
protection of its laws.” Hilton v. Guyot, 159
U.S. 113, 163 (1895).
noted by the Eleventh Circuit,
[g]eneral comity concerns include: (1) whether the judgment
was rendered via fraud; (2) whether the judgment was rendered
by a competent court utilizing proceedings consistent with
civilized jurisprudence; and (3) whether the foreign judgment
is prejudicial, in the sense of violating American public
policy because it is repugnant to fundamental principles of
what is decedent and just.
Turner Entm't Co., 25 F.3d at 1519 (internal
fairness to litigants, the court considers “(1) the
order in which the suits were filed; (2) the more convenient
forum; and (3) the possibility of prejudice to parties
resulting from abstention.” Turner Entm't
Co., 25 F.3d at 1521-22 (internal citations omitted).
Generally, “the court first assuming jurisdiction . . .
may exercise that jurisdiction to the exclusion of other
courts.” Colo. River Water Conservation Dist.,
424 U.S. at 818; cf. Ronar, Inc. v. Wallace, 649
F.Supp. 310, 318 (1986) (“When as in this case the
foreign action is pending rather than decided, comity
counsels that priority generally goes to the suit first
Eleventh Circuit identified four factors relevant to
efficiency of judicial resources: “(1) the
inconvenience of the federal forum; (2) the desirability of
avoiding piecemeal litigation; (3) whether the actions have
parties and issues in common; and (4) whether the alternative
forum is likely to render a prompt disposition.”
Turner Entm't Co., 25 F.3d at 1522 (internal
Subject matter jurisdiction
“raises [a] . . . basic question of jurisdiction that
cannot be waived and goes to the very heart of the
‘case or controversy' requirement of Article
III.” Fla. Ass'n of Rehab. Facilities, Inc. v.
Fla. Dep't of Health & Rehab. Servs., 225 F.3d
1208, 1227 n.14 (11th Cir. 2000); see also Beaulieu v.
City of Alabaster, 454 F.3d 1219, 1227 (11th Cir. 2006)
(“Article III of the Constitution limits the
jurisdiction of the federal courts to actual cases or
controversies and requires us to consider whether a
plaintiff's claims are ripe.”). Whether an action
is a case or controversy is a basic question of subject
matter jurisdiction. See Provident Life & Accident
Ins. v. Transamerica-Occidental Life Ins., 850 F.2d
1489, 1491 (11th Cir. 1988) (“[T]his court does not
have subject matter jurisdiction over the issue presented
unless the issue is a ‘case or
controversy.'”). So, “[a] motion to dismiss
the complaint based on ripeness implicates Federal Rule of
Civil Procedure ...