Tradimpex Egypt Company v. Biomune Company et al
Filing
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MEMORANDUM OPINION re 9 motion to dismiss or transfer. Signed by Judge Leonard P. Stark on 4/14/11. (ntl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TRADIMPEX EGYPT CO.,
an Egyptian Company
PLAINTIFF,
C.A. No. 1O-757-LPS
v.
BIOMUNE CO. d/b/a CEVA BIOMUNE, a :
Delaware Corporation
DEFENDANTS.
Scott E. Chambers, Esquire, and Erin K. Fitzgerald, Esquire., Schmittinger Rodriguez, P.A. and
Todd Gallinger, Esquire. Attorneys for Plaintiff.
William F. Taylor, Jr., Esquire, McCarter & English, LLP, and Russell J. Keller, Esquire, and
Misty Cooper Watt, Esquire, Stinson Morrison Hecker, LLP. Attorneys for Defendants
MEMORANDUM OPINION
April 14, 2011
Wilmington, DE
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Stark, District Judge:
I.
Back~round
This case involves a dispute over an agency and distribution agreement (the
"Agreement") between the Plaintiff, Tradimpex Egypt Company (hereinafter "Tradimpex" or
"Plaintiff') and Defendant, Biomune Company (hereinafter "Biomune" or "Defendant"). The
parties entered into the Agreement in 2001 and, pursuant to it, Tradimpex became Biomune's
agent for the importation and distribution of Biomune's products in Egypt. In 2009, Biomune
reduced the list of products that Tradimpex would distribute and designated Axis Agency
Services, Ltd. (hereinafter "Axis") as Biomune's agent for importing and distributing Biomune
products in Egypt. In the instant action, Tradimpex alleges Biomune breached by designating
Axis as an agent for Biomune. I
Prior to commencing this action, Tradimpex filed multiple lawsuits and administrative
appeals in Egypt related to the Agreement. Biomune characterizes the prior actions in Egypt as
follows:
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. .. Plaintiff first attempted to initiate criminal actions in
Egypt against Axis. Those efforts failed. Plaintiff then challenged
the appointment of Axis as Biomune's agent by submitting a
complaint to the Egyptian Ministry of Agriculture. The Ministry of
Agriculture rejected Plaintiffs position and recognized Axis' right
to be the sole distributor for all Biomune's products except the
three assigned to Plaintiff. Plaintiff also filed two actions against
Biomune's parent and sister corporations concerning the very
Agreement at issue here.
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IBiomune has filed a counterclaim, alleging that Tradimpex violated the Agreement by
failing to timely pay invoices and make product returns. (D.I.16 Counterclaim ~~ 14-16)
Biomune intends to withdraw its counterclaim if the Court grants its motion to dismiss the
instant action. (D.!. 19 at 2 n.1)
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(D.1. 10 at 1)
Tradimpex's description of the nature and status of the actions in Egypt is similar,
although it omits the criminal action and provides more detail on the two actions against
Biomune's related entities:
... The first [action] is an administrative action before the
General Authority of Veterinary Services, a division of the
Egyptian Ministry of Agriculture. This case is for injunctive relief
to prevent Axis ... from importing Biomune products ....
Biomune is not a party to this Egyptian lawsuit and Tradimpex is
not seeking compensation from Biomune therein.
The second Egyptian case is an accounting matter between
Tradimpex and Ceva Sante Animale, S.A. This case is to
detennine the value of credits granted to Tradimpex offset by
unpaid invoices issued by Ceva Sante Animale, S.A. Biomune is
not a party to this lawsuit and Tradimpex is not seeking
compensation from Biomune therein ....
The third case brought in Egypt is a private lawsuit against
Biomune. It is seeking damages for their breach and cancellation
of the ... [A]greement, similar to the present case. Biomune has
not yet appeared nor been served in that case.
(D.!. 17 at 4) (internal citations omitted)
Pending before the Court is Biomune's Motion to Dismiss or Transfer Plaintiffs
Complaint (hereinafter "Motion"). (D.1. 9) Biomune contends that this action should be
dismissed under the doctrine of/arum non conveniens, which would allow the parties to resolve
their disputes through the Egyptian actions. In the alternative, Biomune asks the Court to
transfer this action to the District of Kansas. For the reasons discussed below, the Court will
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deny the Motion.
II.
Forum Non Conveniens
As the Third Circuit has explained:
The Supreme Court has directed that a plaintiffs choice of
forum should rarely be disturbed. However, a district court may
dismiss an action based on/arum non conveniens if an alternative
forum has jurisdiction to hear the case, and trial in the plaintiffs
chosen forum would establish ... oppressiveness and vexation to a
defendant ... out of all proportion to plaintiffs convenience, or the
chosen forum [is] inappropriate because of considerations affecting
the court's own administrative and legal problems.
Delta Air Lines, Inc. v. Chimet, S.p.A. 619 F.3d 288, 294-95 (3d Cir. 2010) (internal quotation
marks and citations omitted). In applying the doctrine of/arum non conveniens, courts examine:
(1) the existence and adequacy of an alternative forum for the litigation; (2) the amount of
deference that should be accorded to the plaintiffs choice of forum; (3) the convenience of the
parties, also known as "private interest factors;" and (4) the interests of the forum, also known as
"public interest factors." See id. at 295. The burden of establishing that these factors favor
dismissal rests with the party seeking such relief. See id. A defendant seeking dismissal on
forum non conveniens grounds must show that the balance of the public and private factors "tips
decidedly in favor of trial in the foreign forum." Windt v. Qwest Communications Int'l, Inc., 529
F.3d 183, 190 (3d Cir. 2008).
A.
Adequacy of E~ptian Forum
Defendant argues that Egypt is an adequate alternative forum, which offers sufficient
judicial remedies. To qualify as an adequate alternative, the alternative jurisdiction must offer
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reasonable remedies and the defendant must be amenable to process within it. See Brunswick
GmbH v. Bowling Switzerland, Inc., 2008 WL 2795936, at *2 (D. Del. July 18, 2008). Here,
according to Defendants, Egypt provides remedies for breach of contract and Defendant consents
to jurisdiction in Egypt.
As Defendant observes, other courts, at other times, have previously held that, at least for
certain cases, Egypt is an adequate alternative forum. See, e.g., Rivera v. Hewlett Packard Corp.,
95 Fed. Appx. 241 (9 th Cir. Apr. 16,2004); Jackson v. American Univ., 52 Fed. Appx. 518 (D.C.
Cir. Dec. 13,2002); Dabbous v. American Express Co., 2009 WL 1403930, at *8-9 (S.D.N.Y.
May 8, 2009). Additionally, Defendant emphasizes the several legal actions Plaintiff has already
initiated in Egypt. In Defendant's view, Plaintiffs initiation of these Egyptian actions indicates
that "Plaintiff has tacitly acknowledged that the Egyptian system can handle claims in a
sufficiently expeditious manner." (D.L 19 at 7; see also D.L 10 at 8)
The Court disagrees. Initially, the Court takes judicial notice of the recent revolutionary
events that have transpired in Egypt - including the resignation of longtime President Hosni
Mubarak in January 2011 and the dissolution of Egypt's constitution and parliament in February
2011.2 Under these uncertain circumstances, the Court is unwilling to assume that the prior
adequacy of the Egyptian courts necessarily exists today.
Also, the fact that Plaintiff initiated litigation against Defendant in Egypt prior to the
instant action does not, per se, indicate that Plaintiff still views Egypt as providing an adequate
2See, e.g., Neil MacFarquar, Hosni Mubarak's Shadow Still Falls Over Egypt, N.Y.
Times, Mar. 25, 2011; Neil Mac Farquar, Egyptian Voters Approve Constitutional Changes, N.Y.
Times, Mar., 20, 2011; Fed. R. Civ. Proc. 201; see also generally Tr. Feb. 7, 2011 teleconference
(D.I. 24) at 4-5 (Court and counsel referencing ongoing events in Egypt).
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forum. It is possible that Plaintiff filed the instant action because it has come to believe that
Egypt does not provide an adequate forum (and not just because Plaintiffs early results in Egypt
may not have been to Plaintiffs liking). See generally Neuchatel Swiss Gen. Ins. Co. v.
Lufthansa Airlines, 925 F.2d 1193, 1194-95 (9 th Cir. 1991) (stating that parallel proceeding in
foreign jurisdiction does not alone constitute "exceptional circumstances" to justify abdication of
federal jurisdiction). Moreover, there appears to be no already pending Egyptian action in which
all of the following are present: Biomune has been served, Plaintiff is seeking the same or similar
relief for breach of contract as Plaintiff is seeking here, and the action has advanced materially
further than has the instant case.
In sum, the Court is unpersuaded that, at this time, Egypt provides an adequate forum.
Dismissal under the doctrine offorum non conveniens would be inappropriate. Nonetheless, the
Court will briefly address the remaining factors relevant to this analysis.
B.
Deference to Plaintiff's Choice of Forum
Generally, a domestic plaintiffs choice of a U.S. forum should be entitled to deference
absent a showing that the balance of the relevant factors tip "strongly in favor of the defendant."
GulfOil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). Conversely, "when a plaintiff is foreign ...
this assumption is much less reasonable. Because the central purpose of any forum non
conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff s choice deserves
less deference." Windt v. Qwest Commc'n Int'!, Inc., 529 F. 3d 183, 190 (3d Cir. 2008). In
weighing a plaintiff s choice of forum, courts consider "the particular circumstances of the
litigation," including the parties' connection with the forum in question and pending litigation in
a foreign forum. See id. at 191.
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Here, Plaintiff has chosen Delaware as its preferred forum for litigating its breach of
contract dispute with Defendant. Regardless of the precise amount of weight given to this
preference, plainly this factor disfavors dismissal.
C.
Private and Public Interest Factors
In conducting a private interest analysis, courts typically consider: (1) the ease of access
to evidence; (2) the potential for compulsory attendance for uncooperative witnesses; (3) the cost
of procuring cooperative witnesses; (4) the proximity to any pertinent locations; and (5) the
miscellaneous practical advantages which make trial easier and less expensive. See Windt, 529
F.3d at 189. As for public interest factors, courts typically consider: (1) court congestion; (2) the
local interest in deciding local controversies; (3) the benefit of litigating cases within a forum that
traditionally applies the applicable law; (4) the avoidance of unnecessary problems in law
application, such as conflicts oflaws; and (5) the unfairness of burdening citizens with jury duty.
See id. at 189.
Naturally, Tradimpex argues that these private and public factors weigh in favor of
Delaware over Egypt. Biomune, of course, disagrees. Essentially the same private and public
interests must be considered in the context ofBiomune's request to transfer this case to Kansas,
and the Court will defer specific discussion of them until addressing that alternative request.
Here, all that need be said is that consideration of the private and public interest factors does not
establish "oppressiveness and vexation" to Biomune "out of all proportion" to Tradimpex's
convenience or that Delaware is an inappropriate forum due to any "administrative and legal
problems."
Accordingly, the Court will deny Defendant's Motion to the extent it seeks dismissal of
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the instant action under the doctrine ofJorum non conveniens.
III.
Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a)
In the alternative, Biomune seeks transfer of this case to the District of Kansas, pursuant
to 28 U.S.C. § l404(a). Section l404(a) provides that, "[fJor the convenience of parties and
witnesses, in the interest ofjustice, a district court may transfer any civil action to any other
district or division where it might have been brought." The burden of demonstrating that such a
transfer is appropriate rests with the moving party. Generally, transfer is appropriate when:
(l) the case could have been brought in the alternative court originally; (2) the other court is
more convenient to the parties; (3) the other court is more convenient to witnesses; and (4) a
transfer would be in the interests ofjustice. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 880
(3d Cir. 1995). This requires consideration of both private and public interest factors. See id.
In resolving a motion to transfer, courts analyze "all relevant factors to determine whether
on balance the litigation would more conveniently proceed and the interests ofjustice be better
served by transfer to a different forum." Id. at 879. In undertaking this analysis, it bears
emphasis that "the plaintiffs choice of venue should not be lightly disturbed." Id. at 879.
Hence, "unless the balance of convenience of the parties is strongly in favor of defendant, the
plaintiffs choice of forum should prevail." Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.
1970) (internal quotation marks omitted). "Therefore, defendants [seeking transfer] must prove
that litigating in Delaware would pose a unique or unusual burden on their operations."
L 'Athene, Inc. v. EarthSpring LLC, 570 F. Supp. 2d 588, 592 (D. DeL 2008) (internal citations
and quotation marks omitted).
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A.
Private Interest Factors
The private factors to consider include: (1) the plaintiffs choice of forum; (2) the
defendant's forum preference; (3) the location of the operative events; (4) the convenience of the
parties; (5) the convenience for the witnesses; and (6) the location of relevant evidence. See
L 'Athene, Inc. 570 F. Supp. 2d at 592. Defendant argues that Plaintiffs lack of connection to
Delaware, the little deference accorded to Plaintiffs forum selection, the increased convenience
for Plaintiff of trial in Kansas, and lesser expense of trial, all counsel that the Court should
transfer this case to the District of Kansas. Additionally, Defendant contends that if any of
operative events relevant to the instant action occurred in the United States, they occurred in
Kansas, where Defendant's business is headquartered. Similarly, if any witnesses and evidence
are located anywhere in the U.S., it is in Kansas, not in Delaware.
Plaintiff responds by highlighting the "paramount consideration" owed to Plaintiffs
choice of forum, as well as the Defendant's heavy burden to overcome it. See id. at 594.
Plaintiff argues that the inconvenience to Defendant having to litigate in Delaware is minimal,
considering Defendant's global operations. Certainly, in Plaintiffs view, requiring a global
company like Defendant to litigate in Delaware rather than Kansas does not "pose a unique or
unusual burden on [its] operations." Wesley-Jessen Corp., 157 F.R.D. at 218. Additionally,
Plaintiff points to technology (such as the internet, computer programs, and video-conferencing),
which merits giving little weight to the fact that evidence and witnesses may be located in
Kansas. See Nihon Tsushin Kabushkiki Kaisha v. Davidson, 595 F.Supp.2d 363 (D. Del. 2009);
Wesley-Jensen Corp., 157 F.R.D. at 218.
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The Court finds that the only private factors that favor Delaware are that it is Plaintiffs
choice of forum and that Defendant is incorporated here. These are, of course, important factors
and are given substantial weight. The other private factors favor Kansas. To the extent operative
events occurred in the U.S. (such as Defendant's decisions about the Agreement and whether to
do business in Egypt with Axis), they occurred in Kansas, not Delaware. The record also
supports Defendant's contention regarding witnesses: "Witnesses from Axis, Ceva Egypt, and
Plaintiff generally are located in Egypt. Witnesses from Biomune and Ceva France generally are
located in Kansas or France.... No potential witness is located in Delaware." (D.1. 10 at 11)
(internal citations omitted) Therefore, as Defendant points out, "[m lore witnesses will have to
travel and more expenses will be incurred if this case proceeds in Delaware instead of Kansas."
(D.1. 19 at 10) While Plaintiff is correct that technology makes the physical location of
documents relatively unimportant, the fact remains that neither party has identified any relevant
documents that are located in Delaware, while some such documents are evidently located in
Kansas.
Weighing all of these private interest factors, the Court finds that they slightly favor
transfer.
B.
Public Interest Factors
The public interest factors to be considered include: (1) the enforceablity of the judgment;
(2) practical considerations to make trial expeditious; (3) the administrative difficulty resulting
from court congestion; (4) the local interest in deciding local controversies; and (5) familiarity of
the judge with the applicable state law. See L 'Athene, 570 F. Supp. 2d at 592. Defendant asserts
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that trial in Kansas would be easier, more expeditious, less expensive, and would likely happen
more quickly, as a result of the District of Kansas' relatively less congested docket. Plaintiff
argues that judgments are equally enforceable in Delaware and Kansas and that none of the other
public factors favor Defendant. In Plaintiffs view, the difference between the court congestion in
Delaware and Kansas is negligible.
The Court concludes that the public factors favor neither Delaware nor Kansas. The
enforceability of the judgment is the same in both courts. Although the District of Delaware is a
very busy District, so, too, is the District of Kansas, and there is no reason to conclude that the time
to trial (or length of trial) will be materially different in one court or the other. Moreover, while
Kansas has a local interest given the parties' determination in the Agreement that Kansas law
should govern their disputes, and Kansas judges are undoubtedly more familiar with Kansas law
than are Delaware judges, Delaware, too, has a local interest, in that one of its citizens
a Delaware corporation
Biomune,
is alleged to have breached a contract. Additionally, to the extent
relevant, the burden on a Delaware jury is no greater than the burden would be on jurors elsewhere.
c.
Weighing the Interests
As noted above, "unless the balance of convenience of the parties is strongly in favor of
defendant, the plaintiffs choice of forum should prevail." Shutte, 431 F.2d at 25 (internal
quotation marks omitted). "Therefore, defendants [seeking transfer] must prove that litigating in
Delaware would pose a unique or unusual burden on their operations." L 'Athene, Inc., 570 F. Supp
2d at 592 (internal citations and quotation marks omitted). Given the Court's finding that the
private interest factors only slightly favor Kansas, and the public interest factors do not favor either
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Kansas or Delaware, it follows that Defendant has failed to meet its burden. Accordingly, the
Court will deny Defendant's Motion to transfer this action to the District of Kansas.
V.
Conclusion
For the reasons set forth above, Defendant's Motion is DENIED. An appropriate Order
follows.
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