Sophias Cure Inc. v. Avexis, Inc. et al

Filing 64

OPINION AND ORDER: The Court GRANTS 36 , 37 , 38 , and 48 Motions to Dismiss. Plaintiff's claims are DISMISSED without prejudice. Signed by Judge Michael H. Watson on 10/10/2017. (ew)

FlLEl
^"'MARO W. NAGi-L
UNITED STATES DISTRICT COURT
FRK OF C i
SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

2017OCT 10 PM |: 31

Sophia;s Cure Inc. a/k/a
Sophia's Cure Foundation,

v-ASI. DIV COl UMBUS

Plaintiff,
V.

Case No. 2:16-cv-865

AveXis, inc., ef a/..

Judge Michaei H. Watson
Magistrate Eiizabeth P. Deavers

Defendants.
OPiNiON AND ORDER

Sophia's Cure Inc., a/k/a Sophia's Cure Foundation ("PlaintifT'), brings this
suit alleging claims for breach of contract against Nationwide Children's Hospital

("NCH"), the Research Institute at Nationwide Children's Hospital (the "Research
Institute"), Nationwide Children's Hospital Foundation (the "Foundation"), and for
tortious interference with contract against AveXis, Inc. ("AveXis"), Brian Kaspar
("Kaspar"), Sean Nolan ("Nolan"), Arvind Sreedharan ("Sreedharan"), and John
Carbona ("Carbona"). The Court possesses federal diversity jurisdiction

pursuant to 28 U.S.C §1332. Ail the defendants moved pursuant to Federal Rule
of Civil Procedure 12(b)(6) to dismiss PlaintifTs claims against them for faiiure to
state a claim. Plaintiff responded and ail defendants replied.

For the reasons

that follow, the motions to dismiss, ECF Nos. 36, 37, 38, and 48, are GRANTED.

I.

FACTS

These facts, taken from Plaintiff's First Amended Complaint and the
exhibits attached thereto, are assumed true for purposes of this Opinion and
Order.
Plaintiff is a non-profit 501(c)(3) public charity that Vincent and Catherine
Gaynor (the "Gaynors") founded after their daughter, Sophia, was diagnosed with
spinal muscular atrophy ("SMA"), a genetic disease affecting the part of the
nervous system that controls voluntary muscle movement. Am. Compl. ft 2, 24,
ECF No. 34. Plaintiff was created to assist funding SMA research and to provide
advocacy, awareness, education, and support for families affected by SMA. Id.
at~2.

NCH is an Ohio non-profit organization. Id.

at~

13. The Research

Institute, a subsidiary of NCH, is also an Ohio non-profit organization. Id.

at~

15.

The Research Institute provides basic, clinical, translational, and health services
research at NCH. Id.
In 2010, the Gaynors met Kaspar, a member of the Research lnstitute's
faculty. Id.

at~

3. The Gaynors developed a friendly relationship with Kaspar

and ultimately decided to provide him with financial support to research a cure for
SMA. Id. at ml 31, 32.
On June 7, 2011, Plaintiff entered into a grant agreement with the
Research Institute. Am. Compl. Ex. 1, ECF No. 34-1, PAGEID # 188. That
agreement provided that Plaintiff would initially donate $500,000 to the Research
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Institute to fund pre-clinical research for a drug called scAAV9, which was
designed to treat patients with Type 1 SMA. Id.
Later, on October 15, 2012, Plaintiff entered into an agreement ("Donation
Agreement") with the Foundation in order to secure matching funds from the
Foundation to the Research Institute. Am. Compl. Ex. 2, ECF No. 34-2, PAGEID

# 193. The Foundation, another subsidiary of NCH, is an Ohio non-profit that
"builds philanthropic partnerships with individuals, corporations, and
organizations, to advance NCH's programs of patient care, advocacy, research,
education, and service." Am. Compl.1J 14, ECF No. 34. The Donation
Agreement explicitly states that it is "made by and between [Plaintiff] and the
[Foundation]." Id. The document includes the following relevant provisions:
DONATION AGREEMENT ....
PURPOSE OF GENE THERAPY DONATION AGREEMENT
The purpose of this agreement is to outline a donation pledge and
matching donation by and between [Plaintiff] and [the Foundation]
for the funding of clinical work associated with the Phase 1 Vascular
Gene Transfer of the Survival Motor Neuron Gene by scAAV9 for
SMA Type 1 patients f'hereinafter, the PROJECT"), as described in
an lnvestigational New Drug application 1 to be submitted to the Food
and Drug Administration by the [Research Institute] ....
PROPOSED DONATION BY [Plaintiff]
[Plaintiff] hereby agrees to gift to [the Research Institute], on or
before December 31, 2012, $550,000 (FIVE HUNDRED AND FIFTY
1

An investigational drug cannot be administered to humans (i.e. clinical research
cannot be done) until an Investigatory New Drug ("IND") application is submitted to, and
approved by, the Food and Drug Administration ("FDA"). See generally 21 C.F.R §
312.1 etseq.
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THOUSAND DOLLARS] for the purposes of funding the PROJECT
MATCHING DONATION BY [the Foundation]
[the Foundation] hereby agrees that, in consideration of [Plaintiff's]
significant contribution to [the Research lnstitute's] research into a
cure for [SMA] ... [the Foundation] will match [Plaintiff's] gift with its
own $550,000 donation to the Research Institute to be used to fund
the PROJECT ....
PUBLIC RECOGNITION OF [Plaintiff's] ROLE
In all publications issued by [the Foundation] that reference the
PROJECT, [Plaintiff] shall be recognized by name-The Sophia's
Cure Foundation- as the primary sponsor of the PROJECT ....
Id.

In 2013, the Research Institute submitted an lnvestigational New Drug ("IND")
Application for scAAV9 to the FDA. Am. Compl. 11 58, ECF No. 34. Plaintiff
alleges that it was not named as a "sponsor'' in that document. Id. In September
of 2013, the FDA approved the Research lnstitute's IND Application. Id. at 1162.
In October of 2012, Kaspar assumed several positions, including Chief
Scientific Officer, at AveXis, a biotech company. AveXis is '"committed to moving
gene therapies into the clinical setting for patients and families devastated by
rare and orphan neurological diseases."' Id. at 1130. Kaspar did not give up his
position at the Research Institute. See id. at 11 16.
In October of 2013, AveXis entered into an agreement with NCH which
provided AveXis with a license to the Research lnstitute's IND Application for
scAAV9, and the right to become its sponsor after completion of Phase 1 clinical

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trials. Id. at 1MJ 30, 66. On October 3, 2014, the FDA designated scAAV9 as an
orphan drug. 2 Id. at~ 83. On October 14, 2015, AveXis exercised its right to
sponsor the Research lnstitute's IND Application. Id. at~ 106.
Plaintiff filed suit, alleging that the Foundation, the Research Institute, and
NCH breached the Donation Agreement by not identifying Plaintiff as ''sponsor" in
the IND Application submitted by the Research Institute and in clinical trials
registered by NCH. Id. at 1MJ 115, 58, 78. Plaintiff also alleges that it has been
damaged as a result of this breach because the Orphan Drug Act, 21 U.S.C. §
360cc(a), provides certain benefits to the sponsor of an orphan drug, including
the exclusive right to market an orphan drug for seven years. Id. at 1MJ 7, 86.
Plaintiff further alleges that the Foundation, the Research Institute, and NCH are
all liable for this breach because these entities acted as alter egos of one
another. Id. at~ 117.
Plaintiff also alleges that AveXis; Kaspar: AveXis's former CEO, Carbona;
AveXis's current CEO, Nolan; and AveXis's VP of Business Operations,
Sreedharan, tortiously interfered with the Donation Agreement by intentionally
inducing the Foundation, the Research Institute, and NCH to breach it. Id. at
~125.

All defendants move to dismiss the pertinent claims against them for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
2

An uorphan drug" is defined by the Orphan Drug Act as a drug used to treat a "rare
disease," that is, a disease affecting fewer than 200,000 people in the United States.
See 42 U.S.C. § 287a-1(c).

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. .

II.

STANDARD OF REVIEW

A claim survives a motion to dismiss pursuant to Rule 12(b){6) if it
"contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief
that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citaion
omitted). "The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
(internal quotation marks and citation omitted). A complaint's "[ijactual
allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all of the complaint's allegations are true." Bell At/. Corp.

v. Twombly, 550 U.S. 544, 555-56 (2007) (internal citations omitted).
A court must also "construe the complaint in the light most favorable to the
plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002).
Nonetheless, a plaintiff must provide "more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do." Twombly,
550 U.S. at 555; see a/so Iqbal, 556 U.S. at 678 ("Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice."). "[A] naked assertion ... gets the complaint close to stating a claim, but
without some further factual enhancement it stops short of the line between
possibility and plausibility ... ."Twombly, 550 U.S. at 557.

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. .

Ill.
A.

ANALYSIS

Breach of Contract Claims against the Foundation, the Research
Institute, and NCH (Count 1 of the First Amended Complaint)

Plaintiff alleges breach of contract by the Foundation, the Research
Institute, and NCH. All three move to dismiss this claim. The parties agree that
Ohio law governs this dispute.
Under Ohio law, the essential elements of breach of contract are: (1) the
existence of a contract; (2) performance by the plaintiff; (3) the defendant's
breach; and {4) damages or loss to the plaintiff. Kline v. Mortg. Elec. Registration
Sys., Inc., No. 16-3932, 2017 WL 3263745, at *8 (6th Cir. Aug. 1, 2017) (citing
Siemaszko v. FirstEnergy Nuclear Operating Co., 187 Ohio App. 3d 437, 444

{2010)).
Plaintiff alleges that the Foundation, the Research Institute, and NCH all
breached the Donation Agreement between Plaintiff and the Foundation. Plaintiff
points to one provision of the Donation Agreement as the basis of its breach of
contract claim. That provision stipulates that Plaintiff would be identified as the
"primary sponsor" in: 1) all publications, 2) issued by the Foundation, 3) that
reference the "PROJECT." Am. Compl. Ex. 2, ECF No. 34-2, PAGEID# 193.3
The Donation Agreement defines "PROJECT" as "clinical work associated with ..
. scAAV9 for SMA Type 1 patients" and indicates that this clinical work would be
3

The Court may consider the Donation Agreement, attached to the Complaint as
Exhibit A, in determining whether dismissal is proper, and may rely upon it in lieu of
inconsistent allegations in the Amended Complaint. Williams v. Cit/Mortgage, Inc. No.
2:08-cv-368, 2011WL1303257, at* 4 (S.D. Ohio Mar. 31, 2011) aff'd, 498 F. App'x 532
(6th Cir. 2012).
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.

.

"described in an [IND] application to be submitted to the Food and Drug
Administration by [the Research Institute]." Id.

1. Plaintiff Fails to Allege that any Party to the Donation Agreement
Breached its Terms
Plaintiff does not point to any publications issued by the Foundation that
constitute a breach of the Donation Agreement. Plaintiff points instead to the
actions of the Research Institute and NCH. Specifically, Plaintiff asserts that the
Research lnstitute's IND Application and NCH's registration for clinical trials
failed to recognize Plaintiff as the "primary sponsor," and therefore the
Foundation, the Research Institute, and NCH were all in breach of the Donation
Agreement. Am. Compl.

ff 5, 58, 78.

The flaw in these allegations is that neither the Research Institute nor NCH
is a party to the agreement to which Plaintiff attempts to bind them. Plaintiff does
not allege any facts regarding the Foundation's breach of the Donation
Agreement. Rather, Plaintiff's entire breach of contract claim hinges on the
contents of the IND Application submitted by the Research Institute and the
clinical trial information registered by NCH. A non-party to a contract, however,
cannot be liable for its breach. Three-C Body Shops, Inc. v. Nationwide Mut. Fire

Ins. Co., No. 16AP-748, 2017 WL 1407305, at *3 (Ohio Ct. App. April 20, 2017)
(quoting EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002) ("It goes without
saying that a contract cannot bind a nonparty.")); see a/so Samadder v. DMF of

Ohio, Inc., 154 Ohio App. 3d 770, 778, 2003-0hio-5340 (10th Dist.) (explaining

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. .

that "[a] contract is binding only upon parties to a contract and those in privity
with them").
Plaintiff points to no language-and indeed the agreement contains
none-that imposes any duties or liabilities on the Research Institute or NCH. In
fact, the first paragraph of the Donation Agreement states that it "is made by and
between [Plaintiff] and [the Foundation]." Am. Compl. Ex. 2, ECF No. 34-2,
PAGEID # 193. It is signed by Vincent Gaynor, on behalf of Plaintiff, and
Timothy Robbins, on behalf of the Foundation. Id. Thus, it is clear that Plaintiff
and the Foundation are the only parties to the Donation Agreement. For this
reason alone, Plaintiff's breach of contract claims against the Foundation, the
Research Institute, and NCH fail.
Acknowledging that NCH and the Research Institute are not parties to the
Donation Agreement, Plaintiff nevertheless asserts that the Foundation, NCH,
and the Research Institute can be held liable for a purported breach of the
agreement pursuant to an alter ego theory and under agency principles. The
Court disagrees.
2. Plaintiff Fails to State a Breach of Contract Claim under an "Alter
Ego" Theory of Liability
Under Plaintiff's interpretation of the alter ego doctrine, the Research
Institute, NCH, and the Foundation, are all parties to the Donation Agreement
because "all three entities are alter egos of the other" and are therefore "one and
the same." Am. Compl. ~ 116, ECF No. 34; Plaintiff's Response 10, ECF No. 52.

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'

.

Plaintiff asserts each entity is the other's alter ego because they all share the
same address, facilities, website, Secretary, and Treasurer, as well as one or
more members of their Boards of Directors. Id.

1MJ 118-20.

Additionally, Plaintiff

alleges that the Donation Agreement was signed by Timothy Robinson, who is
the Treasurer and on the Board of Directors for all three entities. These
allegations, according to Plaintiff, are sufficient to impute the actions of the
Research Institute and NCH to the Foundation and thereby make out a claim for
breach of contract against all three based on the terms of the Donation
Agreement between Plaintiff and the Foundation.
In this way, Plaintiff erroneously attempts to bend the alter ego theory of
liability into a free-standing cause of action against non-parties to a contract.
Alter ego liability, often characterized as the first prong of the test for "piercing the
4

corporate veil," is not a theory giving rise to an independent cause of action;

4

There is some uncertainty in the law as to whether the concepts of alter ego and
piercing the corporate veil are analytically distinct. Compare In Re Fisher, 296 F. App'x
494, 506 (6th Cir. 2008) ("This court has explained ... that veil piercing and alter ego
concepts are distinct. The former asks a court to hold A vicariously liable for B's debts,
while the latter asserts that A and B are the same entity and therefore liability is direct."
(quoting IUUA Local 600 v. Aguirre, 410 F.3d 297, 302 (6th Cir. 2005) (applying the
alter ego doctrine and holding a shareholder liable for fraudulent transfers of money
made through his corporation that the court found was his alter ego)), with Hitachi Med.
Sys. Am., Inc. v. Branch, No. 5:09-cv-1575, 2010 WL 3941824, at *3 (N.D. Ohio Sept.
14, 2010), report and recommendation adopted, No. 5:09-cv-01575, 201 O WL 3941912
(N.D. Ohio Oct. 7, 2010) (noting that In Re Fishers assertion that the veil-piercing and
alter-ego concepts are distinct seems to conflict with the Ohio Supreme Court's
characterization of the first element of the veil-piercing test as "a concise statement of
the alter ego doctrine") (citing Belvedere, 67 Ohio St. 3d at 288)). Regardless, the
distinction makes little difference in this case, as Ohio law has been clear that alter ego
liability is a method of obtaining recovery from a defendant based on an underlying
cause of action. See Secrest, 2015-0hio-42, at 1J 34. In every case applying Ohio
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rather, it is a theory of recovery that depends on the existence of an underlying
claim. Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc., 67
Ohio St. 3d 274, 287, 1993-0hio-119 ( 1993); Secrest v. Gibbs, 11th Dist. Lake
No. 2014-L-004, 2015-0hio-42, ~ 34 (stating that "standing alone," claims based
upon either alter ego or veil piercing "create no independent causes of action");

Ruffing v. Masterbuilt Tool & Die, LLC, No. 1:08-cv-01264, 2009 WL 185950, at
*13 (N.D. Ohio Jan. 23 1 2009) (noting that the alter ego doctrine allows a plaintiff
to seek recovery from a shareholder for a cause of action that would otherwise
proceed only against a corporate entity); Lester v. Wow Car Company, Ltd., No.
2:11-cv-850, 2013 WL 6058676, at *6 (S.D. Ohio Nov. 14, 2003) (noting that the
alter ego doctrine "allow[s] someone with a claim against an individual to reach
corporate assets to satisfy that claim" (quoting the Magistrate Judge's Opinion
and Order, ECF NO. 78); see a/so 1 Fletcher Cyc. Corp.§ 41.10 {footnotes
omitted) C'A finding of fact of alter ego, standing alone, creates no cause of
action. It merely furnishes a means for a complainant to reach a second

corporation or individual upon a cause of action that otherwise would have
existed only against the first corporation." (emphasis added) (citing Belvedere, 67
Ohio St. 3d 274).

law that this Court has reviewed, the alter ego doctrine has been used by a plaintiff
attempting to satisfy a judgment or collect a debt. See e.g., In re Fisher, 296 F. App'x at
494 (applying the alter ego concept to hold a shareholder liable for debts he attempted
to shield from a creditor through fraudulent transfers of assets to his corporation).
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.

.

The alter ego doctrine allows a plaintiff to "hold a second corporation liable

for the corporate misdeeds of the first ... when a controlling shareholder [or
parent] misuses his control of the corporation to commit specific, egregious acts
that injure a third party." Minno v. Pro-Fab, Inc., 121 Ohio St. 3d 464, 468, 20090hio-1247, ~ 13; see also Dombroski v. Wellpoint, Inc., 119 Ohio St. 3d 506,
2008-0hio-4827, 895 N.E.2d 538 (2008). Alter ego liability is founded on the
principle that it would be "unjust to allow ... [a] shareholder to use the corporate
form as a shield to escape the consequences of [its] wrongful acts. Minno, 121
Ohio St. 3d at 467. It therefore arose as an exception to the general rule that
"shareholders, officers, and directors are not liable for the debts of the
corporation" and allows courts to disregard the corporate form and hold a parent
company liable for the debts or judgments arising from a subsidiary's misdeeds.

Belvedere, 67 Ohio St. 3d at 287 (11 [T]he •veil' of the corporation can be 'pierced'
and individual shareholders held liable for corporate misdeeds when it would be
unjust to allow the shareholders to hide behind the fiction of the corporate
entity.").
Here, Plaintiff does not seek to use the alter ego doctrine to hold NCH and
the Research Institute liable for the misdeeds of the Foundation. Instead,
Plaintiff attempts to use it as the basis for its cause of action against NCH and
the Research Institute, to hold them liable for their own purported misdeeds
based on the terms of a contract to which they were not a party. Plaintiff has no
underlying cause of action against the Foundation that would allow Plaintiff to
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reach the assets of NCH or the Research Institute for purportedly using the
Foundation as their alter ego. Instead, Plaintiff has attempted to use the alter
ego doctrine to create a cause of action for breach of the Donation Agreement
against NCH, the Research Institute, and the Foundation based on actions that
the Foundation-the only signatory to the Donation Agreement-did not take.
Because the alter ego doctrine cannot be used in this way, Plaintiffs claims
against the Foundation, the Research Institute, and NCH fail.
3. Plaintiff fails to State a Breach of Contract Claim under Agency
Principles

Plaintiff alternatively alleges that NCH and the Research Institute are
bound to the terms of the Donation Agreement under principles of agency. "[A]
complaint relying on agency must plead facts which, if proved, could establish
the existence of an agency relationship." Barrett-O'Neill v. Lalo, LLC, No. 2:14CV-194, 2014 WL 3895679, at *3 (S.D. Ohio Aug. 8, 2014) (collecting cases)
(internal quotation marks omitted).
Plaintiff makes one explicit agency allegation, "[t]he Research Institute and
NCH are liable for breach of the Donation Agreement because the Foundation
acted as their agent." Am. Compl.

~

121, ECF No. 34. This sole allegation "is a

conclusory statement of a legal proposition without any supporting factual
allegations to demonstrate its plausibility." Kendall v. Phoenix Home Health Care
Servs. Ltd., No. 2:15-CV-3009, 2016 WL 5871506, at *3 (S.D. Ohio Oct. 7, 2016)
(quoting Brickerv. R &A Pizza, Inc., 804 F. Supp. 2d 615, 622 (S.D. Ohio 2011).

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..

Under Ohio law, "the primary distinguishing characteristic of an agency
relationship is the right of a principal to control the conduct of an agent when the
agent is performing work for it." Id. (quoting Costell v. Toledo Hosp., 98 Ohio
App. 586, 593 (Ohio Ct. App. 1994)). Plaintiff contends that it has adequately
alleged facts demonstrating that NCH and the Research Institute controlled the
Foundation because the Donation Agreement was signed by Timothy Robbins on
behalf of the Foundation and Robbins served as an officer on the boards of
directors of all three organizations. The Court disagrees.
Simply because a signatory to a contract has multiple positions at different
companies, even high-ranking positions at related companies, does not
automatically establish that those different companies exercise control over each
other. Plaintiff further contends that it has adequately alleged that NCH and the
Research Institute controlled the Foundation because the Donation Agreement
between Plaintiff and the Foundation benefitted the Research Institute. But the
fact that the Research Institute received a donation pursuant to the Donation
Agreement simply indicates that the Research Institute was a third-party
beneficiary. A third-party beneficiary relationship is not equivalent to an agency
relationship. Accordingly, Plaintiff's breach of contract claims against the
Foundation, the Research Institute, and NCH fail under an agency theory as well.
For all of the above reasons, Plaintiff fails to allege that the Foundation, the
Research Institute, or NCH breached the Donation Agreement. The motion to
dismiss filed by the Foundation, the Research Institute, and NCH, ECF No. 36, is
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GRANTED and Plaintiff's breach of contract claims against the same are
DISMISSED.
B. Claims for Tortious Interference with Contract against AveXis and the
Individual Defendants (Count 2 of the First Amended Complaint)
Plaintiff also alleges tortious interference with contract against AveXis and
the individual defendants. Under Ohio law, the elements of tortious interference
with contract are: "(1) the existence of a contract; (2) the wrongdoer's knowledge
of the contract; (3) the wrongdoer's intentional procurement of the contract's
breach; (4) a lack of justification; and (5) resulting damages." DeBoer Structures

(U.S.A.) Inc. v. Shaffer Tent And Awning Co., 233 F. Supp. 2d 934, 948-49 (S.D.
Ohio 2002) (citing Fred Siegel Co., LPA v. Arter & Hadden, 85 Ohio St.3d 171,
176 (1999)). Even assuming a breach of contract occurred in this case-it did
not-Plaintiff still fails to sufficiently allege a tortious interference with a contract
against any of these defendants.
1.

Plaintiff Does Not Allege Tortious Interference against Carbona,
Nolan, or Sreedharn

To be liable for tortious interference, a tortfeasor must not only have
knowledge of the contract, he must have knowledge of the contract at the time of,
or before, the alleged breach. See Lanton v. Ocwen Loan Servicing, LLC, No.
3:15-CV-372, 2017 WL 633468, at *3 (S.D. Ohio Feb. 15, 2017).
Here, Plaintiff alleges that the Donation Agreement was breached in
September of 2013, when the Research Institute submitted the IND Application
to the FDA, and in April of 2014, when NCH registered its clinical trial. Am.

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..
Compl. 111158, 78. Plaintiff does not allege, however, that AveXis's former CEO,
Carbona, possessed personal knowledge of the Donation Agreement or its terms
at the time of those alleged breaches. Instead, Plaintiff alleges that on July 30,
2014, three months after NCH registered the clinical trial with the FDA, Carbona
requested a copy of the Donation Agreement in an email that stated: "my
concern is that there are written provisions in those agreements that I am only
vaguely aware of ... " Id. at 1178.
Likewise, Plaintiff does not allege that AveXis's current CEO, Nolan, and
AveXis's VP of Business Relations, Sreedharan, possessed personal knowledge
of the Donation Agreement or its terms at the time of those alleged breaches.
Plaintiff does not, in fact, allege that Nolan or Sreedharan had any contact or
dealings with any of the parties prior to June of 2015. Thus, even accepting
Plaintiff's material allegations as true, Plaintiff has failed to sufficiently allege a
claim for tortious interference against Carbona, Nolan, or Sreedharan.

2.

Plaintiff Does Not Allege Tortious Interference against AveXis
or Kaspar

For liability to attach, a tortfeasor must intentionally procure a breach. See

Lanton, 2017 WL 633468, at *3. Plaintiff alleges that Kaspar, AveXis's Chief
Scientific Officer, gained knowledge of the Donation Agreement's existence in
September of 2012 when he was copied on an email sent to Vincent Gaynor and
several others with the Donation Agreement attached. Am. Compl.1147, ECF
No. 34. Furthermore, Plaintiff alleges that Kaspar's purported knowledge of the

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Donation Agreement can be Imputed to AveXIs. Id. at ^ 47, 49, 70. Assuming
Kaspar's knowledge could be Imputed to AveXIs on this basis, Plaintiff

nonetheless makes no factual allegations that suggest that either Kaspar or
AveXIs Intentionally procured a breach of the Donation Agreement.
Plaintiff alleges that Kaspar and AveXIs sought to "Induce" Plaintiff mto

signing a confidentiality agreement that would have named AveXIs the sponsor

of scAAVQ Instead of Plaintiff. Id. at

91-94. But asking Plaintiff to voluntarily

release any alleged sponsorship privileges Is not equivalent to Inducing other
entitles to breach an agreement with Plaintiff. Plaintiff also alleges that AveXIs
exercised an option In Its license agreement with NCH to sponsor the IND

Application for scAAV9 on October 14, 2015. Id. at ^ 125. But that conduct

occurred after the purported breaches In 2013 and 2014 and thus cannot
constitute their Inducement. Therefore, Plaintiff does not sufficiently allege a

claim for tortlous Interference against AvexIs or Kaspar either.
Accordingly, the motions to dismiss filed by Carbona, EOF No. 48; Nolan,
Sreedharan, and AveXIs, EOF No. 38; and Kaspar, EOF No. 37, are GRANTED

and PlalntlfTs claims against the same for tortlous Interference with contract are
DISMISSED.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS the motions to dismiss for
failure to state a claim, EOF Nos. 36, 37, 38, and 48. PlalntlfTs claims are hereby
DISMISSED without prejudice. Should Plaintiff choose to amend Its complaint
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and re-file this case Plaintiff is DIRECTED to do so within twenty-one days of the
date of this Opinion and Order.
IT IS SO ORDERED.

U!fl/;l!~

MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT

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