United States District Court, W.D. North Carolina, Charlotte Division
C. MULLEN UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Defendants' Motion to
Dismiss, pursuant to Rule 12(b)(3) of the Federal Rules of
Civil Procedure [Doc. No. 9], and Motion to Dismiss for
Failure to Join Required Party [Doc. No. 14]. Plaintiff filed
a response and Defendant filed a reply. Accordingly, this
matter is ripe for disposition.
civil action was filed in Mecklenburg County Superior Court
on December 13, 2016. Plaintiff is a foreign entity with its
principal place of business in Italy. Defendants are Delaware
corporations, both with principal places of business in North
Carolina. Plaintiff alleges claims for breach of contract and
unjust enrichment/quantum meruit based on an alleged
agreement for Plaintiff to develop and install certain
technology for Defendants' businesses. Defendants removed
the case to this court on January 4, 2017, on the basis of
diversity jurisdiction. Defendants subsequently filed a
Motion to Dismiss for Improper Venue arguing that the parties
signed an agreement on non-disclosure of confidential
information (“NDA”) containing a mandatory forum
selection clause that provided that the “Swiss
Courts” possess “exclusive jurisdiction”
over “all disputes arising” under the NDA. The
NDA was attached to Plaintiff's Complaint and is the only
written agreement both parties signed.
Fourth Circuit has ruled that a Rule 12(b)(3) motion requires
dismissal where a forum-selection clause selects a foreign
nation and is both mandatory and reasonable. See Allen v.
Lloyd's of London, 94 F.3d 923 (4th Cir. 1996)
(dismissing the case after finding that the forum selection
clause designating the United Kingdom was both mandatory and
reasonable). As stated above, Plaintiff and Defendants signed
the NDA, which contained a mandatory forum-selection clause.
This clause requires all disputes arising out the NDA to be
tried in Swiss courts. Plaintiff does not dispute that the
forum selection is mandatory and valid, but instead argues
that the clause should not apply because none of the claims
arise out of the NDA.
contains a clause stating each party shall not
“disclose or use” and shall “not exploit
any Confidential Information.” Each of the
Plaintiff's claims arise out of the Defendant's
alleged exploitation of Plaintiff's confidential
information and therefore triggers the mandatory forum
alleges that in 2014, Plaintiff proposed to adapt/customize
Robotways' technology into one of Defendants'
prototype scrubber drier machines. (Compl. at ¶ 9-12).
“From April until October, 2014, Robotways adapted and
customized its technology in the prototype.” (Compl. at
¶ 13). Plaintiff further alleges that “[i]n or
about October 14, 2014, Defendants visited Robotways'
premises in Italy to evaluate Robotways' work on the
prototype[, ] . . . videoed the machine and its performance .
. . [and] asked Robotways to develop hardware and software
for Defendants' machines.” (Compl. at ¶
14-15). Plaintiff alleges that the following month, November
2014, “Defendants sent Robotways a document entitled
‘General Guidelines for the Development of a Robotic
Floorcare Machine' and marked
‘Confidential.'” (Compl. at ¶
19) (emphasis added). Thereafter, Plaintiff alleges that it
worked to “adapt and customize its technology for use
in Defendants' machines” and continued to work on
the prototype. (Compl. at ¶ 22).
claims flow from the confidential and proprietary technology
that Plaintiff allegedly “adapted and customized”
into the prototype scrubber drier machine. Plaintiff contends
it was damaged when the confidential technology it shared
under the Agreement was utilized by Defendants in violation
of the Agreement.
connection with the First Claim for Relief for Breach of
Contract as to Manufacturing/Licensing Agreement, Plaintiff
alleges consequential damages in the amount of $7, 548, 010
for “Defendants' revenues for selling machines that
incorporate Robotways' technology.” (Compl. at
¶ 42). In connection with the Second Claim for Relief
for Breach of Contract as to the prototype, Plaintiff alleges
that “Robotways integrated Robotways' technology
into the prototype . . . [and] developed both hardware and
software for Defendants . . . .” (Compl. at ¶ 50).
In connection with the Third Claim for Relief for Unjust
Enrichment or Quantum Meruit, Plaintiff alleges that
“the value Defendants received for selling machines
that incorporate Robotways' technology and the resulting
breach of that implied contract Robotways has suffered
monetary damages in an amount of at least $7, 930,
215.71.” (Compl. at ¶ 75).
Plaintiff's claims and alleged damages are all firmly
grounded on the common notion that Plaintiff's
confidential technology that it shared under the NDA was
utilized by Defendants in violation of the NDA. Even if the
Court was to assume Plaintiff's claims do not arise out
of the NDA, this Court has previously concluded that a
forum-selection provision contained in only one of multiple
agreements that “involve the same transaction”
governs the entire relationship between those parties
“even though [the agreements were] executed on
different dates and addressing discrete aspects of the
relationship.” Encompass Advisors, Ltd. V. Unapen,
Inc., 686 F.Supp.2d 607, 614 (W.D. N.C. 2009). Taking
Plaintiff's allegations in the Complaint as true, the NDA
is simply one part of a large transaction between the
parties. Utilizing the analysis above, that would require
this Court to find the forum selection clause of the NDA to
apply to all claims arising out of the transaction.
the mandatory attribute established, the next step is to
determine the reasonableness of the NDA's forum-selection
clause. The Fourth Circuit has said,
[c]hoice of forum and law provisions may be found
unreasonable if (1) their formation was induced by fraud or
overreaching; (2) the complaining party ‘will for
practical purposes be deprived of his day in court'
because of the grave inconvenience or unfairness of the
selected forum; (3) the fundamental unfairness of the chosen
law may deprive the plaintiff of a remedy; or (4) their
enforcement would contravene a strong public policy of the
Allen, 94 F.3d at 928. Plaintiff neither contests
the reasonableness of the NDA's forum selection clause
nor submits any evidence to permit this Court to conclude
that it is unreasonable. Nevertheless, the Court will briefly