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holding that despite discovery limitations, filing fees, and translation fees, "courts have repeatedly found Germany to be an adequate forum"
Summary of this case from Gita Sports Ltd. v. SG Sensortechnik GMBH & Co. KGOpinion
Civil No. 04-1401 ADM/SRN.
November 2, 2004
Jeffrey Thompson, Esq., Meagher Geer, P.L.L.P., Minneapolis, MN, and Thomas Burger, Esq., Wood, Herron Evans, L.L.P., Cincinnati, OH, appeared for and on behalf of Plaintiff Dr. Tassilo Bonzel.
Joseph Ferraro, Esq., Clifford Chance, L.L.P., Palo Alto, CA, and Justin Perl, Esq., Maslon, Edelman, Borman Brand, L.L.P., Minneapolis, MN, appeared for and on behalf of Defendant Pfizer, Inc.
Matthew Wolf, Esq., Howrey, Simon, Arnold White, L.L.P., Washington, D.C., and Paul Robbennolt, Esq., Dorsey Whitney L.L.P., Minneapolis, MN, appeared for and on behalf of Defendants Boston Scientific SciMed, Inc. f/k/a/ Schneider (U.S.A.) Inc., SciMed Life Systems, Inc., and Boston Scientific Corporation.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On August 27, 2004, oral argument before the undersigned United States District Judge was heard on Defendants Boston Scientific SciMed, Inc. f/k/a/ Schneider (U.S.A.) Inc., SciMed Life Systems, Inc., and Boston Scientific Corporation's ("BSC") (collectively, the "BSC Defendants") Motion to Dismiss [Docket No. 7]. Argument was also heard on Defendant Pfizer, Inc.'s ("Pfizer") Motion to Dismiss [Docket No. 10]. In his First Amended Complaint ("Amended Complaint") [Docket No. 6], Plaintiff Dr. Tassilo Bonzel alleges claims arising out of the alleged breach of Agreement V. The BSC Defendants and Pfizer (collectively, "Defendants") base their Motions on the purported lack of subject matter jurisdiction. Alternatively, Defendant Pfizer argues the case should be dismissed on the grounds of forum non conveniens.
II. BACKGROUND
In considering motions to dismiss, courts construe the pleadings in the light most favorable to the non-moving party, and view the facts alleged in the complaint as true. See Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994).
Plaintiff in this action is a German citizen who invented the "rapid exchange" catheter in the 1980s. Amended Complaint ¶ 15 (Robbennolt Decl. Ex. 1). Plaintiff entered an agreement with Fraunhofer-Gesellschaft ("Fraunhofer"), an entity funded by the German government, in order to obtain patents on the invention. BSC Defs' Mem. of Law in Support of Motion for Leave to Amend Answer at 1-2 (Robbennolt Decl. Ex. 2). In exchange, Fraunhofer participated in licensing negotiations and received a share of license proceeds. Id. In 1986, Plaintiff negotiated a license agreement with Schneider (Europe) AG ("Schneider AG"), a subsidiary of Pfizer, and the predecessor of Schneider GmbH. Amended Complaint ¶ 21. Over time, a number of amendments were made to this agreement, including Agreement V, the focus of the current dispute. Id. ¶¶ 45-46. Agreement V was negotiated in Germany in the German language. Moreover, it was negotiated by German and Swiss representatives of Plaintiff, Fraunhofer, and Schneider AG. In 1998, Pfizer sold Schneider GmbH to BSC. Id. ¶ 55.
On July 28, 2000, Plaintiff filed suit in Hennepin County District Court alleging breach of contract and tort claims against Pfizer, Schneider AG, Schneider (U.S.A.) Inc., Schneider Worldwide, Schneider GmbH, and Pfizer Research and Development Company N.V./S.A. ("State Complaint"). State Complaint (Ferraro Decl. Ex. B). BSC was named as an involuntary plaintiff in the State Complaint. In August 2000, the defendants in the State Court Action removed the case to the United States District Court, District of Minnesota. Defendants claimed Plaintiff had improperly joined several parties to defeat diversity jurisdiction. Additionally, Defendants averred certain patent related claims raised federal question jurisdiction. Notice of Removal (Ferraro Decl. Ex. D).
The suit filed in Hennepin County District Court will be referred to as the "State Court Action."
Plaintiff opposed the removal, and sought remand to Minnesota state court. Mem. of Law in Support of Motion to Remand (Robbennolt Decl. Ex. 3). Plaintiff made repeated assurances to the District Court that no federal question jurisdiction arose from his complaint. Id. at 2-3. Rather, Plaintiff averred that the action was strictly a contract dispute. Id. On this assurance, Defendants withdrew their argument for federal question jurisdiction. Feb. 6, 2001 Memorandum and Order at 5 n. 3 (Ferraro Decl. Ex. G). In arguing his case for remand, Plaintiff argued that his proposed amended complaint ("Amended State Complaint") clarified the nature of his original claims. Reply Mem. Supporting Motion to Amend Complaint (Robbennolt Decl. Ex. 7). While the remand motion was pending, Plaintiff moved to file an Amended State Complaint. Mem. of Law Supporting Motion to Amend Complaint (Robbennolt Decl. Ex. 6). The Amended State Complaint realigned BSC as a defendant and pled new claims against the BSC Defendants for failure to pay certain royalties due to Plaintiff. Id. Ultimately, the claims regarding royalties were the subject of a settlement. Pfizer's Mem. Of Law in Support of Motion to Dismiss at 5.
In his Order granting remand, Judge Magnuson wrote: "Bonzel represents that he is not seeking a declaration of patent rights. Because of this, Defendants do not press their claim that federal question jurisdiction exists." Feb. 6, 2001 Memorandum and Order at 5 n. 3. As a result, the Court did not analyze federal question jurisdiction. Id. Additionally, the Order found that the presence of Schneider GmbH was proper, thereby destroying diversity. Id. at 9.
Following remand to the Hennepin County District Court, the Defendants moved to dismiss the Amended State Complaint based on forum non conveniens. Defs' Joint Mem. of Law in Support of Motion to Dismiss (Robbennolt Decl. Ex. 9). Defendants claimed that Minnesota was an improper forum because many of the parties and witnesses were not located in Minnesota. Id. at 2. Plaintiff countered that his royalty claims against Schneider (U.S.A.) Inc., which were later resolved, formed the basis of his opposition to Defendants' motion for forum non conveniens. July 12, 2002 Order at 8 (Ferraro Ex. A).
While the Motion to Dismiss the Amended State Complaint was pending and following the settlement of the royalty disputes, the Pfizer Defendants moved to sever the settled claims and dismiss the remainder of the Amended State Complaint. Pfizer's Mem. of Law in Support of Motion to Sever and Dismiss Claims (Robbennolt Decl. Ex. 12). In opposing the motion, Plaintiff claimed for the first time that he "[had] not settled his claim arising out of the Minnesota defendant's (Schneider US) failure to sue Boston Scientific for infringements by Boston Scientific's other Minnesota subsidiary (Scimed)." Mem. of Law Opposing Defs' Second Motion to Dismiss at 2 (Robbennolt Decl. Ex. 13). In its response memorandum, BSC requested a ruling severing the infringement claims, or, that the claims should be dismissed for lack of jurisdiction. BSC Defs' Mem. in Response to Pl's Mem. of Law in Opposition to Pfizer's Motion to Sever and Dismiss Claims (Robbennolt Decl. Ex. 14).
Ultimately, Defendants' motions to dismiss were granted, and the Amended State Complaint was dismissed on the grounds of forum non conveniens. July 12, 2002 Order. In doing so, the state court held a German judgment was enforceable, and Germany would be the most convenient forum for the case, as the negotiators of Agreement V all resided in Europe. Id. at 12. Importantly, the court held the Minnesota witnesses whom Plaintiff claimed to be relevant to his infringement claims were not significant to the forum non conveniens analysis, as the action was not one for patent infringement. Id. at 14. Plaintiff unsuccessfully appealed the decision. Bonzel v. Pfizer, Inc., No. C9-03-47, 2003 WL 21743768 (Minn.Ct.App. July 29, 2003). Following affirmation of the dismissal by the Minnesota Court of Appeals, the Minnesota Supreme Court denied Plaintiff's Petition for Review. Id.; Oct. 21, 2003 Order (Ferraro Decl. Ex. K).
Plaintiff filed this lawsuit on March 26, 2004 [Docket No. 1], and amended the complaint on May 14, 2004 [Docket No. 6]. In his fourteen count Amended Complaint, Plaintiff alleges a number of breaches of Agreement V. Additionally, Plaintiff claims BSC and Pfizer tortiously interfered with Agreement V, Defendants engaged in a civil conspiracy, and Pfizer committed fraud and breached its fiduciary duties to Plaintiff. The counts alleged in the Amended Complaint closely mirror those alleged in the State Amended Complaint. As will be discussed below, Counts I-III of the Amended Complaint do not match any enumerated counts in the State Amended Complaint; however, the substance of the allegations are contained with the State Amended Complaint. Counts XIII and XIV of the Amended Complaint, while new, simply add alternative theories of relief based on German law, but do not add any new factual claims.
III. DISCUSSION
A. Motion to Dismiss Standard
A party may move to dismiss a claim if the court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). In considering motions to dismiss, courts construe the pleadings in the light most favorable to the non-moving party, and view the facts alleged in the complaint as true. See Hamm v. Groose, 15 F.3d 110, 112 (8th Cir. 1994). Courts must also draw all reasonable inferences in the non-moving party's favor. See United States v. Stoltz, 327 F.3d 671, 674 (8th Cir. 2003). Motions to dismiss for lack of subject matter jurisdiction may be raised at any time, and the court "shall dismiss the action" if it lacks jurisdiction. See Fed.R.Civ.P. 12(h)(3).
B. Federal Question Jurisdiction
Defendants argue that federal question jurisdiction does not exist. Defendants rely on the representations made by Plaintiff that no issues of federal law were raised in the federal remand context, or in the State Court Action. Plaintiff responds that Counts I-III of the Amended Complaint raise questions of patent law, and therefore, this Court has jurisdiction under 28 U.S.C. § 1338.
Counts I-III of the Amended Complaint contain allegations asserting breach of contract, breach of fiduciary duties, and tortious interference, all based on the BSC Defendants failure to prosecute alleged patent infringements in violation of Agreement V. Amended Complaint ¶¶ 23-26. Plaintiff claims that a determination of whether the patents that are the subject of Agreement V were infringed is required to resolve Counts I-III, and therefore, federal question jurisdiction is implicated. This was not the position taken by Defendants, however, in the State Court Action. In that case, Plaintiff, although he did not parse the charges into separate counts, made the same allegations contained in Counts I-III of the Amended Complaint.
It is believed that Pfizer, Boston Scientific, and/or the Schneider entities have or may have entered into other secret agreements granting releases or cross-licenses for their own benefit and to Dr. Bonzel's detriment with other entities — essentially using Dr. Bonzel's money and rights to purchase advantages to themselves unrelated to enforcement of Dr. Bonzel's patent. It is also believed that these defendants have or may have failed to advise Dr. Bonzel of infringing activities of which they were aware, in violation of Agreement (V), and failed to prosecute infringement actions which would have been beneficial to Dr. Bonzel and the patent rights.
State Amended Complaint ¶ 49 (Ferraro Decl. Ex. C). Plaintiff further explained these allegations in his Memorandum of Law Opposing Defendants' Second Motion to Dismiss for Forum Non Conveniens and to Sever: "[b]oth the Original and Amended Complaints state claims for fraudulent transfer, tortious interference, conspiracy and bad faith arising, in part, out of Schneider's and Pfizer's failure to enforce his patent rights against Boston Scientific and Scimed (its Minnesota subsidiary)." Mem. of Law Opposing Defs' Second Motion to Dismiss at 5. Judge Mary Steenson DuFresne accepted this argument, noting that the case before her was not a patent infringement case. July 12, 2002 Order at 13.
Judge Magnuson was also told by Plaintiff that the State Court Action did not raise patent related issues. In his Order granting remand to the Hennepin County Court, Judge Magnuson noted that Plaintiff represented that he was not seeking a declaration of patent rights; as a result, Defendants did not press their claim of federal question jurisdiction. Feb. 6, 2001 Memorandum and Order at 5 n. 3. Judge Magnuson then remanded the case when he found that no diversity jurisdiction existed. Id. at 5. Judge Magnuson clearly relied on Plaintiff's representations that Plaintiff was not seeking resolution of any patent issues.
Jurisdiction is fundamental, and therefore lack of jurisdiction may be raised by the court or any party at any time during the pendency of a case. Fed.R.Civ.P. 12(h)(3). Jurisdiction cannot be waived, nor can a party be estopped from raising an argument regarding a lack of subject matter jurisdiction. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). Although it has often been noted that certain cases beg for an exception to this rule, "for example, when a party who invokes federal jurisdiction recants his original jurisdictional allegations or `discovers' that there was no diversity after all after suffering a loss on the merits," the rule that estoppel cannot bar a jurisdictional defense has held firm. Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996). However, this case presents a twist of the prototypical jurisdictional fact pattern. Here, a party who previously denied the existence of jurisdiction now affirmatively asserts its existence. As a result, the principle that jurisdictional defenses cannot be estopped is not directly implicated.
Courts have regularly dismissed refiled cases that were previously dismissed for lack of jurisdiction. In North Georgia Elec. Membership Corp. v. City of Calhoun, Ga., the Eleventh Circuit held that North Georgia was estopped from suing the City of Calhoun. 989 F.2d 429, 431 (11th Cir. 1993). Five years prior to the subject suit, North Georgia sued the City of Calhoun on virtually identical grounds, only to have the suit dismissed for lack of federal jurisdiction. Id. The Eleventh Circuit held that because jurisdiction was litigated and a decision was based thereon in the first suit, North Georgia could not raise the issue again.Id. Similarly, the Fifth Circuit held in Boone v. Kurtz:
Although the dismissal of a complaint for lack of jurisdiction does not adjudicate the merit so as to make the case res judicata on the substance of the asserted claim, it does adjudicate the court's jurisdiction, and a second complaint cannot command a second consideration of the same jurisdictional claims.617 F.2d 435, 436 (5th Cir. 1980); see also Royal Service, Inc. v. Goody Products, Inc., No. 88-2758, 1988 WL 126556, at *2 (N.D. Cal. Sept. 26, 1988) (applying estoppel to jurisdictional issue, noting that party was playing "jurisdictional ping pong"). The Eighth Circuit has held that estoppel applies where "a party takes a position that is clearly inconsistent with its earlier position." Hossaini v. Western Missouri Medical Center, 140 F.3d 1140, 1143 (8th Cir. 1998). Other courts have defined the elements of estoppel, which include:
(1) whether the later representation of the party to be estopped is clearly inconsistent with the party's earlier position; (2) whether a court has accepted the party's earlier position or relied upon it in any way; and (3) whether the party to be estopped derives any unfair benefit from its new statement or whether another party will be prejudiced.Glover v. Standard Federal Bank, No. 97-2068, 2001 WL 1640097, at *3 (D. Minn. Nov. 9, 2001).
Although the list of factors itemized in Glover sets the bar higher than recognized by the Eighth Circuit in Hossaini, all three Glover elements are met in this instance, and accordingly, Plaintiff is estopped from arguing that his claims meet federal question jurisdiction. First, in arguing that the Amended Complaint raises issues of patent law, Plaintiff is directly contradicting his own argument regarding federal question jurisdiction that he made in the State Court Action, when he denied the existence of any patent issues. As to the second element, Judges Magnuson and Steenson DuFresne accepted and relied on Plaintiff's representation that he was not asserting patent law claims. Finally, as to the third element, it would be patently unfair for Plaintiff to play "jurisdictional ping pong" with federal jurisdiction by reversing his position after failing to secure the state court forum he desired. This case was begun four years ago in Minnesota state court. After a long defense of that action, Plaintiff is forcing Defendants to replay the same case and arguments, certainly resulting in significant legal fees. Additionally, prejudice has occurred by the length of the delay alone. Plaintiff is bound by his prior representations of the absence of federal jurisdiction. His attempt to play "jurisdictional ping pong" ultimately results in sudden death for his claim.
C. Diversity Jurisdiction
In the State Court Action, Plaintiff named Schneider GmbH as a defendant. State Complaint. Schneider GmbH is the successor to Schneider AG, with whom Plaintiff contracted in Agreement V. Schneider GmbH, however, has not been named in the Amended Complaint. Defendants argue Schneider GmbH is a necessary and indispensable party under Fed.R.Civ.P. 19, and therefore must be joined. Such joinder destroys diversity, as both Plaintiff and Schneider GmbH are foreign entities. 28 U.S.C. § 1332(a);Karazanos v. Madison Two Assocs., 147 F.3d 624, 626-27 (7th Cir. 1998). Additionally, in a familiar argument, Defendants aver that Plaintiff is judicially estopped from arguing that Schneider GmbH is not a necessary party, because Plaintiff argued before Judge Magnuson that Schneider GmbH was a party in interest to the case. Plaintiff, in response, first argues Schneider GmbH is not a necessary party, as it is merely a shell company. Second, Plaintiff claims judicial estoppel is not appropriate here.
Of pivotal importance in this action is the interpretation of Agreement V, which is implicated in virtually every count of the Amended Complaint. It is undisputed that Schneider GmbH's predecessor in interest, Schneider AG, was an original signatory to the contract, and that Schneider GmbH was a licensee as a result of Agreement V. Under Fed. Rule Civ. P. 19, a necessary party whose inclusion in a suit would destroy diversity must meet the indispensability requirements of Rule 19(b). The factors to be considered in determining indispensability include:
[F]irst, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
In this instance, the Rule 19(b) factors militate in favor of a finding that Schneider GmbH is an indispensable party. As to the first factor, although Schneider GmbH may be an entity with little assets, the parties do not dispute it remains a distinct and viable corporate entity. Pl's Combined Mem. of Law Opposing Defs' Motions to Dismiss at 19; BSC Reply Mem. at 4-6. While Schneider GmbH's diminished role may, at first blush, signify its lack of indispensability to this matter, both Schneider GmbH and BSC may be prejudiced by its failure to be joined. Should Plaintiff fail (or succeed) on the merits in this case, he would not be prevented from refiling an identical or substantially similar lawsuit against Schneider GmbH, with potential repercussions for BSC. Consequently, the possibility for prejudice to Schneider GmbH and BSC is palpable. Moreover, as will be further discussed below, if this case is dismissed, Plaintiff has an adequate remedy in that he may bring his suit in German court.
Additionally, the interpretation of Agreement V, as previously noted, is of vital significance to this case, and will affect the signatories to Agreement V. The importance of joining the parties to the contract at issue underscores the finding that Schneider GmbH is an indispensable party. See Cloverleaf Standardbred Owners Ass'n, Inc. v. Nat'l Bank of Washington, 699 F.2d 1274, 1279-80 (D.C. Cir. 1983) (finding that a party to a contract was a necessary and indispensable party, noting the public has an interest in settling disputes in one action); Salton, Inc. v. Philips Domestic Appliances Personal Care B.V., No. 03-5660, 2004 WL 42371, at *4 (N.D. Ill. Jan. 5, 2004); see also Dawavendewa v. Salt River Project Agr. Imp. Power Dist., 276 F.3d 1150, 1157 (9th Cir. 2002) ("a party to a contract is necessary, and if not susceptible to joinder, indispensable to litigation seeking to decimate that contract"). Accordingly, the Court finds that Schneider GmbH is a necessary and indispensable party. As a result, diversity jurisdiction is destroyed.
Although this finding if correctly made is dispositive, the estoppel argument is asserted again in this context and will be briefly discussed. Defendants argue that Plaintiff is estopped from claiming that Schneider GmbH is not a necessary and indispensable party to this litigation, as he argued precisely the opposite position in front of Judge Magnuson in the remand motion. In response to Defendants' allegation that Plaintiff had improperly joined Schneider GmbH, Plaintiff replied: "Dr. Bonzel has merely named the parties that have claimed or still claim to be licensees. The real parties in interest are all those who are or have been the licensee [i.e., Schneider GmbH]. . . . The named defendants each have a very real and very substantial interest in this litigation." Reply Brief on Motion to Remand to State Court at 3, 5 (Robbennolt Decl. Ex. 5). The doctrine of judicial estoppel, as previously detailed, forbids a party from taking inconsistent positions in the same or related litigation.Hossaini, 140 F.3d at 1143. The equities of the case at bar weigh in favor of Defendants. Plaintiff reverses his course on designating appropriate parties to the litigation without a concomitant change in the factual circumstances.
D. Forum Non Conveniens
Finally, Defendants aver that even if federal jurisdiction exists in this case, it should be dismissed on the basis of forum non conveniens. The State Court Action, was, in fact, dismissed on this basis by Judge Steenson DuFresne. Defendants argue that this Court is bound to that ruling, and in any event, the Gulf Oil factors are met in this case. Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Plaintiff argues that the case at bar is different than the case initially brought before the state court; as a result, it is subject to a new forum non conveniens analysis, which should result in a denial of Defendants' Motion.
In her Order dismissing the State Court Action, Judge Steenson DuFresne set forth and thoroughly analyzed the forum non conveniens factors set forth in Gulf Oil. Id. at 508-09. First, Judge Steenson DuFresne noted a plaintiff's choice of forum is generally given a substantial amount of deference, however, the presumption "applies with less force when the plaintiff or real parties in interest are foreign." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 266 (1981). She then analyzed the Gulf Oil factors, which include private and public interest dimensions. The private interest factors include: (1) the relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing witnesses; (3) possibility of viewing the premises, if appropriate to the action; (4) questions of enforceability of a judgment if one is obtained; and (5) all other practical problems that make trial of a case easy, expeditious, and inexpensive.Gulf Oil, 330 U.S. at 508. The public interest factors include: (1) administrative burdens for the courts; (2) the potential burden on jurors that must decide a case that has no relation to the community in which they reside; (3) the burden on the court that has to interpret foreign law; and (4) the burden on the jury that has to apply foreign law. Id. at 508-09.
Minnesota state courts utilize the same Gulf Oil factors in determining whether forum non conveniens applies. Bergquist v. Medtronic, Inc., 379 N.W.2d 508, 511 (Minn. 1986).
In analyzing the private interest factors, Judge Steenson DuFresne, after noting that some factors are not at issue in this case, focused her analysis on the convenience of obtaining the attendance of witnesses and the relative ease of access to the sources of proof. First, she noted that Plaintiff could only identify one Minnesota witness other than Minnesota witnesses available to testify regarding the possible infringement of patents. Judge Steenson DuFresne stated this might be a concern if "this was a federal patent infringement case, which it is not." July 12, 2002 Order at 13. It was next found that significant events in the case included the negotiation of Agreement V and the sale of the Schneider entities to BSC. Only one witness to these events resided in Minnesota, while the vast majority were residents of New York, Massachusetts, Germany, Switzerland, and England. Moreover, as Agreement V was drafted and negotiated in Germany, the best location of the relevant evidence was Germany. As a result, Judge Steenson DuFresne concluded that the private factors favored a German forum.
Judge Steenson DuFresne also analyzed the public factors, finding the case involved interpretation of both Swiss and German law, which would have placed a significant and unnecessary burden on the court. Moreover, additional hearings would have been necessary to formulate German and Swiss jury instructions, a task especially complicated because Germany does not have a jury system. Consequently, the public factors favored a German forum, and the motion to dismiss on forum non conveniens grounds was granted.
The dismissal was upheld by the Minnesota Court of Appeals.Bonzel v. Pfizer, Inc., No. C9-03-47, 2003 WL 21743768 (Minn.Ct.App. July 29, 2003). Although Plaintiff further appealed this decision to the Minnesota Supreme Court, the Supreme Court declined to hear the case. Oct. 21, 2003 Order.
The Court finds Judge Steenson DuFresne's analysis persuasive. Defendants and Plaintiff dispute whether this Court must give preclusive effect to the state court ruling on forum non conveniens. This issue is of no moment, however, given the reevaluation of the Gulf Oil factors here. This Court reaches an independent, but the same, conclusion, that the matter is better heard in Germany than in Minnesota.
Plaintiff attempts to change the analysis and conclusion by arguing that the majority of witnesses available to testify regarding the alleged patent infringement by Defendants are located in Minnesota. However, as previously decided, Plaintiff is estopped from asserting federal patent jurisdiction in this case. Again, Judge Steenson DuFresne specifically discounted the patent infringement witnesses in her dismissal order, noting that the case was not a patent infringement case. Judge Magnuson also relied on Plaintiff's representation that the case did not involve patent infringement in remanding the case to Minnesota state court. Even if one were to consider these additional Minnesota witnesses, every count in the Amended Complaint involves Agreement V, which must, by its terms, be construed under German law. Agreement V (Ferraro Decl. Ex. U).
Plaintiff additionally argues that while Germany would have jurisdiction to hear this suit, it somehow would not have a forum. Plaintiff cites the declaration of Dr. Hans Bader as proof of the inadequacy of a German forum. Plaintiff argues that for a forum to be proper in Germany, the parties must either stipulate to a particular venue, or the defendants must plead to the merits of the case at the first hearing without contesting jurisdiction. Bader Decl. at 10-11. These arguments are irrelevant because Defendants have made repeated assurances that they will consent to be sued in Germany. Pfizer's Mem. of Law in Support of Motion to Sever and Dismiss at 12 (Robbennolt Decl. Ex. 12); Jan. 11, 2002 Letter to Judge Steenson DuFresne (Ferraro Second Decl. Ex. B); Pfizer's Reply Mem. Of Law in Support of Motion to Sever and Dismiss at 8 (Ferraro Second Decl. Ex. C). Moreover, Judge Steenson DuFresne's dismissal order specifically notes that Minnesota state court will serve as a forum if Plaintiff is somehow not able to obtain jurisdiction in Germany. July 12, 2002 at 3. Therefore, if Plaintiff cannot successfully sue Defendants in Germany, he has recourse in the Minnesota state court system.
Finally, Plaintiff raises issues regarding the allegedly prohibitively expensive filing fee, translations, and discovery limitations in Germany. Many of these issues were argued before the state court. Even if the filing fee in Germany is $2.25 million, as Plaintiff purports it to be, Plaintiff has made no showing that this fee is prohibitive. Moreover, while translation will be an issue in German court, it is also an issue that this court would face in terms of documents and witnesses. Finally, although the discovery process is not as liberal as that in the United States, courts have repeatedly found Germany to be an adequate forum. NCA Holding Corp. v. Norddeutsche Landesbank Girozentrale, No. 96-9321, 1999 WL 39539, at *2-*4 (S.D.N.Y. Jan. 28, 1999).
Plaintiff's claim must be dismissed for lack of jurisdiction, Defendants have also demonstrated that dismissal on the grounds of forum non conveniens is warranted. As a result, Plaintiff's Amended Complaint will be dismissed with prejudice.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendants' Motions to Dismiss [Docket Nos. 7 and 10] are GRANTED, and
2. Plaintiff's First Amended Complaint [Docket No. 6] is hereby DISMISSED WITH PREJUDICE.
3. It is the Court's intention to unseal this case thirty days from the date of this Order, unless the parties show good cause as to why specific documents should not be unsealed. Any objections should be made to the Court prior to that time.
4. This Order will not be filed under seal.
LET JUDGMENT BE ENTERED ACCORDINGLY.