# Grape Stars International, Inc v. NVentive, Inc.

> District Court, S.D. Florida · August 10, 2020

URL: https://www.frixlaw.com/law-library/cases/10118008

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 10, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10118008

## How later opinions describe it (automated extraction)

- finding Canada was an available alternative forum because a party had a related lawsuit pending there and “[t]here [wa]s no indication that the Canadian [d]efendants would not be subject to personal jurisdiction in the Canadian lawsuit” (alterations added)
- affirming district court’s dismissal of underlying complaints on forum non conveniens grounds where the defendants stipulated that they would accept service of process and submit to the jurisdiction of the alternative forum

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-20634-CIV-ALTONAGA/Goodman

GRAPE STARS INTERNATIONAL, INC.,

Plaintiff,
v.

NVENTIVE, INC.; et al.,

Defendants.
______________________________________/

ORDER

THIS CAUSE came before the Court on Defendants, nVentive, Inc. and François
Tanguay’s Renewed1 Motion to Dismiss [ECF No. 29], filed on May 26, 2020. Plaintiff, Grape
Stars International, Inc., filed a Response in Opposition [ECF No. 35] to the Motion; to which
Defendants filed a Reply [ECF No. 38]. On July 27, 2020, the parties filed supplemental briefing
on the issue of forum non conveniens. (See Pl.’s Suppl. Br. [ECF No. 42]; Defs.’ Suppl. Mem.
[ECF No. 43]). The Court has carefully considered the Complaint [ECF No. 1], the parties’ written
submissions, the record, and applicable law.
I. BACKGROUND
A. Plaintiff’s Complaint
This dispute arises out of a business relationship between the parties for the development
of a mobile application (the “App”). (See generally Compl.). Plaintiff is a Delaware corporation
with its principal place of business in Miami-Dade County, Florida. (See id. ¶ 1). Defendant,
nVentive, Inc., is a Canadian corporation; and Defendant, François Tanguay, is a citizen of Canada.

1 The Court denied Defendants’ initial Motion to Dismiss without prejudice after Plaintiff notified the Court
of its intention to propound jurisdictional discovery. (See Apr. 13, 2020 Order [ECF No. 26]).
(See id. ¶¶ 2, 5). According to Plaintiff, “Defendant nVentive is an alter ego of Defendant
Tanguay.”2 (Id. ¶ 4).
Plaintiff is “a third-party marketing business for retailers and distributors of certain
consumer products.” (Id. ¶ 10). Plaintiff sought to fund the development of an app to serve as the

platform for Plaintiff’s customers — retailers and distributors — to sell their consumer products.
(See id. ¶ 13). Defendants are in the business of developing and producing apps according to
customer specifications. (See id. ¶ 14).
Plaintiff attaches two contracts to the Complaint: a Non-Disclosure and Non-Circumvent
Agreement (“NDNC Agreement”) [ECF No. 1-1] and an Advisory Board Member Consulting
Agreement (“AB Agreement”) [ECF No. 1-2]. On January 18, 2016, an entity called Grape Stars
Corporation and nVentive entered into the NDNC Agreement “so that they could discuss and
Defendant Tanguay could advise concerning building the App.” (Compl. ¶ 16). Thereafter,
Defendants “learned of [Plaintiff’s] business plan, models[,] and formulae, and that it was working
on funding and developing the App.” (Id. ¶ 17 (alterations added)).

Defendants represented they could develop the App according to Plaintiff’s specifications,
including using a specific technology platform “upon which the App was to be based and with
which the App must have been functionally compatible . . . .” (Id. ¶ 18 (alteration added)).
Defendants “made various material representations regarding their background, experience and
expertise, abilities, and the abilities of the in-house staff[.]” (Id. ¶ 19 (alteration added)). Tanguay
“represented himself as a prospect for a position on [Plaintiff’s] Advisory Board based on his
reputation, experience[,] and expertise, and on the advice he had been giving [Plaintiff] under the
NDNC Agreement.” (Id. ¶ 20 (alterations added)).

2 Tanguay is the president of nVentive. (See Decl. of François Tanguay (“Tanguay Decl.”) [ECF No. 29-
1] ¶ 2).
Relying on these and other representations, Plaintiff “entered into business relationships
with Defendants.” (Id. ¶ 21). The NDNC Agreement was assigned to Plaintiff upon its formation
in October 2017. (See id. ¶ 22). On March 30, 2018, Plaintiff and Tanguay entered into the AB
Agreement. (See id. ¶ 23).

According to Plaintiff, “Defendants’ representations . . . were materially false in many
respects[;]” specifically “as to their abilities, experience, and reputation” and “their promises to
build the App on the proper technology platform.” (Id. ¶ 25 (alterations added)). Defendants
“engaged in an unlawful scheme to lure [Plaintiff] under false pretenses into business relationships
with Defendants through which Defendants would improperly attempt to steal [Plaintiff’s]
confidential information, business associates, investors, potential investors, and business plan,
models[,] and formulae, as well as to acquire or attempt to improperly acquire the company or a
substantial percentage of ownership, and/or to acquire or misdirect the company’s money and
opportunities.” (Id. ¶ 26 (alterations added)). Defendants “knowingly ma[de] false and
defamatory statements to investors, potential investors, and third parties about [Plaintiff] and its

personnel” in order “to re-direct and gain access to [Plaintiff’s] investors, potential investors, and
others for Defendants’ improper gain.” (Id. ¶¶ 27–28 (alterations added)).
Plaintiff brings eleven claims: violation of the Defend Trade Secrets Act (“DTSA”), 18
U.S.C. sections 1831 et seq., against Defendants (Count I) (see Compl. ¶¶ 30–32, 62–79);3 breach
of the NDNC Agreement against Defendants (Count II) (see id. ¶¶ 33–53); breach of the AB
Agreement against Tanguay (Count III) (see id. ¶¶ 54–72);4 breach of fiduciary duty against

3 The Complaint’s paragraphs are mis-numbered. For clarity, the Court will also refer to page numbers
when citing to paragraph numbers that are duplicative. The allegations in Count I are found on pages 5–8
of the Complaint and skip from paragraphs 30–32 to paragraphs 62–79.

4 (See Compl. 11–13).
Tanguay (Count IV) (see id. ¶¶ 73–85);5 tortious interference against Defendants (Count V) (see
id. ¶¶ 86–96); breach of the implied covenant of good faith and fair dealing against Defendants
(Count VI) (see id. ¶¶ 97–108); misappropriation of trade secretions in violation of the Florida
Uniform Trade Secrets Act (“FUTSA”), sections 688.001–688.009, Florida Statutes, against

Defendants (Count VII) (see Compl. ¶¶ 109–20); fraudulent inducement against Defendants
(Count VIII) (see id. ¶¶ 121–27); negligent misrepresentation against Defendants (Count IX) (see
id. ¶¶ 128–33); unfair competition against Defendants (Count X) (see id. ¶¶ 134–49); and
defamation against Defendants (Count XI) 6 (see id. ¶¶ 150–53).
B. The Parties’ Contracts
According to Defendants, this lawsuit is subject to forum-selection clauses found in two
other contracts between the parties — a Master Services Agreement (“MSA”) and Subscription
Agreement — which “designat[e] Quebec as the sole forum for any dispute.” (Mot. 1 (alteration
added); see also id. 4). Defendants attach these agreements to their Motion along with the Tanguay
Declaration. (See Tanguay Decl. 8–79).7 The Court sets forth the relevant provisions of the four

agreements the parties primarily discuss.
1. NDNC Agreement
Grape Stars Corporation and nVentive entered into the NDNC Agreement on January 18,
2016. (See NDNC Agreement 1). As noted, the NDNC Agreement was assigned to Plaintiff upon
its formation in October 2017. (See Compl. ¶ 22). The stated purpose of the NDNC Agreement

5 (See Compl. 13–15).

6 The last two claims are both titled Count X. For clarity, the Court refers to the defamation claim as Count
XI.

7 The Court relies on the pagination generated by the electronic CM/ECF database, which appears in the
headers of all court filings.
is as follows:
The [p]arties wish to work together in the creation of mobile applications, more
specifically the technology of producing and selling celebrity wines . . . (the
“Opportunity”), and in connection with the Opportunity, each [p]arty may disclose
to the other confidential technical and business information that the disclosing
[p]arty desires the receiving party to treat as confidential.

(NDNC Agreement 1 (alterations added)). “Confidential Information” is defined as
any information disclosed by either [p]arty to the other [p]arty, . . . including,
without limitation, business plans, customer data, customer lists, customer names,
designs documents, drawings, engineering information, financial analysis,
forecasts, formulas, know-how, ideas, inventions, market information, marketing
plans, processes, products, product plans, research, specifications, trade secrets or
any other information which is designated as “confidential,” “proprietary,” or some
similar designation . . . [and] certain financial information related to the [c]ompany.

(Id. (alterations added; emphasis and quotation marks omitted)).
In a section titled “Non Circumvention[,]” the NDNC Agreement prohibits the parties from
“solicit[ing]” or “accept[ing] any business in any manner from sources made available through
this [A]greement, without the express permission of the [p]arty who made available the source[.]”
(Id. 1 (alterations added; emphasis omitted)). This section mandates “complete confidentiality
regarding [the parties’] business sources and/or their [a]ffiliates” and requires “disclos[ure] [of]
such business sources only to named parties pursuant to the express written permission of the
[p]arty who made available the source[.]” (Id. (alterations added)). The parties are also prohibited
from “enter[ing] into any direct negotiations or transactions with [] contacts revealed by the other
[p]arty, unless it can be shown that a prior relationship existed[,]” or “enter[ing] into business
transactions with [a]ffiliates provided by the other [p]arty, unless written permission has been
obtained from the other [p]arty to do so, unless it can be shown that a prior relationship existed
with said party(ies).” (Id. 2 (alterations added)).
The NDNC Agreement also provides “[t]he parties agree not to circumvent, nor to attempt
to circumvent the other [p]arty with reference to Confidential Information[,]” and “[t]he [p]arties
will not disclose to third parties, and not use for themselves for any purpose outside of the scope
of the Agreement, any Confidential Information disclosed to [them] by either [p]arty.” (Id. 2–3
(alterations added; emphasis omitted)).

The NDNC Agreement states “[n]othing in this Agreement shall obligate either [p]arty to
proceed with any transaction between them, and each [p]arty reserves the right, in its sole
discretion, to terminate the discussions contemplated by this Agreement concerning the
Opportunity.” (Id. 2 (alterations added)).
Finally, the NDNC Agreement is “governed by and construed in all respects in accordance
with the laws of the State of Florida[,]” but it does not contain a forum-selection clause. (Id.
(alteration added)).
2. AB Agreement
Plaintiff and Tanguay entered into the AB Agreement on March 30, 2018. (See AB
Agreement 1). Defining Plaintiff as “the ‘Company’” and Tanguay as “the ‘Advisor[,]’” the AB

Agreement provides “Company wishes to engage the services of Advisor, as a member of its
Advisory Board, to provide the services set forth below, and Advisor wishes to provide such
services.” (Id. (alteration added; emphasis omitted)). A section titled “Advisor Services” states
“Advisor shall act as consulting Chief Technology Officer (CTO) advising services to Company
(the ‘Services’) as a member of its Advisory Board[.]” (Id. (alteration added; emphasis omitted)).
The Services include, among other things, “[o]verseeing all technology for the [A]pp, web site or
any other platform” and “[a]dvis[ing] Company on all technology strategies for Company.” (Id.
(alterations added)).
A “Confidentiality” section mandates “[a]ll inventions, ideas and discoveries, which shall
become Company’s property . . . shall be held secret and confidential by Advisor.” (Id. 2
(alterations added; emphasis omitted)). Moreover,
Advisor will not use or disclose or allow anyone else to use or disclose to any third
party any “Confidential Information” . . . relating to Company, its products, its
research and development, its supplies or customers and the Services to be provided
hereunder except as may be necessary in the performance of the Services or as may
be authorized in writing in advance by an appropriate officer of Company.

(Id. (alteration added)). “Confidential Information” is defined to include
any trade secrets, confidential information, knowledge, data or other information
of Company relating to products, processes, know-how, designs, formulas, test
data, customer lists, business plans, marketing plans and strategies, pricing
strategies or other subject matter pertaining to any business of Company or any
clients, customers, consultants, licensees or affiliates.

(Id. (quotation marks omitted)).
Like the NDNC Agreement, the AB Agreement is “governed by and construed in
accordance with the laws of the State of Florida” and does not contain a forum-selection clause.8
(Id. 3).
3. MSA
On March 30, 2018, Plaintiff and nVentive also entered into the MSA and an
accompanying Statement of Work (“SOW”) for the development of the App. (See Tanguay Decl.,
Ex. B, MSA 11–24; id., SOW 25–38; Mot. 4). The MSA provides that the parties “wish to enter
into this Master Agreement to set out the terms and conditions under which nVentive shall perform
certain [s]ervices . . . on an independent contractor basis[] for [Plaintiff].” (MSA 12 (alterations
added; capitalization altered; emphasis and quotation marks omitted)). The MSA further states

8 Defendants note the parties executed a Stock Option Plan granting Tanguay the option to purchase 200 of
Plaintiff’s shares as compensation under the AB Agreement. (See Mot. 5; see also Tanguay Decl., Ex. E,
Stock Option Plan 64–79). The Stock Option Plan “is governed by the laws of the Province of Quebec, and
the rights of all parties and the construction and effect of each provision of the Plan shall be according to
the laws of the Province of Quebec without giving effect to the conflict of laws principles of such
jurisdiction.” (Stock Option Plan 76).
“nVentive represents and warrants to, and covenants with [Plaintiff] that . . . nVentive and [its]
[e]mployees have the necessary knowledge, experience and skills to perform the [s]ervices set out
in each and every [s]tatement of [w]ork.” (Id. 15 (alterations added; capitalization altered)). The
SOW is governed by the terms of the MSA and sets forth the desired services, providing that

“nVentive will design and develop the transactional IOS/Android mobile application for
[Plaintiff].” (SOW 29 (capitalization altered)).
The MSA requires a “[r]eceiving [p]arty” to “maintain the confidentiality of all
Confidential Information of a [d]isclosing [p]arty and [] not release, disclose, divulge, sell or
distribute any Confidential Information, without prior written consent of the [d]isclosing [p]arty.”
(MSA 20 (alterations added)). Further, “[t]he [r]eceiving [p]arty may only use and copy the
[d]isclosing [p]arty’s Confidential Information as is necessary to carry out its activities
contemplated by this MSA and for no other purpose.” (Id. (alterations added)). “Confidential
Information” is defined as
any and all material and/or information of a [disclosing party], any of its [a]ffiliates,
or third [p]arties to which the [d]isclosing [p]arty has an obligation of
confidentiality, which has or will come into the possession or knowledge of the
[receiving party] in connection with or as a result of entering into this MSA,
including information about past, present or future business, finances, forecast,
clients, suppliers, technologies, and includes specifically, as the case may be,
source code of any software defined as [p]re-[e]xisting [w]ork.

(Id. 13 (alterations added; emphasis and quotation marks omitted)).
The MSA contains a choice-of-law and forum-selection clause providing
[t]his MSA shall be governed by and interpreted in accordance with the laws of the
province of Quebec, excluding rules of private international law that lead to the
application of the laws of any other jurisdiction. The courts of Montreal shall have
the exclusive jurisdiction to hear any matter arising in connection with this MSA.
The [p]arties hereby waive any right to a trial by jury with respect to any lawsuit or
judicial proceeding arising [sic] or relating to this MSA.

(Id. 23 (alterations added)).
4. Subscription Agreement
Finally, Plaintiff and nVentive entered into a Subscription Agreement on April 4, 2018.
(See Tanguay Decl., Ex. C, Subscription Agreement 39–59). Regarding fees and payment for
nVentive’s services, the SOW provides in part that Plaintiff “will issue equity to nVentive in the

form of an option for 200 shares at a $1.25MM valuation in addition to 500 founders shares.”
(SOW 36 (capitalization altered)). In accordance with that provision, the parties executed the
Subscription Agreement as to the shares. (See Mot. 4).
Like the MSA, the Subscription Agreement contains a choice-of-law and forum-selection
clause, which provides
[t]his Agreement will be governed by and construed in accordance with the laws of
the Province of Quebec, excluding its conflicts of laws principles. You hereby
irrevocably consent to the exclusive jurisdiction of the courts of the Province of
Quebec in connection with any matter arising under this Agreement.

(Subscription Agreement 50 (alteration added)).
C. Defendants’ Motion
Defendants move to dismiss the Complaint (1) based on the forum-selection clauses in the
MSA and Subscription Agreement and the doctrine of forum non conveniens; (2) for improper
venue; (3) for lack of personal jurisdiction; and (4) for failure to state a claim for relief. (See
generally Mot.). Because the Court finds the MSA’s forum-selection clause9 applies to this dispute
and grants Defendants’ Motion based on forum non conveniens, the Court declines to address
Defendants’ remaining arguments.10

9 The Court concludes Plaintiff’s claims arise under the MSA, the central document of the parties’ business
relationship, and therefore does not address whether the Subscription Agreement’s forum-selection clause
also applies.

10 “Under appropriate conditions, a court should consider dismissal on forum non conveniens grounds
without first determining whether personal jurisdiction is proper . . . .” McCoy v. Sandals Resorts Int’l,
Ltd., No. 19-cv-22462, 2019 WL 3531523, at *1 (S.D. Fla. Aug. 2, 2019) (alteration added). “As the
II. STANDARD
A motion to dismiss based on the applicability of a forum-selection clause requiring the
parties to litigate in a foreign country is properly analyzed “through the doctrine of forum non
conveniens.” Atl. Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 60

(2013). “The doctrine of forum non conveniens permits a court with venue to decline to exercise
its jurisdiction when the parties’ and court’s own convenience, as well as the relevant public and
private interests, indicate that the action should be tried in a different forum.” Pierre-Louis v.
Newvac Corp., 584 F.3d 1052, 1056 (11th Cir. 2009) (italicization added). In general, to obtain
dismissal on the ground of forum non conveniens, a defendant must show:
(i) that an adequate alternative forum is available, (ii) that relevant public and
private interests weigh in favor of dismissal, and (iii) that the plaintiff can reinstate
his suit in the alternative forum without undue inconvenience or prejudice.
Pertinent private interests of the litigants include relative ease of access to evidence
in the competing fora, availability of witnesses and compulsory process over them,
the cost of obtaining evidence, and the enforceability of a judgment. Relevant
public interests include the familiarity of the court(s) with the governing law, the
interest of any foreign nation in having the dispute litigated in its own courts, and
the value of having local controversies litigated locally.

Id. (quoting Liquidation Comm’n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1356–
57 (11th Cir. 2008)).
“The calculus changes, however, when the parties’ contract contains a valid forum-
selection clause, which represents the parties’ agreement as to the most proper forum.” Atl. Marine
Constr. Co., 571 U.S. at 63 (quotation marks and citation omitted). Because a valid forum-
selection clause “protects [the parties’] legitimate expectations and furthers vital interests of the

Supreme Court explained[,] . . . where subject-matter or personal jurisdiction is difficult to determine, and
forum non conveniens considerations weigh heavily in favor of dismissal, the court properly takes the less
burdensome course.” Id. at *1–2 (alterations added; quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp., 549 U.S. 422, 436 (2007); other citation omitted)).
justice system[,]” it should be “given controlling weight in all but the most exceptional cases.” Id.
(alterations added; quotation marks and citations omitted).
The presence of a valid forum-selection clause requires the district court to adjust its forum
non conveniens analysis in three ways. See id. First, “the plaintiff’s choice of forum merits no

weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of
establishing that transfer to the forum for which the parties bargained is unwarranted.” Id. Second,
the district court should only consider the public-interest factors, as the parties “waive the right to
challenge the preselected forum as inconvenient or less convenient for themselves or their
witnesses, or for their pursuit of the litigation.” Id. at 64. Third, “when a party bound by a forum-
selection clause files suit in a different forum than the one pre-selected, the plaintiff’s chosen
venue’s choice-of-law rules will not apply.” Vanderham v. Brookfield Asset Mgmt., Inc., 102 F.
Supp. 3d 1315, 1319 (S.D. Fla. 2015) (citing Atl. Marine Constr. Co., 571 U.S. at 64).
III. DISCUSSION
Defendants argue the MSA’s forum-selection clause is enforceable and applies to all of

Plaintiff’s claims, and consequently, under the modified forum non conveniens analysis, the case
should be dismissed. (See Mot. 6–12).
A. Enforceability and Applicability of the Forum-Selection Clause
The MSA’s forum-selection clause is enforceable and mandatory. (See id. 6–8). “Forum-
selection clauses are presumptively valid and enforceable unless the plaintiff makes a ‘strong
showing’ that enforcement would be unfair or unreasonable under the circumstances.” Krenkel v.
Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009) (citing Carnival Cruise Lines, Inc.
v. Shute, 499 U.S. 585, 593–95 (1991); and M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 10
(1972)). Plaintiff does not challenge the forum-selection clause on this basis. (See generally
Resp.). And the clause is mandatory because it “dictates an exclusive forum for litigation under
the contract.” Glob. Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1272 (11th Cir.
2004) (quotation marks and citation omitted); (see also MSA 23 (“The courts of Montreal shall
have the exclusive jurisdiction to hear any matter arising in connection with this MSA.” (emphasis

added))).
The parties’ arguments center on whether the forum-selection clause applies to Plaintiff’s
claims. As stated, the MSA’s forum-selection clause provides “[t]he courts of Montreal shall have
the exclusive jurisdiction to hear any matter arising in connection with this MSA.” (MSA 23
(alteration and emphasis added)).
“In this circuit, forum selection clauses are broadly construed to effectuate an orderly and
efficient resolution of all claims arising between the parties to a contract and to promote
enforcement of those clauses consistent with the parties’ intent.” Pods, Inc. v. Paysource, Inc.,
No. 8:05-cv-1764, 2006 WL 1382099, at *2 (M.D. Fla. May 19, 2006) (citing Stewart Org., Inc.
v. Ricoh Corp., 810 F.2d 1066, 1070 (11th Cir. 1987)). “[F]orum selection clauses are to be

interpreted by reference to ‘ordinary contract principles.’” Cornett v. Carrithers, 465 F. App’x
841, 842 (11th Cir. 2012) (alteration added; quoting Snapper, Inc. v. Redan, 171 F.3d 1249, 1261
(11th Cir. 1999)). “[T]he plain meaning of a contract’s language governs its interpretation[;]” and
“[t]he court must look at the contract as a whole, the parties, and the purpose of the agreement to
best determine the intent of the parties in interpreting the agreement.” Slater v. Energy Servs. Grp.
Int’l, Inc., 634 F.3d 1326, 1330 (11th Cir. 2011) (alterations added; citations and footnote call
number omitted).
Where, as here, “a clause refers to claims or actions ‘arising under or in connection with’
the contract, the clause is taken to include ‘all causes of action arising directly or indirectly from
the business relationship evidenced by the contract.’” McCoy v. Sandals Resorts Int’l, Ltd., No.
19-cv-22462, 2019 WL 6130444, at *11 (S.D. Fla. Nov. 19, 2019) (emphasis omitted; quoting
Stewart Org., Inc., 810 F.2d at 1070). This includes statutory and tort claims, not just contractual
claims directly relating to the contract. See Stiles v. Bankers Healthcare Grp., Inc., 637 F. App’x

556, 560 (11th Cir. 2016) (citations omitted). When there is more than one contract between the
parties, “the Eleventh Circuit has indicated a claim is more likely to be related to a contract when
that contract is the central document in the parties’ relationship.” Espie v. Wash. Nat’l Ins. Co.,
No. 2:14cv6, 2014 WL 2921022, at *6 (M.D. Ala. June 27, 2014) (quotation marks omitted;
quoting Int’l Underwriters AG v. Triple I: Int’l Investments, Inc., 533 F.3d 1342, 1347 (11th Cir.
2008)).
Defendants argue Plaintiff’s claims “all arise from the App’s development[,] which is the
subject matter of the MSA” (Mot. 8 (alteration added)), pointing to Plaintiff’s allegations that
“Defendants failed to develop the App, misused confidential information gained in working on the
App, or misrepresented their expertise in developing the App” (id. 3–4). Plaintiff disagrees, stating

“the focus of the Complaint is not on the development of the App, but rather the improper use of
confidential information provided to Defendants under both the NDNC Agreement and the AB
Agreement[]” (Resp. 4 (alteration added)); and the claims therefore do not arise out of the MSA
and are not subject to its forum-selection clause (see id. 7). Plaintiff’s attempt to cabin its claims
in this way fails.
Plaintiff’s claims do fall under the scope of the MSA’s forum-selection clause. The MSA
“set[s] out the terms and conditions under which nVentive shall perform certain [s]ervices” for
Plaintiff (MSA 12 (alterations added; capitalization altered)), namely the “design and
develop[ment] [of] the transactional IOS/Android mobile application” (SOW 29 (alterations
added)). The MSA thus embodies the parties’ business relationship for the development of the
App.
At bottom, Plaintiff’s claims concern a purported “scheme to lure [Plaintiff] under false
pretenses into business relationships with Defendants through which Defendants would

improperly attempt to steal [Plaintiff’s] confidential information . . . as well as to acquire or attempt
to improperly acquire the company or a substantial percentage of ownership, and/or to acquire or
misdirect the company’s money and opportunities.” (Compl. ¶ 26 (alterations added)). Plaintiff
alleges Defendants gained Plaintiff’s trade secrets and other confidential information via the
parties’ contractual relationship for advisory services related to development of the App. (See id.
¶¶ 16–17, 70,11 38, 55, 80–81, 90, 102, 111, 138). Defendants allegedly misused that information
by usurping Plaintiff’s business opportunities and creating an app that would compete with
Plaintiff’s App. (See id. ¶¶ 72–73,12 41, 43, 59–60, 93, 98, 113–14, 139, 148). Defendants, as part
of this scheme, allegedly misrepresented that they would build the App on the proper technology
platform with the intention of inducing Plaintiff to contract with them and misusing Plaintiff’s

confidential information (see id. ¶¶ 25–26, 124, 126, 128); defamed Plaintiff and its personnel to
investors, potential investors, and other third parties who were interested in the App in order to
establish relationships with those parties (see id. ¶¶ 27–28, 151); and failed to complete
development of Plaintiff’s App to limit competition with Defendants’ competing app and business
(see id. ¶¶ 44, 107, 142).
Considering these allegations, the claims stated in the Complaint plainly “aris[e] directly
or indirectly from the business relationship evidenced by the [MSA]” for the App’s development.

11 (See Compl. 7).

12 (See id.).
McCoy, 2019 WL 6130444, at *11 (alterations added; quotation marks, citation, and emphasis
omitted). Eight of Plaintiff’s claims concern Defendants’ alleged disclosure and misappropriation
of Plaintiff’s confidential information gained in advising Plaintiff on the App: violation of the
DTSA (Count I), breach of the NDNC Agreement (Count II), breach of the AB Agreement (Count

III), breach of fiduciary duty (Count IV), tortious interference (Count V), breach of the implied
covenant of good faith and fair dealing (Count VI), misappropriation of trade secrets under the
FUTSA (Count VII), and unfair competition (Count X). Plaintiff’s fraudulent inducement and
negligent misrepresentation claims (Counts VIII and IX) arise from Defendants’ purported
misrepresentations that induced Plaintiff to enter into App-related contracts with them, under the
protection of which Plaintiff disclosed its confidential information. And Plaintiff’s defamation
claim (Count XI) alleges Defendants made false statements to third parties who were interested in
the App in order to usurp Plaintiff’s opportunities with those parties.13
Plaintiff maintains its claims arise under the NDNC and AB Agreements because the
claims relate to the misuse of confidential information disclosed under the protection of those

agreements. (See Resp. 4–7; Pl.’s Suppl. Br. 4–6). According to Plaintiff, the MSA had an

13 Counts III and IV are against Tanguay only, while the remaining claims are against both Defendants.
Defendants are correct that Tanguay is bound by the forum-selection clause even though he is not a
signatory to the MSA. (See Mot. 10–11).

“In order to bind a non-party to a forum selection clause, the party must be closely related to the dispute
such that it becomes foreseeable that it will be bound.” Lipcon v. Underwriters at Lloyd’s, London, 148
F.3d 1285, 1299 (11th Cir. 1998) (quotation marks and citations omitted). Tanguay is central to the
contractual relationship between the parties; he is nVentive’s president (see Tanguay Decl. ¶ 2) and signed
the MSA on behalf of nVentive (see MSA 24). Indeed, Plaintiff alleges “Defendant nVentive is an alter
ego of Defendant Tanguay” (Compl. ¶ 4), and most of Plaintiff’s allegations refer to both Defendants
together (see generally id.). The MSA’s forum-selection clause thus covers the claims asserted against
Tanguay. See Tradex Glob. Master Fund SPC Ltd v. Palm Beach Capital Mgmt. LLC, No. 09-21622-Civ,
2009 WL 10644816, at *3 (S.D. Fla. Dec. 4, 2009), report and recommendation adopted, 2010 WL
11442204 (S.D. Fla. Mar. 1, 2010) (“[O]fficers of a corporate signatory can satisfy the closely-related test.”
(alteration added)); Gonzalez v. Watermark Realty Inc., No. 09-60265-Civ, 2010 WL 1299740, at *4 (S.D.
Fla. Mar. 30, 2010) (finding the defendant was bound by the forum-selection clause in an agreement she
signed on behalf of a signatory because she was integral to the transaction reflected by the agreement).
“entirely separate purpose[]” — the MSA was for creating the App, while the NDNC and AB
Agreements were specifically for advising Plaintiff on its business decisions (Pl.’s Suppl. Br. 3
(alteration added)) — and Plaintiff’s Complaint therefore does not arise out of the MSA (see Resp.
7). Again, Plaintiff’s argument fails to persuade.

Plaintiff insists “[t]he business relationships in each of the agreements varies greatly[,]”
explaining that “[t]he NDNC [Agreement] was for the parties to exchange confidential information
concerning Plaintiff’s business prior to going live to the public at large; the AB Agreement [wa]s
for governing Tanguay’s position on Plaintiff’s advisory board; [and] the MSA was for the
development of a specific mobile application[.]” (Pl.’s Suppl. Br. 5 (alterations added)).
Plaintiff’s contentions are belied by the language of the contracts and Plaintiff’s own allegations.
The NDNC Agreement protects confidential information the parties intended to disclose in
light of a potential relationship for the development of an app. (See Compl. ¶ 16 (“Defendants
entered into [the NDNC Agreement] so that they could discuss and Defendant Tanguay could
advise concerning building the App.” (alteration added)); NDNC Agreement 1 (“The [p]arties wish

to work together in the creation of mobile applications . . . (the ‘Opportunity’), and in connection
with the Opportunity, each [p]arty may disclose to the other confidential technical and business
information[.]” (alterations added))). The AB Agreement was executed on the same day as the
MSA and SOW and provides for Tanguay’s supervision of “all technology for the [A]pp” and
“[a]dvi[ce] [] on all technology strategies[.]” (AB Agreement 1 (alterations added); see also
Compl. ¶ 76 (“As an Advisory Board [m]ember, Defendant Tanguay would advise [Plaintiff] on
the most central and critical part of [Plaintiff’s] business — the App[.]” (alterations added))). The
NDNC and AB Agreements are thus part of the parties’ business relationship for the App’s
development.
And because the MSA is “the central document in the parties’ relationship[,]” its forum-
selection clause is “more likely” to cover Plaintiff’s claims, even if the Complaint invokes the
NDNC and AB Agreements’ protection of confidential information.14 Espie, 2014 WL 2921022,
at *6 (quotation marks and citation omitted); see also id. (finding a forum-selection clause in a

“Sales Representative Agreement” authorizing the plaintiff to sell the defendant’s insurance
applied to the plaintiff’s claims even though the claims “relate[d] most directly to a subsequent
agreement” modifying certain compensation provisions); Blue Ocean Corals, LLC v. Phoenix
Kiosk, Inc., No. 14-Civ-61550, 2014 WL 4681006, at *8 (S.D. Fla. Sept. 19, 2014) (concluding
forum-selection clauses in two Terms and Conditions covered the plaintiff’s claims that related to
an earlier Confidentiality Agreement because the Terms and Conditions constituted “the central
documents in the relationship pursuant to which [the] [p]laintiff is suing [the] [d]efendants in this
action” (alterations added)).
That the causes of action are arguably more closely related to the NDNC and AB
Agreements does not mandate a different conclusion. See Espie, 2014 WL 2921022, at *4 (“[The

plaintiff’s] argument, that the fact that [it] is suing under a different contract than the one which
contains the forum-selection clause means the clause does not apply, is [] simplistic and
unpersuasive.” (alterations added; footnote call number omitted)). On this point, Blue Ocean
Corals is instructive.

14 Defendants note (see Mot. 5) the MSA also contains a provision for the protection of confidential
information and prohibits the improper use of that information (see MSA 20 (“A [r]eceiving [p]arty shall
maintain the confidentiality of all Confidential Information of a [d]isclosing [p]arty and shall not release,
disclose, divulge, sell or distribute any Confidential Information, without the prior written consent of the
[d]isclosing [p]arty. The [r]eceiving [p]arty may only use and copy the [d]isclosing [p]arty’s Confidential
Information as is necessary to carry out its activities contemplated by this MSA and for no other purpose.”
(alterations added))).
The dispute in Blue Ocean Corals arose out of a contractual relationship between the
parties. See 2014 WL 4681006, at *1. In December 2012, the plaintiff and one of the defendants
entered into a Confidentiality Agreement “to restrict the use and disclosure of confidential
information exchanged in discussions towards ‘the establishment of a possible business

relationship between the parties[.]’” Id. (alteration added)). Several months later, another
defendant — a successor entity to the first defendant — contracted with the plaintiff for certain
services. See id. The parties’ relationship was governed by several documents, including purchase
orders, sales orders, and two Terms and Conditions containing identical forum-selection clauses.
See id. at *1–2. The plaintiff sued three defendants, all related entities, for claims similar to those
asserted here — breach of the purchase orders; fraudulent inducement; breach of the
Confidentiality Agreement; violation of the Florida Deceptive and Unfair Trade Practices Act;
intentional interference with contractual relations; interference with prospective economic
advantage; and violation of the FUTSA. See id. at *2.
The defendants sought to dismiss the case based on forum non conveniens given the forum-

selection clauses provided “any action arising out of or relating to this [a]greement shall be in the
Superior Courts of Arizona located within Maricopa County.” Id. (alteration added). As here, the
plaintiff contended the clauses did not encompass all its claims. See id. at *7. Specifically, the
plaintiff “argue[d] that the forum-selection clauses ha[d] no application to the Confidentiality
Agreement . . . and consequently to the causes of action derivative of that agreement[,]” which the
court construed to “include the breach of contract claim with respect to the Confidentiality
Agreement and the FUTSA claim, and perhaps the intentional interference with contractual
relations and interference with prospective economic advantage claims as well.” Id. (alterations
added).
The court rejected the plaintiff’s argument and concluded all claims were covered by the
forum-selection clauses, noting that “[e]ven if some of the allegations . . . pertain to the disclosure
of proprietary and confidential information arguably connected to the Confidentiality Agreement,
those allegations also ‘arise from’ the business relationship evidenced by the Terms and

Conditions.” Id. at *8 (alterations added). The court emphasized “the Confidentiality Agreement
was preliminary and anticipatory” and “pertained to the exchange of confidential information
towards ‘the establishment of a possible business relationship between the parties[,]’” while the
Terms and Conditions were the central documents in the parties’ relationship. Id. (alteration
added).
The same conclusion follows here. Even if some or all of Plaintiff’s claims relating to
disclosure and misuse of confidential information are more directly connected to the NDNC and
AB Agreements than to the MSA, the claims also arise from the business relationship evidenced
by the MSA. In particular, the NDNC Agreement was meant to be “preliminary and anticipatory.”
It provided “each [p]arty may disclose to the other confidential technical and business information”

in anticipation of a potential business relationship for “the creation of mobile applications . . . (the
‘Opportunity’)[;]” did not “obligate either [p]arty to proceed with any transaction between
them[;]” and gave each party “the right, in its sole discretion, to terminate the discussions
contemplated by this Agreement concerning the Opportunity.” (NDNC Agreement 1–2
(alterations added)).
By contrast, the MSA, like the Terms and Conditions in Blue Ocean Corals, is the central
document in the parties’ business relationship: it “set[s] out the terms and conditions” (MSA 12
(alteration added)) for the “design and develop[ment] [of] the transactional IOS/Android mobile
application for [Plaintiff]” (SOW 29 (alterations added)). Mindful that the forum-selection clause
should be “broadly construed to effectuate an orderly and efficient resolution of all claims arising
between the parties[,]” Pods, Inc., 2006 WL 1382099, at *2 (alteration added; citation omitted),
the Court concludes Plaintiff’s claims “aris[e] in connection with th[e] MSA” and therefore fall
under the scope of the MSA’s forum-selection clause (MSA 23 (alterations added)).15

B. Modified Forum Non Conveniens Analysis
Because a valid forum-selection clause applies to Plaintiff’s claims, the Court will not
consider the parties’ private interests in evaluating the Motion. See Atl. Marine Constr. Co., 571
U.S. at 64. Under the modified forum non conveniens analysis, the Court assesses (1) whether an
adequate alternative forum is available, (2) whether the public-interest factors weigh in favor of
dismissal, and (3) whether Plaintiff can reinstate its suit in the alternative forum without undue
inconvenience or prejudice. See Jiangsu Hongyuan Pharm. Co. v. DI Glob. Logistics Inc., 159 F.
Supp. 3d 1316, 1328 (S.D. Fla. 2016) (citing GDG Acquisitions, LLC v. Gov’t of Belize, 749 F.3d
1024, 1028 (11th Cir. 2014)).
1. Adequacy and Availability of the Courts of Quebec

The defendant “bears the burden of demonstrating” a forum is both available and adequate.
King v. Cessna Aircraft Co., 562 F.3d 1374, 1382 (11th Cir. 2009) (per curiam). An available and
adequate forum is one in which the court “can assert jurisdiction over the litigation (availability),
cognizant that only in rare circumstances will the remedy offered by the other forum be clearly
unsatisfactory (adequacy).” Karl v. Starwood Hotels & Resorts Worldwide, Inc., No. 13-24051-
Civ, 2014 WL 11906608, at *2 (S.D. Fla. Feb. 21, 2014) (citing Aldana v. Del Monte Fresh
Produce N.A., Inc., 578 F.3d 1283, 1290 (11th Cir. 2009)). “Availability and adequacy warrant

15 Defendants urge the Court to find the MSA, Subscription Agreement, and AB Agreement form one
contract because they were executed at or near the same time, and the MSA constituted a novation of the
NDNC Agreement. (See Mot. 9–11; Reply 3–6; Defs.’ Suppl. Mem. 1–4). The Court need not make these
determinations to conclude the MSA’s forum-selection clause covers Plaintiff’s claims.
separate consideration.” Leon v. Millon Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 2001) (citation
omitted). Defendants contend Quebec is an adequate and available forum because they “have filed
suit in Quebec[,] and Quebec can provide for litigation of [Plaintiff’s] allegations and offer
possible redress to [Plaintiff].” (Mot. 12 (alterations added)).

A forum is generally considered available if the defendant is “amenable to process in the
other jurisdiction.” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.22 (1981) (quotation marks
and citation omitted). The alternative forum must “possess[] jurisdiction over the whole case,
including all of the parties[.]” Wilson v. Island Seas Invs., Ltd., 590 F.3d 1264, 1269 (11th Cir.
2009) (alterations added; citation omitted).
Tanguay is a citizen and resident of Quebec, nVentive is a Canadian corporation
headquartered in Quebec (see Tanguay Decl. ¶ 2), and Defendants have initiated a lawsuit against
Plaintiff there on related issues (see id., Ex. F., Quebec Lawsuit Docs. 80–146). Accordingly,
there is no indication Quebec is not an available forum, particularly where Plaintiff has entirely
failed to address in its written briefing the availability requirement. (See generally Resp.); see also

Avia Support Int’l, Inc. v. Acts Aero Tech. Support & Servs., Inc., No. 09-21812-Civ, 2010 WL
11505692, at *1, *7 & n.7 (S.D. Fla. Aug. 31, 2010) (noting Quebec courts would have personal
jurisdiction over the defendants, Canadian corporations with their principal places of business in
Quebec, in a suit involving breach-of-contract and related claims); Logan Int’l Inc. v. 1556311
Alberta Ltd., 929 F. Supp. 2d 625, 632 (S.D. Tex. 2012) (finding Canada was an available
alternative forum because a party had a related lawsuit pending there and “[t]here [wa]s no
indication that the Canadian [d]efendants would not be subject to personal jurisdiction in the
Canadian lawsuit” (alterations added)).
A forum is adequate if it provides the potential for redress of the plaintiff’s injuries. See
King, 562 F.3d at 1382 (citing Piper Aircraft Co., 454 U.S. at 255 n.22). It is not necessary for
the alternative forum to be “a perfect forum” for it to provide a remedy for the plaintiff. Satz v.
McDonnell Douglas Corp., 244 F.3d 1279, 1283 (11th Cir. 2001). Further, the plaintiff must offer
“evidence” of “partiality or delay . . . typically associated with the adjudication of similar claims”

in the alternative forum before the defendant bears the “ultimate burden of persuasion” to prove
the forum’s availability. Leon, 251 F.3d at 1311–12 (emphasis and alterations added; citation
omitted).
Plaintiff has offered no such evidence, and there is nothing to suggest Quebec will provide
inadequate relief to Plaintiff. (See generally Resp.); see also Avia Support Int’l, Inc., 2010 WL
11505692, at *13 (finding Quebec “cannot be said to afford remedies that are ‘clearly
unsatisfactory’ or ‘amount to no remedy at all’” where the plaintiff failed to rebut the presumption
that Quebec was an adequate forum); McNeil v. Stanley Works, 33 F. App’x 322, 325 (9th Cir.
2002) (“Canada is not unsuitable . . . simply because the rights and legal protections provided by
Canadian law may be less extensive than those afforded by United States law.” (alteration added;

citation omitted)); Ledingham v. Parke-Davis Div. of Warner-Lambert Co., 628 F. Supp. 1447,
1450 (E.D.N.Y. 1986) (“[A]lthough plaintiff’s potential damage award may be smaller in Canada,
and although litigation there might be more expensive and more difficult, the [c]ourt finds that
there is no danger that plaintiff will be deprived of a remedy or treated unfairly there.” (alterations
added; citation omitted)).
In sum, Quebec is an available and adequate alternative forum for Plaintiff’s claims.
2. Public-Interest Factors
Defendants maintain the public-interest factors weigh in favor of dismissal. (See Mot. 11–
12). As stated, “[t]he relevant public interests include ‘the familiarity of the court(s) with the
governing law, the interest of any foreign nation in having the dispute litigated in its own courts,
and the value of having local controversies litigated locally.’” Jiangsu Hongyuan Pharm. Co., 159
F. Supp. 3d at 1328 (alteration added; quoting Pierre-Louis, 584 F.3d at 1065; other citation
omitted). A court should also consider the administrative difficulties flowing from court

congestion, the avoidance of unnecessary problems in conflict of laws or in the application of
foreign law, and the unfairness of burdening citizens in an unrelated forum with jury duty. See
Piper Aircraft Co., 454 U.S. at 241 n.6 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947)).
The Eleventh Circuit “do[es] not require the district court to explicitly consider every . . .
public interest factor[,]” especially “when the relevant . . . public factors weigh in favor of
dismissal.” Wylie v. Island Hotel Co. Ltd., 774 F. App’x 574, 580 (11th Cir. 2019) (alterations
added; citations omitted). The Court addresses the relevant factors.
Administrative difficulties flowing from court congestion. Both parties acknowledge that
while “the Southern District of Florida has one of the busiest dockets in the country,” weighing in
favor of dismissal, “this factor generally does not warrant significant consideration in the forum
non conveniens analysis, and the Court does not accord it much weight.”16 Gordon v. Sandals

16 Plaintiff contends Quebec “has significant issues as to the administration of justice on these claims
compared to this District[,]” pointing to “the inability to get a jury trial,” Quebec courts’ delay of
commencement of trial “until some two (2) years after the filing of joint declaration that the case is ready
for trial[,]” and the current “suspen[sion] for civil non-emergency matters since March 2020” due to
COVID-19. (Pl.’s Suppl. Br. 8 (alterations added)). But Plaintiff “has not shown that adjudication of the
parties’ dispute[] would be more expeditious in [Florida] than in [Quebec.]” Belacon Pallet Servs., LLC v.
Amerifreight, Inc., No. 1:15cv191, 2016 WL 8999936, at *6 (N.D. Fla. Mar. 26, 2016) (alterations added).
It bears mentioning jury trials are also suspended in this District due to the COVID-19 pandemic until
January 2021.

Furthermore, to the extent Plaintiff intends to assert Quebec is an inadequate forum, Plaintiff’s argument
fails to persuade. “[T]he inability to get a jury trial” does not mean Quebec is an inadequate forum (Pl.’s
Suppl. Br. 8 (alteration added)), as a forum need not be “perfect” for it to provide a satisfactory remedy,
Satz, 244 F.3d at 1283; see also McNeil, 33 F. App’x at 325 (“Canada is not unsuitable . . . simply because
the rights and legal protections provided by Canadian law may be less extensive than those afforded by
United States law.” (alteration added; citation omitted)). And Plaintiff’s “evidence” of delay is insufficient.
As discussed, an alternative forum is presumptively adequate until “the plaintiff produces significant
Resorts Int’l, Ltd., 418 F. Supp. 3d 1132, 1142 (S.D. Fla. 2019) (alterations added); (see also Pl.’s
Suppl. Br. 6 n.6; Defs.’ Suppl. Mem. 6–7).
Governing law and the avoidance of unnecessary problems in conflict of laws or in the
application of foreign law. Defendants assert “[t]he vast majority, if not all, issues in this dispute

are governed by Quebec law[.]” (Mot. 11 (alterations added)). In a cursory footnote, Defendants
explain “[t]he MSA, SOW, and Subscription Agreement provide Quebec law governs[;]” the
NDNC Agreement — which is governed by Florida law — “is inapplicable” because it was
superseded by the MSA; and the AB Agreement’s Florida choice-of-law provision does not apply
because “the Stock Option Plan entered in conjunction with the AB Agreement provides for
Quebec law” and “any ambiguity[] must be construed against [Plaintiff]” since it drafted both
agreements. (Mot. 11 n.9 (alterations added)).
Plaintiff maintains the NDNC and AB Agreements are governed by Florida law, and
Defendants “do not present any reasons why (or how) these agreements should (or could) be
interpreted under the laws of Quebec.” (Pl.’s Suppl. Br. 7–8; see also Resp. 9 (stating the Stock

Option Plan’s Quebec choice-of-law provision does not apply because “[t]here is no cause of
action or material allegation in the Complaint related to the Stock Option Plan” (alteration
added))). Plaintiff also points out the Complaint includes federal and state statutory claims

evidence documenting the partiality or delay (in years) typically associated with the adjudication of similar
claims, and these conditions are so severe as to call the adequacy of the forum into doubt[.]” Leon, 251
F.3d at 1312 (alteration added).

Plaintiff fails to show the delay is so severe as to render Quebec an inadequate forum, particularly where
Plaintiff has not provided evidence of the courts’ adjudication of claims similar to those asserted here. See
Banco Latino v. Gomez Lopez, 17 F. Supp. 2d 1327, 1332 (S.D. Fla. 1998) (“[D]elays of two or three years
are of no significance in the forum non conveniens analysis[.]” (alterations added; citing Bhatnagar v.
Surrendra Overseas Ltd., 52 F.3d 1220, 1227 (3d Cir. 1995)); Kyla Shipping Co. v. Shanghai Zhenhua
Heavy Indus. Co., No. Civ.A. 09-00765, 2012 WL 1565634, at *6 (S.D. Ala. Apr. 30, 2012) (noting “[d]elay
is rarely the basis for declaring a forum inadequate” and finding the plaintiff “failed to substantiate its
assertion of delay” because of “the lack of specificity regarding the ‘similar’ cases” (alteration added; citing
Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1331 (11th Cir. 2011))).
requiring the application of U.S. law. (See Resp. 9).
In their Supplemental Memorandum, Defendants acknowledge “what law applies to
[Plaintiff’s] eleven counts is complicated” and “indisputably th[e] Court would be ensnared in
difficult choice of law determinations that are more complicated by the fact that at least some

issues would be governed by Quebec law requiring documents and law be translated from French.”
(Defs.’ Suppl. Mem. 7–8 (alterations added)). Defendants’ point is well-taken.
“Choice of law considerations, particularly the application of foreign rules of decision, are
an important public factor in considering a motion to dismiss for forum non conveniens.” In re
Banco Santander Sec.-Optimal Litig., 732 F. Supp. 2d 1305, 1339 (S.D. Fla. 2010) (citing Magnin
v. Teledyne Cont’l Motors, 91 F.3d 1424, 1430 (11th Cir. 1996)). Plaintiff asserts a federal
statutory claim; a state statutory claim; three contractual claims; and various tort claims. (See
generally Compl.). If the Court retained the case, the Court would be required to determine what
law applies to each of Plaintiff’s eleven claims. And because Plaintiff “file[d] suit in a different
forum than the one pre-selected” by the forum-selection clause, it is possible that Plaintiff’s

“chosen venue’s choice-of-law rules will not apply.” Vanderham, 102 F. Supp. 3d at 1319
(alterations added; citing Atl. Marine Constr. Co., 571 U.S. at 64).
“[W]hile there is some question as to whether foreign law would ultimately apply to all
aspects of th[is] case[], there is no question that th[is] case[] would ensnare th[e] [C]ourt in a
difficult choice of law determination.” Proyectos Orchimex de Costa Rica, S.A. v. E.I. du Pont de
Nemours & Co., 896 F. Supp. 1197, 1204 (M.D. Fla. 1995) (alterations added). “The Court does
not, and need not, decide which nations’ laws would apply to which claims. Such claim-by-claim
analysis would defeat one of the purposes of forum non conveniens, which is to avoid knotty
conflicts of law issues.” Banco Santander, 732 F. Supp. 2d at 1339; see also Piper Aircraft Co.,
454 U.S. at 251 (“[T]he public interest factors point towards dismissal where the court would be
required to untangle problems in conflict of laws, and in law foreign to itself.” (alteration added;
quotation marks and citation omitted)); Sibaja v. Dow Chem. Co., 757 F.2d 1215, 1218–19 (11th
Cir. 1985) (“The forum non conveniens doctrine is ‘designed in part to help courts avoid

conducting complex exercises in comparative law[.]’” (alteration added; quoting Piper Aircraft
Co., 454 U.S. at 251)). Accordingly, “[w]ithout deciding the choice of law issue,” the Court finds
that the possibility that it will have to engage in a complex analysis involving conflict of laws and
foreign law “weighs strongly in favor of dismissal.” Proyectos Orchimex de Costa Rica, S.A., 896
F. Supp. at 1204 (alteration added).
Local and sovereign interests. Defendants contend Quebec “has a strong interest in having
this dispute litigated in its courts” because the parties contracted to litigate in Quebec; the claims
are governed by Quebec law; nVentive is a Quebec entity and Tanguay is a Quebec resident; and
Plaintiff’s principals are originally from Quebec. (Mot. 11–12). According to Defendants, “this
lawsuit lacks any connection with Florida.” (Id. 12).

Plaintiff insists the case should remain in this District for a number of reasons: Plaintiff has
its principal place of business in Miami; “[t]he operations for the services under the AB Agreement
and protection under the NDNC [Agreement] w[ere] for growth here[;]” the investors and others
who were the subject of Defendants’ alleged circumvention and misuse of confidential information
“have direct connections to Florida, transacted business with [Plaintiff] in Florida, and/or engaged
in business or are regularly present in this District[;]” Plaintiff’s previous app developer, who “was
terminated in large part on the basis of Defendants’ advisory services under the NDNC
[Agreement,]” was located in Florida; and Florida law recognizes that protecting trade secrets
furthers the public interest.17 (Resp. 10 (alterations added)).
“[T]he interest of having a dispute resolved locally should be read to avoid burdening jurors
or a court with cases that have no impact on their community and [should] focus on the nature of
the dispute and the outcome it might have on the community.” In re Bavaria Yachts USA, LLLP,

575 B.R. 540, 561 (Bankr. N.D. Ga. 2017) (alterations added; citation omitted). Admittedly,
Plaintiff’s principal place of business is in this District, and Plaintiff indicates it suffered the
alleged harm here. (See Resp. 10); see also Jiangsu Hongyuan Pharm. Co., 159 F. Supp. 3d at
1328 (dismissing case for forum non conveniens based on Chinese forum-selection clause where
“the aggrieved party [wa]s a Chinese entity, and there is a local interest in having localized
controversies decided at home” (alteration adopted; other alteration added; quotation marks and
citation omitted)); Belacon Pallet Servs., LLC, 2016 WL 8999936, at *6 (“[The plaintiff] is a
Florida limited liability company alleging harms that occurred to it in Florida, which Florida has
a strong interest in adjudicating.” (alteration added)).
In addition to this District’s local interest in the case, the Court must generally consider the

United States’ sovereign interest. See Otto Candies, LLC v. Citigroup, Inc., 963 F.3d 1331, 1351
(11th Cir. 2020). As Plaintiff states, “[t]here is a strong federal interest in making sure that
plaintiffs[] who are United States citizens[] generally get to choose an American forum for
bringing suit, rather than having their case relegated to a foreign jurisdiction. (Pl.’s Suppl. Br. 7
(alterations added; citing Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1311 (11th Cir. 2002)).
Quebec, where Defendants are domiciled, also has a strong interest in litigating a dispute
in which its residents allegedly made fraudulent misrepresentations and misappropriated trade

17 Plaintiff also highlights Defendants’ purported efforts to expand their business into South Florida (see
Resp. 10), but those efforts have no bearing on the forum non conveniens analysis because they are unrelated
to this dispute.
secrets, especially where Defendants aver the underlying conduct occurred in Quebec. (See
Tanguay Decl. ¶¶ 21, 23–26); see Wylie, 774 F. App’x at 580 (affirming dismissal for forum non
conveniens where, “[i]n concluding that the public interest factors favored The Bahamas, the
district court reasoned that The Bahamas has a superior interest in ‘determining the standards of

conduct and the scope of liability for companies that do business there” (alteration added; citation
omitted)); Sun Tr. Bank v. Sun Int’l Hotels, Ltd., 184 F. Supp. 2d 1246, 1266 (S.D. Fla. 2001)
(“[A] defendant’s home forum always has an interest in providing redress for injuries caused by
its citizens.” (alteration added; citation omitted)). Moreover, “the parties contracted to litigate in
[Quebec]” under the MSA, and Quebec “doubtlessly wants its citizens to be empowered to seek
redress in its courts when they contract to have their claims heard there.” Jiangsu Hongyuan
Pharm. Co., 159 F. Supp. 3d at 1328 (alteration added).
That Defendants have filed a lawsuit against Plaintiff in Quebec arising from the parties’
contractual relationship further strengthens Quebec’s interest in adjudicating this case. See Del
Istmo Assur. Corp. v. Platon, No. 11-61599-Civ, 2011 WL 5508641, at *7 (S.D. Fla. Nov. 9, 2011)

(finding Panama had a stronger interest in resolving the dispute than the United States in part
because “there [wa]s already related litigation pending in Panama” (alteration added)). Certainly,
“[t]he possibility of avoiding duplicative litigation is a cognizable interest . . . which weighs in
favor of dismissal.” Nygard v. DiPaolo, 753 F. App’x 716, 728 (11th Cir. 2018) (alterations added;
citations omitted).
On balance, this factor favors dismissal. While Florida has an interest in litigating a case
involving harm to one of its residents, “[t]he otherwise substantial weight accorded to the United
States’ interests in providing a forum for its [p]laintiffs is undercut in the presence of a valid and
enforceable forum-selection clause, and is thus outweighed by [Quebec’s] interests in . . .
regulating the standards of conduct of the [Quebecois] Defendants.” Barilotti v. Island Hotel Co.
Ltd., No. 13-23672-Civ, 2014 WL 1803374, at *10 (S.D. Fla. May 6, 2014) (alterations added).
And, as discussed, the administrative-difficulties factor is not accorded much weight; Plaintiff has
not shown adjudication of the case would be more efficient in Florida than in Quebec; and the real

possibility of a difficult choice-of-law determination weighs strongly in favor of dismissal.
“Because th[e] [public-interest] factors will rarely defeat a transfer motion, the practical
result is that forum-selection clauses should control except in unusual cases.” Atl. Marine Constr.
Co., 571 U.S. at 64 (alterations added). In light of the MSA’s valid and enforceable forum-
selection clause, Plaintiff has failed to demonstrate “extraordinary circumstances” mandating the
Motion be denied and the case remain in this District. Id. at 62.
3. Plaintiff’s Ability to Reinstate Its Suit in Quebec
The final consideration is whether Plaintiff can reinstate its claims in the alternative forum
without undue inconvenience or prejudice. “The burden to satisfy this requirement is not onerous.”
Jiangsu Hongyuan Pharm. Co., 159 F. Supp. 3d at 1332 (citation omitted). Conditions ensuring

a suit can be reinstated in a different forum without undue inconvenience or prejudice “should
include [the] [d]efendant’s waiver of any defenses related to the statutes of limitation, venue,[] or
jurisdiction” in the alternative forum. Barilotti, 2014 WL 1803374, at *10 (alterations added;
citation omitted).
Defendants assert Plaintiff “can reinstate its claim[s] in Quebec without undue
inconvenience or prejudice[,]” given that “[a] suit is pending in Quebec for claims arising out of
the App.” (Mot. 12 (alterations added)). Defendants do not indicate they will assert any defenses
barring Plaintiff’s suit (see generally id.), and Plaintiff makes no contention to the contrary (see
generally Resp.). This requirement is therefore satisfied. See Avia Support Int’l, Inc., 2010 WL
CASE NO. 20-20634-CIV-ALTONAGA/Goodman

11505692, at *13 (‘The plaintiff] has not specifically addressed this prong of the forum non
conveniens analysis in its papers and, therefore, it appears that it has implicitly conceded that the
case may be reinstated in an alternate forum.” (alteration added)). Nevertheless, dismissal of the
case is conditioned on Plaintiff's ability to reinstate its suit in Quebec, including Defendants’
consent to jurisdiction and service of process in Quebec. See Tazoe, 631 F.3d at 1334-35
(affirming district court’s dismissal of underlying complaints on forum non conveniens grounds
where the defendants stipulated that they would accept service of process and submit to the
jurisdiction of the alternative forum); Del Istmo Assur. Corp., 2011 WL 5508641, at *9 (dismissing
suit for forum non conveniens while stating the plaintiff could reinstate its suit in this District if a
foreign court refused jurisdiction, and noting “[nJumerous state and federal courts have
conditioned dismissal on the ability of a party to reinstate its suit in a foreign jurisdiction”
(alteration added; collecting cases)).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendants’ Renewed Motion to Dismiss
[ECF No. 29] is GRANTED in part. Plaintiff's Complaint [ECF No. 1] is DISMISSED without
prejudice. The Clerk of Court is directed to CLOSE this case, and any pending motions are
DENIED as moot. Should Plaintiff be unable to reinstate its suit in Quebec, the Court will reopen
this action upon Plaintiffs motion.
DONE AND ORDERED in Miami, Florida, this 10th day of August, 2020.
le x. Vi. (bua.
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc: counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10118008. Public record. Not legal advice.