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Robotics v. DeViedma

November 30, 2009

DEVON ROBOTICS, ET AL., PLAINTIFFS,
v.
GASPAR DEVIEDMA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joyner, J.

MEMORANDUM AND ORDER

Before the Court is Defendant, Gaspar DeViedma's, Motion to Dismiss First Amended Complaint (Doc. No. 10) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and responses thereto (Doc. Nos. 18, 19, 21). For the reasons set forth in this Memorandum, the Court grants Defendant's Motion in part and denies in part.

I. BACKGROUND

Health Robotics, S.r.L. ("HRSRL") is an Italian company that designs, develops, markets and licences robotic medical preparation products. Plaintiff, Devon Robotics, signed two agreements with HRSRL for the distribution of two robotic medication preparation products for hospitals and health care facilities, i.v.Station and CytoCare. On August 22, 2008, Devon Robotics entered into an agreement with HRSRL for the exclusive distribution rights of i.v.Station in North America (the "i.v.Station Agreement"). As a result of the agreement Devon Robotics became responsible for paying €675,000 upon the occurrence of four milestones. Devon Robotics also entered into an agreement with HRSRL for the exclusive distribution rights of CytoCare in North America on September 12, 2008 (the "CytoCare Agreement"). This second contract obligated Devon Robotics to make regular license fee payments to HRSRL commencing in 2008 and continuing through 2013. Mr. DeViedma signed these two contracts on behalf of HRSRL. At the time these agreements were negotiated and signed, Mr. DeViedma, one of the Defendants, served as General Counsel for HRSRL. These contracts between Devon Robotics and HRSRL contained an identical arbitration clause which requires all disputes arising from the agreement to be arbitrated in Switzerland.*fn1

Plaintiffs claim that on March 1, 2009, Mr. DeViedma was hired as Devon Robotics' Chief Operating Officer ("COO"). In his position as COO, DeViedma was solely responsible for the management of sales, marketing, support and installation of CytoCare robots on Devon's behalf. All of Devon Robotics' employees reported directly to DeViedma. Additionally, Mr. DeViedma served as the primary contact between Devon and HRSRL.

As part of the CytoCare Agreement between Devon Robotics and HRSRL, Devon was required to obtain an irrevocable, bank-issued letter of credit for the benefit of HRSRL for $5,000,000 as a guarantee for the payment of a portion of license fees under the CytoCare Agreement. On November 7, 2008, Itochu issued a $5,000,000 Letter of Credit on behalf of Devon for the benefit of HRSRL. The repayment of the letter of credit was guaranteed by Plaintiffs. According to Plaintiffs, on March 23, 2009, while serving as Devon Robotics' COO, DeViedma advised Itochu that Devon was in default under the CytoCare Agreement for the alleged non-payment of licensing fees and that HRSRL intended to draw down the entire letter of credit to satisfy Devon's default if Devon failed to cure the default within thirty days. On March 30, 2009, DeViedma drew down the entire $5,000,000 without the prior knowledge or consent of Devon. DeViedma's draw down of the letter of credit prompted Itochu to demand the entire principal amount immediately from Plaintiffs.

In December 2008, Devon Robotics began negotiating a contract with McKesson Corporation, another defendant, which would give McKesson the right to distribute CytoCare within a certain territory in the United States. DeViedma played a key role in negotiating the contract as Devon Robotics' COO. On December 22, 2008, Devon Robotics and McKesson entered into a Confidential Disclosure and Non-Competition Agreement prohibiting McKesson from divulging or using any confidential information for any purpose other than analyzing its deal with Devon. After executing the agreement, McKesson engaged in extensive due diligence. According to Plaintiffs, around March 2009, McKesson and Devon reached an oral agreement regarding the material terms of the Exclusive Distribution, Licensing, Services and Support Agreement. The only thing that was needed to finalize the agreement was to allow McKesson's due diligence of HRSRL in Italy. However, DeViedma, in his capacity as an officer of HRSRL, refused to permit McKesson representatives to visit Italy and complete the due diligence.

Later, after McKesson and Devon Robotics failed to come to an agreement, HRSRL terminated the CytoCare Agreement with Devon Robotics on July 30, 2009. Then on August 10, 2009, McKesson and HRSRL entered into a five year agreement granting McKesson distribution rights with regard to CytoCare in various areas in North America which had previously been controlled by Devon Robotics.

Plaintiffs also allege that DeViedma used his position to directly communicate with actual and prospective CytoCare customers and used this communications to take business opportunities away from Devon and divert them to HRSRL. On July 30, 2009, DeViedma wrote an email to several of Devon Robotics' customers, including some of the company's largest customers, which reflected negatively on Devon. This email said that Devon Robotics had laid off key employees and that Devon was facing financial difficulties and bankruptcy. However, DeViedma was responsible for hiring and training personnel in his position as COO of Devon and used that position to hire Devon Robotics employees to work for HRSRL. Plaintiffs also allege that DeViedma improperly characterized several contracts regarding i.v.Station technology as belonging to HRSRL when they actually belonged to Devon as a result of assignments from HRSRL. Finally, Plaintiffs claim that during DeViedma's time as Devon's COO, he concealed some performance problems with CytoCare and then crafted press releases which blamed Devon for the repeated failures of the CytoCare technology.

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) allows a court to dismiss a case for lack of subject matter jurisdiction. A motion pursuant to Rule 12(b)(1) affords the opportunity to challenge the Court's jurisdiction both on the face of the complaint and as a factual matter. Common Cause of Pennsylvania v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009). When considering a motion under Rule 12(b)(1), no presumption of truthfulness attaches to plaintiff's allegations because the issue is whether the court has power to hear the case. Mortensen v. First Federal Savings & Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1977). Additionally, a court may consider evidence outside the pleadings in reviewing a factual challenge under Rule 12(b)(1). Id.; Gotha v. U.S., 115 F.3d 176, 178-79 (3d Cir. 1997).

B. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a complaint should be dismissed if the plaintiff has failed to state a claim on which relief can be granted. In evaluating a motion to dismiss, the court must take all well-pleaded factual allegations as true, but it is not required to blindly accept "a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 283 (1986); Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Although a plaintiff is not required to plead detailed factual allegations, the complaint must include enough facts to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

III. Discussion

DeViedma's motion to dismiss is granted in part and denied in part. Plaintiffs' claims of tortious interference with prospective contractual relations and civil conspiracy are dismissed under Federal Rule of Civil Procedure 12(b)(6), as is Devon Health and Bennett's claim of tortious interference with current contractual relations. All other counts are sufficient to withstand a motion to dismiss.

A. Federal Rule of Civil Procedure 12(b)(1)

DeViedma claims that all of Plaintiffs' claims are subject to arbitration and therefore should be dismissed by this Court under Federal Rule of Civil Procedure 12(b)(1). Both the CytoCare contract and the i.v.Station contract contain a clear arbitration provision which requires any disputes "arising out of, in relation to, or in connection," with the contracts to be settled in arbitration under the rules of the International Chamber of Commerce in Geneva, Switzerland.

Arbitration is a matter of contract. "[A] party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT&T Tech., Inc. v. Communications Workers of Am., 475 U.S. 643, 650 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)). Under the Federal Arbitration Act and Pennsylvania law, a district court must compel arbitration if it finds (1) that a valid arbitration agreement exists between the parties, and (2) that the dispute before it falls within the scope of this agreement. McAlister v. Sentry Ins. Co., 958 F.2d 550, 553 (3d Cir. 1992); see 9 U.S.C. ยง 3. Neither party disputes that a valid ...


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