The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Intec USA, LLC ("Intec") sues IBEX Technologies Limited, IBEX
Industries Limited, IBEX Industries PTY Limited, IBEX
Technologies PTY Limited, IBEX Thermal Processing Limited, IBEX
DO Brazil, LTDA, Illum Limited, (collectively, "IBEX entities")
and Jonathan Engle ("defendants") for tortious interference with
contract (Count I), breach of contract (Count II), unfair trade
practices (Count III), and civil conspiracy (Count IV). Intec
seeks damages and injunctive relief. Defendants move to dismiss
on the basis of forum non conveniens.
Intec is a North Carolina limited liability company based in
Durham County, North Carolina. Compl. ¶ 1. Intec is in the
business of marketing, manufacturing and installing materials
handling systems or systems that sort food products in order to
change and stabilize the products' temperatures. Intec Resp. at
p. 2. Jonathon Engle is a resident of New Zealand. Compl. at ¶ 2.
IBEX Industries Limited, IBEX Technologies Limited, and Illum
Limited are foreign companies with their principal places of
business in New Zealand. Id. at ¶¶ 4-5, 10. IBEX Industries Pty
Limited and IBEX Technologies Pty Limited are foreign companies with their
principal places of business in Australia. Id. at ¶¶ 6-7. IBEX
Thermal Processing Limited is a foreign company with its
principal place of business in the United Kingdom. Id. at ¶ 8.
IBEX Do Brazil LTDA is a foreign company with its principal place
of business in Brazil. Id. at ¶ 9. Intec alleges that Jonathan
Engle and his father, Raph Engle, own and control the IBEX
entities. Id. at ¶ 12. It further alleges that defendants
regularly do business in the United States. Id. at ¶¶ 2-10.
Raph Engle, a citizen of New Zealand, developed materials
handling technology for food products. Intec Resp. at p. 3. In
the late 1980's Raph Engle came to the United States and created
Intec Corporation. Id. In 1997, Raph Engle sold two-thirds of
his business to Tim Flynn and John Smith, resulting in Intec.
Id. The terms of the sale prohibited Raph from competing with
Intec in the materials handling industry. Id. Following the
sale, Raph Engle returned to New Zealand. In 2001, he retired
from Intec. Id.
Intec contends that while Raph Engle was an employee and
officer of Intec, he began to compete with Intec and to divert
business for his own benefit. Id. Specifically, Intec alleges
Raph Engle transferred its trade secrets, customer contacts and
technology to the IBEX entities while he was employed by Intec.
Id. It alleges Raph and Jonathan Engle created the IBEX
entities to compete with Intec. Id. Intec contends defendants
improperly use its technology and trade secrets; contact Intec
customers; disparage Intec's name; and pass off Intec technology
as their own. Id. at pp. 3-5.
In 2003, Intec initiated arbitration against Raph and Jonathon
Engle. The arbitration was settled through two agreements: an
award on agreed terms and a letter agreement. Id. at pp. 3-4.
Raph Engle signed the award on agreed terms. Id. at p. 4.
Defendants were not party to the award on agreed terms but
Jonathon Engle signed the letter agreement in New Zealand on
behalf of the IBEX entities. Id. at p. 4. Both agreements contain choice of
law provisions stating that North Carolina law governs the terms
of the agreements. The letter agreement states it "shall be
governed by and construed, interpreted, and enforced in
accordance with the laws of the State of North Carolina, without
regard to principles of conflicts of law." Compl. at Ex. 2, ¶ 6.
The agreements also contain promises by the Engles not to compete
against Intec. Id.
Intec contends defendants were aware of Raph Engle's
contractual obligations and hired him in violation of the
non-competition provisions. Compl. at ¶ 25. Intec originally
filed suit in North Carolina against defendants as well as Raph
Engle alleging claims for breach of contract, tortious
interference, and unfair trade practices. Intec Resp. at p. 6. A
magistrate judge in the North Carolina District Court recommended
dismissal of the IBEX entities and Jonathon Engle based on lack
of personal jurisdiction. Id. That suit remains pending in the
Middle District of North Carolina, Intec USA. v. Jonathon Engle,
et al., No. 05 C 2031. Intec also initiated an arbitration
against Raph Engle in North Carolina.
The court may dismiss a case on forum non conveniens grounds
when "it best serves the convenience of the parties and the ends
of justice." Kamel v. Hill-Rom Company, Inc., 108 F.3d 799, 802
(7th Cir. 1997). A forum non conveniens analysis take place in
two steps. First, an adequate forum must be available. Id.; In
re Bridgestone/Firestone, Inc., 420 F.3d 702, 704 (7th Cir.
2005). Second, the court must balance the private interests of
the litigants and the public interests of the forum to determine
the superior venue. In re Bridgestone/Firestone, Inc,
420 F.3d at 704; Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). The
court has substantial flexibility in considering the relative
flexibility of these factors. Wilson v. Humphreys (Cayman)
Ltd., 916 F.2d 1239, 1245 (7th Cir. 1990). Dismissal is proper if the balance of conveniences suggests the
chosen forum would unnecessarily burden the defendant or the
court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981).
A. Adequacy of alternative forum
Defendants contend New Zealand is the superior forum for this
case. An alternative forum is available if all parties are
amenable to process and are within the forum's jurisdiction.
Kamel, 108 F.3d at 803. In addition, an adequate forum mandates
the parties will not be deprived of all remedies or treated
unfairly. Id. The IBEX entities authorize Jonathon Engle to
accept service of process in New Zealand on their behalf.
Defendants Mem. at p. 6. Defendants also agree to submit to
jurisdiction in New Zealand for the purpose of this lawsuit.
Id. Accordingly, New Zealand is an available forum for this
action. Kamel, 208 F.3d at 803. An alternative forum is
inadequate only in rare circumstances where "the remedy provided
by the alternative forum is so clearly inadequate or
unsatisfactory that it is no remedy at all." Piper Aircraft Co.
v. Reyno, 454 U.S. at 254 n. 22. Defendants state that New
Zealand has a sophisticated legal system, similar to the United
States. New Zealand had repeatedly been found to be an adequate
forum. Luek v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001)
(adequate remedy is available in New Zealand); Ashley v. Dow
Corning Corp., 887 F. Supp. 1469, 1475 (N.D. Ala. 1995) (New
Zealand court system is an adequate alternative forum); Stonnell
v. Int'l Harvester Co., 478 N.E.2d 518 (Ill.App.Ct. 1985) (New
Zealand provides adequate remedy). New Zealand provides an
B. Private interest factors
Private interests include ease of access to proof; witness
convenience; availability of compulsory process for unwilling
witnesses; the costs associated with witness attendance; and "all other practical problems that make trial of ...