Francounsel Group, LLC v. Dessange International SA

980 F. Supp. 2d 1, 2013 WL 5513105, 2013 U.S. Dist. LEXIS 141281
CourtDistrict Court, D. Massachusetts
DecidedSeptember 30, 2013
DocketCivil Action No. 12-11071-NMG
StatusPublished
Cited by2 cases

This text of 980 F. Supp. 2d 1 (Francounsel Group, LLC v. Dessange International SA) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Francounsel Group, LLC v. Dessange International SA, 980 F. Supp. 2d 1, 2013 WL 5513105, 2013 U.S. Dist. LEXIS 141281 (D. Mass. 2013).

Opinion

MEMORANDUM & ORDER

GORTON, District Judge.

This breach of contract and business tort action arose after defendants Dessange International SA (“Dessange”) and DF Export (“DF”) acquired several companies operating under the name of “Fantastic Sams” in 2012. Dessange and DF are French corporations headquartered in Paris and the Fantastic Sams entities (“Fantastic Sams”) are Delaware corporations with principal places of business in Beverly, Massachusetts.

Plaintiff FranCounsel Group, LLC (“FranCounsel”), a closely-held Georgia corporation that advises clients on international business development matters, claims that it is entitled to compensation for introducing Dessange and DF to Fantastic Sams and facilitating their initial meetings. Plaintiff specifically alleges that Bachir Mihoubi (“Mihoubi”), Fran-Counsel’s founder and principal, negotiated a contract with Dessange and DF that promised FranCounsel 20% of the “entry fee” paid to Dessange and DF and 10% of the royalties collected during the first period of the contract in the event that Fran-Counsel’s services “led to the conclusion of a business partnership.” Plaintiff also alleges that Ken Kaplan, Fantastic Sams’ General Counsel, repeatedly misled Mihoubi about the status of negotiations between Dessange and Fantastic Sams during numerous telephone conversations between 2009 and 2012.

FranCounsel sues Dessange and DF for breach of contract (Count I) and breach of the covenant of good faith and fair dealing (Count II) and Fantastic Sams for tortious interference with contract (Count VI). It also asserts claims against all defendants for unjust enrichment (Count III), misappropriation of trade secrets (Count IV), fraud (Count V) and violations of the Massachusetts Consumer Protection Act (Count VII).

In December, 2012, the defendants moved to dismiss for 1) lack of personal jurisdiction over Dessange and DF, 2) forum non conveniens, 3) failure to join Mihoubi as a necessary party and 4) failure to state a claim upon which relief can be granted. The Court referred the motion to Magistrate Judge Marianne B. Bowler who issued a Report and Recommendation (“R & R”) recommending that the Court allow in its entirety the motion to dismiss.

Magistrate Judge Bowler specifically recommended that the Court allow the motion to dismiss for lack of personal jurisdiction over the French defendants and to dismiss the claims against all defendants on the basis of forum non conveniens. Her latter recommendation was conditioned, however, on a showing to be made by the defendants that Paris courts are likely to take no longer to resolve this case than this Court would. The R & R [4]*4did not address the alternative grounds for dismissal for failure to state a claim and failure to join a necessary party.

Defendants and plaintiff filed timely objections to the R & R and plaintiff notified the Court that it was voluntarily dismissing its claims against Dessange and DF. As a result, the Court will reject as moot the Magistrate Judge’s recommendation to dismiss Dessange and DF for lack of personal jurisdiction and consider whether the claims against the Fantastic Sams defendants should be dismissed for forum non conveniens or on other grounds.

I. Forum Non Conveniens

The Court acknowledges Magistrate Judge Bowler’s thoughtful and thorough analysis of the motion to dismiss on the grounds of forum non conveniens but declines to accept and adopt her conclusion or recommendation in that regard. In the relevant portion of her R & R, the Magistrate Judge considered plaintiffs claims against the French and the Massachusetts defendants rather than focusing exclusively on the claims against the latter. Consequently, the Court cannot discern whether the Magistrate Judge’s conclusions are meant to apply to the Fantastic Sams defendants that are located in Massachusetts.

Furthermore, the R & R deals primarily with the breach of contract claims against the French defendants in determining that dismissal of the entire case is warranted. For example, it is noted that 1) this Court lacks subpoena power over the French witnesses who would be required to testify about the contract and the circumstances under which it was negotiated and 2) the contract’s forum selection clause requires that disputes are to be litigated in France.

Thus, much of the analysis of the Magistrate Judge is not pertinent to plaintiffs claims against the Fantastic Sams defendants which were not parties to the subject contract nor sued under it. The Court finds no evidence in the record that requiring those defendants to litigate in Massachusetts will result in “oppressiveness and vexation ... out of all proportion to plaintiffs convenience.” Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 429, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (citations omitted). Moreover, plaintiffs state tort claims against the same local defendants should not require any special expertise in the French language or French laws that would make France a more appropriate forum. See id.

The Court will therefore sustain plaintiffs objection to the Magistrate Judge’s forum non conveniens recommendation but on different grounds than those offered by plaintiff. It will overrule the defendants’ objection to being required to show that Paris courts are likely to take less time than this Court to resolve the case because, by declining to accept and adopt the Magistrate Judge’s recommendation, it will render that objection moot. Finally, the Court declines to consider whether the withdrawal of plaintiffs claims against Dessange and DF affects, in any way, plaintiffs obligation to join all necessary parties under Fed.R.Civ.P. 19 because the parties have not addressed that potential issue.

II. Other Grounds for Dismissing Claims against Fantastic Sams

Magistrate Judge Bowler did not consider in her R & R whether plaintiffs claims failed to join a necessary party or state a claim upon which relief can be granted. The Court will therefore briefly consider whether the claims against Fantastic Sams should be dismissed on either of those grounds.

[5]*5A. Failure to Join Mihoubi

The Court may easily dispense with defendants’ claim that Mihoubi was a necessary party under Fed.R.Civ.P. 19. Defendants lack any legal basis for asserting that the person who allegedly negotiated a contract is a necessary party when the entity he or she represents sues to enforce that contract. Defendants’ motion in that regard will be denied.

B. Failure to State a Claim Under Rule 12(b)(6)

Defendants also move under Fed. R. 12(b)(6) to dismiss plaintiffs claims for unjust enrichment (Count III), misappropriation of trade secrets (Count IV), fraud (Count V), tortious interference with contract (Count VII), and violations of the Massachusetts Consumer Protection Act (Count VII) for failure to state a claim upon which relief can be granted.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp.

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Bluebook (online)
980 F. Supp. 2d 1, 2013 WL 5513105, 2013 U.S. Dist. LEXIS 141281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francounsel-group-llc-v-dessange-international-sa-mad-2013.