PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-3790

_____________

EUROFINS PHARMA US HOLDINGS; VIRALLIANCE

INC., 

 Appellants

v.

BIOALLIANCE PHARMA SA; VIRALLIANCE SAS;

GILLES AVENARD

______________

APPEAL FROM THE UNITED STATES DISTRICT

COURT 

FOR THE DISTRICT OF DELAWARE

(D.C. Civ. Action No. 08-613)

District Judge: Honorable Gregory M. Sleet

______________

Argued: July 13, 2010

______________

Before: RENDELL, JORDAN, and GREENAWAY, JR.,

Circuit Judges
2

(Opinion Filed: October 12, 2010)

______________

Daniel P. Goldberg (argued)

Dorit Ungar

Kristina R. Juntunen

Kasowitz, Benson, Torres, & Friedman, LLP

New York, New York 10019

Counsel for Appellants

Joel Friedlander (argued)

Sean M. Brennecke

Bouchard Margules & Friedlander

222 Delaware Avenue, Suite 1400

Wilmington, Delaware 19801

Counsel for Appellees

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge

Appellants Eurofins Pharma US Holdings and Viralliance

Inc. appeal the dismissal of their complaint by the United States

District Court for the District of Delaware, which held that it

lacked personal jurisdiction over the appellees, BioAlliance
3

Pharma SA, Viralliance SAS, and Gilles Avenard, and also

dismissed the action under the doctrine of forum non conveniens.

For the reasons that follow, we will affirm the District Court’s

ruling that it lacks personal jurisdiction over BioAlliance Pharma

SA and Viralliance SAS, vacate the District Court’s order that it

lacks personal jurisdiction over Gilles Avenard, and affirm the

District Court’s dismissal of the action under forum non

conveniens.

I. BACKGROUND

This dispute arises out of the acquisition by appellants

Eurofins Pharma US Holdings (“EPUSH”) and Viralliance Inc.

(“VI”) (collectively, “Eurofins Group”) of intellectual property

(the “IP”) from BioAlliance Pharma SA (“BioAlliance”) and

Viralliance SAS (“Viralliance”) (collectively, “BioAlliance

Group”). The IP includes, among other things, in vitro

phenotyping technology, known as assays, that assist in the

development and administration of drugs used to treat HIV and

Hepatitis B by testing the effectiveness of those drugs on specific

patients’ viruses. In 2005, Eurofins Group and BioAlliance

Group entered into an agreement (the “Transfer Agreement”) to

transfer the IP from BioAlliance Group to VI, for the purpose of

commercializing the IP in the United States market. 

The gravamen of Eurofins Group’s complaint is that,

despite BioAlliance Group’s contractual promise that no claims

were pending or threatened against it regarding the use of the IP,

BioAlliance Group knew about a patent infringement claim

threatened against the IP by Advanced Biological Laboratories,

S.A. (“ABL”); that Gilles Avenard—a director of VI, the cofounder and chief operating officer of BioAlliance, and the
 VI was formerly known as Eurofins Viralliance, Inc., and 1

is referred to as “EVI” in the Transfer Agreement and several

court documents. For the purpose of clarity, all references to

EVI are changed to VI in this opinion. 

 “Société anonyme” is the French term used to designate a 2

corporation. 

4

former president and chief executive of Viralliance—failed to

inform the other VI board members of the threatened claim; and

that BioAlliance Group wrongly asserts that it continues to own

the IP.

A. The Parties

EPUSH is a holding company incorporated in Delaware

with its principal place of business in Des Moines, Iowa.

Eurofins Scientific, Inc. (“Eurofins Scientific”), an affiliate of

EPUSH, is a Delaware corporation with its principal place of

business in Des Moines, Iowa. (EPUSH and Eurofins Scientific

will be collectively referred to as “Eurofins.”) VI, a corporation

formed under the laws of Delaware with its principal place of

business in Des Moines, Iowa, was created by, and is a whollyowned subsidiary of, Eurofins. VI is the acquirer, via the 1

Transfer Agreement, of the IP at the heart of this litigation. 

BioAlliance, a société anonyme formed under the laws of 2

France, with its principal place of business in France, is a

pharmaceutical company focused on the treatment of

opportunistic infections in cancer and HIV. Viralliance was a

simplified société anonyme and wholly-owned subsidiary of

BioAlliance, formed under the laws of France, which was
 Lapin also incorporated VI in Delaware. 3

5

engaged in the development and commercialization of products

and services to assess viral and cancer drug resistance. Avenard,

a director of VI and the co-founder and chief executive officer of

BioAlliance, is a citizen of France. He was also the president

and chief executive officer of Viralliance. 

B. The Transfer Agreement

The Transfer Agreement was executed on October 20,

2005, and the transaction, pursuant to the Transfer Agreement,

closed on December 15, 2005. The parties agree that the

majority, if not the entirety, of the Transfer Agreement

negotiations took place in France. Of the individuals involved in

the Transfer Agreement negotiations, only Jonathan Lapin, a

New York lawyer who assisted Eurofins Group, was not

domiciled in Europe.3

The Transfer Agreement provided that Eurofins formed

VI as its wholly owned subsidiary and that it (Eurofins) would

fund VI with up to $4 million. In exchange, BioAlliance Group

would transfer the IP to VI for ten dollars and the future right to

purchase stock options in VI (the “Option”). (App. at 59-60.) In

addition, the Transfer Agreement provided that Eurofins would

elect one person nominated by BioAlliance to VI’s board of

directors while BioAlliance Group’s Option remained

outstanding. (App. at 65.) 

The Transfer Agreement states that, to the best of

BioAlliance Group’s knowledge, “the IP is valid and enforceable

and the current use by BioAlliance Group or its licensees or sub-
 The parties agreed that there would be no forum selection 4

clause, which resulted from their inability to decide on a

mutually acceptable forum.

6

licensees [] neither infringes on the rights of any third party nor

constitutes an unauthorized use,” (App. at 63), and that “there is

no fact which could have a material adverse effect on either of

[]VI or the IP which has not previously been disclosed in writing

by [BioAlliance Group].” (App. at 62.)

The transfer from BioAlliance Group to VI of the IP

included the transfer of BioAlliance Group’s right, title, and

interest in and to all agreements, including licenses, relating to

the IP. (App. at 60.) Prior to the Transfer Agreement,

BioAlliance Group had licensed patents that comprise part of the

IP to Specialty Laboratories, Inc. (“Specialty Labs”). The

licensing agreement between BioAlliance Group and Specialty

Labs contained a non-infringement representation and warranty,

as well as an indemnification obligation by BioAlliance Group,

in favor of Specialty Labs. Eurofins Group assumed the

indemnification obligation under the Transfer Agreement. 

The Transfer Agreement “embod[ied] the entire

agreement of the parties with respect to the subject matter

hereof” and provided that the agreement “shall be governed by

and construed in accordance with the laws of the State of

Delaware, without regard to the conflicts of law rules of such

State.” (App. at 67.) It did not, however, contain a forum

selection clause.4

C. ABL’s Claim Against The IP
 Eurofins Group did not attach as an exhibit to the complaint 5

the ABL Settlement License because the complaint is subject to

confidentiality restrictions that require ABL’s consent prior to

disclosure. Eurofins Group, however, has declared that it seeks

to submit a copy of the ABL Settlement License during this

litigation. 

7

On or about July 15 and August 23, 2006, ABL contacted

Specialty Labs to claim that its use of certain phenotyping

technology, licensed to it by BioAlliance Group, infringed two

ABL patents—U.S. Patent Numbers 6,081,786 and 6,188,988.

On January 27, 2007, ABL sued AmeriPath, Inc., the corporate

parent of Specialty Labs, for patent infringement. VI stepped in 5

to defend the action, pursuant to its contractual obligation to

indemnify Specialty Labs. After six months of negotiations, the

parties settled the lawsuit. Under the settlement, ABL granted VI

a non-exclusive license to use patents 6,081,786 and 6,188,988,

in consideration for a one-time payment and royalties.

The crux of the instant litigation is Eurofins Group’s

allegation that it learned for the first time during the settlement

negotiations that ABL, in early 2005, had informed BioAlliance

Group that it (BioAlliance Group) required a license from ABL,

with respect to the phenotyping technology. ABL had been in

negotiations with BioAlliance Group to purchase Viralliance’s

assets prior to Eurofins Group’s involvement. ABL also

allegedly informed Eurofins Group that, in early 2005, ABL

engaged the services of La Societe Bionest Partners (“Bionest”)

to advise BioAlliance Group that it required a license from ABL

with respect to the phenotyping technology. Eurofins Group

alleges that Bionest has at least one piece of written
 ABL has agreed to produce the document to Eurofins 6

Group, provided that BioAlliance Group consents to the

disclosure. Thus far, BioAlliance Group has refused to give its

consent.

8

correspondence reflecting the infringement claim it articulated on

behalf of ABL to BioAlliance Group in late 2004 or early 2005.

Eurofins Group has, as yet, been unable to procure this document

due to confidentiality obligations asserted by BioAlliance

Group. 

6

At a July 22, 2008, meeting of the VI Board of Directors,

Avenard confirmed that BioAlliance knew about the ABL claim

in 2005, and that BioAlliance refused to consent to the release of

the Bionest correspondence. The minutes of that meeting

provide:

The fifth order of business was a discussion of

[BioAlliance’s] reasons for refusing to consent to

the disclosure by Bionest of its dossier relating to

efforts of Bionest (on behalf of [ABL]) to acquire

the Viralliance business from [BioAlliance] in

2005. . . . Mr. Avenard explained that

[BioAlliance’s] consent to Bionest’s disclosure

request was withheld because the Bionest dossier

contains confidential and sensitive strategic

information relating to [BioAlliance’s] efforts to

sell the Viralliance business and not relevant to

VI. Mr. Avenard went on to say that, as a
 Sayada was an ABL executive in 2005, at the time that it 7

was negotiating with BioAlliance.

 Avenard refused to sign the minutes for that meeting. 8

Instead, he circulated a revised version of the minutes, which

provided:

Mr. Avenard explained that [BioAlliance’s]

consent to Bionest’s disclosure request was

withheld because the Bionest dossier contains

confidential and sensitive elements of business

negotiation[s] relating to [BioAlliance’s] effort to

sell the Viralliance business and not relevant to

VI, which was acknowledged by Jonathan Lapin.

Mr. Avenard went on to say that things were very

clear with ABL patents and that they had nothing

to do with Viralliance system. It appeared that, in

2005, as a negotiating tactic, Mr. Sayada proposed

a license on a complementary technology in order

to enlarge the business perspectives, in the unique

objective to justify making a lower offer for the

9

negotiating tactic in 2005, Mr. Sayada alleged 7

that the Viralliance business infringed on ABL

patents (in order to justify making a lower offer

for the Viralliance assets) and that, at the time,

BioAlliance had obtained legal opinions (which

BioAlliance had but would not make available)

that there was no infringement.

(App. at 131.) 

8
Viralliance assets.

(App. at 144.) 

 The complaint stated eight causes of action: (1) fraudulent 9

inducement against BioAlliance Group, seeking rescission; (2)

fraudulent inducement against BioAlliance Group, seeking

damages; (3) equitable fraud against BioAlliance Group; (4)

breach of contract against BioAlliance Group; (5) breach of

fiduciary duties against Avenard; (6) declaratory judgment

against BioAlliance Group; (7) infringement against

BioAlliance Group; and (8) conversion against BioAlliance

Group. 

10

In connection with the Transfer Agreement, Eurofins Group and

BioAlliance Group also entered into a Technical Assistance and

Research Agreement (“TARA”). Pursuant to the TARA, BioAlliance

Group was given a license to the IP in order to develop it for VI’s

benefit. VI would own any of the technology that was developed in

accordance with the TARA and was obligated to reimburse BioAlliance

Group for research-related expenses. The instant litigation also

concerns a dispute over certain technology developed by BioAlliance

Group that VI claims ownership over, pursuant to the TARA.

D. The Litigation

On September 23, 2008, Eurofins Group sued BioAlliance

Group and Avenard in the United States District Court for the

District of Delaware. On October 28, 2008, BioAlliance Group 9

and Avenard moved to dismiss the complaint. On January 29,

2009, BioAlliance filed suit against Eurofins Group and ABL in
11

the Commercial Court in Paris, France. On March 11, 2009,

BioAlliance Group and Avenard filed a motion to stay discovery

in the Delaware action pending the outcome of their motion to

dismiss. 

On July 6, 2009, the District Court held a teleconference,

pursuant to Federal Rule of Civil Procedure 16, to discuss the

motions to dismiss and stay discovery. During the

teleconference, the Court issued an oral order staying discovery

in the case pending its ruling on the motion to dismiss: “in a de

facto sort of way, I am going to [] grant[] the motion for [a] stay,

though not formally.” (App. at 426.) 

On September 18, 2009, the District Court granted

BioAlliance Group’s and Avenard’s motion to dismiss. Eurofins

Pharma U.S. Holdings, Inc. v. Bioalliance Pharma SA, No. 08-

613, 2009 WL 2992552 (D. Del. Sept. 18, 2009). Specifically,

the Court held that the claims against BioAlliance Group and

Avenard should be dismissed for lack of personal jurisdiction,

and that the action should be dismissed under the doctrine of

forum non conveniens. Id. at *3. Additionally, the Court denied

Eurofins Group’s request to take jurisdictional discovery. Id. at

*3 n.4.

On February 17, 2010, Eurofins Group filed the instant

appeal challenging each of the District Court’s holdings.

II. JURISDICTION

The District Court’s jurisdiction was premised on 28

U.S.C. § 1332(a)(3). We have jurisdiction to hear this appeal

under 28 U.S.C. § 1291.

III. ANALYSIS
12

For the reasons addressed below, we will affirm the

District Court’s dismissal of the claims against BioAlliance

Group for lack of personal jurisdiction and the District Court’s

denial of Eurofins Group’s motion for jurisdictional discovery

related to BioAlliance Group; we will vacate the District Court’s

dismissal of the claims against Avenard for lack of personal

jurisdiction; and we will affirm the District Court’s dismissal of

the complaint on the ground of forum non conveniens.

A. Personal Jurisdiction Over BioAlliance Group

We review de novo the District Court’s decision that it

lacks personal jurisdiction. Telcordia Tech Inc. v. Telkom SA

Ltd., 458 F.3d 172, 176 (3d Cir. 2006).

Under Federal Rule of Civil Procedure 4(e), a federal

district court may assert personal jurisdiction over a nonresident

of the state in which the court sits to the extent authorized by the

law of that state. Whether a district court has personal

jurisdiction over a nonresident defendant is a two-part inquiry.

First, there must be a statutory basis for exercising jurisdiction

over the nonresident defendant in accordance with the law of the

forum state. Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324,

330 (3d Cir. 2009). Second, the nonresident must have minimum

contacts with the forum state sufficient to satisfy constitutional

due process. Id. Where the district court does not hold an

evidentiary hearing, the plaintiff need only establish a prima facie

case of personal jurisdiction. Id. (citing O’Connor v. Sandy Lane

Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007)). Further, “[i]t is

well established that in deciding a motion to dismiss for lack of

[personal] jurisdiction, a court is required to accept the plaintiff’s

allegations as true, and is to construe disputed facts in favor of
 Specifically, the relevant text of § 3104 provides: 10

(c) As to a cause of action brought by any person

arising from any of the acts enumerated in this

section, a court may exercise personal jurisdiction

over any nonresident, or a personal representative,

who in person or through an agent:

(1) Transacts any business or performs any

character of work or service in the State;

(2) Contracts to supply services or things

in this State;

(3) Causes tortious injury in the State by

an act or omission of this State[.]

Del. Code Ann. tit. 10, § 3104.

13

the plaintiff.” Id. (citing Toys “R” Us, Inc. v. Step Two, S.A.,

318 F.3d 446, 457 (3d Cir. 2003)).

In pertinent part, the Delaware long-arm statute provides

a statutory basis for the exercise of personal jurisdiction over any

nonresident who transacts business or performs work in

Delaware, contracts to supply services or things in Delaware, or

causes tortious injury in Delaware by an act or omission in

Delaware. Del. Code Ann. tit. 10, § 3104(c) (2010). Section 10

3104(c) “is to be broadly construed to confer jurisdiction to the

maximum extent possible under the Due Process Clause.”

Hercules Inc. v. Leu Trust & Banking (Bahamas) Ltd., 611 A.2d

476, 480-81 (Del. 1992).

Eurofins Group alleges that BioAlliance Group transacted
14

business in Delaware, contracted to provide services in Delaware,

and caused tortious injury in Delaware. Specifically, Eurofins

Group asserts that the Transfer Agreement is based on a joint

venture in which BioAlliance Group retains and asserts active

control over VI. Further, Eurofins Group argues that the

Transfer Agreement is premised on the incorporation of VI as a

Delaware corporation. These arguments are not persuasive.

The terms of the Transfer Agreement do not indicate that

VI is a joint venture or that BioAlliance Group retains any

control over VI. To the contrary, the penultimate paragraph of

the Transfer Agreement states:

Notwithstanding anything to the contrary

contained in this General Agreement or in any of

the other Transaction Documents, no partnership,

joint venture or other similar arrangement or

relationship is being created or shall exist between

BioAlliance Group, on the one hand, and []VI or

Eurofins, on the other hand, under or with respect

to the Transaction Documents. 

(App. at 68.) The Transfer Agreement also states explicitly that

“Eurofins wholly[] owns []VI.” (App. at 58.)

In addition, the record lacks evidence that BioAlliance

Group played any part in the decision to incorporate VI in

Delaware. While the purpose of the Transfer Agreement was the

commercialization of the IP in the United States, (App. at 59),

there is no evidence in the record that BioAlliance Group had any

intent that VI be incorporated in Delaware. The record is also

bereft of evidence that BioAlliance Group engages in the

management of VI. 
15

Here, it is crucial to distinguish between Avenard, as an

individual, and BioAlliance Group, as corporate entities. While

Avenard, as a member of VI’s board, does participate in the

management of VI, he does so in his capacity as an individual.

It makes no difference that he was nominated by BioAlliance (in

France), nor that Eurofins was bound by the Transfer Agreement

to appoint him. In other words, the relationship between

Eurofins Group and BioAlliance Group is wholly contractual. As

the District Court explained, being the foreign parent of a

Delaware subsidiary, without more, is insufficient to confer

personal jurisdiction over a nonresident defendant under the

Delaware long-arm statute. Eurofins Pharma, 2009 WL

2992552, at * 4 (citing Monsanto Co. v. Syngenta Seeds, Inc.,

443 F. Supp. 2d 636, 645 (D. Del. 2006)). It follows that

BioAlliance Group’s contractual right to select a board

member—a lesser indicia of control than being the corporate

parent of a Delaware subsidiary—is also insufficient, without

more, to confer personal jurisdiction over BioAlliance Group. 

Eurofins Group also avers that the parties intended that

disputes concerning the Transfer Agreement be litigated in

Delaware. To support its contention, Eurofins Group pointsto an

ancillary contract, Schedule 9 to the Transfer Agreement, which

contains a Delaware forum selection clause. (App. at 123-28.)

This argument, too, is unavailing. 

BioAlliance Group is not a party to Schedule 9. (App. at

128.) Additionally, Eurofins Group admits that the parties fought

over a forum selection clause in the Transfer Agreement, but in

the end they agreed to omit such a clause from the contract. As

such, Schedule 9 does not represent the parties’ intent to contest

the issue of the proper forum in which to resolve disputes at a
16

later time. 

Thus, even accepting Eurofins Group’s allegations in the

complaint as true, they fail to establish a prima facie case of

personal jurisdiction. Metcalfe, 566 F.3d at 330. There is no

indication that BioAlliance Group committed any act or omission

in Delaware, either in connection with the Transfer Agreement

or the TARA so as to permit jurisdiction to be asserted under

subsections (c)(1) or (c)(3) of the Delaware long-arm statute.

Del. Code. Ann. tit. 10, § 3104 (c)(1) (allowing for personal

jurisdiction over a nonresident who “transacts any business or

performs any character of work in [Delaware]”); id. at (c)(3)

(allowing for personal jurisdiction over a nonresident who

“[c]auses tortious injury in the State by an act or omission in

[Delaware]”); see also TriStrata Tech., Inc. v. Neoteric

Cosmetics, Inc., 961 F. Supp. 686 (D. Del. 1997) (“In order for

a court to exercise jurisdiction under subsections (c)(1) and

(c)(3), some act must actually occur in Delaware.”).

Furthermore, even if Eurofins Group had not waived its argument

based upon subsection (c)(2) by failing to raise it before the

District Court, which it has, Eurofins Group cannot establish that

BioAlliance Group contracted to provide services in Delaware,

since any services BioAlliance Group performed under the

TARA were carried out in France. See Del. Code Ann. tit. 10, §

3104(c)(2) (allowing for personal jurisdiction over a nonresident

who “[c]ontracts to supply services or things in [Delaware].”). 

Eurofins Group also appeals the denial of its request for

jurisdictional discovery. We review the District Court’s decision

to deny jurisdictional discovery for abuse of discretion. Toys

“R” Us, 318 F.3d at 455. “If the plaintiff presents factual
17

allegations that suggest ‘with reasonable particularity’ the

possible existence of the requisite ‘contacts between [the party]

and the forum state,’ the plaintiff’s right to conduct jurisdictional

discovery should be sustained.” Id. (modification in original)

(quoting Mellon Bank (E.) PSFS, Nat’l Ass’n v. Farino, 960 F.2d

1217, 1223 (3d Cir. 1992)). A plaintiff may not, however,

undertake a fishing expedition based only upon bare allegations,

under the guise of jurisdictional discovery. Belden Techs., Inc.

v. LS Corp., 626 F. Supp. 2d 448, 459 (D. Del. 2009).

Eurofins Group falls woefully short of making factual

allegations suggesting with “reasonable particularity” the

possible existence of contacts between BioAlliance Group and

Delaware. Eurofins Group argued that the “heavily lawyered”

nature of the Transfer Agreement leads it to conclude that it is

unlikely, if not impossible, that BioAlliance Group did not

participate in the decision to incorporate VI in Delaware. That

reasoning, however, militates against Eurofins Group’s position

because evidence of any such participation would be in Eurofins

Group’s possession and is not dispositive of the issue of whether

jurisdictional discovery is required. 

Thus, we affirm the District Court’s denial of Eurofins

Group’s motion for jurisdictional discovery and the District

Court’s dismissal of the complaint against BioAlliance Group for

lack of personal jurisdiction.

B. Personal Jurisdiction Over Avenard

Eurofins Group also appeals the District Court’s dismissal

of its complaint against Avenard for lack of personal jurisdiction.

Specifically, Eurofins Group argues that the District Court erred

in holding that it lacked personal jurisdiction over Avenard under
18

Del. Code Ann. tit. 10, § 3114(b) (2010). We agree.

Section 3114(b) states that any nonresident of Delaware

who accepts election as an officer of a Delaware corporation is

deemed to have consented to service of process in any action in

which that officer is a necessary or proper party, or in any action

against that officer for any violation of his duties as an officer.

“[I]t is the rights, duties, and obligations which have to do with

service as a director of a Delaware corporation which make a

director subject to personal service under the terms of” section

3114(b). Hana Ranch, Inc. v. Lent, 424 A.2d 28, 30 (Del. Ch.

1980); see also Armstrong v. Pomerance, 423 A.2d 174, 176 n.5

(Del. 1980) (Section 3114(b) authorizes the exercise of

jurisdiction “only in actions where directors . . . of a Delaware

corporation are necessary or proper parties or where the cause of

action is grounded on such individuals’ breach of the fiduciary

duties owed to a corporation and its owners.”). Thus, though

Avenard moved to dismiss for lack of personal jurisdiction,

whether the District Court has personal jurisdiction over Avenard

is, pursuant to § 3114(b), actually a question of whether Eurofins

Group has stated a claim against Avenard in his role as a director

of VI upon which relief may be granted. 

We review de novo a district court’s decision to dismiss

the complaint for failure to state a claim upon which relief may

be granted. Dique v. New Jersey State Police, 603 F.3d 181, 188

(3d Cir. 2010). “In deciding a motion to dismiss, all wellpleaded allegations of the complaint must be taken as true and

interpreted in the light most favorable to the plaintiffs, and all

inferences must be drawn in favor of them.” McTernan v. City

of York, 577 F.3d 521, 526 (3d Cir. 2009). To withstand a Rule

12(b)(6) motion to dismiss, “a complaint must contain sufficient
19

factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct.

1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)). Eurofins Group alleges that Avenard,

in his role as director of VI, breached his fiduciary duties by

failing to notify VI of ABL’s patent claim. According to

Eurofins Group’s complaint, “Mr. Avenard had knowledge of the

ABL claim at all relevant times, including prior to execution of

the Transfer Agreement.” (App. at 49.) “Moreover, Mr.

Avenard knew that under the Transfer Agreement, Eurofins

Group assumed BioAlliance Group’s obligation to indemnify,

among others, Specialty Labs for any claims of infringement

arising out of the IP.” (App. at 50.) Avenard’s silence therefore

“protected BioAlliance Group’s interest in avoiding its indemnity

obligations to Specialty Labs, knowing all the while that ABL

had asserted such a claim that BioAlliance Group otherwise

would have been required to defend and suffer the disastrous

financial consequences of that obligation.” (App. at 50-51.) 

The District Court concluded that the complaint failed to

state a valid claim for breach of fiduciary duty against Avenard.

Eurofins Pharma, 2009 WL 2992552, at *6. Specifically, the

Court found that Eurofins Group failed to allege that Avenard

personally engaged in any transactions that were either harmful

to VI, or beneficial to him. Id. We disagree.

Under Delaware law, a director’s fiduciary duty of loyalty

includes a duty to disclose. Big Lots Stores, Inc. v. Bain Capital

Fund VII, LLC, 922 A.2d 1169, 1184 (Del. Ch. 2006). The duty

to disclose “is not a general duty to disclose everything the

director knows about transactions in which the corporation is

involved.” Id. Rather, it is “[t]he intentional failure or refusal of
20

a director to disclose to the board a defalcation or scheme to

defraud the corporation of which he has learned, [which] itself

constitutes a wrong.” Hoover Indus., Inc. v. Chase, 1988 WL

73758, at *338 (Del. Ch. July 13, 1988) (quoted in Big Lots, 922

A.2d at 1184).

Big Lots cites several examples of cases in which courts

held that a director violated his duty to disclose under Delaware

law. Primary among those cases is Hollinger International v.

Black, 844 A.2d 1022 (Del. Ch. 2004), the “paradigmatic

example” of a director disclosure case, in which the controlling

shareholder and director failed to disclose that he was “shopping”

the company in violation of a signed contract that forbade such

action. Big Lots, 922 A.2d at 1184 (citing Hollinger, 844 A.2d

at 1061). Avenard attempts to distinguish the allegations in

Eurofins Group’s complaint from Hollinger and the other

examples of director disclosure cases cited in Big Lots. Avenard

is correct in distinguishing those cases, as the allegations in those

cases do not mirror those made here. The dissimilarity does not,

however, mandate that the complaint against Avenard be

dismissed. 

Instead, we read Big Lots more broadly than does

Avenard. Whereas he argues that Big Lots provides the sum total

of the types of director disclosure claims that will survive a

motion to dismiss, we do not think the Big Lots court intended

the examples of director disclosure claims it provides to be

exhaustive. The complaint alleges that, pursuant to the Transfer

Agreement, Eurofins Group assumed the indemnity obligations

to Specialty Labs formerly assumed by BioAlliance Group.

Additionally, the complaint alleges that at the time the Transfer

Agreement was executed and the transaction closed, Avenard
 Avenard also argues that the complaint against him should 11

be dismissed under Iqbal because it is implausible. Specifically,

at oral argument, counsel argued that the economics of the deal

make the allegations implausible. What kind of fraud is it,

21

knew that ABL had asserted a claim against the IP licensed by

Eurofins Group to Specialty Labs. Yet, according to the

complaint, Avenard never came forward with that material

information and allowed VI to assume BioAlliance Group’s

obligations and expenses in connection with the IP. “In short,”

as the complaint alleges, “Mr. Avenard favored the interests of

BioAlliance Group and himself over those of VI.” (App. at 51.)

Thus, the complaint states a claim that Avenard breached his duty

of loyalty to VI by failing to inform VI, at the time he became a

director of VI, of ABL’s claim against the IP. 

The failure to inform VI was potentially harmful to

Eurofins Group. VI was assured by contract that there were no

known claims that could impact its indemnification

responsibilities, but that was not true. Further, it is conceivable

that Avenard benefitted from his failure to disclose ABL’s claim.

As the complaint alleges, Avenard’s silence could have been

intended to—and, in fact, did—serve BioAlliance Group’s

interest in avoiding its indemnity obligations to Specialty Labs,

because BioAlliance Group knew that ABL had told it

(BioAlliance Group) that Specialty Labs’ use of the IP violated

ABL’s patents. It follows that Avenard, the co-founder and chief

operating officer of BioAlliance, could have derived personal

benefit from shifting the indemnification responsibility from

BioAlliance Group to Eurofins Group. These allegations are

sufficient to survive a motion to dismiss.11
counsel asked the Court, where you get merely ten dollars up

front and agree to provide technical support at cost for threeand-a-half years? Counsel’s statement of the contract terms,

however, ignored the indemnification provision. It is hardly

implausible that an individual may seek to benefit his company,

and himself, by offloading the responsibility to indemnify that

company’s licensees onto another company in which he has a

lesser stake.

22

Thus, we vacate the District Court’s dismissal of the

breach of loyalty claim against Avenard on the ground that it

lacked personal jurisdiction over him. 

C. Forum Non Conveniens

Finally, Eurofins Group appeals the District Court’s

decision to dismiss the complaint against all parties under the

doctrine of forum non conveniens. We review for abuse of

discretion the District Court’s dismissal of the complaint under

forum non conveniens. Windt v. Qwest Comms. Int’l, Inc., 529

F.3d 183, 189 (3d Cir. 2008). For the reasons set forth below, we

will affirm the District Court’s decision. 

Under the doctrine of forum non conveniens, a district

court may, in the exercise of its sound discretion, dismiss the case

where: (1) an alternative forum has jurisdiction to hear the case;

and (2) when trial in the plaintiff’s chosen forum would establish

oppressiveness and vexation to a defendant out of all proportion

to the plaintiff’s convenience, or when the chosen forum is

inappropriate due to the court’s own administrative and legal

problems. Windt, 529 F.3d at 189 (citing Koster v. (Am.)
23

Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947)).

“[W]hen considering a motion to dismiss on forum non

conveniens grounds, a district court must first determine whether

an adequate alternate forum can entertain the case.” Id. at 189-

90. If an adequate alternative forum exists, the district court

must determine next the appropriate amount of deference to be

given the plaintiff’s choice of forum. Id. at 190. After the

district court has determined the amount of deference due to the

plaintiff’s choice of forum, the district court must balance the

relevant public and private interest factors. Id. “If the balance

of these factors indicates that trial in the chosen forum would

result in oppression or vexation to the defendant out of all

proportion to the plaintiff’s convenience, the district court may,

in its discretion, dismiss the case on forum non conveniens

grounds.” Id.

Here, the District Court determined that France provides

an adequate alternate forum for this litigation. It found that each

of the defendants is amenable to service of process in France and

that, in any event, none of the defendants will contest personal

jurisdiction there. Eurofins, 2009 WL 2992552, at *7. Eurofins

Group does not challenge these conclusions. It contends,

however, that France constitutes an inadequate forum on several

grounds. It argues that French practice neither provides for

depositions as a discovery device nor provides a method for

obtaining documents from an objecting adversary or non-party.

Additionally, Eurofins Group argues that, under French law, it
 Eurofins Group also argues that France is an inappropriate 12

forum because BioAlliance Group tried, and failed, to negotiate

for a French forum selection clause in the Transfer Agreement,

and thus could not have reasonably expected to litigate in

France. The failure of the parties to agree on a forum to

entertain disputes, however, simply means that, in the event of

litigation, they would do battle on the issue in court, as the

parties in this case are doing now. To say that an agreement to

leave an issue for another day creates a roadblock to taking up

that issue again is illogical and unfair. The parties’ failure to

select a forum is not an appropriate basis upon which to

conclude that France is an inadequate forum.

24

could not compel ABL to appear at trial. 

12

None of these arguments is compelling. Regarding the

availability of discovery, there are adequate discovery methods

available to litigants under French Law. See, e.g., Ernst v. Ernst,

722 F. Supp. 61, 67-68 (S.D.N.Y. 1989) (France is an adequate

forum because “there are several perfectly adequate discovery

methods available under French law, albeit not as extensive as

those available in our courts.”). Concerning the availability of

methods to compel ABL to appear at trial, Eurofins Group

conceded at oral argument that ABL is already a party to ongoing

litigation between these parties in France. (See also Appellees’

Br. 40 (“ABL is a party to the French Action now pending in the

Commercial Court in Paris, and it has not challenged the

jurisdiction of that Court.”).) Therefore, even if Eurofins Group

correctly states the “virtual impossibility” of attaining evidence

from non-parties, this “critical” fact is moot because ABL is a
Eurofins Group also argues that France is an inadequate 13

forum because of French courts’ lack of familiarity with

Delaware law. This is not a ground for finding France an

inadequate forum; rather, it is one of the public interest factors

that we consider below. Cf. Piper Aircraft Co. v. Reyno, 454

U.S. 235, 255, 260 (1981) (discussing familiarity of foreign law

in the context of public interest factors). 

 Where a plaintiff cannot access evidence essential to prove 14

a claim in an alternative forum, that forum is inadequate. Lacey

v. Cessna Aircraft Co., 932 F.2d 170, 191 (3d Cir. 1991). Thus,

if the communications between ABL and BioAlliance Group

were essential to Eurofins Group’s claims, and if evidence of

those communications was, as Eurofins Group argues,

inaccessible to Eurofins Group in France, then France would be

an inadequate forum for this case. ABL, however, is already a

party to the litigation in France; thus, whether or how evidence

may be procured from non-parties under French procedure is

moot. 

25

party to the French litigation. The Supreme Court has 13

counseled that “in rare circumstances, . . . where the remedy

offered by the other forum is clearly unsatisfactory, the other

forum may not be an adequate alternative.” Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 255 n.22 (1981) (emphasis added). Here,

because France is not a “clearly unsatisfactory forum,” it

provides an adequate alternative forum for this litigation. 

14

After concluding that France was an adequate forum for

the parties’ dispute, the District Court next concluded that the

deference owed to Eurofins Group’s choice of forum was
 In its reply brief, Eurofins Group accuses the District Court 15

of failing to accord any deference to its (Eurofins Group’s)

choice of forum. Since that argument was not raised in Eurofins

Group’s opening brief, it is waived. See Laborers’ Int’l Union

of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375, 398

(3d Cir. 1994) (“An issue is waived unless a party raises it in its

opening brief, and for those purposes a passing reference to an

issue . . . will not suffice to bring that issue before this court.”).

Regardless, we do not agree that the District Court failed to give

Eurofins Group’s choice of forum its due deference. In finding

that “the plaintiffs’ choice of a Delaware forum is far

outweighed by the burdens that a Delaware forum would impose

on these defendants,” Eurofins, 2009 WL 2992552, at *7, the

District Court balanced the relevant factors against the deference

it had accorded Eurofins Group’s chosen forum. Those factors

are discussed below. 

26

outweighed by the relevant private and public interest factors.15

The private interest factors that the District Court must consider

include

the relative ease of access to sources of proof; availability

of compulsory process for attendance of unwilling, and

the cost of obtaining attendance of willing, witnesses;

possibility of view of premises, if view would be

appropriate to the action; and all other practical problems

that make trial of a case easy, expeditious and

inexpensive.

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). The public

interest factors include
27

the administrative difficulties flowing from court

congestion; the “local interest in having localized

controversies decided at home”; the interest in

having the trial of a diversity case in a forum that

is at home with the law that must govern the

action; 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.

Piper Aircraft, 454 U.S. at 241 n.6 (quoting Gulf Oil, 330 U.S. at

509). 

The District Court cited the following facts as tipping the

balance in favor of litigation in France: “(1) the initial offer for

the sale of the IP at issue in this litigation was extended in France

by a French entity; (2) the contract at issue in this action was

finalized and executed in France; (3) all of the sources of proof

are located in France, including documents written in French and

key witnesses; and (4) the third-party at the center of this contract

dispute conducts business in France.” Eurofins, 2009 WL

2992552, at *7. 

Regarding the private factors, Eurofins Group argues that,

under French practice, it would have no ability to obtain key

evidence from non-parties to a suit, such as ABL. This argument

repeats one of Eurofins Group’s asserted grounds for finding

France an inadequate forum, and we reject it on the same grounds

as we did in that context. Eurofins Group also points out that not

all witnesses are located in France, since ABL is located in

Luxembourg, one of Eurofins Group’s negotiators is based in

New York, and a former, now defunct, sublicensing agent of
28

ABL used to be based in Massachusetts. The record, however,

reveals that the majority of key witnesses and sources of proof

are, in fact, located in France or the European Union. As such,

even if the District Court statement that “all of the sources of

proof are located in France” overstated the matter, the Court did

not abuse its discretion in deciding that the location of the great

majority of proof and witnesses in France favors dismissal. 

Our conclusion that personal jurisdiction exists as to

Avenard but is lacking over BioAlliance Group bolsters the

Court’s conclusion that the private interest factors weigh in favor

of dismissal because, if the claim against Avenard were to be

heard in Delaware, the parties would face the substantial

inconvenience of litigating two actions, which involve a common

nucleus of operative facts, in two fora. Thus, allowing the action

against Avenard to proceed in Delaware would not make trial of

this case “easy, expeditious and inexpensive,” Gulf Oil, 330 U.S.

at 508.

As to the public factors, Eurofins Group contends that the

District Court should have given more weight to the fact that the

contracts underlying the current dispute are governed by

Delaware law. Although the Court should have considered that

fact in its analysis, we see no abuse of discretion in what we take

to be the thrust of the Court’s analysis—that dismissal on forum

non conveniens grounds is appropriate because the litigation is

focused on French defendants’ alleged breaches of contract and

fiduciary duties, which took place in France, and, therefore

France has a more significant interest in resolving the dispute

than Delaware. See Lacey v. Cessna Aircraft Co., 862 F.2d 38,

48 (3d Cir. 1988) (“In evaluating the public interest factors the

district court must ‘consider the locus of the alleged culpable
 At oral argument, Eurofins Group argued that the District 16

Court abused its discretion by dismissing the action on the

ground of forum non conveniens because litigation in France

will require a judge schooled in civil law to adjudicate a dispute

governed by common law. As this Court observed, that

argument would militate against considering France as an

appropriate forum in cases originating from our common law

system. 

While the public interest factors include “the avoidance

of unnecessary problems . . . in the application of foreign law,”

Windt, 529 F.3d at 189, there is no support for the proposition

that this factor is so overwhelming that it tips the scales in favor

of hearing the case against Avenard in Delaware. Eurofins

Group’s argument “ignores the Supreme Court’s demonstrated

29

conduct, often a disputed issue, and the connection of that

conduct to plaintiff’s chosen forum.’” (quoting Van

Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988)). 

The mere fact that certain documents are written in

English is insufficient to change that conclusion. Further, though

Delaware has “a significant interest in actively overseeing the

conduct of those owing fiduciary duties to the shareholders of

Delaware corporations,” Armstrong v. Pomerance, 423 A.2d 174,

177 (Del. 1980), that interest is also insufficient to outweigh the

locus of the alleged culpable conduct in this case. Additionally,

litigation in France will avoid the possibility of incongruous

results stemming from parallel actions involving Eurofins

Group’s claims. The Commercial Court is already endeavoring

to resolve this dispute, and will continue its efforts independent

of our decision.16
willingness to dismiss a case on forum non conveniens grounds

even where the alternative forum will be faced with questions of

American law.” ACLI Int’l Commodity Servs., Inc. v. Banque

Populaire Suisse, 652 F. Supp. 1289, 1296 (S.D.N.Y. 1987)

(citing Piper Aircraft, 454 U.S. at 260).

30

Both the private and public interest factors weigh in favor

of litigating this dispute in France. Therefore, the District Court

did not abuse its discretion by granting BioAlliance Group’s

motion to dismiss on forum non conveniens grounds.

IV. CONCLUSION

For the reasons explained above, we affirm the District

Court’s decision that it does not have personal jurisdiction over

BioAlliance Group, we affirm the District Court’s denial of

Eurofins Group’s motion for jurisdictional discovery, we vacate

the District Court’s decision that it does not have personal

jurisdiction over Avenard, and we affirm the District Court’s

dismissal of the complaint on the ground of forum non

conveniens.