Infuturia Global Ltd v. Sequus Pharm.s Inc

• Decision Date: 07 February 2011
• Docket Number: No. 09-16378,DC. No. 4:08-cv-04871-SBA,09-16378
• Parties: Infuturia Global Ltd., Plaintiff-Appellant, v. Sequus Pharmaceuticals, Inc.; The Hebrew University of Jerusalem; Yechezkel Barenholz, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Infuturia Global Ltd., Plaintiff-Appellant,

v.Sequus Pharmaceuticals, Inc.; The Hebrew University of

Jerusalem; Yechezkel Barenholz, Defendants-Appellees.

No. 09-16378

DC. No. 4:08-cv-04871-SBA

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Argued August 31, 2010

Submitted January 31, 2011

Filed February 7, 2011

FOR PUBLICATION

opinion

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Before: Jay S. Bybee, Timothy M. Tymkovich^*, and

N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

COUNSEL

Eric D. Pearson, Heygood, Orr & Pearson, Dallas, Texas, for plaintiff-appellant Infuturia Global, Ltd.

Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver & Hedges LLP, New York, New York, for defendant-appellee Sequus Pharmaceuticals, Inc.

OPINION

N.R. SMITH, Circuit Judge:

In this appeal, we primarily address the novel question whether, under 9 U.S.C. § 205, a district court has removal jurisdiction¹ over a case where the defendant raises an affirmative defense related to an arbitral award falling under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 as implemented by 9 U.S.C. § 201 et seq. ("Convention").²

Because an arbitration agreement or award falling under the Convention "relates to" the subject matter of an action whenever it could conceivably affect the outcome of the plaintiffs suit, a district court does have removal jurisdiction over such a case.

I. Factual and Procedural Background

This case arises from a dispute over medical licensing rights between Appellant Infuturia Global Ltd. ("Infuturia"), a citizen of the British Virgin Islands; Yissum Research and Development Co. ("Yissum"), a citizen of Israel; and Appellee Sequus Pharmaceuticals, Inc. ("Sequus"), a citizen of California. In the 1980s, Professor Yechezkel Barenholz ("Barenholz") of The Hebrew University of Jerusalem (the "University") and Yissum developed technologies in Israel using liposomes as a vehicle for delivering pharmaceuticals to the human body. In March of 1990, Infuturia entered into a license agreement ("Infuturia License") with Yissum exchanging royalties for an exclusive worldwide right to develop, market, and use certain Yissum patents. The agreement included an arbitration provision requiring arbitration of any dispute "connected in any way to the implementation of [the] Agreement." In January of 1995, Sequus entered into a licensing agreement ("Sequus License") with Yissum for rights to certain liposome technology owned by Yissum. Barenholz and Yissum had previously worked with Sequus on liposome research.

On October 26, 1998, Infuturia sued Sequus, the University, and Barenholz in California state court alleging tortious interference with the Infuturia License. Yissum was not named as a defendant. Infuturia alleged that the defendants had interfered with the Infuturia License by encouraging Yis-sum to divulge and license technology that was already licensed to Infuturia. Though not a party to the California proceedings, Yissum petitioned for a stay pending arbitration pursuant to the arbitration provision in the Infuturia License. The California state court granted the stay on July 15, 1999. In an Israeli arbitration, Infuturia alleged claims similar to those asserted in the California state court proceedings, namely that Yissum breached the Infuturia License by developing, patenting, and selling technology related to or based on technology already licensed to Infuturia.³ After completing the arbitration, the arbitrator determined, among other things, that (1) Infuturia's license was valid, (2) Yissum had not breached the Infuturia License, and (3) Infuturia did not have rights to any patents and products relating to the Sequus License.

Given the arbitration decision, the state court lifted the stay in the California case. Infuturia then filed a First Amended Complaint in state court which was similar to the original state court complaint, but did not reference certain Sequus products the arbitrator determined were not related to the Infuturia License. The University and Barenholz subsequently filed a Notice of Removal (in which Sequus joined), pursuant to 9 U.S.C. § 205. Infuturia filed a motion to remand, arguing only that removal was improper under 9 U.S.C. § 205, because the defendants were not parties to the foreign arbitration agreement between Infuturia and Yissum. In February 2009, the court denied the motion to remand. The district

court found that removal was proper because the litigation "relates to" the arbitration provision and the arbitration provision falls under the Convention. The court also found that Infuturia's pleadings were vague and ordered Infuturia to file a second amended complaint identifying the particular Sequus products, compounds, or inventions that allegedly infringe upon Infuturia's license with Yissum.

Infuturia filed its Second Amended Complaint on March 16, 2009. It asserted tortious interference and conversion claims and only named Sequus as a defendant. In its Answer to the Second Amended Complaint, Sequus raised the affirmative defense of collateral estoppel, arguing that these issues had already been resolved against Infuturia in the Israeli arbitration. When it filed its Answer, Sequus also moved to dismiss under Rule 12(b)(6) for failure to state a claim and Rule 12(b)(7) for failure to join a necessary party. The district court granted both motions on June 1, 2009. Infuturia appeals the district court's grant of both motions, asserts that removal was improper under 9 U.S.C. § 205, and argues that the district court lacked federal subject-matter jurisdiction.⁴

II. Subject Matter Jurisdiction

Infuturia first contends the district court lacked subject matter jurisdiction over this case. The district court identified 9 U.S.C. § 203 as the basis for jurisdiction in its order granting Sequus's motions to dismiss. Sequus agrees with the district court, but argues for jurisdiction under both §§ 203 and 205, as well as diversity jurisdiction under 28 U.S.C. § 1332(a)(2). Because we conclude the district court had diversity jurisdiction, we do not reach the other contended bases for subject matter jurisdiction under §§ 203 and 205.

Page 2298

[1] Infuturia argues that diversity jurisdiction does not lie under 28 U.S.C. § 1332(a)(2) because (1) jurisdiction is determined at the time of removal, and the parties were not diverse when this case was removed to federal court; and (2) Sequus, as a forum defendant, could not have originally removed the case to federal court even if it had been the only defendant sued. We disagree with Infuturia's arguments, because they raise statutory rather than jurisdictional objections. Both the forum defendant rule and the requirement for diversity at the time of removal are statutory requirements imposed by the general removal statute, 28 U.S.C. § 1441, not jurisdictional requirements. See Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574 (2004) (holding the requirement that there be diversity at the time of removal is a statutory, non-jurisdictional requirement imposed by 28 U.S.C. § 1441(a)); Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir. 2006) (holding that the forum defendant rule is a statutory, non-jurisdictional requirement imposed by 28 U.S.C. § 1441(b)). Because removal in this case was effectuated under 9 U.S.C. § 205, the traditional diversity removal provisions of 28 U.S.C. § 1441 do not apply.

[2] Although the court lacked diversity jurisdiction at the time of removal because there were foreign citizens on both sides of the case, see Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, 20 F.3d 987, 990 (9th Cir. 1994), this jurisdictional defect was cured by Infuturia's dismissal in its Second Amended Complaint of the foreign defendants that originally destroyed diversity, see Grupo Dataflux, 541 U.S. at 572 (stating that a jurisdictional defect can be cured by the dismissal of the party that had destroyed diversity). Only two parties remained under the Second Amended Complaint: Infuturia (a citizen of the British Virgin Islands) and Sequus (a citizen of California). Thus, the district court had diversity jurisdiction under 28 U.S.C. § 1332(a)(2) (which states that "district courts shall have original jurisdiction of all civil actions... between citizens of a State and citizens or subjects of a foreign state").

Ill. Removal Jurisdiction

We review de novo a district court's denial of a motion to remand for lack of removal jurisdiction. Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). We also review de novo questions of statutory interpretation. Beeman v. TDI Managed Care Servs., Inc., 449 F.3d 1035, 1038 (9th Cir. 2006).

[3] Title 9 U.S.C. § 205 provides that federal courts have removal jurisdiction

[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention.... The procedure for removal of causes otherwise provided by law shall apply, except that the ground for removal provided in this section need not appear on the face of the complaint but may be shown in the petition for removal.

(emphasis added). When interpreting the meaning of this statute, we "look first to its plain language." United States v. Juvenile Male, 595 F.3d 885, 898 (9th Cir. 2010) (citation and alteration omitted). The critical language here is the phrase "relates to." The Fifth Circuit, which is the first and only circuit court to address the meaning of "relates to" in § 205, construed this language to mean that "whenever an arbitration agreement falling under the Convention could conceivably affect the outcome of the plaintiffs case, the agreement 'relates to' the plaintiff's suit." Beiser v. Weyler, 284 F.3d 665, 669 (5th Cir. 2002). We agree with this interpretation....