NEURALSTEM, INC., a Maryland corporation v. RENEURON, LTD., a United Kingdom corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Jeremy D. Fogel, United States District Judge for the***
Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEURALSTEM, INC., a Maryland
corporation,
Plaintiff - Appellant,
v.
RENEURON, LTD., a United Kingdom
corporation,
Defendant - Appellee.
No. 08-56546
D.C. No. 2:08-cv-02168-R-AGR
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted February 9, 2010**
Pasadena, California
Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, District***
Judge.
FILED
FEB 11 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Neuralstem, Inc. appeals the district court’s dismissal on forum non
conveniens grounds of its claims against ReNeuron, Ltd. We reverse. Because the
parties are familiar with the factual and procedural history of this case, it is
unnecessary to recount it here
I
The district court properly found that England is an adequate alternative
forum. See Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1178 (9th Cir.
2006) (an alternative forum is generally available where “the defendant is
amenable to service of process and the forum provides ‘some remedy’ for the
wrong at issue”) (citations omitted). ReNeuron tendered evidence showing that
England offers a remedy for each of Neuralstem’s claims.
Neuralstem argues that it may seek amendment of its complaint to assert a
claim under 35 U.S.C. § 256 for correction of inventorship and that its complaint
requests as a remedy for ReNeuron’s alleged breach of contract that ReNeuron be
compelled to assign any pending patent applications to Neuralstem.
These facts do not give rise to a conclusion that England is an inadequate
alternative forum. First, Neuralstem has not shown that it will be unable to file a
separate action in United States courts in the event that it wishes to assert a claim
under 35 U.S.C. § 256. While the possibility of duplicative action is appropriately

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factored into the analysis of private and public interest factors governing forum
non conveniens dismissals, it does not mandate a finding that a foreign forum is
inadequate. Second, while Neuralstem argues that one of its requested remedies
(assignment of ReNeuron’s patent applications) is not available in an English
forum, it has not shown that England offers no remedy for Neuralstem’s claims. In
determining whether an adequate alternative forum exists, courts ask only whether
some remedy exists; whether the remedy afforded is less favorable in the foreign
forum is not determinative. See Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143-
44 (9th Cir. 2001). Neuralstem has not submitted any evidence to rebut
ReNeuron’s evidence that English law offers a remedy for each of Neuralstem’s
claims, even if not Neuralstem’s requested remedy.
II
Neuralstem argues that the district court failed to accord Neuralstem’s
choice of forum proper deference. We agree.
ReNeuron relies upon Gemini Capital Group v. Yap Fishing Co., 150 F.3d
1088, 1090-91 (9th Cir. 1998) to contend that Neuralstem’s choice of forum was
afforded all due deference given the fact that Neuralstem, a Maryland-based
corporation, brought suit in California, a forum to which it has little connection.
However, we have recently clarified that a United States citizen’s decision to bring

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suit in a state in which the plaintiff is not a resident is still entitled to deference.
See Boston Telecommunications Group, Inc. v. Wood, 588 F.3d 1201, 1207 (9th
Cir. 2009).
Here, although the district court purported to give Neuralstem’s choice of
forum “the appropriate regard,” and included the residence of the parties in its
enumeration of private interest factors, it did not actually weigh Neuralstem’s
United States residency and choice of forum in its private interest factor analysis,
focusing instead on the residency of potential witnesses. This was an abuse of
discretion.
III
Neuralstem argues that the district court abused its discretion in weighing
the public and private interest factors relevant to a forum non conveniens
determination. We agree.
In dismissing an action on forum non conveniens grounds, a district court
“must examine: (1) whether an adequate alternative forum exists, and (2) whether
the balance of private and public interest factors favors dismissal.” Lueck, 236
F.3d at 1142 (citations omitted).
The district court made several errors in weighing the private interest
factors. First, as noted above, it failed to accord adequate deference to

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Neuralstem’s choice of forum. Second, the district court failed to give sufficient
weight to the fact that Neuralstem’s claims are reliant upon third-party witnesses
and documentary evidence located in California and elsewhere in the United
States, focusing instead on the evidence and witnesses located in England.
However, the district court failed to hold ReNeuron to its burden of proof to
provide sufficient information regarding “the materiality and importance” of the
anticipated witnesses and documentary evidence in England, and thus had no
opportunity to determine their “accessibility and convenience to the forum.” Gates
Learjet Corp. v. Jensen, 743 F.2d 1325, 1335-36 (9th Cir. 1984) (citations
omitted). In addition, the district court did not consider the fact that most if not all
of the documentary evidence located in England is within ReNeuron’s control, and
thus can be brought to court wherever the forum. See Lueck, 236 F.3d at 1146-47
(concluding that the private interest factors weighed in favor of dismissal where all
of the documentary evidence and witnesses in the United States were under the
control of the parties, but much of the evidence in the alternative foreign forum
was not).
The district court also made several errors in weighing the public interest
factors. Most notably, the district court improperly discounted the interests of
California and the United States in the litigation. While England has stronger ties

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to the parties’ performance of their contractual obligations, California has stronger
ties to the issue central to this case – ReNeuron’s alleged breach of the agreement.
The allegedly unlawful conduct constituting a breach of the parties’ agreement has
occurred almost exclusively in California and elsewhere in the United States.
ReNeuron argues that the “locus” of any harm stemming from its conduct occurred
in Maryland, not California. But this court “need not hold . . . that California is the
principal locus of the case or that California has more of an interest than any other
jurisdiction in order to conclude that California has a meaningful interest in this
litigation. With this public interest factor, we ask only if there is an identifiable
interest in the controversy, not whether another forum also has an interest.” See
Boston Telecommunications, 588 F.3d at 1212. California has an identifiable
interest in preventing unlawful conduct from taking place within its borders. See
id.
IV
Because the district court failed to hold ReNeuron to its burden of making a
clear showing of facts required to merit the “exceptional tool” of a forum non
conveniens dismissal, see Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir.
2000) and improperly balanced the private and public interest factors, it abused its
discretion in ruling that England is a more convenient forum in which to pursue

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this action. We reverse the order of the district court dismissing this action on the
basis of forum non conveniens. We therefore need not and do not reach any other
issue urged by the parties.
REVERSED AND REMANDED.

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