FILED
NOT FOR PUBLICATION
JUL 28 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADEMA TECHNOLOGIES, INC., DBA No. 14-16618
Gloria Solar (USA),
D.C. No. 5:13-cv-05599-BLF
Plaintiff-Appellant,
v. MEMORANDUM*
WACKER CHEMICAL
CORPORATION; WACKER CHEMIE
AG,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted July 8, 2016
San Francisco, California
Before: BERZON, and N.R. SMITH, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dana L. Christensen, United States Chief District
Judge for the District of Montana, sitting by designation.
Adema Technologies, Inc. (“Adema”) appeals the district court’s dismissal
of its case on the ground of forum non conveniens. We affirm. The district court
did not abuse its discretion in enforcing the forum-selection clause contained in
Adema’s supply agreement with Wacker Chemie AG (“Wacker”) with respect to
all of Adema’s claims.
1. The forum-selection clause governs the entire controversy. The language
of the clause at issue, which refers to the “legal relations between the parties” and
provides that Munich is the “[e]xclusive place of jurisdiction,” is expansive.
Where a broad forum-selection clause is included in a contract and the parties raise
non-contractual claims, the forum-selection clause can apply to the non-contractual
claims, at least where “resolution of the claims relates to interpretation of the
contract.” Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 514 (9th Cir.
1988).
All of Adema’s claims “relate to” interpretation of the contract. Adema
contends that Wacker unfairly induced Adema to enter into a fixed-price
agreement although Wacker knew that it would soon dramatically increase
production and thus lower the market price for polysilicon. Had Adema not
entered into the supply agreement, it would have benefitted from this drop in price.
Adema’s alleged economic injury, and therefore its standing to bring an unfair
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competition claim under California Business and Professions Code §§ 17200, et
seq., depends on the terms of the contract, including the price agreed upon and the
circumstances under which Adema may be released from its obligations. See
Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322 (2011); Cal. Bus. & Prof.
Code § 17204 (2016).
Even assuming Adema did not waive the remainder of its arguments about
the scope of the forum-selection clause, Adema’s unjust enrichment, conversion,
and aiding and abetting claims likewise relate to the agreement. None could go
forward had the contract not existed. Accordingly, we conclude that the forum-
selection clause applies to all of Adema’s claims.
2. A court should refuse to enforce a forum-selection clause “[o]nly under
extraordinary circumstances unrelated to the convenience of the parties.” Atl.
Marine Constr. Co. v. U.S. Dist. Court, 134 S. Ct. 568, 581 (2013). No
extraordinary circumstances counsel against enforcement of the forum-selection
clause here.
A forum-selection clause designating a foreign forum is enforced through
the doctrine of forum non conveniens. Id. at 580. When a valid forum-selection
clause is at issue, the conventional forum non conveniens analysis is modified in
three ways. Id. at 581-83 & 583 n.8. First, the plaintiff bears the burden of
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showing why the court should disregard the forum-selection clause. Id. at 581-82.
Second, the court considers only public-interest factors weighing against dismissal.
Id. at 582. Third, the agreed-upon forum need not apply the law of the court in
which the plaintiff filed suit. Id. at 582-83.
The forum-selection clause contained in the supply agreement is enforceable
unless Adema can “clearly show that enforcement would be unreasonable and
unjust.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972).
Enforcement is unreasonable and unjust if the clause results from fraud or
overreaching; if enforcing the clause would effectively deprive Adema of its day in
court; or if “enforcement would contravene a strong public policy” of California.
Richards v. Lloyd’s of London, 135 F.3d 1289, 1294 (9th Cir. 1998) (en banc)
(quoting M/S Bremen, 407 U.S. at 12-13, 15, 18).
The district court did not abuse its discretion in enforcing the forum-
selection clause here. Adema has not suggested that the clause resulted from fraud
or overreaching. Further, requiring Adema to litigate in Germany would neither
effectively deny Adema its day in court nor contravene important public policies of
California.
Adema has not met its “heavy burden” to show that trial in Germany “would
be so difficult and inconvenient that the party would effectively be denied a
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meaningful day in court.” Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 325 (9th
Cir. 1996) (citation omitted). Even assuming Atlantic Marine does not entirely
foreclose consideration of financial hardship, Adema does not meet its burden of
showing that it would be deprived of its day in court, especially when Adema has
already appeared in Germany to defend itself in a different lawsuit. Thus, such
hardship is insufficient to overcome the strong presumption in favor of
enforcement. See Peterson v. Boeing Co., 715 F.3d 276, 280-81 (9th Cir. 2013)
(per curiam); Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1142-43 (9th Cir.
2003).
Moreover, even if German law would treat Adema’s claims somewhat less
favorably than would California law, this difference in treatment does not mandate
reversal. Adema need not be guaranteed identical recourse in the foreign forum for
enforcement of the forum-selection clause to be reasonable, see Richards, 135 F.3d
at 1295, nor is our “job at this juncture . . . to predict the outcome of any
proceeding” in a foreign court. Holland Am. Line Inc. v. Wärtsilä N. Am., Inc., 485
F.3d 450, 457 (9th Cir. 2007). Adema has not shown that Germany law would be
“so deficient that the [plaintiff] would be deprived of any reasonable recourse,”
Richards, 135 F.3d at 1296, and therefore has not shown that enforcing the forum-
selection clause would effectively deny its day in court.
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Nor has Adema shown that requiring it to litigate in the agreed-upon forum
would contravene important California public policy. Because Adema raises
public policy arguments, the applicability of the German choice-of-law provision
raises an important predicate question. Whether German choice-of-law principles
would apply German or California law in a German forum has not been addressed
at all. Nor have the parties discussed whether German law would apply in
California under the choice-of-law provision were the forum-selection clause not
enforced. Without any indication of which forum’s substantive law would apply
where, we cannot begin to assess whether California public policy is implicated by
the forum choice standing alone.
Moreover, even if we assume that the choice of Germany as the forum
would dictate German law as the applicable substantive law, the district court did
not abuse its discretion in concluding that enforcing the forum-selection clause
would not violate California’s public policies against excessive forfeitures and
unfair trade practices. Adema has not shown that, were trial to proceed in
Germany, Wacker would recover an amount disproportionate to its actual damages.
See Ridgley v. Topa Thrift & Loan Ass’n, 17 Cal. 4th 970, 976-78 (1998); Cal.
Civ. Code § 3275 (2016). Nor has Adema shown that the policy embodied by
California’s unfair competition law cannot be vindicated under German law. See
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Doe 1 v. AOL LLC, 552 F.3d 1077, 1083-84 (9th Cir. 2009) (per curiam); Simula,
Inc. v. Autoliv, Inc., 175 F.3d 716, 723 (9th Cir. 1999); Gesetz gegen en unlauteren
Wettbewerb [UWG] [The Act Against Unfair Competition], translation at
http://www.gesetze-im-internet.de/englisch_uwg/englisch_uwg.html.
No other public-interest factors weigh strongly in Adema’s favor. See Atl.
Marine Constr. Co., 134 S. Ct. at 581-82; Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n.6 (1981) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09
(1947)). Accordingly, the district court did not abuse its discretion in enforcing the
forum-selection clause and dismissing Adema’s claims on the ground of forum non
conveniens.
AFFIRMED.
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