                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 11 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NEURALSTEM, INC., a Maryland                     No. 08-56546
corporation,
                                                 D.C. No. 2:08-cv-02168-R-AGR
              Plaintiff - Appellant,

  v.                                             MEMORANDUM *

RENEURON, LTD., a United Kingdom
corporation,

              Defendant - Appellee.



                    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.



        *
             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.
      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


                                            2
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


                                           3
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


                                              4
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


                                            5
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


                                            6
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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