United States Court of Appeals For the First Circuit

No. 21-1781

AMYNDAS PHARMACEUTICALS, S.A. and AMYNDAS PHARMACEUTICALS, LLC,

Plaintiffs, Appellants,

v.

ZEALAND PHARMA A/S and ZEALAND PHARMA U.S., INC.,

Defendants, Appellees,

ALEXION PHARMACEUTICALS, INC.,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Kayatta, Circuit Judges.

Robert E. Counihan, with whom David K. Tellekson, Jessica M. Kaempf, Deena J. Greenberg Feit, Todd R. Gregorian, Fenwick & West LLP, Russell Beck, and Beck Reed Riden LLP were on brief, for appellants. Edwina Clarke, with whom Kevin P. Martin, Robert D. Carroll, Huiya Wu, Tiffany Mahmood, and Goodwin Procter LLP were on brief, for appellees. September 2, 2022 SELYA, Circuit Judge. When biotech firms engage in the

entrepreneurial equivalent of musical chairs, one firm sometimes

gets left out in the cold. That is essentially what happened here

— and it led to the litigation described below.

The music began with serial decisions by plaintiffs

Amyndas Pharmaceuticals, S.A., now known as Amyndas

Pharmaceuticals Single Member P.C., and Amyndas Pharmaceuticals,

LLC (collectively, Amyndas), appellants here, to consider separate

joint ventures with defendants Zealand Pharma A/S (Zealand Pharma)

and Alexion Pharmaceuticals, Inc. (Alexion), respectively. In the

ensuing chorus of negotiations, Amyndas relied on confidential

disclosure agreements (CDAs) to safeguard its trade secrets. After

Amyndas shared that confidential information, though, neither of

the joint ventures materialized.

Even so, the band played on. Zealand Pharma and its

newly established affiliate, Zealand Pharma U.S., Inc. (Zealand

US), announced a partnership with Alexion — a partnership that

contemplated bringing to market a drug targeting the same part of

the immune system on which Amyndas had been concentrating. Amyndas

responded by suing for misappropriation of trade secrets and other

confidential information.

The district court dismissed Amyndas's claims against

Zealand Pharma on the ground that the CDA between the parties

required Amyndas to litigate those claims in Denmark. See Amyndas

- 3 - Pharms., S.A. v. Alexion Pharm., Inc., No. 20-12254,

, at *7 (D. Mass. June 8, 2021). It then dismissed

Amyndas's claims against Zealand US for failure to state a claim

because the complaint's allegations were predominately against the

Zealand entities, collectively, and thus "[we]re insufficient to

put [the Zealand entities] on notice as to 'who did what to whom.'"

Id. at *2. Twenty-eight days later, Amyndas filed a motion for

reconsideration or, in the alternative, for leave to amend,

attaching a proposed amended complaint. The district court denied

both reconsideration and leave to amend.

Amyndas appealed these rulings. Because Amyndas's

claims against Alexion remained pending in the district court, the

district court entered a partial final judgment under Federal Rule

of Civil Procedure 54(b) to enable immediate appellate review.

Following briefing and oral argument, we now uphold the entry of

a partial final judgment under Rule 54(b). And having confirmed

the existence of appellate jurisdiction, we affirm the dismissal

of Amyndas's claims against Zealand Pharma, vacate the dismissal

of Amyndas's claims against Zealand US, and remand to the district

court for further proceedings consistent with this opinion.

I

We briefly rehearse the facts and travel of the case.

In that account, we take as true all well-pleaded facts alleged in

the proposed amended complaint, drawing all reasonable inferences

- 4 - in the pleader's favor. See Rodríguez-Reyes v. Molina-Rodríguez,

(1st Cir. 2013); Panther Partners Inc. v. Ikanos

Commc'ns, Inc.,

(2d Cir. 2012).

Amyndas consists of a Greek company and its American

affiliate. It is a biotechnology firm that researches and develops

therapeutics targeting a part of the immune system known as the

complement system. When the complement system malfunctions, it

can cause the immune system to attack healthy tissue, either

causing or exacerbating a wide variety of conditions. One area of

Amyndas's research deals with "complement inhibitors."

Amyndas's research has yielded compstatin — a peptide

that selectively inhibits the C3 protein (which plays a role in

activating the complement system). What is more, Amyndas also has

developed a related peptide (AMY-101) targeting that protein for

clinical use. Amyndas is the exclusive licensee of patents related

to this work and has endeavored to develop therapies based on AMY-

101 that target the C3 protein. It owns trade secrets and

confidential information related to this work.

In March of 2015, Zealand Pharma, a Danish biotechnology

firm, contacted Amyndas about a potential partnership for the

development of complement-related therapeutics. Discussions

ensued. The next month, the two firms entered into a CDA regarding

information-sharing "for the purposes of evaluating a possible

business/ services relationship between the parties and their

- 5 - respective Affiliates." Shortly thereafter, Amyndas started

giving Zealand Pharma access to confidential information

(including confidential information about AMY-101). In August of

2016, the firms signed a second CDA — with added protections — for

"the evaluation or formation of a possible business and/or services

and/or collaborative relationship."

Both CDAs contained elaborate confidentiality

provisions. The confidentiality provision of the second CDA is

emblematic. It stated that the recipient of confidential

information:

shall (a) make no use of any of the Confidential Information disclosed by Discloser other than for the Purpose [of the evaluation or formation of a possible business and/or services and/or collaborative relationship between the parties and their respective Affiliates], (b) not disclose such Confidential Information to third parties, and (c) take all reasonable precautions to prevent disclosure of such Confidential Information to third parties.

The confidentiality provision further stated that the recipient of

confidential information:

may only provide the Confidential Information of Discloser to its Representatives and its Affiliates who (a) need it for the Purpose, (b) are informed of the confidential nature of the Confidential Information, and (c) are bound by obligations of confidentiality and non-use no less restrictive than those contained herein.

- 6 - The second CDA also contained an explicit guarantee that Amyndas

would "own all the Developed Technology incorporating, or

involving the use of, the Amyndas Base Technology."

Both CDAs included an identical "Governing Law"

provision. This provision consisted of a choice-of-law clause

stipulating that the CDAs would "be interpreted and governed by

the laws of the country (applicable state) in which the defendant

resides" and a forum-selection clause stipulating that "any

dispute arising out of th[e CDA] shall be settled in the first

instance by the venue of the defendant."

Following the execution of the second CDA, Amyndas

shared more proprietary information with Zealand Pharma.

Meanwhile, Zealand Pharma began its own research program in late

2016, also focused on complement therapeutics. It did not inform

Amyndas of this initiative. Although negotiations continued, the

firms ultimately decided not to collaborate. On April 26, 2017,

Amyndas terminated its information-sharing relationship with

Zealand Pharma.

We fast-forward to August of 2018, at which time Zealand

Pharma formed Zealand US, a Delaware corporation having its

principal place of business in Boston, Massachusetts. Without

Amyndas's knowledge or consent, Zealand Pharma filed two European

patent applications in 2018. Zealand Pharma then filed an

international patent application in February of 2019, claiming

- 7 - priority in the two earlier patent applications and designating

the United States as one jurisdiction in which patent protection

would be sought.

On September 6, 2019, the international patent

application was published, thus making its contents publicly

available for the first time. The application purported to

describe "compstatin analogues that are capable of binding to C3

protein and inhibiting complement activation." The C3 protein —

which is the target of AMY-101 — has been the focus of Amyndas's

research for many years. Perhaps more importantly, it was one

subject of Amyndas's information-sharing with Zealand Pharma.

Amyndas alleges that it shared confidential information with

Zealand Pharma under the CDAs — information about various features,

profiles, and characteristics of AMY-101 as well as how it could

be used to make next-generation compounds.

At this juncture, it is useful to describe Alexion's

role in this saga of alleged corporate intrigue. In 2007, Alexion

— an established player in the complement therapeutics field —

brought to market Soliris, a complement inhibitor that targets the

C5 protein (a protein in the complement system). Soliris has been

approved by the Food and Drug Administration (FDA) for four

indications and — until recently — Soliris was the only FDA-

approved and clinically available complement-specific therapeutic

on the market. Alexion's patent on Soliris expires soon, and

- 8 - Alexion is facing commercial pressure to bring new complement-

based drugs to market.

In January of 2018, representatives of Alexion and

Amyndas met in San Francisco. Following that meeting, Alexion

expressed interest in forming a partnership with Amyndas. The two

companies signed a CDA limiting the use of exchanged confidential

information to a singular purpose, namely, the "exploration of one

or more potential business arrangements and/or potential

arrangements of research, development, and commercialization of

drug candidates relating to Amyndas' complement inhibitors."

Alexion requested and received certain confidential information

about Amyndas's complement therapeutic research, including details

about Amyndas's intellectual property, planned clinical trials,

platform, and collaboration network.

Although Alexion and Amyndas continued to talk for some

time, their partnership negotiations ran aground. But through at

least December of 2018, Alexion continued to receive confidential

research updates from Amyndas. Unbeknownst to Amyndas, Alexion

and Zealand Pharma had been discussing a collaboration during the

same time frame. On March 20, 2019, those two firms issued a joint

press release announcing a joint venture to develop complement

therapeutics. More recently, they have announced that they

anticipate entering Phase I clinical trials with a complement

inhibitor targeting the C3 protein in the complement system.

- 9 - Amyndas came to suspect that Alexion and Zealand Pharma

had misappropriated confidential information which Amyndas had

shared pursuant to the CDAs. The announced collaboration between

Alexion and Zealand Pharma for drugs targeting the C3 protein

heightened these suspicions. Deeming its rights infringed,

Amyndas sued Zealand Pharma, Zealand US, and Alexion in the United

States District Court for the District of Massachusetts. Its

complaint alleged that the Zealand defendants breached the CDAs,

misappropriated trade secrets and other confidential information,

and conspired with Alexion to use those misappropriated materials

in producing competing complement therapeutic products.

Specifically, the complaint alleged claims against the Zealand

defendants for trade secret misappropriation, unfair competition,

breach of contract, breach of the implied covenant of good faith

and fair dealing, and unjust enrichment. So, too, the complaint

alleged claims against Alexion for trade secret misappropriation,

tortious interference with contractual relations, unfair

competition, breach of contract, and unjust enrichment. The

complaint then tied all the defendants together by asserting

conspiracy claims.

Alexion answered the complaint, but the Zealand

defendants moved to dismiss. On June 8, 2021, the district court

dismissed Amyndas's claims against both Zealand defendants. See

Amyndas,

, at *7. As to Zealand Pharma, the court

- 10 - ruled that the forum-selection clause in the CDAs required that

all claims against that defendant be brought in Denmark. See id.

at *4-6. Looking to the plain meaning of the phrase "shall be

settled in the first instance by the venue of the defendant," the

court concluded that the "only plausible reading" of the forum-

selection clause was that "adjudication of claims against a party

defendant that arise out of the CDA must occur in the location of

the party defendant." Id. at *4. As to Zealand US (which had not

itself executed a CDA with Amyndas), the court ruled that the

complaint failed to state a claim upon which relief could be

granted. See id. at *3. The court noted that the complaint

largely referred to "Zealand" as a single entity and did not make

clear whether and how Zealand US was involved. See id. at *2-3.

And because Zealand US was not formed until August of 2018, the

"claims stated against 'Zealand' as a combined entity [we]re not

sufficient to put Defendants on notice as to which claims pertain

to Zealand [US]." Id. at *3.

Twenty-eight days later, Amyndas moved for

reconsideration or, in the alternative, leave to amend the

complaint. In its proposed amended complaint, Amyndas carefully

distinguished between the two Zealand entities and pleaded its

claims against them as discrete counts. Furthermore, the proposed

amended complaint alleged additional facts supporting the claim

that Zealand US was involved in the continuing exploitation of

- 11 - Amyndas's trade secrets, including allegations that Zealand US

bears ongoing responsibility for the Alexion partnership and is

participating in efforts to obtain regulatory approval for

therapeutics derived from Amyndas's trade secrets. The proposed

amended complaint also alleged that Zealand US is a corporate alter

ego of Zealand Pharma and that the two are operated as a single

business.

On August 27, 2021, the district court denied Amyndas's

motion. In a minute order, the court summarily refused

reconsideration and denied Amyndas's request to file an amended

complaint. The court indicated that the proposed amended complaint

would be futile — but undertook no analysis of any specific

allegations against Zealand US. Instead, it tersely stated that

the "proposed additional factual allegations" did not "plausibly

allege a basis to conclude either that the Court should disregard

the Zealand defendants' separate legal identities, or that Amyndas

has stated claims directly against Zealand US."

Amyndas appealed. In conjunction with its notice of

appeal, Amyndas moved for entry of a partial final judgment. See

Fed. R. Civ. P. 54(b). Zealand Pharma and Zealand US opposed the

Rule 54(b) motion. The district court overruled the Zealand

defendants' objections and entered a partial final judgment, thus

breathing life into the notice of appeal. See Fed. R. App. P.

- 12 - 4(a)(2). Briefing followed in due course, and we heard oral

argument on June 8, 2022.

II

Mindful that a federal court must always ensure that its

rulings rest on a solid jurisdictional plinth, see Charlesbank

Equity Fund II v. Blinds To Go, Inc.,

(1st

Cir. 2004) ("When a colorable question exists, an appellate court

has an unflagging obligation to inquire sua sponte into its own

jurisdiction."), we start by considering the basis for our

jurisdiction over this interlocutory appeal: the district court's

entry of partial final judgment under Rule 54(b). A federal

appellate court's jurisdiction over an appeal is ordinarily

limited to "final decisions" of the district court.

. This finality principle typically requires a final

disposition of all claims in an action that have been brought by

or against all of the parties. See Curtiss-Wright Corp. v. Gen.

Elec. Co.,

(1980); Quinn v. City of Boston,

(1st Cir. 2003); see also Sears, Roebuck & Co. v. Mackey,

(1956). But Federal Rule of Civil Procedure

54(b) carves out an exception: it permits a district court to

issue a partial final judgment that is immediately appealable as

to particular claims or parties when those claims or parties can

be sufficiently separated from other claims or parties in the case.

- 13 - Withal, the district court's authority in this respect

is narrowly circumscribed. Only if the court supportably

determines both that its decision regarding a claim or party is

sufficiently final and that "there is no just reason for

delay[ing]" an immediate appeal may it enter a partial final

judgment under Rule 54(b). See Fed. R. Civ. P. 54(b); see also

Curtiss-Wright Corp.,

.

There is good reason why Rule 54(b) is narrowly

circumscribed. The rule is designed to balance the need for the

timely adjudication of important issues that arise early in a case

with the "long-settled and prudential policy against the

scattershot disposition of litigation." Spiegel v. Trs. of Tufts

Coll.,

(1st Cir. 1988). The entry of "[j]udgments

under Rule 54(b) must be reserved for the unusual case in which

the costs and risks of multiplying the number of proceedings and

of overcrowding the appellate docket are outbalanced by pressing

needs of the litigants for an early and separate judgment as to

some claims or parties."

(quoting Morrison-Knudsen Co. v.

Archer,

(9th Cir. 1981) (Kennedy, J.)).

The court below determined that this case fit within the

confines of Rule 54(b). It entered a partial final judgment

dismissing Amyndas's claims against Zealand Pharma and dismissing

Amyndas's claims against Zealand US. At the same time, it retained

jurisdiction over Amyndas's claims against Alexion but stayed

- 14 - further proceedings pending the disposition of Amyndas's

anticipated appeal.

The Zealand defendants contend that the court erred in

entering the partial final judgment. We review the district

court's legal determination regarding finality de novo. See

González Figueroa v. J.C. Penney P.R., Inc.,

(1st Cir. 2009). But we review the district court's determination

that there is no just reason to delay the entry of judgment on the

dismissal of the claims against the Zealand defendants for abuse

of discretion. See

The finality requirement is satisfied as long as the

"trial court action underlying the judgment disposed of all the

rights and liabilities of at least one party as to at least one

claim." Credit Francais Int'l, S.A. v. Bio-Vita, Ltd.,

(1st Cir. 1996); see Curtiss-Wright,

. Here,

it is undisputed that the dismissal of Amyndas's claims against

the Zealand defendants satisfies this standard. Moreover, that

order is unarguably final. See Credit Francais,

.

The burden of our inquiry thus falls on whether there is any "just

reason for delay." Fed. R. Civ. P. 54(b).

In mounting this inquiry, we must "scrutinize the

district court's evaluation of such factors as the

interrelationship of the claims so as to prevent piecemeal appeals

in cases which should be reviewed only as single units." Curtiss-

- 15 - Wright,

. For this purpose, the district court acts

as a "dispatcher," determining which final decisions should await

appeal in the ordinary course and which should be permitted to go

forward immediately. See

. If the district court

considers the appropriate factors and adequately explains its

reasoning, its determination is given "substantial deference."

See Spiegel,

(quoting Pahlavi v. Palandjian,

, 904 n.5 (1st Cir. 1984)). After all, the district court

has a more intimate familiarity with the case, the parties, and

the interrelationships among the claims.

The Zealand defendants submit that the district court

undervalued the cost of piecemeal litigation and did not take

proper account of Amyndas's ability to pursue its claims in

Denmark. Such considerations, however, are outweighed by the

desirability of a single trial in a single forum — and we think

that it was well within the ambit of the district court's

discretion to facilitate an interlocutory appeal designed to test

these waters.

Here, moreover, the issues on appeal are ripe for review

and distinct from the merits of the claims remaining against

Alexion. An immediate resolution of those issues will determine

whether a joint trial is feasible.

Of course, even when concerns about piecemeal litigation

are at a minimum because there is little risk of competing and

- 16 - overlapping judgments on merits issues — as is the case here — a

party seeking entry of partial final judgment must establish a

compelling reason for accelerated appellate review. See id. at

45-46. For instance, the party may show a "pressing, exceptional

need for immediate appellate intervention, or grave injustice of

the sort remediable only by allowing an appeal to be taken

forthwith, or dire hardship of a unique kind." Id. The district

court concluded that Amyndas had satisfied this requirement, and

we think that this determination was comfortably within the court's

discretion. Although Amyndas can pursue litigation against the

Zealand defendants (or at least against Zealand Pharma) in Denmark,

it would be shortsighted to underestimate the added expense,

inconvenience, and other disadvantages of following that path. If

the forum-selection clause does not require resort to that venue,

the parties ought to know that fact sooner rather than later.

Where, as here, the appropriate forum is in legitimate dispute and

the consequences of forum selection are substantial, that

circumstance weighs heavily in favor of accelerated review. Cf.

Fed. Home Loan Bank of Bos. v. Moody's Corp.,

, 107

n.3 (1st Cir. 2016) (approving partial final judgment aimed at

allowing case to proceed in "appropriate venue"). And the nature

of the rights at issue here — intellectual property rights that

may erode in significance over time — also factors in favor of

speedier review. Given this medley of factors, we find no abuse

- 17 - of discretion in the district court's determination that there was

no just reason for delay in entering a partial final judgment.

Because the Rule 54(b) judgment covers all of the claims brought

against the Zealand defendants, because the judgment as to those

claims is final, and because the district court supportably

determined that there was no just reason to delay the entry of

that judgment, we have jurisdiction to hear and determine this

appeal.

III

We divide our analysis of the appealed rulings into two

movements. First, we address the district court's dismissal of

Amyndas's claims against Zealand Pharma by reason of the forum-

selection clause. Second, we address the district court's denial

of Amyndas's motion for leave to file an amended complaint against

Zealand US. We then recapitulate our conclusions.

A

We begin with the district court's dismissal of

Amyndas's claims against Zealand Pharma. That dismissal was based

upon the identical forum-selection clauses contained in the two

CDAs.

As an initial matter, we note that Zealand Pharma

properly raised the forum-selection issue. The Supreme Court has

indicated that "the appropriate way to enforce a forum-selection

clause pointing to a state or foreign forum is through the doctrine

- 18 - of forum non conveniens." Atl. Marine Constr. Co. v. U.S. Dist.

Ct. for W. Dist. of Tex.,

(2013) (emphasis in

original). Even so, the Atlantic Marine Court left the door open

for considering forum-selection arguments under the aegis of Rule

12(b)(6). See

at 61 & n.4. This court has typically analyzed

forum-selection clauses under that framework. See, e.g., Rivera

v. Kress Stores of P.R., Inc.,

(1st Cir. 2022);

Claudio-de León v. Sistema Universitario Ana G. Méndez,

, 46 & n.3 (1st Cir. 2014). The arguments posed by Zealand

Pharma fit within these contours.

Against this backdrop, we train the lens of our inquiry

upon the forum-selection clause. We first discuss the

interpretation of that clause and then discuss its enforceability.

1

We review de novo an order of dismissal under Rule

12(b)(6). See Silva v. Encycl. Britannica Inc.,

(1st Cir. 2001). As we have said, both CDAs between Amyndas and

Zealand Pharma contained the same forum-selection provision1:

Governing Law. For any claim brought against a party under this Agreement, the Agreement will be interpreted and governed by the laws of the country (applicable state) in which the defendant resides. If an amicable settlement cannot be reached, any dispute arising out of this Agreement shall be settled in the first instance by the venue of the defendant.

Given the identicality of the two forum-selection clauses, 1

we treat the two forum-selection clauses as one.

- 19 - (second emphasis supplied). The district court concluded that

"the only plausible reading of the forum selection clause . . . is

that adjudication of claims against a party defendant that arise

out of the CDA must occur in the location of the party defendant."

Amyndas,

, at *4. It further concluded that the

"location" of Zealand Pharma was Denmark. See id. at *4-5.

Inasmuch as all of Amyndas's claims against Zealand Pharma arose

out of the CDAs, those claims had to "be litigated in Denmark."

Id. at *4.

Before we reach the dispositive issue, two preliminary

matters demand our attention. First, we think it important to

remark that neither party quarrels with the district court's

conclusion that Amyndas's claims against Zealand Pharma "aris[e]

out of" the CDAs. Second, we also think it important to remark

that the parties agree that the forum-selection clause in this

case is mandatory. In other words, the clause specifies a forum

in which claims must be brought (unless enforcement of the clause

is either waived or impermissible). See Rivera,

;

Huffington v. T.C. Group, LLC,

(1st Cir. 2011).

Where, as here, a federal court is asked to enforce a

forum-selection clause, federal common law supplies the rules of

decision. See Rivera,

; Lambert v. Kysar,

(1st Cir. 1993). Notwithstanding the choice-of-

law clause contained in each CDA, the parties have agreed that

- 20 - federal common law and general contract-law principles control

here.

Under federal common law, a contract must be "read in

accordance with its express terms and the plain meaning thereof."

C. Sanchez & Son, Inc. v. United States,

(Fed.

Cir. 1993). The contractual terms are accorded "their ordinary

meaning unless the parties mutually intended and agreed to an

alternative meaning." Harris v. Dep't of Veterans Affairs,

(Fed. Cir. 1998); see Forcier v. Metro. Life Ins.

Co.,

(1st Cir. 2006) (noting that federal common

law "requires that we accord [a contract's] unambiguous language

its plain and ordinary meaning"); Smart v. Gillette Co. Long-Term

Disab. Plan,

(1st Cir. 1995) (explaining that

federal common law demands the application of "common-sense canons

of contract interpretation"). Even so, an inquiring court must

avoid tunnel vision: instead of focusing myopically on individual

words, it must consider contractual provisions within the context

of the contract as a whole. See Rivera v. Centro Médico de Turabo,

Inc.,

(1st Cir. 2009); Smart,

.

Given the parties' consensus on these points, the

interpretive question before us boils down to the meaning of the

term "the venue of the defendant." Amyndas argues that "the venue

of the defendant" denotes multiple locations as applied to Zealand

Pharma — including locations where Zealand Pharma and its

- 21 - affiliates have a presence (including both Denmark and

Massachusetts). We do not believe that "the venue of the

defendant" is susceptible to so elastic an interpretation.

"Venue" is a term that — in legal matters — has both a

general meaning and a more specialized meaning. Amyndas contends

that the meaning of "venue" in the forum-selection clause should

closely track its specialized legal meaning. In particular, it

draws sustenance from the federal venue statute, see

, which defines venue to include not only the place or places

where a defendant resides (which — for corporations — can include

multiple locations) but also the place or places where events or

omissions giving rise to the claim occurred, see

§ 1391(b)-

(d). Such a construction would inevitably lead to the conclusion

that Zealand Pharma potentially could be sued in virtually any

jurisdiction. But such a conclusion would undercut the certainty

that forum-selection clauses are meant to confer and would render

the clause largely superfluous. See M/S Bremen v. Zapata Off-

Shore Co.,

, 13 n.15, 17 (1972). So viewed, Amyndas's

principal argument lacks force.

Nor does Amyndas's effort to tether Zealand Pharma to

Zealand US gain Amyndas any traction with respect to its principal

argument. After all, the two are separate corporations, and

Zealand US did not exist when the CDAs were executed. Given that

factual backdrop, we cannot credit Amyndas's argument that the

- 22 - parties, as "sophisticated" entities, used the term "the venue of

the defendant" to signify virtually any location.

Amyndas tries a variation on this theme — a variation

that also relies heavily on treating Zealand Pharma as

substantially equivalent to Zealand US. It suggests that even if

"the venue of the defendant" is accorded the narrower but still

widely shared meaning of "locale" or "location," see, e.g.,

Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/venue (defining

"venue" as "locale"); Oxford English Dictionary,

https://www.oed.com/view/Entry/222318 (defining "venue" with

various sense of place, scene, and location), Zealand Pharma

operates in multiple locales. Amyndas points to facts suggesting

that Zealand Pharma operates hand-in-glove with Zealand US and

argues that the locations of Zealand US's offices in Massachusetts

and New York qualify as residences of Zealand Pharma.

But this argument ignores the distinction between

Zealand Pharma and Zealand US. The forum-selection clause points

unerringly to Zealand Pharma, not to Zealand US. Only the latter

has a residence in the United States. This interpretation has the

unparalleled benefit of being consistent with other aspects of the

CDAs. See PowerShare, Inc. v. Syntel, Inc.,

(1st

Cir. 2010) (explaining that "one of the cardinal rules of contract

interpretation" is "that a document should be read to . . . render

- 23 - [all its provisions] consistent with each other" (quoting

Mastrobuono v. Shearson Lehman Hutton, Inc.,

(1995))). Take the choice-of-law clause, for instance. That

clause sets the governing law as that of "the country (applicable

state) in which the defendant resides." At the time the CDAs were

signed, Zealand Pharma's residence could only have been Denmark.

Thus, as applied to Zealand Pharma, "the country . . . in which

[it] resides" could only have been understood to mean that singular

location.

For this reason, we reject Amyndas's argument that the

parties' use of the phrase "the country . . . in which the

defendant resides" shows that they knew how to select the

defendant's place of residence when they intended to do so. See,

e.g., Vendura v. Boxer,

(1st Cir. 2017). Given

Zealand Pharma's singular location at the times the CDAs were

signed, we think it is more consistent with those agreements as a

whole to interpret "the venue of the defendant" similarly to

"country . . . in which the defendant resides." Simply stated,

both "venue" and "residence" point to Denmark because that is

Zealand Pharma's lone location.

We are not convinced of any contrary conclusion by

Amyndas's argument regarding the parties' use of the definite

article "the" before "venue" in the forum-selection clause. "[T]he

definite article 'the' 'particularizes the subject spoken of,'

- 24 - suggesting . . . refer[ence] to a single object." Hernandez v.

Williams, Zinman & Parham PC,

(9th Cir. 2016)

(quoting Black's Law Dictionary 1647 (4th ed. 1968)). Just as

"the house" means that there is one house, so too "the venue," in

this context, could mean that there is one venue.

To be sure, the force of "the" and the singular form

depend on context and use. Amyndas points to the Dictionary Act,

which provides that — so far as the construction of federal

statutes is concerned — "words importing the singular include and

apply to several persons, parties, or things."

.

Relatedly, Amyndas notes that the federal venue statute,

, uses "the venue" even though "no single such location

exists."

Assuming without deciding that Amyndas is correct that

"the" could refer to multiple locations, that does not change the

outcome of this case. That is because — as we already have stated

— Zealand Pharma has had only one residence at all relevant times:

Denmark. Consequently, it would be struthious to suggest that

"the venue" of Zealand Pharma carried a plural meaning.

And in addition, our reading of the agreement accords

with the core purpose of a mandatory forum-selection clause: to

restrict the fora in which covered controversies may be resolved.

That purpose was adequately evinced in this case, as the forum-

selection clause was a "reasonable effort to bring vital certainty

- 25 - to this international transaction." M/S Bremen,

.

The interest in creating certainty would be poorly served by

construing "the venue of the defendant," as used in the CDAs, as

referring to virtually anywhere. A mandatory forum-selection

clause that permits suit to be brought virtually anywhere is not

a mandatory forum-selection clause at all.

To say more on this point would be supererogatory.

Considering the text, context, and function of the forum-selection

clause, we agree with the district court that the forum-selection

clause must be interpreted to require that the claims against

Zealand Pharma be brought first in a Danish court.

2

Amyndas argues that even if the forum-selection clause

requires — by textual interpretation — litigating its claims

against Zealand Pharma in Denmark, it would be unreasonable to

enforce that clause as written. The premise that underpins

Amyndas's argument is sound: even if a forum-selection clause is

mandatory and unambiguous — as this one is — a court may decline

to enforce it if the resisting party can show that doing so would

be "unreasonable." See M/S Bremen,

; Claudio-De

León,

. Absent such a showing, a forum-selection

clause is presumptively enforceable. See Claudio-De León,

.

- 26 - We have articulated four grounds for deeming a forum-

selection clause to be unenforceable: the clause derives from

"fraud or overreaching"; enforcing the clause "would be

unreasonable and unjust"; "proceedings in the contractual forum

will be so gravely difficult and inconvenient that the party

challenging the clause will for all practical purposes be deprived

of his day in court"; and enforcing the clause would "contravene

a strong public policy of the forum in which suit is brought,

whether declared by statute or by judicial decision."

at 48-

49 (internal quotation marks omitted); see M/S Bremen,

. In addition, public interest factors under the doctrine of

forum non conveniens may sometimes provide support for rejecting

enforcement of an otherwise valid forum-selection clause, but

"those factors will rarely defeat" such a clause. Atl. Marine,

; see Imamura v. Gen. Elec. Co.,

(1st Cir. 2020) (noting that public interest factors include "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" (quoting Piper

Aircraft Co. v. Reyno,

, 241 n.6 (1981))).

- 27 - Amyndas does not argue that the forum-selection clause

is somehow tainted by fraud or overreaching. Instead, Amyndas

strives to persuade us that forcing it to litigate in Denmark would

be unreasonable and would effectively deprive it of its day in

court. Specifically, it says that Denmark has more restrictive

trade secret protections and imposes limitations on discovery not

imposed by American courts, such as restrictions on the

availability of internal corporate documents.

We are not persuaded. A showing that a litigant would

be so inconvenienced by litigating in a designated forum that a

forum-selection clause should be disregarded is a heavy lift. See

In re Mercurio,

(1st Cir. 2005); cf. Piper

Aircraft,

(holding that potential change in law

cannot, by itself, fend off dismissal under forum non conveniens

absent showing that new law is "clearly inadequate or

unsatisfactory"). Amyndas has not come close to making that heavy

lift in this instance.

When the CDAs were first negotiated and signed, Zealand

Pharma was based in Denmark and Zealand US did not exist. It would

have been obvious to Amyndas at that time that if it wound up suing

Zealand Pharma, it would be obliged to do so in Denmark, using

whatever trade secret protections and discovery procedures were

available under Danish law. Put bluntly, the content and contours

of Danish trade secret law and the potential limitations on

- 28 - discovery were clearly foreseeable to Amyndas from the start. See

Atl. Marine,

; M/S Bremen,

. Had

Amyndas — a sophisticated party acting with the advice of learned

counsel — been wary of litigating under those rules, it could have

negotiated for a different forum or choice of law. That Amyndas

may now be suffering buyer's remorse about the forum to which it

agreed is not a sufficient reason for denying enforcement of a

valid forum-selection clause. See Dayhoff Inc. v. H.J. Heinz Co.,

(3d Cir. 1996).

Nor can Amyndas credibly claim that it is being denied

its day in court. Foreign courts frequently have more limited

discovery or stricter evidentiary regimes than federal courts, but

that is rarely a basis for concluding that a party would be denied

its day in court. See, e.g., Robinson v. TCI/US W. Commc'ns Inc.,

, 909 (5th Cir. 1997) (holding that more limited

discovery available under English law does not bar application of

forum non conveniens dismissal); see also Gilmer v.

Interstate/Johnson Lane Corp.,

(1991) (observing

that the fact that discovery "procedures [in arbitration] might

not be as extensive as in the federal courts" does not render

agreement to arbitrate invalid). Mere differences in procedures

or limitations on remedies, unless they effectively deprive the

complaining party of any remedy at all, will not render a

designated forum unreasonable. See Iragorri v. Int'l Elevator,

- 29 - Inc.,

(1st Cir. 2000) (concluding that remedy

limitations in Colombia did not render forum inadequate); see also

Piper Aircraft,

(affirming forum non conveniens

dismissal and holding that remedies available in Scottish courts

were not "so clearly inadequate or unsatisfactory" that they were

"no remedy at all"). So it is here: although litigating in

Denmark may be inconvenient for Amyndas and may increase the cost

of litigation, the record does not support its claim that it will

be denied its day in court there.2

Amyndas next contends that public policy requires that

litigation proceed in the United States in order to prosecute its

trade secrets claims. Although the Defend Trade Secrets Act (DTSA)

guarantees a federal forum for trade secret theft claims, see

, Amyndas presents no evidence — and we can discern

none in the record — that the DTSA was meant to supersede the

forum-selection decisions of sophisticated parties.3 Amyndas is

on solid ground in noting that the DTSA's text and legislative

2 In point of fact, Amyndas began proceedings against Zealand Pharma in Denmark on January 10, 2022, and it has successfully obtained a stay of the contested patents from the European Patent Office. 3 We add, moreover, that when the first CDA was signed in March of 2015, the DTSA had not yet been enacted. Although the second CDA was signed in August of 2016 (after the DTSA became effective in May of that year), it would be hard to believe — given the identical nature of the forum-selection clauses and the other similarities in the documents — that either of the parties structured their conduct around the existence of the DTSA.

- 30 - history make pellucid that Congress was concerned with the theft

of American trade secrets abroad and intended the DTSA to have

extraterritorial reach. See

(providing for

extraterritorial applicability under certain circumstances); see,

e.g., Pub L. 114-153, 130 Stat 376, 383-84 § 5 ("It is the sense

of Congress that . . . (1) trade secret theft occurs in the United

States and around the world; (2) trade secret theft, wherever it

occurs, harms the companies that own the trade secrets and the

employees of the companies"); S. Rep. No. 114-220 at 1-2, 11-12

(2016); H. Rep. No. 114–529 at 3-4, 15-16 (2016). But the bare

fact that a law provides a federal cause of action with some

extraterritorial reach does not prevent private parties from

contracting either outside it or around it. Here, the mere

existence of the DTSA — without any showing that the DTSA was

linked to the parties' negotiations — does not inhibit a court's

enforcement of the parties' forum-selection choices. See, e.g.,

Fintech Fund, F.L.P. v. Horne,

, 227 (5th Cir.

2020) (affirming dismissal of case involving DTSA claim based on

forum-selection clause designating England as forum).

The sockdolager, of course, is that — despite very

general statements that the DTSA was intended to allow enforcement

in federal court and that Congress was concerned by foreign trade

secret theft — Amyndas has produced no compelling evidence that

the forum-selection clause here "contravene[s] a strong public

- 31 - policy." M/S Bremen,

; see Rafael Rodríguez Barril,

Inc. v. Conbraco Indus., Inc.,

(1st Cir. 2010).

Tellingly, Amyndas has identified no case in which a court

concluded that the DTSA has been construed to trump a valid forum-

selection clause. We decline to blaze a new trail through this

uncharted terrain.

Amyndas next contends that the public interest in

judicial economy warrants keeping all parties in the district court

action because it would be inefficient and, thus, unreasonable to

require Amyndas to litigate in Denmark while allowing its

litigation against Alexion (and, possibly, Zealand US) to proceed

in the district court. But Amyndas's private inconveniences in

litigating its claims in Denmark were wholly foreseeable at the

time Amyndas signed the CDAs and, thus, its private inconveniences

bear no weight. See Atl. Marine,

. To cinch the

matter, public interest factors will rarely tip the balance:

"forum-selection clauses should control except in unusual cases."

This is not so rare a case.

Assuming without deciding that judicial economy concerns

may, under special circumstances, override a mandatory forum-

selection clause, Amyndas has failed to show that any such

sufficiently compelling circumstances are present here. Virtually

all of the cases that Amyndas cites in support of this argument

- 32 - involve section 1404 transfer requests4 and/or predate Atlantic

Marine's injunction that "forum-selection clauses should control

except in unusual cases."

We see no principled basis for

accepting Amyndas's invitation to keep Zealand Pharma in the

district court action in the interest of judicial economy.

We do not gainsay that Amyndas may now regret negotiating

a forum-selection provision that gives Zealand Pharma home-court

advantage and a more favorable choice of law for the trade secret

dispute that has arisen. Those regrets may coalesce into a bitter

lesson about looking at a nascent partnership through rose-colored

glasses. But they are not a sufficient reason for disregarding

the plain text and manifest purpose of a valid forum-selection

clause.

That ends this aspect of the matter. We conclude that

the forum-selection clause is valid and enforceable. Under its

terms, Amyndas's claims against Zealand Pharma must be litigated

in a Danish court. Accordingly, we uphold the district court's

dismissal of Amyndas's claims against Zealand Pharma.

B

This brings us to Amyndas's claims against Zealand US.

The district court dismissed the claims contained in the original

4 Section 1404 places a premium on considerations of judicial economy. See Cont'l Grain Co. v. The FBL-585,

(1960).

- 33 - complaint against Zealand US. The court noted that the complaint

largely referred to "Zealand" as a single entity and did not

specify whether and how Zealand US was involved. See Amyndas,

, at *2-3. Twenty-eight days later, Amyndas sought

leave to amend. Amyndas annexed to its motion a proposed amended

complaint pleading its claims against each Zealand defendant

separately. The district court denied leave to amend, and Amyndas

appeals the denial with respect to its claims against Zealand US.5

The Civil Rules take a liberal stance toward the

amendment of pleadings, consistent with the federal courts'

longstanding policy favoring the resolution of disputes on the

merits. See Foman v. Davis,

(1962) ("If the

underlying facts or circumstances relied upon by a plaintiff may

be a proper subject of relief, he ought to be afforded an

opportunity to test his claim on the merits."). Rule 15(a) permits

amendments with leave of court, which the court "should freely

give . . . when justice so requires." Fed. R. Civ. P. 15(a)(2).

"In the absence of any apparent or declared reason — such as undue

delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party by virtue of

In the alternative, Amyndas asked the district court to 5

reconsider the earlier order of dismissal. For all practical purposes, though, the original complaint has dropped out of the case.

- 34 - allowance of the amendment, futility of amendment, etc. — the leave

sought should, as the rules require, be 'freely given.'" Foman,

; see Palmer v. Champion Mortg.,

(1st Cir. 2006).

A denial of leave to amend is reviewed for abuse of

discretion. See Palmer,

. A district court's

"discretion is necessarily broad—but it is not absolute." Indep.

Oil & Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co.,

(1st Cir. 1988). An "[a]buse occurs when a

material factor deserving significant weight is ignored, when an

improper factor is relied upon, or when all proper and no improper

factors are assessed, but the court makes a serious mistake in

weighing them."

With respect to the claims against Zealand US, the

district court's stated reasons for rejecting the proposed amended

complaint and denying leave to amend fall into two recognizable

buckets: undue delay and futility. As to undue delay, the court

observed that "at no point in the course of the motion to dismiss

process did Amyndas request . . . leave to amend its pleading" and

"[i]nstead, it waited until nearly a month had elapsed following

the challenged Order before it first made such a request."

Moreover, "the factual allegations Amyndas [sought] to add were

publicly available prior to the hearing on the original motion to

dismiss." The allegations, the court stated, were "not 'new,' and

- 35 - justice does not require that Amyndas be permitted to belatedly

add them."

As to futility, the court ruled — without dissecting the

substance of any of the allegations in the proposed amended

complaint — that "none of the additional factual allegations change

the analysis . . . presented by the prior motion to dismiss." It

concluded that "the proposed additional factual allegations" do

not "plausibly allege a basis to conclude . . . that Amyndas has

stated claims directly against Zealand US." Thus, the court said,

"Amyndas's request for leave to amend is futile."

Amyndas challenges both of the district court's stated

grounds on appeal. We consider each ground in turn.

1

A motion for leave to file an amended complaint "requires

that a court examine the totality of the circumstances and exercise

sound discretion in light of the pertinent balance of equitable

considerations." Quaker State Oil Ref. Corp. v. Garrity Oil Co.,

(1st Cir. 1989); see Palmer,

-

31. Although delay alone is not a sufficient basis for denying

leave to amend, undue delay assuredly is. See, e.g., Hagerty ex

rel. United States v. Cyberonics, Inc.,

(1st Cir.

2016) (explaining that "undue delay, on its own, may be enough to

justify denying a motion for leave to amend"); Hayes v. N. Eng.

Millwork Distribs., Inc.,

(1st Cir. 1979)

- 36 - (similar). When a party has allowed a "considerable period of

time" to elapse, it must "show some 'valid reason for [its] neglect

and delay.'" Hayes,

; see In re Lombardo,

(1st Cir. 2014) (Souter, J.) ("[W]e have repeatedly said

that when considerable time has elapsed . . . , the movant has [at

the very least] the burden of showing some valid reason for his

neglect and delay." (internal quotation marks omitted) (second

alteration in original)); Calderón-Serra v. Wilmington Tr. Co.,

(1st Cir. 2013) ("Appreciable delay alone, in the

absence of good reason for it, is enough to justify denying a

motion for leave to amend."). Thus, for delay to be "undue," the

period of delay must be both substantial and unjustified.

Determining how long is too long depends on the facts

and circumstances of each particular case. This inquiry considers

the reasonableness of the time between the filing of the motion

for leave and a variety of points at which a party would become

aware of a need to amend, such as the filing of a motion to dismiss,

a dismissal order, or the discovery of new information that

substantially alters the substance or viability of the claims.

See Hagerty,

. Ascertaining whether a delay is

"undue" is not simply a matter of counting days but, rather,

depends on the "totality of the circumstances" in the particular

case. Palmer,

.

- 37 - Of course, the reason offered for seeking leave to amend

must be a "valid" one. See, e.g., Lombardo,

; Hayes,

. Generally, valid reasons include a motion to

dismiss or a ruling from the court pointing out flaws in the

original pleading or the discovery of new information. This is

not a high hurdle, and the dispositive datum often will be the

reasonableness of the pleader's actions. But even if the reasons

are valid, the court must consider whether and to what extent the

opposing party would be unfairly prejudiced as a result of a

delayed amendment. See Zenith Radio Corp. v. Hazeltine Rsch.,

Inc.,

(1971); Villanueva v. United States,

(1st Cir. 2011).

In particular cases, other factors may weigh in the

balance. For instance, a court may consider whether a proposed

amendment is a first attempt. See City of Mia. Fire Fighters' &

Police Officers' Ret. Tr. v. CVS Health Corp., __ F.4th __, __

(1st Cir. 2022) [No. 21-1479, slip op. at 28] (affirming denial of

leave to amend when plaintiffs sought "a third bite of the apple

in the form of a second amended complaint"); Aponte-Torres v. Univ.

of P.R.,

, 58 (1st Cir. 2006). Serial amendments may

be given closer scrutiny in terms of timing because "busy trial

courts, in the responsible exercise of their case management

functions, may refuse to allow plaintiffs an endless number of

trips to the well." Aponte-Torres, 445 F.3d at 58. So, too, the

- 38 - existence of related litigation may be a factor in the decisional

calculus. See, e.g., Nikitine v. Wilmington Tr. Co.,

(1st Cir. 2013).

In the case at hand, Amyndas had a valid reason for

moving to amend: the district court had pointed out a fatal flaw

in its original complaint (the failure to differentiate

sufficiently between Zealand Pharma and Zealand US with respect to

liability for the claims asserted). Although Amyndas moved for

leave to amend only twenty-eight days after the district court

dismissed its original complaint, the court found undue delay.

The district court's finding of undue delay was based on two

particular circumstances. First, it faulted Amyndas for not

requesting leave to amend during the motion-to-dismiss process,

"even as an alternative." Waiting four weeks after the dismissal

order to request leave to amend, the court concluded, was simply

too late.6 Second, the court concluded that many of the additional

facts added in the proposed amended complaint were publicly

available prior to the hearing on the motion to dismiss the

6 Amyndas says that it did request leave to amend earlier in the process. In a footnote to its filings in opposition to the Zealand entities' motion to dismiss, it requested at a "minimum, or in the alternative, . . . early discovery regarding Zealand US to allow Plaintiffs the opportunity to amend their Complaint, if necessary." The general rule, however, is that a district court need not pay heed to a contingent request for leave to amend made only in opposition papers. See Fisher v. Kadant, Inc.,

(1st Cir. 2009).

- 39 - original complaint and, thus, were not "new." Accordingly,

"justice d[id] not require that Amyndas be permitted to belatedly

add" its allegations.

Although the timing of a request for leave to amend and

the relative novelty of the added allegations contained in the

proposed amended complaint are relevant considerations, the

district court's reasoning does not pass muster. Amyndas's delay

in filing its motion for leave to amend fell well short of the

timeframes that our cases have identified as undue and cannot,

under all the circumstances, be characterized as substantial. Nor

does the record, fairly read, suggest that Amyndas was dilatory.

Amyndas filed its original complaint in December of 2021, faced a

motion to dismiss from the Zealand defendants in March of 2022,

had a hearing on that motion in May, and received the decision in

June. It filed its motion for leave to amend a scant twenty-eight

days later.

The mere fact that Amyndas's motion for leave to amend

came after the district court dismissed the original complaint is

not sufficient to ground a conclusion that the motion was unduly

delayed. It is common ground that "[a]mendments may be permitted

pre-judgment, even after a dismissal for failure to state a claim."

Palmer,

. After all, the "when justice so requires"

standard of Rule 15(a) puts a thumb on the scale in favor of

allowing amendments in non-frivolous cases. See Foman, 371 U.S.

- 40 - at 182. Amyndas moved to amend before the district court entered

judgment and, thus, Rule 15's more liberal standards apply here.7

Withal, we have understandably condemned "wait and see"

amendment practices: a plaintiff may not, for instance,

"deliberately wait in the wings for a year and a half with another

amendment to a complaint should the court hold the first amended

complaint was insufficient." ACA Fin. Guar. Corp. v. Advest, Inc.,

, 57 (1st Cir. 2008); see Kader v. Sarepta Therapeutics,

Inc.,

(1st Cir. 2018); Palmer,

.

But here, there is no reason to conclude that Amyndas engaged in

any such "wait and see" practices. Amyndas filed its motion to

amend less than two months after the emergence of new evidence.

And the amended complaint specifically addressed a defect

identified by the district court in its dismissal of the original

complaint: Amyndas's failure to differentiate sufficiently its

claims between Zealand Pharma and Zealand US. See Amyndas,

, at *2-3.

Although it is true that the Zealand defendants moved to

dismiss based, in part, on that same defect, a relatively short

period of time ensued between the date when Zealand's motion put

7 These standards contrast with the somewhat stricter standards governing post-judgment motions to amend. See CVS Health, __ F.4th at __ [No. 21-1479, slip op. at 29] (emphasizing that plaintiffs sought leave to amend after judgment had entered so "Rule 15 was no longer on the table").

- 41 - Amyndas on notice of the defect and the date when Amyndas moved to

amend. The length of the delay is, of course, a critical data

point in determining whether a period of delay is "undue." See,

e.g., Hagerty,

(denying motion to amend in face of

year-long delay); Feliciano-Hernández v. Pereira-Castillo,

, 538 (1st Cir. 2011) (denying motion to amend in face of

gap of "nearly a year"); Advest, 512 F.3d at 57 (faulting "year

and a half" delay). Equally as important, this was not a case in

which the plaintiff's complaint contained such an obvious defect

that it was unreasonable to wait until the district court ruled on

the motion to dismiss before moving to amend.

The district court's second ground for concluding that

there was undue delay — that the allegations in the proposed

amended complaint were not "new" — is no more convincing. We agree

that most of the facts undergirding Amyndas's proposed amended

complaint were available before the hearing on the motion to

dismiss. But that circumstance, taken in a vacuum, cannot serve

as a basis for denying Amyndas's motion to amend. Responding

specifically to one of the district court's grounds for dismissal

by realigning previously articulated facts — as Amyndas did here

— is a legitimate basis for amendment.

We add, moreover, that this is a complex case in which

ramified issues are at play. Especially in complex cases, lawyers

ought not to be expected to cobble together pleadings at breakneck

- 42 - speed. Taking four weeks to assimilate information — including

information not publicly available until the day before the motion-

to-dismiss hearing — and to separate Amyndas's claims against

Zealand US from its claims against Zealand Pharma is within the

realm of reasonableness. As a result, Amyndas's delay cannot be

fairly characterized as "undue."

In addition, Amyndas's proposed amended complaint

incorporated new information, not available to it when it drafted

its original complaint. On this point, we reject the Zealand

defendants' suggestion that a press release regarding trials of a

complement therapeutic, issued jointly by Alexion and the Zealand

entities on the day before the motion-to-dismiss hearing, could

not be regarded as "new" for purposes of Amyndas's proposed amended

complaint. A party is not required to seek leave to amend its

complaint each time a new piece of favorable information surfaces

unless that new information is essential to the viability of its

case. Although parties should ordinarily take their best shot and

not sit on new facts, see, e.g., Kader,

; Villanueva,

, they should not be expected either to plead their

cases in granular detail, see Fed. R. Civ. P. 8(a)(2) (requiring

only "a short and plain statement of the claim showing that the

pleader is entitled to relief"), or to seek leave to amend the

very moment a few more facts come to light.

- 43 - To sum up, Amyndas had a valid reason for seeking leave

to amend and acted with reasonable diligence to cure the fatal

defect in its original complaint and to put a proposed amended

complaint before the district court. Its proposed amended

complaint not only made changes that were directly responsive to

the district court's stated reasons for dismissing the original

complaint but also incorporated some new information. Given the

totality of the circumstances, the twenty-eight-day period that

elapsed between the dismissal of the original complaint and the

filing of the motion to amend cannot fairly be characterized as

"undue delay."

2

The district court also cited futility as a further

ground for denying leave to amend. A proposed amendment is futile

if it is either frivolous or contains some fatal defect. See

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 6 Fed. Prac.

& Proc. Civ. § 1487 (3d ed. 2022). Normally, this means that "the

complaint, as amended, would fail to state a claim upon which

relief could be granted." Glassman v. Computervision Corp.,

(1st Cir. 1996).

Whether a proposed amendment is futile is "gauged by

reference to the liberal criteria of Federal Rule of Civil

Procedure 12(b)(6)." Juarez v. Select Portfolio Servicing, Inc.,

(1st Cir. 2013); Hatch v. Dep't of Child., Youth

- 44 - & Their Fams.,

(1st Cir. 2001). Reference to those

criteria teaches that if the amended complaint "contain[s]

sufficient factual matter, accepted as true, to 'state a claim to

relief that is plausible on its face,'" Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)), and contains no other fatal defects, the district

court abuses its discretion by denying the motion to amend on

futility grounds, see Abraham v. Woods Hole Oceanographic Inst.,

(1st Cir. 2009); see also Schreiber Distrib. Co.

v. Serv-Well Furniture Co.,

, 1401 (9th Cir. 1986)

("If a complaint is dismissed for failure to state a claim, leave

to amend should be granted unless the court determines that the

allegation of other facts consistent with the challenged pleading

could not possibly cure the deficiency.").

The issue, then, is whether the proposed amended

complaint states a facially plausible claim against Zealand US.

For a start, the proposed amended complaint specifically

differentiated between Zealand Pharma and Zealand US, thus curing

the defect that the district court had specifically noted with

respect to the original complaint. See Amyndas,

,

at *2-3. Amyndas's proposed amended complaint alleged separate

counts against Zealand US for misappropriation of trade secrets

under the DTSA (count VIII), misappropriation of trade secrets

under Massachusetts General Laws chapter 93, section 42 (count

- 45 - IX), misappropriation of trade secrets under common law (count X),

unfair competition (count XI), and unjust enrichment (count XII).

Those allegations were sufficiently specific. For example, the

proposed amended complaint contained allegations to support the

proposition that Zealand US was engaged in the continuing use of

Amyndas's improperly retained trade secrets, which (Amyndas

posited) formed the basis for misappropriation claims under both

federal and state law. See

(5)(A)-(B), 1836(d);

; see also Oakwood Lab'ys LLC v.

Thanoo,

(3d Cir. 2021).

Amyndas's allegations as to misappropriation in the

proposed amended complaint included:

• "Zealand U.S. impermissibly acquired and accessed, and continues to impermissibly have access to Amyndas' trade secrets through Zealand A/S, which has failed to destroy all Amyndas trade secret information or information derived therefrom, or to erect walls to prevent improper disclosure to Zealand U.S., in view of the termination of the Amyndas-Zealand discussions in 2017. " • "[T]he Alexion-Zealand collaboration is, on information and belief, intended to research, develop, and commercialize technology improperly derived from Amyndas' trade secrets in the field of peptide pharmaceutical products, and Zealand U.S., as the arm of Zealand responsible for such efforts in the U.S. with respect to such peptide pharmaceutical products is, on information and belief, directly involved with those efforts." • "[O]n information and belief, Zealand U.S., and its officers acting on behalf of Zealand U.S., participate in efforts relating to obtaining FDA approval for Zealand's peptide-

- 46 - based medicines, such as the recently-approved [product targeting the C3 protein]. Therefore . . . Zealand U.S. and its officers have used and are currently using Amyndas' trade secrets in furtherance of the business purposes of Zealand U.S." • "On information and belief, Zealand U.S. acts, at a minimum, as Zealand's representative to Alexion in connection with discussions, approvals and other developments related to Alexion's efforts to commercialize the products subject to the Zealand-Alexion agreement."

These allegations, when viewed in combination, define a distinct

course of conduct by Zealand US and connect that course of conduct

to the unauthorized use of Amyndas's trade secrets. Taken as true

— as they must be, see Iqbal,

-79 — they adumbrate

facially plausible claims for the misappropriation of trade

secrets.

The allegations supporting the claims for unfair

competition and unjust enrichment are similarly specific. The

proposed amended complaint, taken as a whole, seemingly states

plausible claims upon which relief could be granted. Yet, the

district court did not engage with these allegations. Rather, it

focused much of its futility analysis on the forum-selection

clause. The only references to Zealand US contained in its minute

order are conclusory.

Courts must take account of the reality of events. In

a case like this one, much of the information concerning the

division of roles, responsibilities, and potential wrongdoing will

- 47 - be in the possession of the defendants and may not become visible

until after discovery is completed. Cf. Grant v. News Grp. Bos.,

Inc.,

(1st Cir. 1995) (observing, in Title VII

context, that district courts should be cautious about too quickly

denying leave to amend in cases in which discovery will be

essential to development of claims). The fact that Amyndas

unarguably cured the fatal defect in the original complaint that

had been identified by the district court, coupled with the nature,

detail, and apparent plausibility of Amyndas's claims, renders a

finding of futility insupportable.

3

We summarize succinctly. Amyndas sought to file a

proposed amended complaint that stated facially plausible claims

for relief against Zealand US. That represented Amyndas's first

attempt at amendment. The district court's conclusion that Amyndas

unduly delayed in moving for leave to file that complaint is

insupportable, as is the district court's conclusion that the

asserted claims are futile. And, finally, Zealand US has not

advanced any credible claim of prejudice. We conclude, therefore,

that the district court's denial of the motion to amend constituted

an abuse of discretion. Consequently, both its denial of that

motion and its subsequent dismissal of Amyndas's claims against

Zealand US must be vacated, and the case must be remanded for

further proceedings consistent with this opinion.

- 48 - IV

We need go no further. For the reasons elucidated above,

we affirm the dismissal of Amyndas's claims against Zealand Pharma.

We vacate the dismissal of Amyndas's claims against Zealand US and

remand for further proceedings consistent with this opinion. All

parties shall bear their own costs.

Affirmed in part, vacated in part, and remanded.

- 49 -