Opinion
C.A. No. 16650-NC.
Mem. Op. dated December 10, 1999.
CORRECTED PAGE
As Vice Chancellor Jacobs has explained so clearly in a contemporaneously issued opinion:
. . . the second issue (after determining that neither case is "first filed" and that a forum non conveniens analysis is required) is what standard or burden of persuasion applies. . . .29
Since Alcatel asks for dismissal or a stay, must Alcatel show undue, significant or overwhelming hardship or only that, on balance, the Cryo-Maid 30 factors preponderate in favor of a dismissal or a stay?
If dismissal, then the question becomes whether any of the factors "establish that defendant[s] will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware."31 The burden is on the defendants to prove hardship and inconvenience32 "Absent such a showing, plaintiff[s'] choice of forum must be respected."33 When, on the other hand, a party seeks only to stay the contemporaneously filed action, the issue is simply "whether on balance, the forum non conveniens factors warrant the grant of a stay."34 Where there are simultaneous filings, it seems to me that more discretion to dismiss should be placed in the hands of trial judges to determine whether the courts and the public's