Opinion
C. A. N23C-04-192 MAA
05-22-2024
ADWOA AGYEMAN, an individual, Plaintiff, v. EPIC-AFRICA FOUNDATION, a Delaware non-profit corporation, and ROSE MARURU, an individual, Defendants.
J Jackson Shrum, Esquire (Argued), of JACK SHRUM, P.A., Wilmington, Delaware, and Dayna C. Cooper (Argued), Esquire, of COOPER LEGAL SOLUTIONS, Towson, Maryland, Attorneys for Plaintiff. Tracey E. Timlin, Esquire (Argued), and Charles W. Fournier, Esquire, of DUANE MORRIS LLP, Wilmington, Delaware, Attorneys for Defendants.
Submitted: February 16, 2024
Upon Defendants' Motion to Dismiss: GRANTED.
"J" Jackson Shrum, Esquire (Argued), of JACK SHRUM, P.A., Wilmington, Delaware, and Dayna C. Cooper (Argued), Esquire, of COOPER LEGAL SOLUTIONS, Towson, Maryland, Attorneys for Plaintiff.
Tracey E. Timlin, Esquire (Argued), and Charles W. Fournier, Esquire, of DUANE MORRIS LLP, Wilmington, Delaware, Attorneys for Defendants.
MEMORANDUM OPINION
MEGHAN A. ADAMS, JUDGE
I. INTRODUCTION
Plaintiff Adwoa Agyeman ("Agyeman") and Defendant Rose Maruru ("Maruru") co-founded Epic-Africa Foundation ("EPIC"), a non-profit corporation. Agyeman asserts that she provided services to EPIC in exchange for payment. Agyeman has not been paid and now seeks compensation from Maruru and EPIC (collectively "Defendants"). Defendants move to dismiss all counts on both procedural and substantive grounds. For the reasons that follow, the motion to dismiss is GRANTED.
The facts are drawn from the Complaint.
A. The Parties
Agyeman is a resident of Washington, D.C. EPIC is a Delaware non-profit organization with its business address at 251 Little Falls Drive, Wilmington, DE 19808. Maruru is a co-founder of EPIC and resident of Senegal, Dakar.B. Founding of EPIC
Compl. ¶ 1.
Id. ¶ 2.
Id. ¶ 3.
On approximately March 20, 2017, Agyeman and Maruru founded EPIC "to enhance philanthropic impact by filling critical data and capacity gaps in the philanthropic market infrastructure in Africa." Agyeman offered her over 20-years of experience in the global philanthropic sector to EPIC, including "a combined portfolio of 650+ international and domestic U.S. grants totaling over $50 million to scale and support efforts to advance human rights, gender equity, well-being, and economic inclusion." Agyeman's experience aided EPIC in building an online platform "that facilitates strategy assessment and organizational capacity building for [civil society organizations], as well as a comparative dataset for funders."
Id. ¶ 9.
Id. ¶ 8.
Id. ¶ 11.
C. Contract for Agyeman'S Services
EPIC contracted with Agyeman on approximately March 20, 2017 to perform services in exchange for compensation. Agyeman performed for four years with assurances from EPIC that she would be compensated. Agyeman's services included developing strategic partnerships with organizations, networking with a range of stakeholders, and building a business model based around key performance indicators and ongoing market research. Agyeman's work also provided EPIC with $500,000 in working capital, and her business model helped to raise $2,000,000 in pro-bono and in-kind support. Defendants conceded that on "numerous occasions" Agyeman worked "well over 40 hours per week."
Id. ¶ 13.
Id. ¶ 14.
Id. ¶¶ 15-16.
Id.
Id. ¶ 23.
In 2018, Agyeman informed Defendants that she would seek other opportunities, but EPIC reassured her that EPIC "could not sustain itself" without Agyeman's expertise. Around May 2020, Agyeman still had not been compensated, so EPIC "promised the Plaintiff that certain contracts or grants would be allocated to the Plaintiff as remuneration so to make good on its promise."Maruru also promised to give Maruru's own portion of the funds, a sum of $30,000, to Agyeman. To document these promises, Agyeman sent a follow-up email on May 30, 2020 to EPIC, via Maruru. On August 20, 2020, Agyeman sent another email to confirm payment was forthcoming and EPIC acknowledged its promise to compensate, but "provided that additional discussions or approvals may be necessary before" compensation. On October 5, 2020, EPIC informed Agyeman that line items for certain contracts or grants would be allocated to Agyeman as compensation.
Id. ¶¶ 49-50.
Id. ¶ 27.
Id. ¶¶ 29, 74.
Id. ¶ 30.
Id. ¶¶ 32-33.
Id. ¶ 34.
On November 26, 2020, the parties engaged a business mediator to discuss setting up a compensation structure. Throughout her work with EPIC, Agyeman relied on the promises made by EPIC and Maruru and continued to work for EPIC.
Id. ¶ 35.
Id. ¶ 77.
On March 25, 2021, when EPIC failed to compensate Agyeman for her work, she stopped working for EPIC and sought out other opportunities. Despite several demands for payment, Agyeman has not been compensated for any of her work for EPIC by either EPIC or Maruru.
Id. ¶¶ 17, 21.
Id. ¶¶ 18, 38, 39, 40.
III. PROCEDURAL HISTORY
On April 20, 2023, Agyeman filed a Complaint alleging six counts:
• Count I: Breach of Contract Against All Defendants;
• Count II: Fraud Against All Defendants;
• Count III: Quantum Meruit Against EPIC;
• Count IV: Promissory Estoppel Against All Defendants;
• Count V: Unjust Enrichment Against All Defendants;
• Count VI: Implied Covenant of Good Faith and Fair Dealing Against All Defendants.
Id. ¶¶ 19-42.
Id. ¶¶ 43-60.
Id. ¶¶ 61-72.
Id. ¶¶ 73-81.
Id. ¶¶ 82-88.
Id. ¶¶ 89-93.
On October 30, 2023, Defendants filed a Motion to Dismiss Agyeman's Complaint. Briefing concluded on January 16, 2024. The Court held oral argument on February 16, 2024 and reserved decision. The Court finds the procedural issues case dispositive; therefore, the Court will not address the substantive issues raised by Defendants in their Motion to Dismiss.
D.I. 12.
IV. STANDARD OF REVIEW
Pursuant to Superior Court Civil Rule 12(b)(2), on a motion for lack of personal jurisdiction, "the plaintiff bears the burden of showing a basis for the trial court's exercise of jurisdiction over the nonresident defendant." The court undertakes a two-step analysis: (1) whether there is jurisdiction under Delaware's Long-Arm Statute, 10 Del. C. § 3104; then (2) "whether subjecting a defendant to jurisdiction in Delaware violates the due process clause of the Fourteenth Amendment." This analysis is both a factual and legal analysis, so the court "cannot restrict a Rule 12(b)(2) motion to the face of the complaint" and it must construe any evidentiary conflicts in the plaintiff's favor.
Wiggins v. Physiologic Assessment Servs., LLC, 138 A.3d 1160, 1164 (Del. Super. 2016) (internal citations omitted).
Ross v. Earth Movers, LLC, 288 A.3d 284, 293 (Del. Super. 2023) (citing Boone v. Oy Partek Ab, 724 A.2d 1150, 1154-55 (Del. Super. 1997)).
In re Asbestos Litig., 2015 WL 556434, at *3 (Del. Super. Jan. 30, 2015) (internal citations omitted).
On a motion to dismiss for improper venue pursuant to Civil Rule 12(b)(3), "the court must assume as true all the facts pled in the complaint and view those facts and all reasonable inferences drawn from them in the light most favorable to the plaintiff." The court can also consider extrinsic evidence. A court can thus grant dismissal before discovery on the basis of affidavits and documentary evidence in the record.
Loveman v. Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super. Mar. 31, 2009) (citing Anglo Am. Sec. Fund, L.P. v. S.R. Glob. Intern. Fund, L.P., 829 A.2d 143, 148-49 (Del. Ch. 2003)).
Id.
Courtney v. Intuitive Surgical, Inc., 2015 WL 6671558, at *1 (Del. Super. Oct. 30, 2015) (citing Loveman, 2009 WL 847655, at *2).
Civil Rule 12(b)(5) "requires dismissal of a claim if that claim's service of process is insufficient as to the rules of civil procedure in the State of Delaware.""Proper service of process is a jurisdictional requirement, and thus a failure to demonstrate good cause [for insufficient service] requires dismissal without prejudice."
Christianson v. Dart-Delaware Transit Corp., 2020 WL 6887954, at *2 (Del. Super. Nov. 24, 2020).
JulSaint v. Ramos, 2017 WL 4457211, at *2 (Del. Super. Oct. 4, 2017).
V. ANALYSIS
A. Agyeman Failed to Serve the Complaint in a Timely Manner.
Superior Court Civil Rule 4(j) requires service of the summons and complaint on the defendant(s) within 120 days after filing, unless good cause can be shown for a delay. This rule "seeks to balance the need for speedy justice, efficient litigation, and resolving claims on the merits." Delaware courts have interpreted "good cause" "to require a showing of excusable neglect, meaning a showing of 'good faith' and a 'reasonable basis for noncompliance.'" This may include "'by showing neglect which might have been the act of a reasonably prudent person under the circumstances.'" "[F]ailure to perfect service as a result of mistake, inadvertence, or 'half-hearted' efforts does not qualify as excusable neglect." A plaintiff's showing of a lack of prejudice from the delay is not a justification for a late filing. Similarly, "[a] plaintiff cannot rely on the prejudice they will suffer if their claims are dismissed as a substitute for good cause[.]"
Sidberry v. GEICO Advantage Ins. Co., 2019 WL 6318176, at *3 (Del. Super. Nov. 20, 2019) (citing Ballard v. Takeda Pharms. Am., Inc., 2017 WL 3396488, at *3 (Del. Super. Aug. 7, 2017)).
Id. at *2 (internal citations omitted).
Huelsenbeck v. Fermin-Jimenez, 2013 WL 2481533, at *1 (Del. Super. June 7, 2013) (quoting Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998)).
Woinski v. Emerson, 2019 WL 2006486, at *4 (Del. Super. May 2, 2019) (citing Bank of N.Y. Mellon v. Pearson, 2017 WL 3616389, at *1 (Del. Super. Aug. 23, 2017)) (emphasis in original).
See, e.g., DeSantis v. Chilkotowsky, 877 A.2d 52 (TABLE), 2005 WL 1653640, at *2 (Del. 2005) ("Rather than attempting to show good cause, [plaintiff] merely argues that the [d]efendants were not prejudiced by the failure of service of process. This line of reasoning, however, does not help her case because there is nothing in the rule that excuses noncompliance when it is alleged that a defendant is not prejudiced by the failure of service.").
Ballard, 2017 WL 3396488, at *4 (citing Doe v. Cath. Diocese of Wilm., Inc., 2010 WL 2106181, at *5 (Del. Super. May 26, 2010)).
Defendants move to dismiss because Agyeman filed her Complaint on April 20, 2023, but service was not completed until September 12, 2023. To be timely, service must have been made on or before August 18, 2023. Defendants argue "there is no showing that Plaintiff even engaged in good faith efforts to serve Defendants until after the deadline for service had already passed" and therefore the Complaint must be dismissed.
Defs.' Opening Br. in Supp. of Mot. to Dismiss [hereinafter "Defs.' Mot."] at 7.
Id.
Id. at 7-8.
Agyeman disputes dismissal on the grounds that the Complaint, Summons, and Praecipe were filed with the Court on April 20, 2023, and "unforeseen delays at the Prothonotary's office" caused the delay "[a]t no fault of Plaintiff." Agyeman asserts that a clerical error in the Prothonotary's Office caused the record to indicate that the Praecipe had not been filed, when it had been. By August 28, 2023, after receiving no response from Prothonotary, Agyeman engaged a private process server who delivered service on September 8, 2023. Agyeman argues a good faith attempt at timely service was made, "but at no fault of Plaintiff, clerical errors and unforeseen events caused the delays in service."
Pl.'s Br. in Support of Pl.'s Opp'n to Defs.' Mot. to Dismiss [hereinafter "Pl.'s Opp'n"] at 2.
Id.
Notably, this date is still after the 120-day service deadline.
Id. at 2-3.
Id. at 3.
Defendants note that Agyeman "offer[ed] no explanation for why counsel failed to follow up on the status of service with either the Prothonotary's office or the Sheriff's Office even once during the 120-day window afforded by this Court's rules." Agyeman additionally did not follow up until ten days after service was due, and took another two weeks to effect service on a Delaware registered agent.Defendants assert that these efforts are insufficient to merit a "good faith and excusable neglect" finding. Defendants also dispute Agyeman's contention that "no legal obstructions or challenges during the proceedings" occurred because even a lack of prejudice-which Defendants assert is false-still does not excuse untimely service without good faith effort or excusable neglect. At oral argument, Agyeman's counsel represented that counsel spoke over the phone with the Prothonotary's office at least once in May 2023 to question the delay, to no avail.
Defs.' Reply Br. in Support of Defs.' Mot. to Dismiss [hereinafter "Defs.' Reply"] at 3.
Id.
Id.
Pl.'s Opp'n at 2.
Defs.' Reply at 3-4.
Agyeman, C. A. No. 2023-04-192 MAA, at 28:12-29:10 (Del. Super. Feb. 16, 2024) (TRANSCRIPT).
The Court acknowledges that "[p]ublic policy in Delaware 'favors permitting a litigant a right to a day in court." Public policy, however, cannot ignore the predictability and fairness that rule-following brings to all parties and the Court. The Court takes Plaintiff's counsel at his word that errors outside of its control occurred in this case. Those errors, however, cannot excuse Plaintiff counsel's own errors and omissions that could have avoided the timeliness issue altogether.
Woinski, 2019 WL 2006486, at *4 (quoting DeSantis v. Chilkotowsky, 2004 WL 1790113 at *1 (Del. Super. July 27, 2004)).
There are several issues troubling to the Court:
• As defense counsel noted in oral argument, Plaintiff did not at any point move the Court for relief from the service deadline pursuant to Civil Rule 6(b). Plaintiff's counsel had no explanation for failure to do so, and merely stated "Yeah, in hindsight, that would have been wise."
• Plaintiff's counsel did mention multiple interactions with the Prothonotary's Office and the Sheriff's Office throughout the service time period, indicating some effort, however minimal, to secure timely service, and yet, Plaintiff's counsel waited until after the deadline had passed to seek an alternative resolution: securing a special process server.
• Plaintiff's counsel failed to comply with Superior Court Civil Rule 4(d)(1), which requires a party to move for appointment of a special process server. Instead, Plaintiff's counsel asserted that "I knew that we were up against these tight deadlines and I wanted to get something served."
• Plaintiff's counsel did not submit an affidavit in connection with the opposition brief to explain the efforts counsel made to secure timely service, including identifying the timeline for the communications made with the Prothonotary's Office and the Sheriff's Office. Such an affidavit is not required by the Civil Rules per se, but it would have assisted the Court in its good faith analysis.
Agyeman, C. A. No. 2023-04-192 MAA, at 7:10-20 (Del. Super. Feb. 16, 2024) (TRANSCRIPT).
Id. at 31:8-12.
Id. at 31:3-7.
The Court notes that Plaintiff's counsel indicated a willingness to file an affidavit after oral argument, but the Court considers this too late. Id. at 31:21-32:9.
The Court, therefore, does not find good cause or excusable neglect to permit untimely service of process. Plaintiff's counsel was aware that process had not been served in the required time period, but waited until after the deadline to take any definitive action to ensure service was made. Delaware courts have not found excusable neglect in cases where counsel made more effort than here, and the Court is not willing to extend good cause to these circumstances.
Multiple cases provide helpful examples. In Woinski v. Emerson, the Superior Court found some good faith effort on the part of the plaintiff, but still did not determine it amounted to excusable neglect. The plaintiff mistakenly, though in good faith, believed that an amended praecipe and summons would reset the 120-day deadline. The court noted that "[a] mistake, even made in good faith, is not excusable neglect." The court also did not find a good faith effort after the court approved a special process server who did not attempt service for over one month, and attempted service on an address not listed on the amended praecipe and summons.
2019 WL 2006486 (Del. Super. May 2, 2019).
Id. at *4.
Id. at *5.
Id.
Id. at *6.
Lynam v. Blue Diamond LLC Motorcross, by comparison, found excusable neglect where service was repeatedly attempted on the business's address, but unsuccessful because the business was an outdoor space which was reasonably closed throughout the winter months. The Superior Court noted that while the alternative-filing with the business's registered agent-was possible, the alternative existing alone was not enough to find inexcusable neglect given the reasonable alternative attempts at service. In Lyman, there was also a "clerical error in the Prothonotary's Office" which plaintiff promptly rectified by refiling the Alias Praecipe. The court considered the "small amount of time that the parties were actually served process beyond the 120-day requirement"-four days-and the "diligent efforts to comply," constituted excusable neglect rather than "half-hearted efforts" to perfect service.
2015 WL 5968654 (Del. Super. Oct. 12, 2015).
Id. at *3.
Id.
The alias praecipe in this case was mistakenly not filed within three days of being informed of this error, and seven days before the 120-day deadline. Id. at *4.
Id.
In comparison to Lyman, the service here was approximately one month late, and Plaintiff's counsel did not engage in "prompt" responses to the Prothonotary's alleged clerical error(s). Phone calls alone are not a sufficient remedy. Plaintiff's counsel had at least two means to rectify the issue, but failed to do so: (1) moving for a motion for enlargement of time prior to the deadline; or (2) moving for permission for a special process server before the deadline. Neither occurred here.
Even if the Court finds counsel engaged in some effort by calling the Prothonotary's Office and seeking out a special process server, the clear disregard for the procedural rules of this Court by failing to do so before the deadline, and the failure to seek the Court's permission to appoint a special process server, cannot merit a finding of excusable neglect. This Court reinforces the importance of procedural rules not just for the Defendant, but for all parties to ensure predictability, fairness, and efficiency. Plaintiff's counsel's failure to timely serve the Complaint, or move for an alternative before the deadline, cannot be considered excusable neglect. The Court grants Defendants' Motion to Dismiss all claims for failure to comply with Superior Court Civil Rule 4(j). Although the Court could dismiss the entire Complaint on this basis alone, the Court, for purposes of completeness, will consider the remaining procedural issues.
See, e.g., Super. Ct. Civ. R. 1. ("[These rules] shall be construed, administered, and employed by the Court and the parties, to secure the just, speedy, and inexpensive determination of every proceeding.").
B. This Court Does not Have Personal Jurisdiction Over Maruru.
Defendants assert that this Court does not have personal jurisdiction over Maruru because no subsection of the Delaware Long-Arm Statute confers jurisdiction. Specifically, 10 Del. C. § 3104(c)(1) is inapplicable to Maruru because EPIC does not operate or conduct business in Delaware, nor has Maruru herself ever been to, or conducted business in Delaware. The Complaint also fails to plead that the alleged contract related to activities in Delaware, nor was it negotiated or entered into in Delaware. Defendants contend that Maruru's status as co-founder and director of a Delaware corporation is insufficient to confer personal jurisdiction. Since there is no statute applicable to Maruru, Defendants suggest the Court need not engage in a Due Process analysis, but if the Court were to do so, the Court should find that "Maruru does not have sufficient 'minimum contacts' with Delaware such that the exercise of personal jurisdiction would offend 'traditional notions of fair play and substantial justice.'"
Defs.' Br. at 10-12.
Id. at 11. "[A] court may exercise personal jurisdiction over any nonresident, or personal representative, who in person or through an agent: (1) Transacts any business or performs any character of work or service in the State[.]" 10 Del. C. § 3104(c).
Defs.' Br. at 11.
Id. at 12. Defendants also assert that service of process on Maruru was improper pursuant to Delaware's implied consent statute, 10 Del. C. § 3114, because Maruru is not a necessary or proper party to this lawsuit. Id. at 8-9. The Court believes, based on oral argument in this matter, that Defendants are actually arguing that service of process pursuant to Section 3114 is insufficient because the consent statute does not confer jurisdiction over Maruru. The Court agrees. There are no allegations of breach of fiduciary duty; therefore, the only dispute is whether Maruru is a necessary or proper party, specifically, whether there is a "tangible legal interest" separate from EPIC. Plaintiff does not cite to any non-conclusory allegations that Maruru is either a "necessary" or "proper" party to this action. Therefore, the Court finds that Section 3114 cannot be invoked as a basis for jurisdiction over Maruru.
Defs.' Br. at 13 (citing Sternberg v. O'Neil, 550 A.2d 1105, 1118 (Del. 1988) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Plaintiff agrees that it relies on 10 Del. C. § 3104(c)(1) to assert personal jurisdiction over Maruru. Plaintiff argues this subsection is satisfied because "[a] long line of decisions holds that the act of forming a Delaware entity constitutes the transaction of business within this state for purposes of the Long-Arm Statute and will support personal jurisdiction for claims that are sufficiently related to the formation of the entity." Plaintiff asserts that as a "founding member, officer and director of EPIC" and as a "member and operator of a separate Delaware limited liability company" Maruru is subject to personal jurisdiction in Delaware. While generally stating that the Due Process requirement must be satisfied, Plaintiff fails to analyze Due Process as it relates to the facts of this case.
Pl.'s Opp'n at 7.
Id. at 8 (citing Terramar Retail Ctrs., LLC v. Marion #2-Seaport Tr. U/A/D/ June 21, 2002, 2017 WL 3575712, at *5 (Del. Ch. Aug. 18, 2017)).
Id. at 9.
See id. at 4-9 (outlining the requirements for personal jurisdiction and detailing why 10 Del. C. § 3104(c)(1) is satisfied).
The Court agrees with Defendants that Plaintiff failed to establish that the alleged wrongful conduct in this action relates to the formation of the entity. While Plaintiff accurately quotes Harris v. Harris with its statement "[a] long line of decisions holds . . .," Plaintiff fails to address the final portion of that quote which states "will support personal jurisdiction for claims that are sufficiently related to the formation of the entity." There is no dispute that Maruru is a resident of Senegal and has never entered or acted in Delaware, with the exception of forming two Delaware entities. The alleged wrongful conduct relates to purported contractual agreements surrounding work and services Plaintiff was to perform for the organization. Plaintiff fails to explain how these causes of action have any relationship to the formation of the entity itself, such that it would satisfy the long-arm statute requirements, nor are any facts pled that indicate any of the wrongful conduct, or that the services performed as part of the alleged contract occurred in Delaware.
Harris v. Harris, 289 A.3d 277, 302 (Del. Ch. 2023).
See Pl.'s Opp'n at 8. While the sentence in the brief does not indicate a quote of Harris, it is a direct quote from Vice Chancellor Laster's Opinion, citing to Terramar which Plaintiff does cite in its Brief. Terramar Retail Ctrs., LLC, 2017 WL 3575712, at *5. While irrelevant to the substance of these claims, the Court notes that the majority of Plaintiff's Personal Jurisdiction section in its Opposition Brief is a verbatim copy of Harris, with some omissions, without any citations to the opinion. Compare Pl.'s Opp'n at 7-9, with Harris, 289 A.3d at 302.
See Compl. ¶ 3.
See generally Unsworn Declaration of Rose Maruru Pursuant to 10 Del. C. § 5356.
Defendants clarify that the "separate Delaware limited liability company" Plaintiff refers to is a "predecessor entity to Epic-Africa that was formed by the parties in 2015 in pursuit of the same venture that was subsequently transitioned to Epic-Africa, a non-profit." Defs.' Reply at 8 n.4.
Plaintiff has failed to satisfy the first prong of personal jurisdiction, so the Court does not need to undertake a minimum contacts analysis. The Court, therefore, finds that there is no personal jurisdiction over Maruru for any of the claims in this action.
C. Agyeman Failed to Demonstrate that Delaware is the Correct Forum.
To conduct a forum non conveniens analysis, courts consider the Cryo-Maid factors: "(1) the relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the premises; (4) whether the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction; (5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and (6) all other practical problems that would make trial of the case easy, expeditious, and inexpensive." "[I]t does not matter whether only one of the Cryo-Maid factors favors defendant or all of them do. The issue is whether any or all of the Cryo-Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware." The Court considers each of the factors in turn.
Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964)) (overruled on unrelated grounds in Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Ashbury Park, 261 A.2d 520, 521 (Del. 1969)).
Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 267 (Del. 2001) (citing Ison v. E.I. DuPont de Nemours & Co., 729 A.2d 832, 837 (Del. 1999)).
Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P'ship, 669 A.2d 104, 108 (Del. 1995).
1. The Relative Ease of Access of Proof
This factor requires the Court to consider "[t]he proximity of the evidence to the proposed forum[.]" The defendant must make a "'particularized showing that witnesses, documents, or other evidence necessary to defend the allegations contained in [the plaintiff's] complaint cannot be brought to or otherwise produced in Delaware.'" When all, or the majority of the evidence and witnesses are located in another country-in particular, if that evidence is likely to be in another language-courts are more likely to find this factor weighs in favor of dismissal."[M]ere inconvenience, without more" does not warrant a dismissal if the defendant fails to indicate with specificity why there would be an overwhelming hardship.Courts have also considered the financial resources and history of the organization's involvement with litigation in various forums, finding those with the resources and past agreement to litigate in multiple forums weigh in favor of denying a forum non conveniens motion.
Hall v. Maritek Corp., 170 A.3d 149, 161 (Del. Super. 2017)
Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 1001 (Del. 2004) (quoting MarLand, 777 A.2d at 781).
See, e.g., Lisa, S.A. v. Mayorga, 2009 WL 1846308, at *9 (Del. Ch. June 22, 2009) (favoring defendants where all the relevant witnesses with knowledge primarily reside in Guatemala and speak Spanish); Trinity Inv. Tr., L.L.C. v. Morgan Guar. Tr. Co. of New York, 2001 WL 1221080, at *3 (Del. Super. Sept. 28, 2001) (finding for defendants where most of the witnesses and documents were in Japan and drafted in Japanese, despite some witnesses living as close as New York).
See QVT Fund LP v. Eurohypo Cap. Funding LLC I, 2011 WL 2672092, at *17 (Del. Ch. July 8, 2011) (quoting Ryan v. Gifford, 918 A.2d 341, 351 (Del. Ch. 2007)).
See, e.g., Candlewood, 859 at 1001 (noting that the company itself admitted it would not face financial hardship to litigate in the United States, and that the company "customarily enters into contracts that include forum selection clauses that require it to litigate in the United States and the United Kingdom").
The Court determines that this factor weighs in Defendants' favor. While the Court acknowledges Defendants' failure to provide specifics as to what evidence is outside of the forum, the Court does not find this determinative given the parties concede that all persons and relevant conduct, other than incorporation, occurred outside of the United States. Further, the Court notes that it is highly possible that documents, or at the very least arrangements with a foreign court will be in another language, causing additional difficulty proceeding in this jurisdiction. Though not argued by the parties, the Court also notes that the organization involved is a nonprofit; therefore considerations of financial resources weighs in favor of Defendants. Plaintiff relies on the ease of technological advancements as one consideration, but "that electronic transmission of evidence lessens the burden of litigating where evidence may be found outside of the chosen forum does not render this factor irrelevant when weighing the forum non conveniens hardship factors[.]"
See Agyeman, C. A. No. 2023-04-192 MAA, at 20:8-21:6 (Del. Super. Feb. 16, 2024) (TRANSCRIPT).
GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 104 (Del. 2021).
2. The Availability of Compulsory Process for Witnesses
This factor is "closely related" to the ease of access of proof factor. To prevail, "defendants must identify the inconvenienced witnesses and the specific substance of their testimony." Technology and videoconferencing can be an alternative to in-person testimony, but its availability alone is not dispositive.Limited subpoena power is only impactful if all witnesses are in one other forum; if the witnesses are spread throughout the United States for example, then every forum would face a subpoena limitation.
In re Asbestos Litig., 929 A.2d 373, 385 (Del. Super. 2006) (citing Ison, 729 A.2d at 843).
Monsanto Co. v. Aetna Cas. & Sur. Co., 559 A.2d 1301, 1308 (Del. Super. 1988).
See Hall, 170 A.3d at 162 (finding the factor does not weigh in favor of finding an appropriate forum where "Plaintiff has not shown that such technology and videoconferencing could not be more easily obtained or utilized in a more suitable jurisdiction. It is also possible that some of the technology may be unnecessary if those witnesses reside in that other jurisdiction.").
See In re Asbestos Litig., 929 A.2d at 385.
The Court notes that Defendants failed to provide the identity of the witnesses and the substance of any unavailable testimony. As noted in the access to proof factor, however, Plaintiff does not appear to dispute that all relevant persons and activities related to these causes of action occurred outside of the United States.While Defendants could have briefed with additional specificity, the Court would be remiss by failing to acknowledge that there is no suggestion by any Party that none of the relevant witnesses exist within the United States, and thus outside of the
Pl.'s Opp'n at 13.
See, e.g., Defs.' Reply at 11.
Court's subpoena power. Given Defendants' lack of specificity, this factor weighs only slightly in favor of Defendants.
3. Whether the Controversy is Dependent Upon Application of Delaware Law Which the Courts of this State More Properly Should Decide Than Those of Another Jurisdiction
As to the fourth factor, simplified as the choice of law factor, "'while relevant to establishing hardship and inconvenience, primarily focuses on 'Delaware's interest in the litigation,' a focus evident in the phrasing of the factor itself.'" This factor is more strongly considered when the legal issue is of unique or particular importance to Delaware law. Delaware follows the Second Restatement's "most significant relationship" test for choice of law issues for contract law and for torts.
GXP Cap., 253 A.3d at 105 (quoting Warburg, Pincus Ventures, L.P., 774 A.2d at 271).
See, e.g., Ryan, 918 A.2d at 350 ("[N]ovel and substantial issues of Delaware corporate law are best resolved in Delaware courts.") (quoting In re Chambers Dev. Co. S'holders Litig., 1993 WL 179335, at *8 (Del. Ch. May 20, 1993)).
See, e.g., Certain Underwriters at Lloyds, London v. Chemtura Corp., 160 A.3d 457, 464 (Del. 2017).
See, e.g., Travelers Cas. & Sur. Co. of Am. v. Blackbaud, Inc., 2024 WL 1298762, at *7 (Del. Super. Mar. 27, 2024).
"There are, in essence, three components to this choice-of-law analysis: i) determining if the parties made an effective choice of law through their contract; ii) if not, determining if there is an actual conflict between the laws of the different states each party urges should apply; and iii) if so, analyzing which state has the most significant relationship." If contracts do not have a choice of law provision, the Restatement provides factors to consider: "(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties." These factors are "evaluated based on their relative importance in the particular case and in light of the Second Restatement's general considerations found in § 6[.]" For tort claims, a court should consider "(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered."
Certain Underwriters at Lloyds, 160 A.3d at 464.
Restatement (2d) of Conflicts, § 188 (2) (1971).
Certain Underwriters, 160 A.3d at 465 (citing Restatement (2d) of Conflicts § 6 (1971). "When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied." Restatement (2d) of Conflicts § 6 (2).
Restatement (2d) of Conflicts § 145(2).
As to the first component, neither Party asserts there was a choice of law provision in the alleged contract. The second component is whether there is an actual conflict between Delaware law and the other forum. For this component, "Delaware courts 'answer a single and simple inquiry: does the application of competing laws yield the same result?' If yes, there is a 'false' conflict and Delaware law will apply." Neither party argues there is a false conflict issue here. The Court presumes that there is an actual conflict and proceeds to the substantial relationship test.
Blackbaud, Inc., 2024 WL 1298762, at *7.
Id.
As to both contract and tort allegations, Defendants assert that Delaware has no relationship because none of the alleged wrongful conduct or consequences occurred in Delaware, and instead occurred in Senegal. While Plaintiff is correct that the one factor, state of incorporation, is Delaware, Plaintiff provides no support for any other relevant factors in favor of applying Delaware law. Plaintiff's assertion that "the subject matter constitutes business transactions for a Delaware corporation" is unsupported by briefing and the pleadings and is not compelling to this Court. Plaintiff's causes of action are no more than tort and contract claims, which are not unique to Delaware contract or corporate law principles. The Court finds there is no substantial relationship to Delaware and this factor favors Defendants.
Defs.' Br. at 16-17.
Plaintiff instead proposes other policy-related factors for why "Delaware has a substantial interest in ensuring that corporations acting within its jurisdiction treat their service providers fairly and compensate them justly." Pl.'s Opp'n at 14-15.
Pl.'s Opp'n at 14.
4. Other Practical Problems
This final factor is broad and allows the Court to consider "all other practical problems that would make the trial of the case easy, expeditious and inexpensive."Relevant to this factor, Defendants list the lack of subject matter jurisdiction over Maruru, the fact that Plaintiff asserted Maruru is a necessary and proper party, the language barrier, and the practical issues with dealing with Senegalese courts.Plaintiff did not address this factor or Defendants' arguments in briefing or at oral argument. Given the Court's finding that Maruru is not subject to personal jurisdiction in Delaware, the Court agrees, that this factor weighs in favor of Defendants.
Cryo-Maid, 198 A.2d at 684.
Defs.' Br. at 17; Defs.' Reply at 14-15.
See Section V. C.
It is unclear to this Court the extent that language barriers would play into this litigation at this point, so the Court does not consider this allegation. Defendants were unable to say definitively what the process would be when dealing with Senegalese courts, nor did Defendants indicate that witnesses were unable to converse in English for the sake of testifying. See Agyeman, C. A. No. 2023-04-192 MAA, at 20:13-21:6 (Del. Super. Feb. 16, 2024) (TRANSCRIPT).
5. Defendants Will Suffer Undue Hardship if Forced to Litigate in Delaware
In consideration of all six Cryo-Maid factors, Defendants have adequately demonstrated that Delaware is not the proper forum. The parties agree that there is no premises to observe, nor are there any similar actions pending in another jurisdiction so factors (2) and (5) are neutral. All the other factors support a finding that Defendants would be unduly burdened by proceeding in Delaware, and therefore, the Court concludes that Delaware is the incorrect forum. This Court thus GRANTS the motion to dismiss as to this issue.
VI. CONCLUSION
Defendants' Motion to Dismiss is GRANTED as to all claims for failure of timely service, improper service and lack of personal jurisdiction over Maruru, and forum non conveniens. This Court therefore need not reach the Motion to Dismiss for failure to state a claim for any of the Counts.
IT IS SO ORDERED.