E-Birchtree, 2007 WL 914644, at *4 (quoting In re Delta and Pine Land Co. S'holders Litig., 2000 WL 1010584, at *5 (Del. Ch. July 17, 2000)). Third, CVS's claim that it is the "natural plaintiff" in this dispute lacks nuance.

Super. Ct. 1989) (explaining that seeking declaratory relief under 10 Del. C. §§6501 et seq. means institution of an action to resolve a controversy: (1) involving the rights or other legal relations of the party seeking declaratory relief; (2) in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claim; (3) which must be between parties whose interests are real and adverse; (4) for which the issue is be ripe for judicial declaration); see also F.D.I.C. v. Sanders, 785 F. Supp. 528 (W.D. Pa. 1992). In re Delta & Pine Land Co., 2000 WL 1010584, at *4 (Del. Ch. July 17, 2000). The Court of Chancery's decision in In re Delta & Pine Land Co. Shareholders Litigation is illustrative of the difference between a truly defensive counterclaim and an affirmative request for declaratory relief—and, the difference in the treatment of each under a statute of limitations.

As stated, and as acknowledged by Danny, his claims against Johny are cross-claims. Id.; Dkt. 194. "Courts have unequivocally held that a cross-claim requesting affirmative relief . . . does not relate back to the original complaint." In re Delta & Pine Land Co. S'holders Litig., 2000 WL 1010584, at *4 (Del. Ch. July 17, 2000) (emphasis in original). Finally, I must determine whether Danny's delay in bringing his claims has resulted in injury or prejudice to Defendants. "After the statute of limitations has run, defendants are entitled to repose and are exposed to prejudice as a matter of law by a suit by a late-filing plaintiff who had a fair opportunity to file within the limitations period."

Air Prods. & Chems., Inc., 252 A.2d at 547; see also E-Birchtree, LLC v. Enterprise Prods. Operating L.P., 2007 WL 914644, at *3 (Del. Super. Jan. 18, 2007) (quoting In re Delta and Pine Land Co. S'holders Litig., 2000 WL 1010584, at *5 (Del. Ch. July 17, 2000)) ("Delaware courts take a 'rather dim view of declaratory judgment claims of non-breach made for purposes of forum shopping.'"); but see Household Int'l, Inc. v. Eljer Indus., Inc., 1993 WL 133065, at *1 (Del.

McQuaide, Inc. v. McQuaide, 2005 WL 1288523, at *4 (Del. Ch. May 24, 2005) (citations omitted).See Berdel, Inc. v. Berman Real Estate Mgmt., Inc., 1995 WL 632030, at *3 (Del. Ch. Oct. 19, 1995) (finding Delaware action first-filed because, though the original Pennsylvania action was filed earlier, it did not include claims comparable to those in Delaware until an amendment was filed after the filing of the Delaware action); In re Delta Pine Land Co. S'holders Litig., 2000 WL 1010584, at *3-4 (Del. Ch. July 17, 2000) ("I see no reason to treat Monsanto's cross-claim seeking affirmative relief as relating back to the filing date of the shareholder complaint.").McQuaide, Inc., 2005 WL 1288523, at *4 (citing United Phosphorus, Ltd. v. Micro-Flo, LLC, 808 A.2d 761, 765 (Del. 2001); Corwin v. Silverman, 1999 WL 499456, at *4-5 n. 13 (Del. Ch. June 30, 1999)).

This Court often considers the importance of comity in deciding how to proceed in the face of a similar action pending in a sister court of another jurisdiction. See, e.g., Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 4516645, at *5 (Del.Ch. Oct. 8, 2008) (considering the broader policies of comity between the states in staying Delaware action in favor of a parallel Illinois action); In re Delta Pine Land Co. S'holders Litig., 2000 WL 1010584, at *5 (Del.Ch. July 17, 2000) (finding in interests of comity that sister court in Mississippi should have first opportunity to resolve claims because they were first filed there). In addition to the interests of comity, I am chary of granting injunctive relief that effectively might reward Petitioner and Mr. Farrell for their less-than-forthright petition to reform the Trusts in December 2006 or January 2007.

The use of a declaratory judgment action as a tactic to acquire a venue perceived to be more favorable has been criticized. See, e.g., Citrin Holdings LLC, 2008 WL 241615, at *4 (citing In re Delta Pine Land Co. S'holders Litig., 2000 WL 1010584, at *5 (Del Ch. July 17, 2000)). With this conclusion, it is not necessary to consider Colburn's motion to dismiss on forum non conveniens grounds.

See, e.g., In re Delta Pine Land Co. S'holders Litig., 2000 WL 1010584, at *5 (Del.Ch. July 17, 2000) (noting "Delaware law's rather dim view" of such efforts). * * *

The Trust's argument that the Chancery Action should be "disregarded" for purposes of determining which action was first filed because it is a declaratory judgment action, DOB at 11, is without support in the case law. See Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 36 (Del. 1991) (affirming Superior Court decision that, notwithstanding its language, accorded first-filed status to a declaratory judgment action); but see In re Delta Pine Land Co. S'holders Litig., 2000 WL 1010584, at *5 (Del.Ch. July 17, 2000) (declining, in dicta, to accord first filed status to a later-filed cross claim for declaratory judgment). Rather, Delaware courts engage in a "more discerning analysis" of the relevant forum non conveniens factors where the first-filed action seeks a declaratory judgment.

Id.See Berdel, Inc. v. Berman Real Estate Mgmt., Inc., 1995 WL 632030, at *3 (Del.Ch. Oct. 19, 1995) (finding Delaware action to be first-filed because earlier filed Pennsylvania action did not include the Delaware claims until amendment after filing of the Delaware action); In re Delta Pine Land Co. S'holders Litig., 2000 WL 1010584, at *3-4 (Del.Ch. July 17, 2000) (staying original plaintiff's crossclaim in deference to a foreign filed action after holding that the cross-claim did not relate back to the original case).See United Phosphorus, 808 A.2d at 765 (finding a later filed Delaware state action to be the "continuation of the viable claims" of a dismissed Delaware federal action and thus to relate back for first-filing analysis); see also Corwin v. Silverman, 1999 WL 499456, at *4-5 n. 13 (Del.Ch. June 30, 1999) (holding that neither amended pleadings that did not assert broader claims, nor later joinder of parties, would alter a case's first-filed status).