Opinion
C.D. No. 10C-07-273-JRJ.
Submitted: November 22, 2010.
Decided: December 13, 2010.
Upon Defendants' Motion to Dismiss for Forum Non Conveniens: DENIED
Ian C. Bifferato, Esquire, David W. deBruin, Esquire, Kevin G. Collins, Esquire, John Z. Haupt, Esquire, Bifferato, LLC, Wilmington, Delaware, attorneys for plaintiffs.
Todd C. Schiltz, Esquire, Drinker, Biddle Reath, LLP, Wilmington, Delaware, 19801-1254, Jeffrey L. Moyer, Esquire, Stephen M. Ferguson, Esquire, Richards, Layton Finger, P.A., Wilmington, Delaware, attorneys for defendants.
OPINION
Before the Court is the Defendants' Motion to Dismiss on grounds of Forum Non Conveniens.
INTRODUCTION
The plaintiffs allege that plaintiff Kevin Smith, while employed at a semiconductor plant in Arizona owned by defendant Freescale Semiconductor, Inc. ("Freescale"), was exposed to chemicals that caused birth defects to his son, Noah. Defendants argue this case has no connection to Delaware and they would face overwhelming and unwarranted burdens if forced to litigate in Delaware. There is no allegation in the complaint that any relevant conduct occurred in Delaware, and the only connection to Delaware is the defendants' incorporation here. Plaintiffs counter by arguing that defendants have failed to prove overwhelming hardship under the Cryo-Maid factors. After considering the Cryo-Maid factors, the Court does not find that the defendants will suffer overwhelming hardship if required to litigate in Delaware and, therefore, the Motion to Dismiss on grounds of Forum Non Conveniens is DENIED.
General Foods Corp. v. Cryo-Maid, Inc., 41 Del. Ch. 474, 198 A.2d 681, 684 (Del. 1964).
DISCUSSION
Dismissal of an action based on the doctrine of forum non conveniens lies within the sound discretion of the trial court. Under Delaware law, plaintiffs' choice of forum is presumed proper. This Court has noted a "clear preference in favor of a plaintiffs' choice of forum, particularly where there are no previously filed actions pending elsewhere." This preference has been expressed in the form of a presumption that the plaintiffs' choice of forum will be respected unless the defendant carries the heavy burden of establishing that Delaware is not an appropriate forum for the controversy. The fact that a plaintiff is not a resident of Delaware does not deprive him of the presumption that his choice of forum should be respected. For defendants to overcome the presumption, they must show with particularity that litigating in Delaware will cause them overwhelming hardship and inconvenience. Delaware courts assess hardship to a defendant by employing the six Cryo-Maid factors:
Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 269 (Del. 2001); Pena v. Cooper Tire Rubber Co., Inc., 2009 WL 847414 (Del. Super. Mar. 31, 2009).
See e.g., Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refining, L.P., 777 A.2d 774, 778 (Del. 2001).
See In re Asbestos Litigation, 929 A.2d 373, 380 (Del. Super. 2006).
See Id.; Pena, 2009 WL 847414.
See Ison v. E.I. DuPont deNemours and Company, Inc., 729 A.2d. 832, 835 (Del. 1999) ("The fact the plaintiffs are foreign nationals does not deprive them of the presumption that their choice of forum should be respected. Although that presumption is not as strong in the case of a foreign national plaintiff as in the case of a plaintiff who resides in the forum, we need not rest our decision on that issue because of the defendant's weak showing of hardship."); In re Asbestos Litigation, 929 A.2d at 382 ("Plaintiffs in tort cases are entitled to the same respect for their choice of forum as plaintiffs in corporate and commercial cases receive as a matter of course in Delaware.").
See Ison, 729 A.2d at 835 (holding that overwhelming hardship is the central criterion of Delaware Supreme Court jurisprudence on forum non conveniens).
1) the relative ease of access to proof;
2) the availability of compulsory process for witnesses;
3) the possibility of viewing the premises;
4) whether the controversy is dependant upon the application of Delaware law, which the courts of this State more properly should decide than those of another;
5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and
6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive.
Analysis of the Cryo-Maid factors is not quantitative. The Court does not take a tally of the number factors that favor either part. These factors simply provide the framework for the analysis of hardship and inconvenience. In conducting the analysis, the Court is not permitted to compare the plaintiff's chosen forum with the proposed alternative forum and decide which forum is more appropriate. Instead, when deciding a motion to dismiss on forum non conveniens, the Court must base its determination solely upon whether any or all of the Cryo-Maid factors establish that the defendant will suffer overwhelming hardship and inconvenience if required to litigate in Delaware.
See In re Asbestos Litigation, 929 A.2d at 381 (citations omitted).
See Mar-Land, 777 A.2d at 779; In re Asbestos Litigation, 929 A.2d at 381; Pena, 2009 WL 847414.
See Taylor v. LSI Logic Corp., 689 A.2d 1196, 1199 (Del. 1996); Pena, 2009 WL 847414, at *6.
1. Relative Ease of Access to Proof.
Defendants argue that because all fact evidence relating to the core issue of the alleged exposure to chemicals, whether such exposure caused birth defects, and the nature and extent of injuries allegedly suffered by plaintiff is located "solely in Arizona," this factor strongly favors dismissal. According to defendants, the "circumstances of Mr. Smith's alleged exposures and the witnesses to such exposures, including those at prior employers and elsewhere, the evidence related to the `clean room' operations used at the plants where he worked, and the medical diagnosis and treatment that plaintiffs have received is all in Arizona." Plaintiffs argue that even if this assertion is accurate, it is "not at all uncommon, and certainly not unduly burdensome for litigation to proceed in a venue other than that in which evidence such as employment records, medical records, and fact witnesses. . .reside." Plaintiffs also point out that defendants are headquartered throughout the United States, have their principle places of business in Pennsylvania (Air Products) and Texas (Freescale). According to plaintiffs, this litigation will "certainly implicate decisions, knowledge, and information disseminating from the corporate level, and documents stored at defendants' corporate headquarters." Plaintiffs claim that "regardless of where this case is litigated, relevant information is stored throughout the country."
Defendants' Motion to Dismiss at 2 (Trans. ID. 33782103).
Plaintiffs' Response in Opposition to Defendants Motion to Dismiss at 2 (Trans. ID. 34381291).
Id.
Id.
Defendants have not established with particularity what evidence would be unavailable or inaccessible to them if this case is litigated in Delaware. Other than general categories of information, they do not offer a list of documents they intend to obtain. Nor do they identify any potential witnesses by name, job title or areas of responsibility in the manufacturing plant. They do not indicate what witnesses could not be produced by plaintiffs in Delaware or why testimony of potentially unavailable witnesses could not be presented by deposition. Regardless of where this case is tried, defendants' lawyers and experts will probably have to travel, given that the defendants' principle places of business are in Pennsylvania and Texas and the experts are located around the country. Defendants claim that because the plaintiffs are located in Arizona the bulk of their medical records and educational records are likely to be located in Arizona. Other than pointing out that the records are located in Arizona, the defendants fail to explain why it would not be relatively easy to access that proof in Delaware, particularly since much of it is presumably under the control or within the easy access of the plaintiffs. Thus, the Court disagrees with defendants that ease of access to proof strongly favors dismissal and finds that this factor does not weigh in favor of defendants.
See Pena, 2009 WL 847414; Mar-Land, 777 A.2d at 782; Warburg, 774 A.2d at 269 ("The trial court held, correctly in our view, that this argument does not support a claim of hardship. Warburg's motion to dismiss does not specify any of the witnesses to be beyond its reach and whose absence would adversely affect Warburg's defense.").
2. Availability of Compulsory Process for Witnesses.
3. View of the premises.
See In re Asbestos Litigation, 929 A.2d at 385.
See Pena, 2009 WL 847414, at *6; Warburg, 774 A.2d at 269; Fres-Co. System USA, Inc. v. The Coffee Bean Trading-Roasting, LLC, 2005 WL 1950802, at *3 (Del. Super. July 22, 2005).
See Plaintiffs' Response in Opposition to Defendants' Motion to Dismiss at 2 (Trans. ID. 34381291).
See In Re Asbestos Litigation, 929 A.2d at 385 ("[T]he `problem of limited subpoena power will exist in any forum where the litigation is tried.'").
Defendants' Motion to Dismiss at 3 (Trans. ID. 33782103)
See In Re Asbestos Litigation, 929 A.2d at 386 ("Since the work sites potentially at issue are likely not in the same or similar condition as. . .when the alleged exposures occurred several years ago, it is doubtful that any type of inspection (on-site, photographic, or otherwise) would yield much benefit. . . .").
Id.
4. Applicability of Delaware Law.
5. Pendency or Non-Pendency of Other Actions.
arguendo forum non conveniens heavily
See Pena, 2009 WL 847414; This Court has applied, inter alia, Israeli law, Saudi law, and Argentinean law, and has often been called upon to apply the law of other states.
See In re Asbestos Litigation, 929 A.2d at 387 (quoting Fres-Co, 2005 WL 1950802, at *3 (Del. Super. Ct. July 22, 2005)); Pena, 2009 WL 847414, at *7.
6. Other Practical Considerations.
Defendants argue that Arizona is a "far superior alternative forum" and that conceivably responsible parties may not be Delaware corporations or residents, and thus, not subject to jurisdiction in Delaware. Even if true, these assertions do not support dismissal because defendants have clearly failed to state with the requisite particularity why litigating in Delaware would cause them overwhelming hardship and inconvenience. Accordingly, the Motion to Dismiss is DENIED.
Defendants' Motion to Dismiss at 3.
IT IS SO ORDERED.