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Delaware Supreme Court Holds that Determination that an Adequate Alternative Forum Exists is Not Required for Dismissal on Forum Non Conveniens Grounds
By: Paul A. Bradley and Donald R. Kinsley
April 4, 2018
Once upon a time, it seemed the 1980 ruling in World-Wide Volkswagen would control forever, and that jurisdictional jurisdictional issues were well-settled in the US for tort claim cases. Today, the world is not so simple, as illustrated by (among others) prior posts here, here and here, and innumerable articles around the internet.
Last year, in a September 17, 2017 post, I noted jurisdiction arguments going up the Delaware Supreme Court on global jurisdiction issues in tort cases. Now, there’s been a ruling, and it’s interesting, with implications that illustrate another of the many double-edged swords extant within the litigation industry. Happily, insight on the ruling is available from Delaware lawyers who really understand tort law and commercial law. Accordingly, the following is a guest post from Paul Bradley, a named partner at Maron Marvel Bradley Anderson & Tardy LLC. As usual, the analysis is cogent and very much appreciated.
“Delaware Supreme Court Holds that Determination that an Adequate Alternative Forum Exists is Not Required for Dismissal on Forum Non Conveniens Grounds
The Delaware Supreme Court this week has definitively joined the minority of courts holding that the availability of an alternative forum, while a factor in a forum non conveniens analysis, is not a threshold requirement. Aranda, et al. v. Philip Morris USA Inc., Consolidated Nos. 525, 526, 527, 528, 529, 530, 2016 (Del. Supr. March 22, 2018).
“[T]reating the issue as a factor to be considered, rather than as a requirement, gives the issue the weight it deserves in the forum non conveniens analysis,” the Court stated. Taking into consideration the complexity of transnational litigation, and the strain such litigation places on judicial resources, the Court wrote: “Delaware has no real connection to the dispute except for the defendants’ place of incorporation. It is not unfair to suggest that rather than requiring cases to proceed in Delaware in the absence of an alternative forum, the Superior Court should consider, on a case-by-case basis, whether the court’s resources should be deployed to resolve cases with little connection to Delaware – as the court did here.” The Court also addressed the concerns of international comity. “The approach we adopt here might encourage foreign jurisdictions to rethink laws and rules shifting to the U.S. course disputes that are more clearly connected to their own countries and citizens.” Further, the Court said it was not ignoring the concern that foreign plaintiffs injured by Delaware corporations might not be allowed to sue those corporations in Delaware. “The availability of an alternative forum in transnational cases is treated as a factor in the forum non conveniens analysis,” and “[t]he degree of the Delaware corporate defendant’s connection to the alleged wrong will still be considered.”
The Court upheld a Superior Court ruling by Judge Vivian L. Medinilla that denied a motion for reargument of her ruling granting the defendants motion to dismiss based on forum non conveniens. The action that was dismissed was by Argentine tobacco farmers and their children against tobacco cultivators (TCs) and an herbicide manufacturer (HM), arising from birth defects allegedly caused by the TCs’ use of the herbicide, dismissal on the grounds of forum non conveniens was warranted as to the TCs because they would be subject to overwhelming hardship if required to litigate in Delaware based on evaluation of the Cryo-Maid factors, including that all discovery would have to be conducted in Argentina and Argentine law applied to at least a majority of the issues. Judge Medinilla held that dismissal under Del. Super. Ct. R. Civ. P. 9(b) was proper as to the HM because the complaint failed to adequately identify the alleged tortfeasor, and it did not plead with specificity which HM caused the alleged harm, what products caused the harm, how the harm occurred, and when that harm occurred.
In granting the motion to dismiss on forum non conveniens grounds, the Delaware Superior Court did not ensure that the Philip Morris Defendants could be sued in an alternative forum. In its appeal, the Plaintiffs/Appellants sought to have the Delaware Supreme Court require the Philip Morris Defendants waive any objection to jurisdiction in Argentina, and to waive any limitations defenses based on time passed since the case was originally filed.
For questions, contact Paul A. Bradley, 302-472-1792, [email protected].