IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY IN RE: ASBESTOS LITIGATION ) ) CONNIE JUNE HOUSEMAN-RILEY, ) ) Plaintiff, ) ) C.A. NO. 05C-06-295-JRS (ASB) v. ) ) METROPOLITAN LIFE INSURANCE ) COMPANY, et al. ) ) Defendants. ) Date Submitted: December 20, 2005 Date Decided: March 8, 2006 Upon Consideration of Defendant DaimlerChrysler Corporation s Motion to Dismiss or Stay Based on Forum Non Conveniens. GRANTED. MEMORANDUM OPINION Robert Jacobs, Esquire, David Arndt, Esquire, JACOBS & CRUMPLAR P.A., Wilmington, Delaware; John Spillane, Esquire, BARON & BUDD P.C., Dallas, Texas. Attorneys for Plaintiff. Somers Price, Jr., Esquire, Daniel Wolcott, Jr., Esquire, James Kron, Esquire, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware. Attorneys for Defendant DaimlerChrysler Corporation. SLIGHTS, J.
I. On a single motion to dismiss in this mass tort litigation, the Court must decide whether, under the doctrine of forum non conveniens, a third-filed lawsuit should be dismissed or stayed in favor of a prior pending lawsuit in another jurisdiction. Defendant, DaimlerChrysler Corporation ( Chrysler ), has filed a motion to dismiss the complaint filed by Plaintiff, Connie June Houseman-Riley ( Houseman-Riley ), based on forum non conveniens. 1 After consideration of the factors articulated in McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng g, 2 applicable here because this action is not deemed first filed, the Court finds that Houseman-Riley presently has a valid prior pending lawsuit in Georgia, that the parties and issues in that lawsuit are the same as the parties and issues in this action, and that the Georgia court is capable of doing prompt and complete justice. Therefore, under the McWane standard, the Court finds that a stay is appropriate. Chrysler s motion to dismiss or stay is GRANTED. II. On January 28, 2005, Houseman-Riley filed a lawsuit in Fulton County, 1 In Chrysler s Reply papers, it requests the Court to consider its motion as a motion to dismiss or stay. See Transaction Identification ( T.I. ) 7483667 at 10. T.I. is the number assigned to a docketed item filed through LexisNexis File & Serve at http://www.lexisnexis.com/fileandserve. 2 263 A.2d 281, 283 (Del. 1970). 1
Georgia against several defendants, including Chrysler, seeking damages for mesothelioma, a malignancy caused by exposure to asbestos. 3 Her complaint alleged that she was exposed to asbestos fibers and dust emanating from the work clothing and hair of Plaintiff s father which originated from the asbestos-containing products... manufactured, sold, and/or distributed by Defendants. 4 Houseman-Riley s lawsuit in Georgia is still pending as of this writing. 5 Houseman-Riley filed this action on June 27, 2005. Chrysler again was named as a defendant along with 25 other defendants. In her present complaint, Houseman- Riley reasserts her allegation that she was exposed to asbestos fibers and dust emanating from the work clothing, body and hair of Plaintiff[ s]... father which originated from the asbestos-containing products... manufactured, sold, and/or distributed by Defendants. 6 III. Chrysler has moved to dismiss or stay Houseman-Riley s complaint for forum non conveniens. It contends that it has met its burden of establishing that all factors 3 Prior to the Georgia action, Houseman-Riley filed a similar suit (also involving Chrysler) in Madison County, Illinois. That case was dismissed for forum non conveniens. 4 T.I. 6679111, Ex. C at 35. 5 T.I. 7455974 at 9. 6 T.I. 6679111, Ex. D at 38. 2
weigh heavily in favor of Georgia as the preferred forum for Houseman-Riley to litigate her claims. Chrysler alleges that Georgia is particularly appropriate since Houseman-Riley, and not Chrysler, chose to file her case in Georgia prior to filing in Delaware. 7 In response, Houseman-Riley argues that Chrysler has failed to meet its burden of establishing that it will suffer overwhelming hardship if forced to litigate this case in Delaware. She further contends that the pending case in Georgia does not warrant the dismissal of this case because the existence of a prior pending action in another jurisdiction is not a dispositive factor in determining whether to dismiss or stay litigation in Delaware. 8 IV. The fundamental principle animating the doctrine of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized[.] 9 The doctrine empowers courts to decline jurisdiction when litigation within the proposed forum would generally be inconvenient, expensive or otherwise inappropriate. 10 It follows that the decision to stay or dismiss an action for 7 See T.I. 6679111 at 12. 8 See T.I. 7455974 at 7, 9, 11. 9 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1991). 10 See id. at 507-508; E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 577 A.2d 305, 306 (Del. Super. Ct. 1989) (citing Gulf Oil). 3
forum non conveniens lies within the sound discretion of a court. 11 The standard that governs a motion to dismiss for forum non conveniens are well-established in Delaware. 12 There is a presumption that a plaintiff s choice of forum is proper, particularly where there are no other previously filed actions pending. 13 A defendant, therefore, bears a heavy burden when attempting to dismiss a first-filed action based on forum non conveniens. 14 This burden requires the defendant to show with particularity that one or more of the so-called Cryo-Maid 15 factors, individually or together, imposes an overwhelming hardship on the defendant. 16 These factors are: (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 the application of Delaware law which the courts of this State 1991). 11 Williams Gas Supply Co. v. Apache Corp., 1991 WL 18091, at *1 (Del. Super. Ct. Feb.12, 12 Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Ref., L.P., 777 A.2d 774, 777-778 (Del. 2001). 13 Id. 14 Id. 15 See Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (1964), overruled in part on other grounds, Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, 261 A.2d. 520 (Del. 1969). 16 Mar-Land, 777 A.2d at 778. See also Ison v. E.I. du Pont de Nemours & Co., 729 A.2d 832, 837 (Del. 1999) (stating that analysis of a motion to dismiss for forum non conveniens has been guided since at least 1964 by what has come to be known as the Cryo-Maid factors[.] ). 4
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 the trial of the case easy, expeditious and inexpensive. 17 If there is a prior pending action in another jurisdiction, however, the Court may exercise its discretion to grant a dismissal or stay on a significantly lower showing than that required under the overwhelming hardship standard. 18 As first articulated in McWane, 19 and reaffirmed in United Phosphorus: 20 [A] Delaware action will not be stayed as a matter of right by reason of a prior action pending in another jurisdiction involving the same parties and the same issues; that such stay may be warranted, however, by facts and circumstances sufficient to move the discretion of the Court; that such discretion should be exercised freely in favor of the stay when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues; that, as a general rule, litigation should be confined to the forum in which it is first commenced, and a defendant should not be permitted to defeat the plaintiff's 17 Taylor v. LSI Logic Corp., 689 A.2d 1196, 1198-1199 (Del. 1997). See also Cryo-Maid, 198 A.2d at 684; Parvin v. Kaufmann, 236 A.2d 425, 427 (Del. 1967) (adding a sixth factor, the pendency or nonpendency of a similar action or actions in another jurisdiction, to the list of five factors first set forth in Cryo-Maid). 18 United Phosphorus, Ltd. v. Micro-Flo, LLC, 808 A.2d 761, 764 (Del. 2002). See also Williams, 1991 WL 18091, at *1. 19 263 A.2d at 283. 20 808 A.2d at 764. 5
choice of forum in a pending suit by commencing litigation involving the same cause of action in another jurisdiction of its own choosing; that these concepts are impelled by considerations of comity and the necessities of an orderly and efficient administration of justice. 21 From the legion of Delaware authority on forum non conveniens that has evolved over the years, it is now settled that two different standards apply depending upon the procedural posture of the Delaware litigation vis a vis litigation pending elsewhere - the overwhelming hardship standard (applicable when an action is first-filed in Delaware), and the McWane standard (applicable when there is a prior pending action in another jurisdiction). These two standards are consistent in that they both discourage forum shopping and they promote the orderly administration of justice by recognizing the value of confining litigation to one jurisdiction, whenever that is both possible and practical. 22 21 263 A.2d at 283 (emphasis added). See also United Phosphorus, 808 A.2d at 764. 22 United Phosphorus, 808 A.2d at 764. 6
Here, the Delaware action clearly was not first-filed; there was no race to the courthouse. 23 Houseman-Riley filed the Georgia action on January 28, 2005. 24 She did not file the Delaware action until approximately five months later on June 27, 2005. 25 The record also indicates that the Georgia action is still pending in Fulton County. 26 Because there is another prior pending action in Georgia, the Court will review Chrysler s motion under the McWane standard. To give adequate consideration to the dual principles of comity and a plaintiff s right to select the jurisdiction in which to litigate, the McWane standard requires the Court to inquire into three facets of the litigation before dismissing or staying an action filed in Delaware. 27 First, it must be determined whether there is a prior pending action elsewhere. 28 This reflects the general rule that in most cases, 23 See e.g. Azurix Corp. v. Synagro Techs., Inc., 2000 WL 193117, at *3 (Del. Ch. Feb. 3, 2000) (Noting the Court s desire to avoid rewarding the winner of a race to the courthouse. ); Royal Indem. Co. v. Gen. Motors Corp., 2005 WL 1952933, at *2 n.18 (Del. Super. Ct. July 26, 2005) ( While Delaware courts recognize that deference should be accorded to a first filed action, Delaware courts will not reward a party for winning a race to the courthouse. ). 24 T.I. 6679111 at 3. 25 Id. at 4. 26 T.I. 7455974 at 9. 27 See McWane, 263 A.2d at 283; NRG Barriers, Inc. v. Jelin, 1996 WL 377014, at *6 (Del. Ch. July 1, 1996). 28 Debari v. Nortec, LLC, 2000 WL 33108393, at *2 (Del. Super. Ct. Nov. 8, 2000). 7
litigation should be confined to the jurisdiction in which it is first commenced. 29 Second, the Court must inquire into the alignment of parties and issues in the pending actions to see if they are the same or nearly the same. Third, the Court must determine if the court in which the prior action is first-filed is capable of doing prompt and complete justice. 30 Applying the McWane standard, the Court will order a stay of Houseman- Riley s Delaware litigation. As previously noted, it is undisputed that the Georgia action pre-dates the filing of this case and is currently pending. It is also apparent that the parties and issues implicated in the Georgia and Delaware actions are the same. 31 Finally, Houseman-Riley s counsel informed the Court by letter dated December 20, 2005, that the action filed in Georgia is ongoing and that the matter 29 Id. (quoting McWane, 263 A.2d at 283). 30 Id. at *2. 31 The Georgia Complaint, in which Chrysler is a named defendant, states in pertinent part: Plaintiff alleges that she was also exposed to asbestos fibers and dust emanating from the work clothing, body and hair of Plaintiff s father which originated from the asbestos-containing products and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products manufactured, sold, and/or distributed by Defendants. T.I. 6679111, Ex. C at 23, 35. The Delaware Complaint states in pertinent part: Plaintiff, Connie June Houseman-Riley, alleges that she was exposed to asbestos fibers and dust emanating from the work clothing, body and hair of Plaintiff, Connie June Houseman-Riley s, father which originated from the asbestos-containing products and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products manufactured, sold, and/or distributed by Defendants. Id., Ex. D at 38. 8
will likely proceed to trial some time in the Summer of 2006. 32 Accordingly, the Court is satisfied that the Georgia court is capable of doing prompt and complete justice. Under McWane, a stay of this case is appropriate. 33 V. Based on the foregoing, Chrysler s motion to dismiss or stay is GRANTED. IT IS SO ORDERED. /s/ Joseph R. Slights, III Judge Joseph R. Slights, III Original to Prothonotary 32 T.I. 10732147. 33 See Schnell v. Porta Systems Corp., 1994 WL 148276, at *6 (Del. Ch. Apr. 12, 1994) (Holding that under the first-filed doctrine, instead of dismissal, it is preferable to merely stay the later-filed action because it is impossible to predict with certainty the course of earlier-filed litigation in another jurisdiction. ); DONALD J. WOLFE, JR. & MICHAEL A. PITTENGER, CORPORATE AND COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY, 5-1 at 5-3 n.4 (2000) ( [D]ismissals are rarely granted when the first-filed doctrine is invoked. ). 9