February 20, 2014
MARIA ELENA MARTINEZ, Individually and as Personal Representative of the Estate of SANTOS ROQUE ROCHA, deceased, Plaintiff Below, Appellant,
E.L DUPONT DE NEMOURS AND COMPANY, INC., Defendant Below, Appellee.
Submitted: November 6, 2013
Court Below - Superior Court of the State of Delaware, in and for New Castle County C.A. No. N10C-04-209-ASB
Upon appeal from the Superior Court. AFFIRMED.
Thomas C. Crumplar, Esquire (argued) and Jordan J. Perry, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware, for appellant Maria Elena Martinez.
John C. Phillips, Jr., Esquire (argued) and David A. Bilson, Esquire, Phillips, Goldman & Spence, P.A., Wilmington, Delaware, for appellee, E.I. du Pont de Nemours and Company.
Before HOLLAND, BERGER and JACOBS, Justices, STRINE, Chancellor  and NOBLE, Vice Chancellor.
This case is one of approximately thirty-two cases filed against the defendant-appellee, E.I du Pont de Nemours and Company, Inc. ("DuPont"), by Argentine nationals who claim that they were exposed to asbestos while working in textile plants located in Berazategui, Argentina and Mercedes, Argentina. At the time of the alleged exposures, which began in the early 1960's, the plants were owned by DuPont Argentina Sociedad Anomina ("DASA"). DASA, now known as DASRL, has its principal place of business in Argentina, and is a great-great grand-subsidiary of DuPont.
The plaintiff-appellant, Maria Elena Martinez ("Martinez"), is the wife of now deceased Argentine textile plant worker Santos Roque Rocha ("Rocha"). Her complaint alleges that her husband suffered injuries while employed by DASRL. The Superior Court dismissed Martinez's complaint pursuant to Superior Court Civil Rules 8 and 9 for inadequate pleading, for failure to state a claim under Superior Court Civil Rule 12(b)(6), for failure to join a necessary party under Superior Court Civil Rule 19, and on forum non conveniens grounds.
In this direct appeal, Martinez challenges each of the Superior Court's independent and alternate grounds for dismissal. We have concluded that the Superior Court properly exercised its discretion in dismissing the Complaint on the basis of forum non conveniens. Therefore, we do not reach or address the other issues.
A forum non conveniens motion is addressed to the trial court's sound discretion. On review, this Court determines "whether the findings and conclusions of the Superior Court are supported by the record and are the product of an orderly and logical [reasoning] process. If they are, whether or not reasonable people could differ on the conclusions to be drawn from the record, this Court must affirm . .. ."
Delaware's jurisprudence in forum non conveniens cases is well established. Where there is no issue of prior pendency of the same action in another jurisdiction, our analysis is guided by what are known as 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 the 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 the trial of the case easy, expeditious and inexpensive.
In the Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. Partnership case,  this Court explained that:
A plaintiffs choice of forum should not be defeated except in the rare case where the defendant establishes, through the Cryo-Maid factors, overwhelming hardship and inconvenience. It is not enough that all of the Cryo-Maid factors may favor defendant. The trial court must consider the weight of those factors in the particular case and determine whether any or all of them truly cause both inconvenience and hardship.
Accordingly, to prevail under the forum non conveniens doctrine, a defendant must meet the high burden of showing that the traditional forum non conveniens factors weigh so heavily that the defendant will face "overwhelming hardship" if the lawsuit proceeds in Delaware. The overwhelming hardship requirement involves a discretionary determination that has challenged this State's trial courts for many years in their efforts to make consistent dispositions of forum non conveniens motions to dismiss. Because the determination of such motions depends on a proper application of the "overwhelming hardship" standard, we take this opportunity to review its origins and meaning.
This Court has held that a defendant can satisfy the overwhelming hardship standard by convincing the trial court that the case before it "is one of those rare cases where the drastic relief of dismissal is warranted based on a strong showing that the burden of litigating in this forum is so severe as to result in manifest hardship . . . ." Although a motion to dismiss on forum non conveniens grounds is addressed to the sound discretion of the trial judge,  on several occasions this Court has reversed a trial court determination that the overwhelming hardship standard was satisfied. The experience in those cases have led some trial judges to conclude that term "overwhelming hardship" suggests an insurmountable burden for defendants. That perception, although understandable, is not accurate.
We hold, as did the Court of Chancery in IM2 Merchandising & Manufacturing, Inc. v. Tirex Corp.,  and as the Superior Court determined in this case, that "a more restrained meaning is at the essence of the [overwhelming hardship] standard." As we explained in Ison v. E.I. DuPont de Nemours & Co., the overwhelming hardship standard is not intended to be preclusive. Rather, it is intended as a stringent standard that holds defendants who seek to deprive a plaintiff of her chosen forum to an appropriately high burden.
The evolution of the adjective "overwhelming" in this context is consistent with the distinction between preclusive and stringent. As we acknowledged in Ison, the overwhelming hardship standard arose out of this Court's 1965 decision in Kolber v. Holyoke Shares, Inc. There, we summarized the proper application of the forum non conveniens dismissal standard as follows: "The dismissal of an action on the basis of the [forum non conveniens] doctrine, and the ultimate defeat of the plaintiffs choice of forum, may occur only in the rare case in which the combination and weight of the factors to be considered balance overwhelmingly in favor of the defendant." Similarly, in Williams Gas Supply Co. v. Apache Corp. ,  this Court affirmed a dismissal of a first-filed Delaware action on forum non conveniens grounds. We stated that:
[T]he Superior Court placed the burden upon [the defendant] to prove inconvenience and hardship by demonstrating that the combination and weight of the appropriate factors in a traditional forum non conveniens analysis weighed overwhelmingly in favor of its motion to dismiss or stay the plaintiffs first filed Delaware action the deference to which a valid first filed action is entitled.
In Ison, this Court also cited several other cases, including the "well-reasoned" opinion of the Connecticut Supreme Court in Picketts v. International Playtex, Inc. Picketts held that the plaintiffs "choice of forum . . . should be respected unless equity weighs strongly in favor of the defendant." In Ison, we stated that the description of the defendant's burden in Picketts was "consistent with the 'overwhelming hardship' language of the Delaware jurisprudence." We also noted that our earlier decision in Parvin v. Kaufmann had relied on the United States Supreme Court's decision in Gulf Oil Corp. v. Gilbert which required that a plaintiffs choice of forum be respected "unless the balance is strongly in favor of the defendant... ."
To summarize, although the overwhelming hardship standard is stringent, it is not preclusive. Accordingly, in deciding forum non conveniens motions to dismiss, Delaware trial judges must decide whether the defendants have shown that the forum non conveniens factors weigh so overwhelmingly in their favor that dismissal of the Delaware litigation is required to avoid undue hardship and inconvenience to them.
The Superior Court concluded that the unique circumstances presented by this foreign asbestos case created the "overwhelming hardship" required for a forum non conveniens dismissal under Delaware law. We agree with that conclusion.
Although Martinez challenges the Superior Court's forum non conveniens determination, she has not demonstrated that the dismissal constituted an abuse of discretion. The Superior Court specifically addressed this Court's forum non conveniens jurisprudence, acknowledging the high burden borne by a defendant seeking dismissal on that basis. As the record reflects, the Superior Court understood and conducted a detailed analysis of each of the Cryo-Maid factors, focusing on the multiple, practical problems and costs that litigating these Argentine occupational injury cases in Delaware would impose on DuPont and on the courts of Delaware.
More specifically, the Superior Court acted fully within its discretion under our precedent by giving weight to the novelty and importance of the legal issues presented in this case - especially since the governing law is set forth in Spanish, not English. That court permissibly concluded that those issues were more appropriately determined by the courts of the only sovereign whose law is at stake - Argentina - just as this Court has recognized that novel or important issues of Delaware law are best determined by Delaware courts. That is especially so because the issue of when parent corporations can be held liable in circumstances like those presented here has not been uniformly decided by the courts of the U.S. states that have addressed the issue.
Moreover, the policy issue underlying this case implicates important interests of Argentina itself, because its resolution could influence the willingness of corporations to conduct operations in Argentina. This specific lawsuit was a test case for a large number of cases facing DuPont that raise the same novel issue of Argentine law. For that reason Argentina's, interest in having its law established by courts having definitive interpretative authority was properly recognized by the trial court as important. Of related significance, the Superior Court properly exercised its discretion by recognizing that the plaintiff was not a resident of Delaware and that the injury her late husband allegedly suffered occurred in Argentina, not Delaware. Under our case law precedent, the presumption that the plaintiffs choice of forum should be respected "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 do not premise our affirmance on a conclusion that the Superior Court correctly decided that DuPont was not a proper defendant. Rather, we uphold the Superior Court's proper focus on a difficult and open issue of Argentine law, as supportive of that court's repeatedly expressed concerns about the resulting hardship DuPont would face. Specifically, a Delaware court was being asked to decide complex and unsettled issues of Argentine tort law, based. on expert testimony extrapolating from sources of law expressed in a foreign language, that do not arise out of factual contexts like those presented in these asbestos exposure cases. The Superior Court also properly recognized that no countervailing local interest exists in this case because "the Plaintiff is not a resident of Delaware, was not injured in Delaware, and ... the Defendant's state of incorporation has no rational connection to the cause of action."
When read in full context, the Superior Court's ruling clearly focused on the implicit and logical corollary of the fourth Cyro-Maid factor, which instructs courts to consider "whether the controversy is dependent upon the application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction." If, as our jurisprudence holds, significant weight should be accorded the neutral principle that important and novel issues of Delaware law are best decided by Delaware courts,  then it logically follows that our courts must acknowledge that important and novel issues of other sovereigns are best determined by their courts where practicable. To state it differently, just as our cases have recognized the plaintiffs substantial interest in having important open questions of Delaware law decided by our courts, a principled application of that reasoning must give reciprocal weight to a defendant's interest in having important issues of foreign law decided by the courts whose law governs the case. Thus, where, as here, the plaintiff in the case is a citizen of a foreign state whose law is at issue, and where, as here, the injury in the case occurred in that foreign state, and the case turns on unsettled issues of foreign law, a trial court may permissibly exercise its discretion under Cryo-Maid to weigh appropriately the defendant's interest in obtaining an authoritative ruling from the relevant foreign courts on the legal issue on which its liability hinges, as distinguished from a predictive, non authoritative ruling by our courts. Because the Superior Court was within its discretion in dismissing the case under the forum non conveniens doctrine, we believe it is unnecessary and inappropriate to express an opinion on the underlying Argentine law issues, which the Superior Court itself properly felt were "best determined by the Argentine courts."
Prior Law Changed
It should be evident from the foregoing discussion that there is tension among our prior forum non conveniens decisions that we cannot ignore. We respect the dissent's differing view as to how those tensions should be reconciled, and recognize that reasonable minds can part company on that point. That said, we conclude, based on the evolution of our case law and insights gleaned from that experience, that some prior decisions gave inadequate weight to the discretionary power of the trial courts to recognize the Cryo-Maid factor implicated here -the importance of the right of all parties (not only plaintiffs) to have important, uncertain questions of law decided by the courts whose law is at stake; and to the reality that plaintiffs who are not residents of Delaware, whose injuries did not take place in Delaware, and whose claims are not governed by Delaware law have a less substantial interest in having their claims adjudicated in Delaware. Many of our prior forum non conveniens decisions have acknowledged these principles; some have not. We recognize that had the analysis employed and upheld in this case been employed in the latter category of prior forum non conveniens cases, the outcome may perhaps have been different. We need not speculate on that concern, however, because the views expressed in this opinion are intended to operate prospectively, and to serve as guidance in future cases involving circumstances comparable to those presented here.
We take this opportunity to provide additional guidance on a question, left unresolved in Taylor, concerning Delaware trial court's inherent authority, to "promote the efficient administration of justice." As the Superior Court rightly recognized, the "Other Practical Considerations" factor of Cryo-Maid is neither hollow in meaning nor rigid in application. The Superior Court has interpreted Taylor to hold that, in a "proper case, " a Delaware trial court may evaluate "public interest" factors when considering a motion based on forum non conveniens.
We decline to adopt a broad mandate that would require a trial court, in all cases, to address public interest factors in its forum non conveniens analysis. Nonetheless, we agree that, in cases where it is appropriate, a trial court may weigh the efficient administration of justice and analogous considerations under the rubric of the "Other Practical Considerations" Cyro-Maid factor. If a court determines that it would be extraordinarily expensive and cumbersome for a defendant to litigate a case in Delaware, that may constitute not only serious hardship to the defendant, but also concomitant, serious, and practical problems that would make it, in the language of Cryo-Maid, not "easy, expeditious and inexpensive" for the Delaware court to retain jurisdiction. This public interest factor will seldom, in isolation, be dispositive of whether dismissal on the grounds of forum non conveniens is warranted.
Accordingly, it was not an abuse of discretion for the Superior Court to conclude, based on its review of the facts and circumstances presented, and without consideration of other potential lawsuits, that this factor favored DuPont because it would be extraordinarily expensive, cumbersome, and inconsistent with the efficient administration of justice for DuPont to litigate these 32 related matters in Delaware.
For these and the other substantial reasons articulated by the Superior Court, we hold that the Superior Court acted within its discretion in determining that the relevant forum non conveniens analysis tipped overwhelmingly in favor of dismissal. Thus, we affirm the judgment of the Superior Court on the basis of the forum non conveniens analysis set forth in its opinion dated December 5, 2012.
The dissent asserts that our majority decision is driven, not from a genuine difference of opinion regarding the proper direction of forum non conveniens law, but rather from a hidden agenda of safeguarding Delaware's corporate franchise. We disclaim any such hidden motive or agenda, which we agree should play no role in this forum non conveniens debate.
BERGER, Justice, dissenting:
The majority holds that the trial court acted within its discretion in granting DuPont's motion to dismiss on the basis of forum non conveniens. After reviewing the well established Delaware law, and noting that the trial court applied each of the Cryo-Maict factors, the majority concludes that DuPont would face overwhelming hardship if forced to litigate in Delaware. The opinion is unlike any in recent history, and it is a cause for concern.
In order to make a statement about Delaware's corporate franchise, the majority announces a non-existent "tension among our prior forum non conveniens decisions that we cannot ignore." The majority then disregards stare decisis, overrules settled law, and focuses on an issue of Argentine law, which may not be at all novel or difficult, as a basis to find "overwhelming hardship." In the past, this Court has not used its decisions to send messages on other subjects. In the past, this Court has not changed the law without a compelling reason. In the past, this Court has been forthright in its analysis of the trial court's decision and its own precedent. The majority opinion takes an unsettling new approach to this Court's decisionmaking.
At the outset, the majority reviews the "well established" Delaware forum non conveniens law. In that process, the majority relies on such cases as Ison v. E.I. DuPont de Nemours & Co. to demonstrate that the "overwhelming hardship" standard is not preclusive, and that a non-resident plaintiff s choice of forum is not as strong as that of a resident plaintiff. One would think, from reading the majority opinion, that the Ison case was dismissed on forum non conveniens grounds. It was not. Moreover, the relevant facts here are very similar to Ison, and other cases, where this Court refused to find "overwhelming hardship."
The trial court apparently recognized that dismissal would not be appropriate under existing law. Although it reviewed the six Cryo-Maid factors, the trial court stated that DuPont faces overwhelming hardship because it should not be a defendant:
The real reason that DuPont would be subject to overwhelming hardship... is not because of the problems relating to access to proof or in translating most of the testimony and documents from Spanish to English. It is because it is not DuPont-but DASRL-who employed Rocha and who owned and operated the plant and premises where he was allegedly exposed to asbestos. This circumstance ... is at the very heart of this Court's forum non conveniens analysis .. . . [T]he burden of litigating in this forum is so severe as to result in manifest hardship to DuPont because it should not have been named as a defendant in the first place.
Whether Martinez sued the wrong defendant has no bearing on whether Dupont will suffer overwhelming hardship if forced to litigate in Delaware. DuPont's status as a proper defendant requires an independent legal analysis that is separate from & forum non conveniens analysis. The majority glosses over this problem by saying that it is not premising its decision on the trial court's "wrong defendant" conclusion. Instead, it says that the trial court focused on "a difficult and open issue of Argentine law"as the basis for its forum non conveniens analysis. That dissembling statement allows the majority to address its real concern - the Delaware corporate franchise.
The majority rewrites decades of precedent, saying that it must resolve "tension" in the existing law. But there was no tension in this Court until now. To shore up a result that would have been reversed under settled law, the majority says that "under our precedent" it was appropriate for the trial court to conclude that novel and important legal issues "were more appropriately determined by the courts of the only sovereign whose law is at stake-Argentina-just as . .. novel or important issues of Delaware law are best determined by Delaware courts." It cites to cases having nothing to do with forum non conveniens while ignoring the long line of authority expressly rejecting this contention.
This Court has repeatedly held that "the trial court is not permitted to compare Delaware, the plaintiffs chosen forum, with an alternate forum and decide which is the more appropriate location for the dispute to proceed."
In Taylor v. LSI Logic Corp.,  for example, this Court specifically rejected "novel legal issues of foreign law" as a reason to dismiss under forum non conveniens:
[T]he trial court in this case did not apply the proper legal standards in dismissing this action on the ground that a Canadian court would be a "more appropriate forum."
The Court of Chancery concluded its analysis with a determination that Canada's courts have a greater interest in the outcome of this case than the Delaware courts, and that the courts of Canada should resolve the application of Canadian laws to a Canadian corporation and its investors. This may be true. Yet Delaware courts are accustomed to deciding controversies in which the parties are non-residents of Delaware and where none of the events occurred in Delaware. We conclude, therefore, that these factors alone are not sufficient to warrant interference with the plaintiffs choice of forum.
The Taylor decision is only one of more than a dozen cases holding that the applicability of foreign law, and all the inconvenience and expense associated with foreign experts, translators, etc., are not important factors that warrant dismissal on the ground of forum non conveniens. Several of those decisions expressly reject the contention that unsettled questions of foreign law warrant dismissal. In Berger v. Intelident Solutions, Inc.,  for example, this Court noted that "Delaware courts often decide legal issues- even unsettled ones-under the law of other jurisdictions. Accordingly, this Court has held that' [t]he application of foreign law is not sufficient reason to warrant dismissal under the doctrine of forum non conveniens? This Court applied the same analysis more than forty years ago in Kolber v. Holyoke Shares, Inc.,  noting that the need to resolve unsettled issues of New York law "is not sufficient reason ... for dismissal under the doctrine of forum non conveniens, either alone or in combination with the other factors mentioned. It is not unusual ... for Delaware courts to deal with open questions of the law of sister states or of foreign countries."
Just as there is no "tension" to justify overruling settled law, there is no independent support for the majority's statement that this case involves difficult and novel issues of Argentine law. The majority adopts the trial court's conclusion that the "direct participant doctrine" is the basis for Martinez's claim against DuPont. It then extensively quotes the trial court's description of the Argentine experts' discussion of that doctrine, and whether it is recognized under Argentine law. Without reading the trial court's decision, one would not realize that Martinez is not making a "direct participant" claim. He alleges that he was injured because DuPont, itself, negligently provided a hazardous product and negligently failed to instruct DASRL on the safety measures required to work with asbestos. Even DuPont's expert agreed that Argentine law recognizes such negligence claims.
The majority never discusses or decides whether the trial court correctly analyzed Martinez's claims, because if it did, the majority might not be able to get to its real point - that Delaware corporate law should be decided in Delaware and that other jurisdictions should "stay in their lane." By making novel or important issues of foreign law a significant factor in favor of dismissing a Delaware action, the majority is demonstrating its willingness to stay in its own lane. Unfortunately, this new approach means that a plaintiffs choice of forum is considerably less secure.
The majority opinion is a cause for concern. Not surprisingly, the DuPont company has never before argued forum non conveniens successfully. It is a Delaware corporation whose headquarters is in Wilmington, Delaware. But the majority holds that it would be an overwhelming hardship for DuPont to defend a toxic tort claim if litigated five blocks from its headquarters. The majority says that it is resolving "tension" in the law, when there was neither tension nor any other acceptable reason to change the law. It then reverses decades of this Court's consistent law without even a nod to the doctrine of stare decisis. The majority strains to recast the trial court's decision, and the law, in order to make the point that other jurisdictions should not interfere with the Delaware corporate franchise. That message should not drive a decision on forum non conveniens.