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Sands v. Union Pacific Railroad Company

Superior Court of Delaware

November 20, 2017

RODNEY W. SANDS, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant. RICHARD B. HUNT, Plaintiff,
v.
UNION PACIFIC RAILROAD COMPANY, Defendant.

          Submitted: October 10, 2017 and November 6, 2017

         Upon Defendant's Motions to Dismiss for Forum Non Conveniens

          DENIED Eileen M. McGivney, Esq., Marc J. Bern & Partners LLP, Attorney for Plaintiffs

          Maria R. Granaudo Gesty, Esq., Burns White LLC, Wilmington, Delaware, Anne Marie O'Brien, Esq. and Daniel J. Hassing, Lamson, Dugan & Murray, LLP, Omaha, Nebraska, Attorneys for Defendant

          MEMORANDUM OPINION

          The Honorable Andrea L. Rocanelli, J.

          Union Pacific Railroad Company ("Defendant") has moved to dismiss two separate liability actions filed by two non-Delaware residents (collectively, "Plaintiffs") on the basis of forum non conveniens. Each Plaintiff opposes Defendant's motion. The parties' submissions on this issue present identical arguments and decisional precedent. This is the Court's decision on Defendant's motions to dismiss these actions fox forum non conveniens.

         Factual and Procedural Background

         Defendant is a railroad company incorporated in Delaware with its headquarters and principal place of business in Omaha, Nebraska. Defendant operates locomotives, railroad cars, and repair facilities throughout several states, but does not directly operate in Delaware.

         Plaintiff Rodney Sands ("Sands") was employed with Defendant as a trackman from 2001-2002 and as a conductor from 2002-2015. Sands is a resident of Yukon, Oklahoma. On June 21, 2017, Sands filed a complaint against Defendant alleging that he was exposed to various toxic substances and carcinogens during the course of his employment with Defendant as a result of Defendant's negligence. Sands further alleged that the exposure contributed to his development of tonsil/throat cancer.

         Plaintiff Richard Hunt ("Hunt") was employed with Defendant from 1978 to 2014 as a machinist at Defendant's Roseville, California facility. Hunt is a resident of Roseville, California. On July 10, 2017, Hunt filed a similar complaint against Defendant alleging that he was exposed to various toxic substances and carcinogens during the course of his employment with Defendant as a result of Defendant's negligence. Hunt further alleged that the exposure contributed to his development of chronic lymphocytic leukemia/Non-Hodgkin's lymphoma.

         This is the Court's decision on Defendant's two motions to dismiss on grounds of forum non conveniens.[1]

         Legal Standard

         A motion to dismiss for forum non conveniens is addressed to the sound discretion of the trial court.[2] In order to prevail on a motion to dismiss fox forum non conveniens, the moving defendant must demonstrate that it will face "overwhelming hardship" if litigation proceeds in Delaware.[3] Where, as here, alternative forums exist but Plaintiffs have not filed an action in another jurisdiction, this Court's analysis is guided by the framework originally set forth by the Delaware Supreme Court in General Foods Corp. v. Cryo-Maid, Inc.[4] The Court must assess (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 application of Delaware law; (5) the pendency or nonpendency of similar actions in another jurisdiction; and (6) all other practical problems that would make trial of the case easy, expeditious and inexpensive.[5] Plaintiffs' choice of forum is entitled to respect unless Defendant demonstrates that litigating in Delaware is "inappropriate and inconsistent with the administration of justice."[6]

         Discussion

         Defendant argues that dismissal on grounds of forum non conveniens is appropriate because the only connection these cases have to Delaware is that Defendant is incorporated in Delaware. However, 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" such that "these factors alone are not sufficient to warrant interference with the plaintiffs choice of forum."[7] Further, the Delaware Supreme Court has reiterated that the "overwhelming hardship" standard still applies even where, as here, "the only connection to the Delaware forum [is] the domiciliary status of the business entity."[8] Therefore, upon consideration of the Cryo-Maid factors in this case, the Court finds that Defendant has not made a particularized showing that the burden of litigating in Delaware in either case will result in overwhelming hardship.

         First, with respect to the ease of access to proof, Defendant argues that the location of witnesses and evidence outside of Delaware weighs heavily in favor of dismissal. However, Delaware courts have attributed less significance to the "access to proof factor under the Cryo-Maid analysis in the context of corporate and commercial disputes involving larger, more sophisticated entities.[9] Additionally, even if Plaintiffs' medical records are physically located outside Delaware, it should not be difficult given modern technology to obtain them electronically.[10] Similarly, "modern methods of transportation lessen the Court's concern about the travel of witnesses" who live and work outside of Delaware.[11] ...


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