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Aranda v. Philip Morris USA Inc.

Supreme Court of Delaware

March 22, 2018

Alfredo Aranda, et al., Plaintiffs Below, Appellants,
v.
Philip Morris USA Inc. and Philip Morris Global Brands, Inc., Defendants Below, Appellees, Antonio Emilo Hupan, et al., Plaintiffs Below, Appellants,
v.
Philip Morris USA Inc. and Philip Morris Global Brands, Inc., Defendants Below, Appellees, Maria Noemi Biglia, et al., Plaintiffs Below, Appellants,
v.
Philip Morris USA Inc. and Philip Morris Global Brands, Inc., Defendants Below, Appellees, Pabla Chalanuk, et al., Plaintiffs Below, Appellants,
v.
Philip Morris USA Inc. and Philip Morris Global Brands, Inc., Defendants Below, Appellees, Clarisa Rodriguez da Silva, et al., Plaintiffs Below, Appellants,
v.
Philip Morris USA Inc. and Philip Morris Global Brands, Inc., Defendants Below, Appellees, Ondina Taborda, et al., Plaintiffs Below, Appellants,
v.
Philip Morris USA Inc. and Philip Morris Global Brands, Inc., Defendants Below, Appellees.

          Submitted: January 10, 2018

          Court Below: Superior Court of the State of Delaware C.A. Nos. N13C-03-068, N12C-02-171, N14C-01-021, N12C-04-042, N12C-10-236, N13C-08-092.

         Upon appeal from the Superior Court. AFFIRMED.

          Ian Connor Bifferato, Esquire, Richard S. Gebelein, Esquire and Thomas F. Driscoll III, Esquire, The Bifferato Firm, Wilmington, Delaware; Charles S. Siegel, Esquire (argued), Waters & Kraus, LLP, Dallas, Texas; Steven J. Phillips, Esquire, Phillips & Paolicelli, LLP, New York, New York and the Thornton Law Firm, Boston, Massachusetts for the Plaintiffs Below, Appellants.

          P. Clarkson Collins, Jr., Esquire and David J. Soldo, Esquire, Morris James LLP, Wilmington, Delaware; Patrick W. Dennis, Esquire (argued), Perlette Michèle Jura, Esquire, Gibson, Dunn & Crutcher LLP, Los Angeles, California; Miguel A. Estrada, Esquire and Amir C. Tayrani, Esquire, Gibson, Dunn & Crutcher LLP, Washington, D.C. for the Defendant Below, Appellee Philip Morris USA Inc.

          Donald E. Reid, Esquire, Morris Nichols Arsht & Tunnell LLP, Wilmington, Delaware; Matthew S. Hellman, Esquire (argued), Jenner & Block LLP, Washington, D.C.; Elizabeth A. Coleman, Esquire and Casey T. Grabenstein, Esquire, Jenner & Block LLP, Chicago, Illinois for Defendant Below, Appellee Philip Morris Global Brands, Inc.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

          SEITZ, Justice

         In these consolidated appeals we consider a single legal issue-whether the trial court must first determine that an available alternative forum exists before dismissing a case for forum non conveniens. We hold that an available alternative forum should be considered as part of the forum non conveniens analysis, but is not a threshold requirement. Because the Superior Court considered the availability of an alternative forum as a factor in its forum non conveniens analysis, we affirm.

         I.

         According to the allegations of the complaint, the plaintiffs are adult and minor Argentinean citizens.[1] The defendants, Philip Morris USA Inc. ("PM USA") and Philip Morris Global Brands, Inc. ("PM Global"), own Massalin Particulares, S.A., a tobacco production company. In 1984, Massalin created a brokerage company, Tabacos Nortes, to purchase tobacco from small, family-owned farms in Misiones, Argentina. The plaintiffs own and live on these farms, raising livestock and growing produce for their own consumption adjacent to the tobacco plants. Tabacos Nortes requires the farmers to purchase and use herbicides and pesticides, which it sells to the farmers on credit. Monsanto Company developed, marketed, and supplied a herbicide, called "Roundup, " which, according to the complaint, contains chemical ingredients and toxins capable of causing "genetic, teratogenic, and/or developmental injury to humans."[2] The plaintiffs mixed chemicals like Roundup and sprayed the tobacco crops by hand with chemicals from containers on their backs. As alleged in the complaint, the defendants knew that the plaintiffs' personal crops, livestock, and water would be contaminated with the herbicides and pesticides. The plaintiffs further allege that the defendants never recommended protective measures, but knew the plaintiffs lacked protective equipment and the knowledge required for safe use of the chemicals.

         The plaintiffs claim the defendants "willfully and recklessly ignored knowledge . . . of the health hazards" of the herbicides and pesticides and "exhibited reckless disregard for the health and well-being" of the plaintiffs.[3] The plaintiffs also alleged that PM USA and PM Global, in particular, "controlled and managed the tobacco production enterprise of Massalin Particulares and Tabacos Nortes to ensure that the tobacco produced in Argentina was sufficient for its American products."[4]

         The Superior Court granted PM USA's and PM Global's motion to dismiss the complaint for forum non conveniens, finding that those defendants would face overwhelming hardship if forced to litigate in Delaware.[5] Following the dismissal, the plaintiffs filed a motion under Rule 59 for clarification or, alternatively, reargument. In the motion, the plaintiffs did not challenge the Superior Court's conclusion that PM USA and PM Global would face overwhelming hardship if they were forced to litigate in Delaware. Instead, the plaintiffs argued that "[a]s a matter of logic and precedent, a threshold requirement is that the moving defendant be amenable to suit in the suggested foreign forum"-in this case, Argentina.[6] To ensure the availability of Argentina as an alternative forum, the plaintiffs asked the court, as part of its dismissal, to: (1) order the defendants to waive any defense regarding subject matter jurisdiction, personal jurisdiction, service of process, laches, and the statute of limitations; (2) order the defendants to satisfy any judgment rendered against them in Argentina; (3) grant the plaintiffs a reasonable time to conduct discovery; and (4) allow the plaintiffs to reinstate their claims in Delaware if the courts in Argentina declined to hear the case.[7]

         The Superior Court denied the reargument motion. First, the court held that an available alternative forum is not required because Delaware's forum non conveniens analysis focuses on the hardship a defendant faces in this jurisdiction- not whether the defendant is amenable to suit somewhere else.[8] Further, the court noted within its analysis that it considered Argentina an available alternative forum.

         As for the plaintiffs' requested conditions to dismissal, the court found the requests untimely because they should have been raised in their original motion and not in a Rule 59 motion for reargument.[9] The court also held that, even if plaintiffs had properly raised their request, those conditions were "not logically implicated in an analysis focusing on a moving defendant's overwhelming hardship."[10]

         II.

         The plaintiffs appeal the Superior Court's ruling on reargument that the availability of an alternative forum is not a threshold requirement before dismissing a complaint for forum non conveniens. The plaintiffs also appeal the Superior Court's refusal to condition dismissal on the defendants' agreement to waive their jurisdictional defenses and submit to jurisdiction in Argentina. "Generally, a trial court's decision to dismiss a complaint on the ground of forum non conveniens is reviewed by this Court for an abuse of discretion."[11] "Whether the trial court applied the appropriate legal standard in considering a motion to dismiss, however, presents this Court with a question of law that is reviewed de novo."[12]

         A.

         First, some context. The Latin words "forum non conveniens" mean "forum not agreeing."[13] Over time, the expression became associated with "convenience, " meaning the defendant's inconvenience of litigating the dispute in the plaintiff's chosen forum.[14] Forum non conveniens was the solution to a practical problem recognized early on by U.S. and foreign courts. With the liberalization of jurisdiction and venue requirements, plaintiffs began to file suits in courts that had little or no connection to the filing forum. Instead, they had a close connection to other jurisdictions whose courts were better suited to resolve the disputes.[15] Lacking a mechanism to transfer a dispute to another jurisdiction, the United States Supreme Court recognized forum non conveniens, which allowed courts to exercise their discretion to stay or dismiss a case in favor of a more convenient forum for resolving the dispute.[16]

         Congress displaced the federal courts' application of forum non conveniens domestically by enacting 28 U.S.C. § 1404(a). Federal courts could now transfer cases between districts "for the convenience of the parties and witnesses" and "in the interests of justice."[17] But, transnational cases in the federal courts involving foreign plaintiffs and foreign disputes remain subject to forum non conveniens analysis.[18] And state courts were free for the most part to adopt their own procedures for addressing cross-jurisdictional domestic and foreign disputes.[19]

         B.

         In Delaware, forum non conveniens has become associated with the names of the Supreme Court cases recognizing the doctrine in various contexts-General Foods Corp. v. Cryo-Maid, Inc., [20] McWane Cast Iron Pipe Corp. v. McDowell- Wellman Engineering Co., [21] and, recently, Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C.[22]

         In Gramercy, we summarized the different procedural postures of forum non conveniens disputes-a first-filed Delaware case with no case pending elsewhere (the Cryo-Maid test); a second-filed Delaware case with another first-filed case pending elsewhere (the McWane test); and a hybrid recently addressed by our Court in Gramercy-a later-filed Delaware case after another jurisdiction had dismissed a first-filed case for forum non conveniens. All these scenarios call upon the courts to apply, in one form or another, the same forum non conveniens factors. What changes is the strength of the presumptions applied. As explained in Gramercy:

McWane draws on Cryo-Maid's factors because both tests are rooted in forum non conveniens doctrine. "[W]hat distinguishes the application of [the forum non conveniens] factors in the McWane [and Cryo-Maid] contexts is 'the background presumption against which the elements are applied.'" Under Cryo-Maid, defendants must establish overwhelming hardship for Delaware courts to grant dismissal. Under McWane, Delaware courts have greater discretion in determining whether a stay or dismissal is proper.[23]

         This appeal presents the first variation, where the case is filed in Delaware with no competing case in another jurisdiction. We noted in Gramercy the factors to be applied under Cryo-Maid to evaluate a forum non conveniens motion: (1) the relative ease of access to proof; (2) the availability of a compulsory process for witnesses; (3) the possibility to view the premises, if appropriate; (4) all other practical problems that would make the trial easy, expeditious, and inexpensive; (5) whether the controversy is dependent upon Delaware law, which the courts of this State should decide rather than those of another jurisdiction; and (6) the pendency or non-pendency of a similar action in another jurisdiction.[24]

         The Superior Court applied these factors and the background presumptions, and decided that the defendants demonstrated that they would face overwhelming hardship if the litigation proceeded in Delaware. On appeal, the plaintiffs do not challenge the Superior Court's application of the Cryo-Maid factors, or its conclusion. The plaintiffs do challenge the court's treatment of an available alternative forum as one of the factors to be considered before dismissal on forum non conveniens grounds. They urge us to follow other courts and make an available alternative forum a threshold requirement before dismissal.

         Although the federal courts and most state courts require an available alternative forum before dismissing for forum non conveniens, [25] our Court never adopted this requirement. Admittedly, our cases have not directly addressed the question.[26] But, several factors point to an implicit rejection of the requirement. First, as our Court has decided forum non conveniens appeals, it has been well aware of United States Supreme Court precedent requiring an available alternative forum, but has not included it as a requirement.[27] Further, as pointed out by the Superior Court, the Court's decisions, such as Mar-Land Industrial ...


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